Kerala High Court
K. T. Eldhose vs State Of Kerala on 4 November, 2020
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 04TH DAY OF NOVEMBER 2020 / 13TH KARTHIKA,
1942
WP(C).No.21038 OF 2020(D)
PETITIONER:
K. T. ELDHOSE, AGED 60 YEARS
S/O. K.P THOMAS, KAKKASSERI HOUSE,
MATTOOR, KALADY P.O, ERNAKULAM
(MEMBER, WARD NO. 1 OF KALADY GRAMA
PANCHAYAT, ERNAKULAM DISTRICT)
BY ADVS.
SRI.T.RAMPRASAD UNNI
SRI.S.M.PRASANTH
SRI.G.RENJITH
SMT.R.S.ASWINI SANKAR
SRI.T.H.ARAVIND
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
DEPARTMENT OF LOCAL SELF GOVERNMENT
INSTITUTIONS, GOVERNMENT OF KERALA.,
THIRUVANANTHAPURAM 695 001
2 THE STATE ELECTION COMMISSION,
KERALA JANAHITHAM, TC 27/6(2), VIKAS BHAVAN,
THIRUVANANTHAPURAM 695 033
3 THE DISTRICT COLLECTOR,
ERNAKULAM, COLLECTORATE, CIVIL STATION,
KAKKANAD, PIN 682 030
4 THE KALADY GRAMA PANCHAYAT
REPRESENTED BY ITS SECRETARY, KALADY,
ERNAKULAM DISTRICT, PIN 683574
R2 BY SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM
W.P.(C). Nos.21038 & 21821 of 2020
..2..
R4 BY SHRI.DINESH MATHEW J.MURIKAN, SC,
KALADY GRAMA PANCHAYAT
R1 & R3 BY SRI. C.M. NAZAR, SPL. GP,LSGD
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 27-10-2020, ALONG WITH WP(C).21821/2020(C), THE COURT
ON 04-11-2020 DELIVERED THE FOLLOWING:
W.P.(C). Nos.21038 & 21821 of 2020
..3..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 04TH DAY OF NOVEMBER 2020 / 13TH KARTHIKA,
1942
WP(C).No.21821 OF 2020(C)
PETITIONER:
BAIJU SEBASTIAN, AGED 51 YEARS
S/O.SEBASTIAN, KOLLAMPARAMBIL HOUSE,
KIZHATHADIYOOR, PALA, KOTTAYAM-686575.
BY ADV. SRI.P.DEEPAK
RESPONDENTS:
1 STATE ELECTION COMMISSION
KERALA, CORPORATION OFFICE COMPLEX,
L.M.S.JUNCTION, PALAYAM,
THIRUVANANTHAPURAM-695033.
2 PALA MUNICIPALITY,
MUNICIPAL OFFICE, PALA, PIN-686575.
(REPRESENTED BY ITS SECRETARY).
3 REGIONAL JOINT DIRECTOR OF URBAN AFFAIRS,
RSNRA-29, Q.A.C.ROAD, KARBALA, KOLLAM,
KERALA-691001.
R1 BY SHRI.MURALI PURUSHOTHAMAN,
SC,K.S.E.COMM
R1 & R3 BY SRI. C.M. NAZAR, SPL. GP,LSGD
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 27-10-2020, ALONG WITH WP(C).21038/2020(D), THE COURT
ON 04-11-2020 DELIVERED THE FOLLOWING:
W.P.(C). Nos.21038 & 21821 of 2020
..4..
C.R.
P.B.SURESH KUMAR, J.
-------------------------------------
W.P.(C). Nos.21038 & 21821 of 2020
-----------------------------------------------
Dated this the 4th day of November, 2020
JUDGMENT
Common questions relating to allotment of seats to various constituencies in the ensuing election to the local bodies in the State arise for consideration in these writ petitions. These writ petitions are, therefore, disposed of by this common judgment.
2. Before dealing with the questions, the facts which are not in dispute need to be stated. The petitioner in W.P.(C) No.21038 of 2020 is a member of Kalady Grama Panchayat, elected from Ward No.1 in the election held during 2015. He is desirous of contesting from Ward No.2 in the ensuing election, as Ward No.1 which was a general seat during the previous election would be reserved naturally for a W.P.(C). Nos.21038 & 21821 of 2020 ..5..
reserved category in the ensuing election. Ward No.2 was a reserved seat for women in the election held during 2010, and for candidates belonging to Scheduled Castes in the election held during 2015. According to the petitioner, having been successively reserved for two consecutive elections, the said constituency cannot be reserved for any category in the ensuing election. Ward No.2, however, is reserved for women in the ensuing election by the authorized officer of the State Election Commission (the Election Commission). The petitioner, therefore, challenges the said decision in the writ petition. He also seeks appropriate directions to the respondents to keep Ward No.2 of Kalady Grama Panchayat as a general seat in the ensuing election.
3. Coming to W.P.(C) No.21821 of 2020, the petitioner is a person residing in Ward No.6 of the Pala Municipality. As in W.P.(C) No.21038 of 2020, Ward No.6 of Pala Municipality was a seat reserved for women in the election held during 2010 and for candidates belonging to Scheduled Castes in the election held during 2015. As in W.P.C) No.21038 of 2020, the petitioner in this case also W.P.(C). Nos.21038 & 21821 of 2020 ..6..
maintains that having been successively reserved for two consecutive elections, the said constituency cannot be reserved for any category in the ensuing election. The said constituency, however, is reserved for women in the ensuing election by the authorized officer of the Election Commission. The petitioner, therefore, challenges the said decision in the writ petition. He also seeks appropriate directions to the respondents to keep Ward No.6 of Pala Municipality as a general seat in the ensuing election.
