IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 WP(C).No. 4237 of 2008(D) ------------------------------------- PETITIONER: ------------------- CHIRAYINKEEZHU A.BABU, ADVOCATE, S/O.K.ACHUTHAN, `SINDOORAM', OPP: RAILWAY STATION, CHIRAYINKIL P.O., SARKARA VILLAGE, TRIVANDRUM DISTRICT, KERALA. BY MR. T.P.KELU NAMBIAR, SENIOR ADVOCATE, ADVS. MR.K.V.SOHAN, MR.M.R.RAJESH. RESPONDENTS: ------------------------ 1. THE DELIMITATION COMMISSION, REPRESENTED BY ITS SECRETARY, NIRVACHAN SADAN, ASHOKA ROAD, NEW DELHI-110 001. 2. MR.JUSTICE KULDIP SINGH (RETD), CHAIRMAN, DELIMITATION COMMISSION, NIRVACHAN SADAN, ASHOKA ROAD, NEW DELHI-110 001. 3. MR.B.B.TANDON, MEMBER, THE DELIMITATION COMMISSION, NIRVACHAN SADAN, ASHOKA ROAD, NEW DELHI-110 001. 4. MR.N.MOHANDAS, MEMBER, THE DELIMITATION COMMISSION, RESIDING AT `SREESYLAM', VALIYA PARAMBU ROAD, ELAMAKARA P.O., ERNAKULAM-682 026. 5. MR.SHANGARA RAM, SECRETARY, THE DELIMITATION COMMISSION, NIRVACHAN SADAN, ASHOKA ROAD, NEW DELHI-110 001. W.P.(C). NO.4237/2008-D: 6. THE ELECTION COMMISSION OF INDIA, REP. BY ITS SECRETARY, NIRVACHAN SADAN, ASHOKA ROAD, NEW DELHI-110 001. 7. THE KERALA STATE ELECTION COMMISSIONER, OFFICE OF THE KERALA STATE ELECTION COMMISSION, THIRUVANANTHAPURAM. 8. THE CHIEF ELECTORAL OFFICER, KERALA, OFFICE OF THE CHIEF ELECTORAL OFFICER, THIRUVANANTHAPURAM. 9. THE UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF LAW, JUSTICE & COMPANY AFFAIRS, NEW DELHI-110 001. 10. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, TRIVANDRUM. *ADDL.R.11 IMPLEADED: 11. ANIL KUMAR.S., S/O. G. SUKUMARAN, RESIDING AT VIJAYABHAVAN, TC 3/1347, LEKSHMI NAGAR, PATTOM.P.O., THIRUVANANTHAPURAM. *ADDL. R11. IS IMPLEADED AS PER ORDER DATED 01/03/2010 IN I.A. NO. 4013/2008. R1 TO R3, R5,R6 & R8 BY MR.MURALI PURUSHOTHAMAN, SC,ELE.COMMN., OF INDIA. R7 BY MR. MURALI PURUSHOTHAMAN, S.C, K.S.E,COMMN., R9 BY MR. T.P.M. IBRAHIM KHAN, ASST. S.G., MR.SIRAJ KAROLY, C.G.C, R4 BY ADVS. MR.S.P.ARAVINDAKSHAN PILLAY, SMT.N.SANTHA, MR.S.A.ANAND, MR.PETER JOSE CHRISTO, ADDL.R.11 BY ADVS. MR. RAM MOHAN.G., MR. SHINOD G.P, MR. MANU.V. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/02/2010, THE COURT ON 01/03/2010 DELIVERED THE FOLLOWING: W.P.(C). NO.4237/2008-D: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ELECTION IDENTITY CARD ISSUED TO THE PETITIONER DT. 13/05/1997. EXT.P.2: COPY OF THE PROPOSAL FOR DELIMITATION OF THE PARLIAMENTARY AND ASSEMBLY CONSTITUENCY IN THE STATE OF KERALA UNDER SECTION 9 (2) (A) OF THE DELIMITATION ACT, 2002, DT. 23RD MARCH 2005. EXT.P.3: COPY OF THE FINAL ORDER PUBLISHED UNDER SECTION 9 (2) (D) OF THE DELIMITATION ACT, DT. 31/05/2005. EXT.P.4: COPY OF THE ORDER ISSUED BY THE R.5 ALLEGED TO BE WITH THE CONCURRENCE OF DELIMITATION COMMISSION, DT. 16TH JANUARY 2008 PUBLISHED IN STATE GAZETTE DT. 18/01/2008. EXT.P.5: COPY OF THE CONSOLIDATED ORDER PASSED BY THE ELECTION COMMISSION DT. 26/11/2008 AS DOWNLOADED FROM THE WEB SITE OF THE ELECTION COMMISSION WITH RESPECT TO THE PARLIAMENTARY AND ASSEMBLY CONSTITUENCIES IN KERALA. EXT.P.6: COPY OF THE LETTER ADDRESSED TO THE R.5. BY THE R.7 ALONG WITH THE FORWARDING LETTER TO R.2. DT. 14/12/2007. RESPONDENTS' ANNEXURES: ANNEXURE-A: COPY OF THE GUIDELINES AND METHODOLOGY FOR DELIMITATION OF ASSEMBLY AND PARLIAMENTARY CONSTITUENCIES ISSUED BY THE DELIMITATION COMMISSION OF INDIA. ANNEXURE-B: COPY OF THE DELIMITATION (AMENDMENT) ORDINANCE, 2008 (1 OF 2008) PUBLISHED IN THE GAZETTE OF INDIA DTD. 14/01/2008. ANNEXURE-C: COPY OF THE PRESIDENTIAL RODER ISSUED UNDER ARTICLES 82 AND 170 (3) OF THE CONSTITUTION OF INDIA PUBLISHED BY THE MINISTRY OF LAW AND JUSTICE IN THE EXTRAORDINARY GAZETTE OF INDIA DTD. 19/02/2008. ANNEXURE-D: COPY OF THE NOTIFICATION DTD. 23/05/2008 ISSUED BY THE R.9. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 4237 of 2008-D - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of March, 2010. JUDGMENT The important question that is raised in this writ petition is with regard to the power of the Delimitation Commission of India to issue a corrigendum notification, after the publication of the order delimiting the Constituencies under Section 10(1) of the Delimitation Act (for short 'the Act'). It is also contended that the Statute does not confer any such power and the only provision is the one conferring power under Section 11 of the Act on the Election Commission to correct any printing mistake in any order made under Section 9 or any error arising therein by way of inadvertent slip or omission. 2. The bare facts for the disposal of the writ petition are the following: The petitioner is a permanent resident and voter in Chirayinkeezhu Assembly Constituency and is a lawyer. Prior to the delimitation of the Constituencies, Chirayinkeezhu Panchayat was part of Attingal Assembly Constituency. 