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. 20808 of 2010(A) -------------------------- PETITIONER(S): --------------- 1. SWAMINATHAN P., S/O. KADUNGI (LATE), MEMBER, IIIRD WARD, VELLINEZHI GRAMA PANCHAYAT, PALAKKAD DISTRICT, RESIDING AT PALLATHPADI, THIRUNARAYANAPURAM P.O., THIRUVAZHIYODE-679 514, PALAKKAD DISTRICT. 2. K.R.SUJESH, S/O. RAMAKRISHNAN, KOOLATH HOUSE, THIRUVAZHIYODE-679 514, PALAKKAD DISTRICT. (WITH WARD OF VELLINEZHI GRAMA PANCHAYAT). BY ADV. SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE RESPONDENT(S): --------------- 1. THE CHAIRMAN, STATE ELECTION COMMISSION, STATE DELIMITATION COMMISSION, STATE DELIMITATION COMMISSION, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM-695 001. 2. THE STATE DELIMITATION COMMISSION, REPRESENTED BY ITS SECRETARY, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM, PIN-695 001. 3. THE SECRETARY TO LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM-695 001. 4. THE DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM, PIN-695 001. 5. THE DISTRICT COLLECTOR, CIVIL STATION, PALAKKAD-678 001. 6. THE VELLINEZHI GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, VELLINEZHI, PALAKKAD DISTRICT, PIN-679 514. ADV. SRI.MURALI PURUSHOTHAMAN,SC,DELIMITATIO FOR R2 SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/08/2010, THE COURT ON 16/08/2010 DELIVERED THE FOLLOWING: T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.20808 of 2010-A - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 16th day of August, 2010. JUDGMENT This writ petition concerns the challenge against the delimitation of the wards of Vellinezhi Grama Panchayat. The petitioners herein had submitted their objection as per Ext.P3. According to the petitioners, even though the objections were verified, the delimitation of the wards is on an unscientific and erroneous basis. Ext.P4 is the final order issued by the Delimitation Commission. 2. Learned Standing Counsel for the Delimitation Commission has raised a preliminary objection pointing out that there is a bar under Article 243-O(a) of the Constitution of India in maintaining the writ petition. 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 wpc 20808/2010 2 constituencies made or purporting to be made under Article 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. wpc 20808/2010 3 5. The issue is no longer res integra in the light of various decisions of the Apex Court and this Court viz., 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 for 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”. wpc 20808/2010 4 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 “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 wpc 20808/2010 5 Section 10A of the Panchayat Raj Act confers the power of review on the Election Commission. While considering these aspects, it 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 wpc 20808/2010 6 for the purpose of Article 243-O. Accordingly, it was held in paragraph (7) 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, it is pointed out that there are irregularities and errors in the proposal for delimitation. It is pointed out that the stipulation that as far as possible, natural boundaries have to be fixed, has been violated. It is also pointed out that the second petitioner being a resident of wpc 20808/2010 7 Ward No.7, is affected by the delimitation. While certain houses which are very close to his house are included in Ward No.7, his house is now included in Ward No.6. 11. Evidently, the objections were verified through the enquiry officer, which also have been considered by the Commission along with similar objections and other reports. Further, as far as delimitation of constituencies are concerned, the same is being done in the light of the statutory provisions as well as guidelines adopted by the Delimitation Commission. This is not a case where there is gross violation in the matter of fixation of natural boundaries. None of those are specifically pointed out in the writ petition. For all these reasons, the writ petition is dismissed. No costs. (T.R. Ramachandran Nair, Judge.) kav/