IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 14TH SEPTEMBER 2010 / 23RD BHADRA 1932 WP(C).No. 28000 of 2010(Y) -------------------------- PETITIONER(S): --------------- 1. VENUGOPALAN.V.R AGED 44 YEARS, S/O.RADHAKRISHNAN VALADYPARAMBU MADOM, TRIPUNITHURA 682 301 2. P.P.MADHAVAN AGED 67 YEARS, S/O.PAINGAL, PAMPADIYIL HOUSE, EROOR, THRIPUNITHURA. BY ADV. SRI.N.JAMES KOSHY SRI.T.SANJAY RESPONDENT(S): --------------- 1. THE SECRETARY, STATE ELECTION COMMISSION, CORPORATION OFFICE COMPLEX, L.M.S JUNCTION, TRIVANDRUM 695 033 2. THE DISTRICT ELECTION OFFICER ERNAKULAM COLLECTORATE, KAKKANADU PIN 682030 3. THE SECRETARY, THRIPUNITHURA MUNICIPALITY, THRIPUNITHURA 682 301 4. THE REGIONAL JOINT DIRECTOR OF URBAN AFFAIRS, CORPORATION SHOPPING COMPLEX, BOARDWAY ERNAKULAM 682 031 5. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM 695 001 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R1,2 & 4 BY GOVT. PLEADER SRI.V.MANU. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C) No.28000 of 2010 EXT.P1 TRUE COPY OF THE GUIDELINES NO.PA.289/2010/S.E.C. DATED 20.7.2010. EXT.P2 TRUE COPY OF THE REPRESENTATION DATED 28.7.2010. EXT.P3 TRUE COPY OF THE JUDGMENT IN W.P.(C) No.24514/2010 dated 5.8.2010. EXT.P4 TRUE COPY OF THE ORDER NO.G5-2827/2010 DATED 21.8.2010 ISSUED BY THE 4TH RESPONDENT. EXT.P5 TRUE COPY OF THE JUDGMENT DATED 31.8.2010 IN W.P.(C) NO.26963 OF 2010 EXT.P6 TRUE COPY OF THE ORDER DATED 3.9.2010 ISSUED BY THE 4TH RESPONDENT. EXT.P7 TRUE COPY OF THE LIST OF WARDS RESERVED ON 4.9.2010 IN FORM 2. //TRUE COPY// P.A. TO JUDGE. P.N.RAVINDRAN, J. ------------------------------- W.P.(C) No.28000 of 2010 ------------------------------- Dated this the 14th day of September, 2010 J U D G M E N T The first petitioner is a resident of Ward No.27 of Tripunithura Municipality. He is also the Councillor representing Ward No.27 of Tripunithura Municipality. Ward No.27 was an unreserved constituency during the elections held in the year 2005. It is stated that the first petitioner intends to contest the ensuing elections from the same constituency, which is presently Ward No.39. The second petitioner is a member of a scheduled caste community (Pulaya) and a resident of Ward No.8 of Tripunithura Municipality. 2. In this writ petition, petitioners challenge Ext.P6 proceedings issued by the Regional Joint Director of Urban Affairs, Kochi, by which the said authority rejected the objections raised by the first petitioner to allotment/reservation of seats in favour of scheduled caste candidates including women candidates under the provisions of Article 243(T) of the Constitution of India read with Sections 6(9) and 69 of the Kerala Municipality Act, 1994. The petitioners state that during the elections held in the year 2005, Tripunithura Municipality consisted of 51 constituencies of which 15 seats were reserved for W.P.(C) No.28000/2010 2 women candidates, 6 seats were reserved for scheduled caste women candidates, and 4 seats were reserved for scheduled caste candidates other than women; that after the delimitation exercise, the number of constituencies stands reduced to 49; that the number of seats to be reserved for scheduled caste candidates and for scheduled caste women candidates was rightly fixed as 3 each, but in identifying the constituencies to be reserved, the State Election Commission did not take into account the 15 constituencies which were reserved in favour of women in the last elections (2005) while identifying the three constituencies to be reserved for schedule caste candidates other than women and in excluding 3 constituencies reserved for scheduled caste candidates other than women while identifying the 22 constituencies to be reserved for women candidates in the ensuing elections. It is contended that the procedure followed by the State Election Commission is arbitrary and illegal, and therefore, requires to be interfered with. 3. Sri.Murali Purushothaman, the learned standing counsel appearing for the State Election Commission has filed a statement dated 13.9.2010. The said statement discloses that 21 constituencies which were reserved constituencies during the last elections (2005) were excluded for the purpose of identifying the W.P.(C) No.28000/2010 3 constituencies to be reserved for scheduled caste candidates including scheduled caste women and women candidates; that Ward Nos.26, 30 and 40 were identified and reserved for scheduled caste women candidates; that Ward Nos.16, 32 and 47 were identified and reserved for scheduled caste candidates other than women and that the remaining 22 constituencies which were not reserved constituencies in the last elections were reserved for women candidates. It is stated that after the 21 constituencies which were reserved constituencies during the last elections were excluded, Ward Nos.26,30 and 40 were identified and reserved for scheduled caste women candidates by draw of lots from among the 28 remaining constituencies; that the wards to be reserved for scheduled caste candidates other than women were identified and reserved by draw of lots from the remaining 25 constituencies and that after the draw of lots was held as aforesaid for scheduled caste candidates including women, the remaining 22 wards were reserved for women. Annexure-C produced along with the statement is the order passed by the Regional Joint Director of Urban Affairs, the fourth respondent in the writ petition, determining the wards to be reserved for women/SC candidates including women. It is contended that in view of the provisions in Article 243 (ZG) of the Constitution of India, the allotment of seats W.P.(C) No.28000/2010 4 made by the fourth respondent is immune from challenge. 