IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 4TH OCTOBER 2010 / 12TH ASWINA 1932 WP(C).No. 30029 of 2010(C) -------------------------- PETITIONER(S): ----------------------- V.V.SUKUMARAN, S/O.KUNHIRAMAN, ARAVATH HOUSE, PANAYAL.P.O., KASARAGOD DISTRICT. BY ADV. SRI.M.SASINDRAN RESPONDENT(S): ------------------------ 1. THE STATE ELECTION COMMISSION, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 2. THE STATE DELIMITATION COMMISSION, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 3. THE DISTRICT COLLECTOR, KASARAGOD. 4. PALLIKKARA GRAMA PANCHAYAT, PALLIKKARA, KASARAGOD DISTRICT, REPRESENTED BY SECRETARY. 5. SRI.H.DINESAN, DEPUTY COLLECTOR (LR), COLLECTORATE, KASARAGOD. 6. THE ELECTORAL REGISTRATION OFFICER, PALLIKKARA GRAMA PANCHAYAT, PALLIKKARA, KASARAGOD DISTRICT. 7. K.E.A.BACKAR, S/O.IBRAHIM, K.V.HOUSE, KALLINGAL, BEKAL FORT POST, KASARAGOD DISTRICT – 671121. ADV. SRI.T.R.RAVI FOR R7 SRI.MURALI PURUSHOTHAMAN,SC, FOR R, R2 AND R6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt WP(C).No. 30029 of 2010 APPENDIX Petitioner's Exhibits :- Ext.P1 :- Copy of the Report dated 30.1.2010 submitted by the District Collector on the objections. Ext.P2 :- Copy of the order No.D4-1065/2010/SDC dated 30.6.2010 issued by the Delimitation Commission. Ext.P3 :- Copy of the judgment dated 18.8.2010 in W.P.(C)No.21729 of 2010. Ext.P4 :- Copy of the proceedings dated 26.8.2010 issued by the District Collector. Ext.P5 :- Copy of the final voters list in respect of ward No.III. Ext.P6 :- Copy of the final voters list in respect of ward No.V. Ext.P7 :- Copy of the final voters list in respect of ward No.XV. Ext.P8 :- Copy of the certificate issued by the Secretary of the Pallikkara Grama Panchayat dated 28.9.2010. Ext.P9 :- Copy of the order No.D4-1065/2010/SDC dated 24.9.2010. Respondent's Exhibits :- NIL //True Copy// P.A. to Judge P.N.RAVINDRAN, J. --------------------------- W.P.(C) No.30029 of 2010 --------------------------------- Dated this the 4th day of October 2010 J U D G M E N T Heard Sri.M.Sasindran, learned counsel appearing for the petitioner, Sri.Murali Purushothaman, learned standing counsel appearing for respondent Nos.1, 2 and 6 and Sri.T.R.Ravi, learned counsel appearing for respondent No.7. 2. The petitioner, a resident of Ward No.5 of Pallikkara Grama Panchayat has filed this writ petition challenging Ext.P9 order passed by the State Delimitation Commission on 24.9.2010, on the petition dated 24.8.2010 submitted by the 7th respondent. Ext.P2, the delimitation order in respect of Pallikkara Grama Panchayat was passed on 30.6.2010. The 7th respondent challenged it in this Court by filing W.P.(C)No.21729 of 2010. After noticing that in view of the provisions contained in Article 243-O(a) of the W.P.(C) No.30029 of 2010 -: 2 :- Constitution of India and Section 10(3)A of the Kerala Panchayat Raj Act, 1994, the validity of Ext.P2 cannot be subjected to judicial review, this Court disposed of the writ petition by Ext.P3 judgment with the observation that the 7th respondent, the petitioner therein, can move the State Delimitation Commission under section 11 of the Kerala Panchayat Raj Act for correction of errors by filing an appropriate representation. This Court also directed that if such a representation is filed within one week from 18.8.2010, the State Delimitation Commission shall consider the same and decide whether the order of delimitation already issued suffers from any error or omission to be corrected under section 11. 3. Pursuant to the Ext.P3 judgment, the 7th respondent submitted a representation dated 24.8.2010. On that representation, the State Delimitation Commission directed the District Collector, Kasaragod to submit a report. The District Collector in turn authorized the fifth respondent to enquire into the representation and to submit a report. The W.P.