IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 17TH AUGUST 2010 / 26TH SRAVANA 1932 WP(C).No. 22260 of 2010(F) -------------------------------- PETITIONER: -------------- K.R.REJI PRAKASH, AGED 38 YEARS, S/O.K.P.RAMAKRISHNAN NAIR, KIZHUPPILLY, PRAKASHA MANDIRAM, EDATHALA NORTH.P.O, ALUVA. BY ADV. SRI.K.V.SABU RESPONDENTS: ------------------ 1. DISTRICT COLLECTOR, COLLECTORATE, ERNAKULAM. 2. THE STATE ELECTION COMMISSION, THIRUVANANTHAPURAM. 3. THE SECRETARY, EDATHALA GRAMA PANCHAYATH, EDATHALA, ALUVA. ADDL. R4. DELIMITATION COMMISSION, REP. BY ITS SECRETARY, OFFICE OF THE DELIMITATION COMMISSION, TRIVANDRUM. (ADDL. R4 IS IMPLEADED AS PER ORDER DATED 17.08.2010 IN I.A.No.9801/2010) BY ADV. SRI.MURALI PURUSHOTHAMAN,SC FOR R2 & R4. SRI.K. RAMESH, GOVERNMENT PLEADER FOR R1. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.22260 OF 2010 --------------------------------------- Dated this the 17th day of August, 2010. J U D G M E N T The petitioner herein is the President of BJP, Edathala Grama Panchayath. He is a voter in Ward No.15 of the Panchayath. The matter concerns delimitation of the wards of the Panchayath. Exhibit P1 is the copy of the voters' list of Ward No.14 which is now numbered as Ward No.15. 2. Earlier, the total number of wards was 20 and now it has increased to 21. The population that is noted in Exhibit P2 for delimitation of Ward No.15 is 1721 and the number of houses included is 579. In 2005, the ward was having only 304 houses and the total voters were 1240. According to the petitioner, if the total number of houses is increased from 304 to 579, the number of voters will be in between 2300 and 2400. It is, therefore, pointed out that the division of wards is illegal and not in parity with other wards. 3. Exhibit P4 is the draft voters' list published for the W.P.(C) No.22260/2010 2 election in 2010 and going by the same, the total number of voters is 1232 i.e. total voters are reduced by 8 votes compared to the 2005 voters' list. Therefore, according to the petitioner, there is total disparity in the division of wards. According to the petitioner, this is maintained only to manipulate the voters' list at the time of election by enrolling bogus voters. 4. The Delimitation Commission has filed a statement as well as an additional statement. In the statement filed initially, it is contended that there is an express bar of judicial review under Article 243-O(a) of the Constitution of India. The contention is taken in the light of Section 10(3) and (3A) of the Kerala Panchayath Raj Act. It is pointed out that the final notification has been published in the Gazette and therefore it is having the force of law. 5. Reliance is placed on various decisions of the Apex Court and this Court in the statement. The matter was considered by the Apex Court in the light of Article 329 of the Constitution of India in Meghraj Kothari vs. Delimitation Commission and others (AIR 1967 SC 669) wherein a similar objection was W.P.(C) No.22260/2010 3 upheld and it was held that the writ petition cannot be maintained. The said view has been followed in various judgments by the Apex Court namely, State of U.P. vs. Pradhan Sangh Kshettra Samiti (AIR 1995 SC 1512), Anugrah Narain Singh vs. State of UP ((1996) 6 SCC 303) and Association of Residents of MHOW (ROM) and another vs. Delimitation Commission of India and others ((2009) 5 SCC 404). This Court in Chief Electoral Officer vs. Sunny Joseph (2005 (4) KLT 599) took a similar view following the decisions of the Apex Court that judicial review is not permissible against the order of Delimitation Commission. 6. In that view of the matter, the final notification cannot be a subject matter of challenge before this Court. What remains is the complaint about the voters list. Going by the statement filed by the Commission, the total number of wards have been divided to 21. The total population is 36098 as per 2001 census. The total number of residential houses is 11407. The average population is 1719 and the average number of residential houses is 543. It is explained that Ward No.15 has well defined W.P.(C) No.22260/2010 4 boundaries and the same has been constituted strictly adhering to the guidelines issued by the Commission. The draft voters' list only shows that there are 1232 voters in Ward No.15 and that during 2005, in Ward No.14, there were 443 residential buildings having 1241 voters. It is, therefore, pointed out that the apprehension of the petitioner that there are 2300 voters or above in Ward No.15 is not correct. 7. Evidently, as explained by the Commission, the population is taken based on 2001 census. The delimitation is done only in 2010. Therefore, as the increase in voters is not a matter for consideration by the Delimitation Commission, the argument raised by the petitioner that there is irregularity in the delimitation of wards, in the light of increase in the number of voters, cannot be considered at all. Actually, the Commission is delimiting the wards based on the population then existing and reflected in 2001 census. There can be variations in the total number of wards from that of the year 2005 since there is an increase or reduction in the number of houses after delimitation. 8. The petitioner is having an effective remedy to challenge W.P.(C) No.22260/2010 5 the voters' list in the light of the Registration of Electoral Rules as well as Sections 23 and 24 of the Kerala Panchayath Raj Act. Going by Section 24(3) of the Act, “no amendment, transposition or deletion of any entry shall be made under Section 23 and no direction for the inclusion of a name in the electoral roll of a constituency shall be given under this section after the last date for making nominations for an election in that constituency and before the completion of that election”. 9. Therefore, it is obvious that till the last date for making nominations, objections regarding inclusion/deletion in the voters' list or a request for inclusion in the voters' list can be considered. This is clear from Rule 5 of the Registration of Electoral Rules. 10. It is pointed out by the learned counsel for the Commission that the final voters' list has already been published. Even then, in the light of the statutory provisions noticed above, the petitioner is having a remedy to approach the Electoral Registration Officer with appropriate applications as prescribed under the Rules and in case such applications are filed, the same will be considered by the Electoral Registration Officer and still W.P.(C) No.22260/2010 6 the petitioner can pursue the same if there is a grievance with regard to the actions taken by the Electoral Registration Officer by filing an appeal also. With the above observations, this writ petition is disposed of. T.R. RAMACHANDRAN NAIR JUDGE smp