3. After the formation of the Delimitation Commission in terms of the Delimitation Act, 2002, Ext.P2, a proposal for delimitation of the wpc 4237/2008 2 Parliamentary and Assembly Constituencies in the State was published. In the proposal serial No.128 Attingal and serial No.129 Chirayinkeezhu were to be reserved as SC Constituencies. After the consideration of various objections submitted by several voters including the sitting M.L.A. of Attingal, viz. Shri Vakkom B. Purushothaman, the final order was published by the Commission as per Ext.P3. Going by the final order published on 31.5.2005, serial No.129 Chirayinkeezhu Assembly Constituency was removed from the list of SC reserved Constituency and instead serial No.133 Vattiyoorkavu was made as SC reserved Constituency in Thiruvananthapuram District. 4. Ext.P4 is the corrigendum notification issued nearly after three years, viz. on 16.1.2008 whereby the Delimitation Commission ordered that the status of 129 Chirayinkeezhu Assembly Constituency shall be as reserved for Scheduled Castes, ie. 129 Chirayinkeezhu (SC) instead of 133 Vattiyoorkavu (SC) and 133 Vattiyoorkavu (SC) shall be shown as a General Constituency. This is under attack on various grounds, in this writ petition. 5. Heard Shri T.P.Kelu Nambiar, learned Senior Counsel and Shri K.V. Sohan, appearing for the petitioner and Shri Murali Purushothaman, learned Standing Counsel appearing for the respondents. wpc 4237/2008 3 6. Respondents 2 to 4 are respectively, the Chairman and Members of the Delimitation Commission and the 5th respondent is its Secretary. 7. Shri T.P. Kelu Nambiar, learned Senior Counsel appearing for the petitioner contended that after Ext.P3 final order was passed, the Delimitation Commission has ceased to exist. Section 11 of the Act enables the Election commission to correct any printing mistake in any of the orders made by the Delimitation Commission under Section 9 or any error arising therein from an inadvertent slip or omission. The Delimitation Commission has no power to amend or correct the final order including any printing mistake or any error after the publication of the order under Section 10(1) of the Act. Ext.P3 is the order published by the Delimitation Commission under Section 10(1) of the Act as per the modes provided therein including Official Gazettes and going by sub-section (2), it shall have the force of law and shall not be called in question in any court. The said notification was approved by this Court in the decision in Chief Electoral Officer v. Sunny Joseph (2005 (4) KLT 599) and therefore the Commission cannot tinker with the said order, as is done presently. It is an order passed without jurisdiction as the Commission became functus officio after the publication of Ext.P3 notification. The bar under Article 329(a) of the Constitution of India to challenge in any Court the order issued by the wpc 4237/2008 4 Delimitation Commission under the Act will not apply here. Ext.P4 is totally null and void; it has to be ignored and Ext.P3 therefore has to be declared as valid for all purposes. It is also contended that going by the principles contained in Section 9(1)(c) of the Act, the SC Constituencies should not be clustered, but shall be distributed and herein these two Constituencies which are adjoining and from the same taluk, are now shown as SC reserved Constituencies. 8. Shri Murali Purushothaman, learned Standing Counsel appearing for the Election Commission of India and the Delimitation Commission, by relying upon the statements filed in support of the action, submitted that the Delimitation Commission did not become functus officio as on the date of publication of Ext.P4. In the light of the bar under Article 329(a) of the Constitution, the consolidated order Ext.P5 is having the force of law, it is beyond challenge and therefore the writ petition is not maintainable, especially in the light of the decision of the Apex Court in Meghraj Kothari v. Delimitation Commission and others (AIR 1967 SC 669 which was followed by the Division Bench of this Court in Sunny Joseph's case (2005 (4) KLT 599). Ext.P4 can also be treated as an order issued under Section 9 and therefore the same also gets protection under Section 10(2) of the Act, and the Delimitation Commission is well within its power wpc 4237/2008 5 to issue the corrigendum notification. Learned Standing Counsel relied upon various decisions of this Court and that of the Apex Court in this regard. 9. As already noticed, Ext.P2 is the proposal published by the Delimitation Commission under Section 9(2) of the Act, 2002 for the delimitation of Parliamentary and Assembly Constituencies in the State of Kerala. Ext.P3 is the order passed under Section 9(2) of the Act and published under Section 10(1) of the Act finalising the above proposal after considering objections and suggestions made in public sittings. Ext.P5 is the Delimitation of Parliamentary and Assembly Constituencies Order, 2008 made by the Election Commission, viz. the consolidated order in respect of all the States. 