IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 16TH AUGUST 2010 / 25TH SRAVANA 1932 WP(C).No. 20893 of 2010(J) -------------------------- PETITIONER(S): --------------- 1. K.K.A.AZEEZ, MEMBER, WARD NO.1, CHERPULASSERY GRAMA PANCHAYAT, CHERPULASSERY, RESIDING AT KUNNATH HOUSE, CHERPULASSERY, PALAKKAD-679503. 2. P.RAMAKUMAR, WARD NO.6, CHERPULASSERY GRAMA PANCHAYAT, CHERPULASSERY, RESIDING AT POKKALATH HOUSE, KARUMANAMKURUSSI P.O., PIN-679 504. 3. M.ABDUL RASHEED, MUTHEDATH HOUSE, P.O.KARALMANNA, CHERPULASSERY VIA, PIN 679506, PALAKKAD DISTRICT. BY ADV. SRI.T.RAMPRASAD UNNI SRI.VINOD.V (EDAPPUNATHIL) RESPONDENT(S): --------------- 1. THE CHAIRMAN, STATE ELECTION COMMISSION, STATE DELIMITATION COMMISSION, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695001. 2. THE STATE DELIMITATION COMMISSION, REPRESENTED BY ITS SECRETARY, GOVERNMENT OF KERALA THIRUVANANTHAPURAM, PIN-695001. 3. THE SECRETARY TO LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM-695001. 4. THE DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM, PIN-695001. 5. THE DISTRICT COLLECTOR, CIVIL STATION, PALAKKAD-678001. 6. THE CHERPULASSERY GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, CHERPULASSERY, PALAKKAD DISTRICT, PIN-679514. 7. THE JOINT REGISTRAR OF CO-OPERATIVE SOCIETIES (GENERAL), PALAKKAD/THE OFFICER AUTHORIZED BY THE DELIMITATION COMMISSION TO ENQUIRE INTO THE COMPLAINTS REGARDING THE DELIMITATION OF WARDS), PIN-679514. ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R1 SRI.MURALI PURUSHOTHAMAN,SC,DELIMITATIO FOR R2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/08/2010, THE COURT ON 16/08/2010 DELIVERED THE FOLLOWING: T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.20893/2010-Y ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 16th day of August, 2010 J U D G M E N T The writ petition concerns the challenge against delimitation of Cherpulassery Grama Panchayat. The final order passed by the Commission is produced as Ext.P6 herein. It is attacked on various grounds. 2. The commission has filed a detailed statement raising preliminary objection also. The preliminary objection is raised on the plea that the challenge against delimitation order is barred under Article 243-O(a) of the Constitution of India. 3. In the preliminary objections, it is pointed out that in the light of Article 243-O (a) of the Constitution of India, there is a bar for interference by courts in respect of delimitation of constituencies. Article 243-O (a) states as follows:- Notwithstanding anything in this Constitution-- “the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article W.P.(C). No.20893/2010 -:2:- 243K, shall not be called in question in any court.” 4. Section 10 of the Kerala Panchayat Raj Act provides detailed provisions for the delimitation of constituencies of Panchayats. We are concerned with Section 10(3) and 10(3A) which are extracted below:- “S.10(3) An order made by the State Election Commission or the Officer authorised by it or the Delimitation Commission shall not be called in question in any court of law. S.10(3A) Every order issued by the Delimitation Commission with regard to the delimitation of constituencies under this Section shall be published in the Gazette and it shall have the force of law.” Going by Section 10(3A), once the delimitation order is published in the Gazette, it shall have the force of law and, therefore, the learned Standing Counsel for the Delimitation Commission submitted that the same will attract the bar under Article 243-O (a) of the Constitution of India. Reliance is placed on various decisions of the Apex Court and this Court. 5. The issue is no longer res integra in the light of various decisions of the Apex Court and this Court viz., W.P.(C). No.20893/2010 -:3:- Meghraj Kothari v. Delimitation Commission and others [AIR 1967 SC 669], Chief Electoral Officer v. Sunny Joseph [2005 (4) KLT 599], Satyan V.V v. Election Commission of India and others [(2008) 4 KHC 245] wherein it was held that Article 329 is a bar to judicial review over the orders passed by the Delimitation Commission. In regard to the delimitation of wards of Panchayats also, the issue is governed by the decision in State of U.P v. Pradhan Singh Kshettra Samiti [1995 (Supp.) (2) SCC 305] wherein at paragraph (45), the bar under Article 243-O (a) was considered and it was held that “if we read Article 243-C, 243-K and 243-O in the place of Article 327 and Section 2 (kk), 11-F and 12-BB of the Act in place of Sections 8 and 9 of the Delimitation Act, 1950, it will be obvious that neither the delimitation of the Panchayat area nor the constituencies in the said areas and allotment of seats to the constituencies could have been challenged nor the court could have entertained such challenge except on the ground that before the delimitation, no objection were invited and no hearing was given”. 6. Recently, in Chirayinkeezhu A.Babu v. Delimitation Commission and others [2010 (1) KHC 953] the same aspect was considered by me and it was held in paragraph (27) that W.P.(C). No.20893/2010 -:4:- “Article 329(a) contains an absolute bar for this Court to consider the challenge against the order under the Delimitation Act, which is well settled by a decision of the Constitution Bench of the Apex Court in Meghraj Kothari's case [AIR 1967 SC 669]”. 7. In fact, in Association of Residents of MHOW (ROM) and another v. Delimitation Commission of India and others [(2009) 5 SCC 404] also the above legal position has been reiterated. 