(C) No.30029 of 2010 -: 3 :- fifth respondent thereafter submitted a report to the District Collector who in turn forwarded it to the State Delimitation Commission. The State Delimitation Commission heard respondent Nos.4, 5 and 7 and passed Ext.P9 order dated 24.9.2010 whereby, the boundaries of Ward Nos.1, 3, 5 and 15 were altered. 4. When the writ petition came up for hearing on 29.9.2010 before me, while admitting the writ petition, I passed an interim order staying the operation of Ext.P9 with the observation that the order of stay will not stand in the way of the State Election Commission from proceeding with the election as per Ext.P2 final delimitation order initially passed. Sri.T.R.Ravi, the learned counsel appearing for the 7th respondent contended that by Ext.P9 order, the State Delimitation Commission has only rectified the mistakes in Ext.P2 and merely because an enquiry was conducted before the mistakes were rectified does not take it out of section 11 of the Act. The learned counsel also contended relying on the decisions of the Apex Court in State of U.P. And others v. W.P.(C) No.30029 of 2010 -: 4 :- Pradhan Sangh Kshettra Samiti and others [AIR 1995 SUPREME COURT 1512] and Balachandran v. State of Kerala [1995(2) KLT 448] that in view of Article 243-O(a), the validity of Ext.P9 order is not open to challenge. 5. A reading of Ext.P9 discloses that the 7th respondent had raised 7 demands in his representation dated 24.8.2010. Demand Nos.1, 3, 5 and 7 were granted by the impugned order. A reading of the impugned order indicates that the boundary separating Ward Nos.1 and 2 was altered by stipulating that the railway line shall be the boundary separating the said two wards. After the alteration of the boundary, buildings bearing door Nos.174 to 259 were shifted to Ward No.2. Likewise, a similar exercise was carried out and the boundary separating Ward Nos.3 and 4 were altered. As regards Ward Nos.5 and 15, the State Delimitation Commission shifted some houses to other wards, namely Ward Nos.6 and 14. A reading of Ext.P9 indicates that State Delimitation Commission has altered the boundaries of the wards and has also shifted residential buildings from one W.P.(C) No.30029 of 2010 -: 5 :- ward to another. In my opinion, such an exercise is not permitted under section 11 of the Act. Section 11 only permits correction of printing mistakes if any in the order made under Sec.10 (Ext.P2 herein) or any error in Ext.P2 arising from an inadvertant omission. A mere reading of Ext.P9 indicates that a detailed enquiry was conducted and certain changes were made in the final delimitation order. Such an exercise cannot in my opinion be sustained under section 11 of the Act. 6. In this context, it is relevant to note that section 10A of the Act which empowered the State Eelection Commission to review its orders was deleted with effect from 10.1.2005. The Legislature has not conferred on the State Delimitation Commission, the power to review its orders. In such circumstances, it has to be necessarily held that section 11 of the Act does not empower the State Delimitation Commission to review its orders. In the instant case, the State Delimitation Commission has reviewed its earlier order. I am therefore of the opinion that Ext.P9 order is ultravires W.P.(C) No.30029 of 2010 -: 6 :- the Act. An order which is ultravires cannot in my opinion said to be immune from attack and therefore in my opinion, Article 243-O(a) of the Constitution of India cannot be pressed into service to contend that Ext.P9 order is immune from challenge. Section 10(3)A of the Kerala Panchayat Raj Act which declares that an order of delimitation shall have the force of law can in my opinion apply only to orders lawfully passed and not to an illegal order like Ext.P9. Ext.P9 is in my opinion beyond the power and authority conferred on the State Delimitation Commission. I accordingly hold that no grounds have been made out to vacate the interim order passed by me on 29.9.2010. The interim order is made absolute. P.N.RAVINDRAN, JUDGE. Jvt