10. On behalf of the respondents, various documents have been produced. Annexure A is the guidelines prescribed by the Delimitation Commission for the purpose of completing the whole exercise. Annexure B is the photo copy of the Delimitation (Amendment) Ordinances, 2008 and Annexure C is the photo copy of the Presidential Order issued under Articles 82 and 170(3) of the Constitution dated 19.2.2008 by which the Delimitation order in respect of the 22 States/Union Territories have been made applicable from 19.2.2008. Thus, by Annexure C, Ext.P3 wpc 4237/2008 6 Delimitation Order, which, as corrected by Ext.P4, has been given effect from 19.2.2008. 11. Some of the provisions of the Delimitation Act, 2002 also will be relevant for considering the legal issues raised in this writ petition. The Delimitation Commission is constituted under Section 3 of the Act and under Section 4(2), the Commission shall readjust the division of each State into territorial constituencies for the purpose of elections to the House of the People and to the State Legislative Assembly on the basis of the census figures and ascertained at the census held in the year 2001. Section 9(1)(c) is important, which is extracted below: “(c) constituencies in which seats are reserved for the Scheduled Castes shall be distributed in different parts of the State and located as far as practicable, in those areas where the proportion of their population to the total is comparatively large.” 12. Section 10(1) empowers the Commission to publish its order made under Section 8 or 9 in the Gazette of India and in the official Gazettes of the States concerned and simultaneously cause such orders to be published at least in two vernacular newspapers, etc. Section 10(2) is also important for the purpose of this case which is extracted below: “(2) Upon publication in the Gazette of India, every such order shall have the force of law and shall not be called in question in any wpc 4237/2008 7 Court.” Going by sub-section (2) of Section 10, the order passed by the Commission herein, (Ext.P3) shall have the force of law and shall not be called in question in any Court. Section 11 empowers the Election Commission to correct any error arising from an order under Section 9 by inadvertent slip or omission, etc. 13. The first question to be considered is the one which is vehemently argued by the learned Senior Counsel Shri T.P. Kelu Nambiar appearing for the petitioner, that the entire exercise done by the Commission is without any power and jurisdiction and therefore null and void. Reliance is placed on Sunny Joseph's case (2005 (4) KLT 599) wherein the Division Bench after interpreting Sections 10(1) and 10(2) of the Act, held that judicial review is not permissible against the order of the Delimitation Commission. It was held by the Division Bench speaking through K.S. Radhakrishnan, J. (as he then was) that “By Article 329(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies cannot be called in question in any Court. The difference in the phraseology used in Article 329(a) and (b) may give some room for challenging the orders passed under Article 329(b) under Article 226 of the Constitution of India on certain limited grounds wpc 4237/2008 8 but not the orders relating to delimitation of constituencies which fall under Article 329(a).” The words “shall not be called in question” are absent in Article 329(b), but very much present in Article 329(a).” Article 329(a) is extracted below: “(a) 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 Art.327 or Art.328, shall not be called in question in any court.” Therefore, the Division Bench, following the decision of the Apex Court in Meghraj Kothari's case (AIR 1967 SC 669), put a lid on the order Ext.P3 beyond the pale of challenge and hence it is pointed out that as this Court also cannot touch it under Article 226 of the Constitution and hence the Delimitation Commission could not have passed Ext.P4.. 