8. The learned Senior Counsel for petitioners relied upon the decision of a Division Bench of this Court in Kunhabdulla v. State of Kerala [2000 (3) KLT 45]. The legal position was examined by the Bench in the light of the unamended provision of the Panchayat Raj Act, 1994, namely S.10A itself. The challenge was against the validity of Section 10A. Section 10A conferred power of review on the Election Commission on an order passed under Section 10, by the authorised officer delimiting the wards. Therein, while examining the said question, this Court noticed that the provisions enable the District Collector to delimit the constituencies and Section 10A of the Panchayat Raj Act confers the power of review on the Election Commission. While considering these aspects, it W.P.(C). No.20893/2010 -:5:- was held in paragraph (5) that “Article 243-O(a) which bars the jurisdiction of any court to consider the validity of any law relating to the delimitation of the constituencies or the allotment of seats to such constituencies will not get attracted where sweeping changes are made by the Election Commission to the delimitation order duly passed and published by the District Collector after hearing objections etc., under the guise of the power of review conferred on him under Section 10A of the Act when the whole election process is yet to begin and there is ample time left to undo the harm done by the former. In such a situation, this Court can exercise jurisdiction under Article 226 of the Constitution at least for the limited purpose of testing the constitutional validity of the provision (S.10A) under which the Election Commission has passed the impugned orders varying the original order of the District Collector without going into the merits of the order itself.” Apart from the same, this Court distinguished the Meghraj Kothari's case [AIR 1967 SC 669] on the view that there is no provision in S.10A that the order passed under Section 10A by the Election Commission will have the force of law when published in the Gazette and, therefore, it will not be law for the purpose of Article 243-O. Accordingly, it was held in paragraph (7) W.P.(C). No.20893/2010 -:6:- that bar under Article 243-O(a) will not be applicable. But in the light of the Judgments of the Apex Court noticed above and that of the Division Benches referred to above, the dictum laid in Kunhabdulla's case [2000 (3) KLT 45] cannot be applied on all fours to the situation pointed out herein. Now Section 10(3A) has been added making it clear that on publication in the Gazette the order of delimitation will have the force of law. Once the notification is published in the Gazette, then going by the decision of the Apex Court, the bar applies, as it will be the law for the purpose of Article 243-O(a) and the non- obstante clause therein is important and becomes operative. Therefore, the said decision is clearly distinguishable on the facts of the said cases and the legal position laid down by the various decisions of the Apex Court. 9. In the light of the above, the preliminary objections raised by the Commission is sustainable. 10. On the merits, the learned counsel for the petitioners submitted that the delimitation process is tainted by various illegalities and irregularities. It is pointed out that the guidelines have been violated in fixing the natural boundaries like Thoothapuzha, Kakkathodu and the District and State roads. It is stated that certain commercial buildings were treated as residential W.P.(C). No.20893/2010 -:7:- buildings to enable bogus voters to vote in the ensuing elections. 11. In the statement filed by the Commission, it is mentioned that nine objections were received to the primary notification as on the last day. The objections so received were enquired through the Joint Registrar of Co- opertive Societies (General), Palakkad. On the basis of the enquiry report and on the remarks thereon by the District Collector, the petitioner and others were personally heard by the Commission on 17/03/2010. After having considered all the points and additional facts revealed during the personal hearing, the Commission passed Ext.P6 order. It is also pointed out that the total population of 19 wards will be 30730 as per 2001 census and it is also estimated that a total number of 8094 residential buildings are in Cherpulassery Grama Panchayat and the average population taken is 1617 apart from average number of residential buildings as 426 in each ward. 12. The learned counsel for the petitioners submitted that a perusal of draft voters will show that imaginary numbers have been given for the buildings. In fact, the preparation of voters list is a different process than the delimitation of wards and, it is open to the petitioners to W.P.(C). No.20893/2010 -:8:- raise objections before Electoral Registration Officer in respect of voters lists. 13. With regard to the inclusion of commercial buildings and reckoning those buildings as residential buildings, no details have been pointed out in the writ petition. With regard to the violation of natural boundaries also no details have been shown in the writ petition. Evidently, the Commission has delimited the wards after hearing all the objections and based on the report of the Enquiry Officer and the remarks of the District Collector. In that view of the matter, I do not find any reason to interfere with Ext.P6. The writ petition is dismissed without prejudice to the right of the petitioners to raise objections with regard to the voters list before the Electoral Registration Officer concerned. No costs. (T.R. Ramachandran Nair, Judge.) ms