4. I heard Sri.N.James Koshy, learned counsel appearing for the petitioners and Sri.Murali Purushothaman, learned standing counsel appearing for the State Election Commission. The learned counsel for the petitioners contended that the State Election Commission ought to have after identifying and reserving 3 constituencies out of 28 constituencies for scheduled caste women candidates identified the 3 seats to be reserved for schedule caste candidates other than women from among the remaining 25 constituencies and the 15 constituencies which were reserved in favour of women candidates in the last elections. In other words, the learned counsel contended that the 3 constituencies to be reserved for scheduled caste candidates other than women ought to have been identified from among 40 constituencies instead of 25 as was done by the State Election Commission. The learned counsel contended that for identifying the constituencies to be reserved for women, the State Election Commission ought to have taken into account the 22 constituencies left after 3 constituencies were reserved for scheduled caste women candidates and also the 3 constituencies which during the elections held in the year 2005 were reserved in favour of scheduled caste candidates other than women. In short, the W.P.(C) No.28000/2010 5 contention of the learned counsel for the petitioners is that the field of choice was narrowed down and restricted to 25 in the case of scheduled caste candidates other than women when the field of choice should have been 40, and in the case of women candidates, the field of choice ought to have been 25 instead of 22. 5. Per contra, the learned standing counsel appearing for the State Election Commission contended that it was to avoid successive reservation of constituencies in favour of women candidates or scheduled caste candidates including women that the Commission decided to exclude all the 21 constituencies which were reserved constituencies during the last elections, for the purpose of identifying and reserving constituencies for women/scheduled caste candidates including women. In the case of Tripunithura Municipality, it was possible to identify such reserved constituencies from among the constituencies which were not reserved during the last elections, it is submitted. The learned counsel contended that it was this practice that was followed by the State Election Commission throughout the State of Kerala and that in view of the bar under Article 243 (ZG) of the Constitution of India, the decision taken by the Commission is immune from challenge. The learned counsel also relied on the decision of the Apex Court in Anugrah Narain Singh and another W.P.(C) No.28000/2010 6 v. State of U.P. And others (1996 (6) SCC 303) in support of his contention that the validity of laws relating to Delimitation and the allotment of seats made under Article 243 (ZA) cannot be questioned in any court. 6. I have considered the submissions made at the Bar by the learned counsel appearing on either side. It is evident from the statement filed by the learned standing counsel for the State Election Commission and the submissions made at the Bar by the learned standing counsel that the constituencies which are to be reserved for women and scheduled caste candidates including women were identified after excluding the 21 constituencies which were reserved constituencies during the last elections. It is also evident that the Commission resorted to the said practice with a view to avoid successive reservation of constituencies in favour any particular group or groups of candidates. However, in my opinion, the 21 constituencies which were reserved during the last elections could not have been ignored for all purposes what so ever. Out of the 21 constituencies which were reserved constituencies during the last elections, 15 were reserved for women, 3 for scheduled caste women and 3 for scheduled caste candidates other than women. As what is prohibited and what is sought to be prevented is successive W.P.(C) No.28000/2010 7 reservation of constituencies in favour of the same category, the Commission ought to have, in my opinion, taken into account the 15 constituencies which were reserved in favour of women candidates during the last elections, for the purpose of identifying the constituencies to be reserved in favour of scheduled caste candidates other than women. Likewise, instead of simply reserving the remaining 22 constituencies in favour of women candidates, after reserving 3 seats each for scheduled caste candidates and scheduled caste women candidates, the Commission ought to have also considered the 3 constituencies which were reserved in favour of scheduled caste candidates other then women in the last elections, for the purpose of identifying the constituencies to be reserved for women candidates in the ensuing elections. The procedure adopted by the Commission for identifying the constituencies to be reserved in the ensuing elections is, in my opinion, not legal or proper. I therefore find merit and force in the submission made by the learned counsel for the petitioners that for identifying the 3 constituencies to be reserved for scheduled caste candidates other then women, the Commission should have also taken into account besides the remaining 25 constituencies, the 15 constituencies which were reserved in favour of women candidates during the last elections and W.P.(C) No.28000/2010 8 for identifying and reserving 22 constituencies for women candidates, the Commission should have also taken into account the 3 constituencies which were reserved for scheduled caste candidates other than women in the last elections. However, in view of the authoritative pronouncement of the Apex Court in Anugrah Narain Singh and another v. State of U.P. And others (supra) and the stipulations in Article 243(ZG) of the Constitution of India, no relief can be granted to the petitioners. Further, the elections are round the corner. If, at this stage, this Court interferes with the reservation of constituencies made by the State Election Commission, it will have the effect of delaying the election process. The writ petition fails and is accordingly dismissed. No costs. P.N.RAVINDRAN, Judge. nj.