14. Learned Senior Counsel Shri T.P. Kelu Nambiar further submitted that the Delimitation Commission became functus officio after the publication of Ext.P3. The pleadings made by the respondents in this regard are relevant, since they dispute the same. It is pointed out in the statement filed on behalf of the respondents dated 18.2.2008 that after the Census Commission of India published the relevant figures of the 2001 census on 31.12.2003, the Delimitation Commission of India commenced wpc 4237/2008 9 the work of delimitation of Parliamentary and Assembly constituencies from 2004. Final orders have been published as on the date of filing of the said statement in respect of all States and Union Territories, except Assam, Arunachal Pradesh, Nagaland and Manipur. In respect of these States, the Delimitation has been deferred by the President of India under the Delimitation Act, 2002 as further amended in 2008. The Delimitation Commission was carrying out its task assigned to it under the Constitution, Representation of the People Act and the Delimitation Act then and the Commission would become functus officio only after completion of the task. It is therefore submitted that since the Delimitation Commission was functional and as no consolidated Delimitation order has been published by the Election Commission at that point of tine, Ext.P4 is perfectly within jurisdiction. It is passed in exercise of the inherent powers of the Delimitation Commission. The Election Commission can exercise the power under Section 11 only after the process of delimitation in all States is completed by the Delimitation Commission. 15. In the further statement filed on 26.3.2008, it is pointed out that in exercise of the powers under Section 10A(1) of the Act, the President of India has by order published in the Gazette of India deferred the delimitation exercise in the States of Assam, Arunachal Pradesh, Nagaland wpc 4237/2008 10 and Manipur. Annexure B is the copy of the Delimitation (Amendment) Ordinance, 2008. Annexure C published by the President of India in exercise of the powers under Articles 82 and 170(3) of the Constitution, is dated 19.2.2008. Therein, Ext.P3, corrected by Ext.P4 has been given effect from 19.2.2008. In the additional statement dated 20.10.2008 filed by the respondents, it has been pointed out that the Chairperson of the Delimitation Commission informed the Government of India about the accomplishment of delimitation work by the Delimitation Commission and expressed its intend to demit the office of the Chairperson with effect from 31.5.2008 and the Government of India in exercise of the powers conferred by Section 3 read with sub-section (6) of Section 10 of the Delimitation Act, has notified the 1st day of June 2008 as the date on which the Delimitation Commission shall cease to exist. The same has been produced as Annexure D. 16. In the light of the factual scenario pointed out above, it cannot be said that the Delimitation Commission became functus officio after publication of Ext.P3 order. As on the date of Ext.P4 order, therefore, the Commission was continuing its official functions and by Annexure D notification dated 23.5.2008 it has ceased to exist with effect from 1.6.2008. The question is whether in the light of Section 11 of the Act, wpc 4237/2008 11 conferring powers on the Election Commission of India, the power to correct any inadvertent slip or omission, etc. the Delimitation Commission retains the very same power in the absence of any express provisions under the Act. 17. It is well settled that a statutory power will be construed as impliedly authorising everything which can be regarded as incidental or consequential to the power itself, and it is also well settled that the power can be exercised from time to time as occasion requires. Normally after an order is issued by the Delimitation Commission of India under Section 9 and published under Sections 10(1) and 10(2) of the Act, the Delimitation Commission will cease to exist. It is evident from Section 11(1)(a) that the Election Commission is conferred with the power to correct any printing mistake in any of the orders made by the Commission under Section 9 or any error arising therein from an inadvertent slip or omission. The said power is given obviously to promote public interest itself, as otherwise such orders, unless allowed to be corrected, will throw the system open to criticism. 18. But, will it deny the power of the Delimitation Commission while the said Commission is in office, to correct an accidental error or omission, merely because of the publication of the order under Section 10 wpc 4237/2008 12 (1) of the Act? Herein, in Ext.P4 it is pointed out that due to purely clerical error in the EXCEL sheets relating to Thiruvananthapuram District prepared at the time of signing the final order in respect of Kerala State, the total SC population and percentage of SCs in 133-Vattiyoorkavu (SC) AC were inadvertently shown as 55530 and 24.74% respectively, which were wrong and whereas the correct figures were 23214 & 10.34% respectively. In Chirayinkeezhu there is a higher percentage of SC (15.99%). It is pointed out in Ext.P4 itself that in the light of the correct figures and in the light of the general principles adopted by the Commission for reservation of Assembly Constituencies for SC in terms of Section 9(1)(c) of the Act. 129-Chirayinkeezhu AC should qualify for reservation as SC instead of 133-Vattiyoorkavu SC. 19. Herein, I may refer to a decision of a learned Single Judge of this Court in V.V. Prakasini v. K.P.S.C. and others (1993 (1) KLJ 632) wherein it was held that public authority has power to correct apparent mistake even without a specific provision. Rule 3(c) of the KS & SSR was challenged on the ground that the power conferred is unguided. While considering the power of the Public Service Commission under Rule 3(c) to cancel an advice of a candidate which was wrongly made, T.L. Viswanatha Iyer, J. held thus in para 18: wpc 4237/2008 13 “Such a reserve power to correct mistakes committed by itself has to be located in every public authority in the interest of justice and to avoid arbitrariness. It is not uncommon - in fact it is a human falling - that errors are committed in the conduct of human affairs. Infallibility is not a human virtue, that being a quality attributable only to the Almighty. Such a power to correct apparent mistake is therefore an absolute necessity and has to be found in every authority, even without a specific provision. .....................Equally if the higher ranking given to the petitioner could have been successfully challenged as patently erroneous, why not the same result be achieved by the Commission itself rectifying what otherwise was an obvious mistake committee by it? Conferment of such a power is found in various statutes and is an essential requisite for achieving the ends of justice.” An earlier decision of this Court by the same learned Judge in Sasidharan v. Reserve Bank of India (1990 (2) KLT 573) and the decision of the Apex Court in State of Punjab v. Jagdip Singh (AIR 1964 SC 521), have been relied upon, to explain the said legal position. The Apex Court in the above decision, held thus while analysing a similar issue: “The question then is as to the effect of a void order of confirmation. When an order is void on the ground that the authority which made it had no power to make it cannot give rise to any legal rights, and as suggested by the learned Advocate General, any person could have challenged the status of the respondents as Thahsildars by instituting proceedings for the issue of a writ of quo warranto under Article 226 of the Constitution. Had such proceedings been taken it would not wpc 4237/2008 14 have been possible for the respondents to justify their status as permanent Tahsildars and the High Court would have issued a writ of quo warranto depriving the respondents of their status as permanent Tahsildars. Now, where the Government itself realises that an order made by an authority under the Government is void, is it powerless to do anything in the matter? It is bound to give effect to a void order and treat as confirmed Tahsildars persons who have no legal right to be treated as confirmed Tahsildars? Is it not open to the Government to treat the confirmation as void and notify the persons affected and the public in general of the fact of its having done so by issuing a notification of the kind it made on October 31, 1957? In our opinion where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give he will not in law to be deemed to have been validly appointed to the post or given the particular status.” 20. In the earlier decision, in Sasidharan's case (1990 (2) KLT 573), the learned Judge considered a case where the appointing authority corrected a mistake in making a wrong appointment without reference to seniority. It was held thus in para 7: “The power is inherent in any administrative authority to correct accidental mistakes committed by it, in ignorance of, or overlooking the facts. Indeed such power should be exercised, where rights of wpc 4237/2008 15 third parties have been affected by the mistaken proceedings, without their knowledge, and without their being heard, resulting in miscarriage of justice. If the power to correct inadvertent mistakes is not recognised and accepted, it may lead to perpetuation of injustice and to undesirable consequences. A person whose rights are so affected by an illegal order passed behind his back need not be compelled to rush to court to get it set aside, on pain of its being held binding otherwise. The authority concerned can itself remedy the mischief, on its being apprised of its mistake and the injustice flowing therefrom. (See in this connection Karunakaran Nambiar v. Director of Public Instruction - 1966 KLT 290). Such an order does not affect any rights of the party benefiting by the mistake, as no rights legally inhered in him by virtue of the mistaken order. Wade in his Administrative Law (Fifth Edition, page 226) points out that even where such powers are not (expressly) conferred, statutory tribunals would have power, to correct accidental mistakes, and