4. In the statements filed in these matters by the Election Commission, it was contended that the writ petitions are barred under Articles 243-O(a) and 243-ZG(a) of the Constitution. As regards the merits, it is stated by the Election Commission in the statements filed in W.P.(C) No.21038 of 2020 that the total strength of Kalady Grama Panchayat is 17; that the number of seats reserved for candidates belonging to Schedule Castes is one; that the number of seats reserved for women belonging to Scheduled Castes is one; that the number of seats reserved for women including women belonging to Scheduled Castes is nine; that W.P.(C). Nos.21038 & 21821 of 2020 ..7..
the general seats would, therefore, be only seven; that since successive reservation of a seat for different categories is not prohibited, the seven general seats and Ward No.2 which was a seat reserved for candidates belonging Scheduled Castes in the 2015 election, were earmarked for women in the ensuing election and Ward No.2 became a women constituency accordingly. It is also stated that the remaining reserved seats were, thereupon, determined by drawing lots out of the reserved seats in the election held during 2015, after ensuring that no constituency is reserved successively for any category and that the decision taken by the officer authorized by the Election Commission in this regard is in accordance with the Constitution and the laws. Coming to W.P.(C) No.21821 of 2020, the stand taken by the Election Commission is that since Ward No.6 was a constituency reserved for candidates belonging to Scheduled Castes in the election held during 2015, the same along with other general seats in the election held during 2015 were earmarked for women in the ensuing election and the remaining seats to be reserved were thereupon determined by drawing lots from out of the W.P.(C). Nos.21038 & 21821 of 2020 ..8..
reserved seats in the election held during 2015, after ensuring that no seat is reserved successively for any category.
5. Heard the learned Senior Counsel Sri.K.Ramakumar for the petitioner in W.P.(C) No.21038 of 2020, Adv.Sri.P Deepak for the petitioner in W.P.(C) No.21821 of 2020 as also Adv.Sri.Murali Purushothaman, the Standing Counsel for the Election Commission.
6. Placing reliance on Articles 243D and 243T of the Constitution, Section 7 of the Kerala Panchayat Raj Act, 1994 and Section 6 of the Kerala Municipality Act, 1994, the learned counsel for the petitioners contended that the scheme of the constitutional and statutory provisions aforesaid is that the reserved seats are to be rotated periodically among the constituencies and the procedure followed by the officers authorized by the Election Commission in the matter of rotating the reserved seats is against the principles of rotation. It was conceded by the learned counsel that since more than 50% of the seats are reserved for various categories, successive reservation of a few seats would be inevitable, but the Election Commission is obliged to ensure W.P.(C). Nos.21038 & 21821 of 2020 ..9..
that successive reservation of the same constituencies is brought down to a minimal while allotting reserved seats. It was also contended by the learned counsel that when seats could be allotted in such a fashion that a particular constituency is not reserved successively for more than two elections, the procedure adopted by the Election Commission for allotment of seats in such a manner that a particular constituency would go reserved for more than two elections is against the constitutional scheme. It was also argued by the learned counsel that the faulty procedure is adopted since the Election Commission is maintaining the wrong notion that the constitutional and statutory provisions prohibit only successive reservation of a seat for a particular category. It was submitted by the learned counsel that the constitutional and statutory provisions only contemplate two categories of seats, viz, reserved seats and unreserved seats. It was pointed out that the Election Commission has, however, made a further classification among the reserved seats between seats reserved for women candidates including women candidates belonging to Scheduled Castes and Scheduled Tribes and W.P.(C). Nos.21038 & 21821 of 2020 ..10..
seats reserved for candidates belonging to Scheduled Castes and Scheduled Tribes, and treated the seats reserved for candidates belonging to Scheduled Castes and Scheduled Tribes at par with general seats. It was argued that it was on account of that wrong notion that the seats which were reserved for Scheduled Castes and Scheduled Tribes candidates in the election held during 2015, have been straight away earmarked for women candidates in the ensuing election. It was argued that treating reserved seat as a general seat for the purpose of determining the seats to be reserved for women candidates in the ensuing election is per se arbitrary and discriminatory, for the same would adversely affect the right of persons who are residing in those constituencies to elect their representatives or to be elected as the representatives of the persons residing in the constituencies. It was also argued by the learned counsel that if the procedure adopted by the Election Commission is upheld, possibility of Ward No.2 of Kalady Grama Panchayat and Ward No.6 of Pala Municipality being reserved for Scheduled Castes and Scheduled Tribes candidates in the next W.P.(C). Nos.21038 & 21821 of 2020 ..11..
election cannot be ruled out. If that be so, the position would be that those seats which now stand reserved for a continuous period of 10 years would continue to be reserved for another 10 years. According to the learned counsel, the aforesaid situation is something which the lawmakers have never contemplated.
7. Per contra, the learned Standing Counsel for the Election Commission contended that Articles 243-O(a) and 243-ZG(a) of the Constitution bar this Court from examining the correctness of the allotment of seats made by the Election Commission, as all the constituencies in the various local bodies in the State are constituencies delimited prior to 2010 election. The Standing Counsel has placed reliance on a large number of decisions of the Apex court as also of this court, in support of that contention. The decisions cited are Meghraj Kothari v. Delimitation Commission and others, AIR 1967 SC 669, N.P. Ponnuswamy v. The Returning Officer, Namakkal Constituency, AIR 1952 SC 64, Smt. Indira Nehru Gandhi v. Shri Raj Narain, AIR 1975 SC 2299, State of U.P. v. Pradhan Sangh Kshettra Samiti, AIR 1995 SC W.P.(C). Nos.21038 & 21821 of 2020 ..12..
1512, Raja Ram Pal v. Hon'ble Speaker, Lok Sabha and others, (2007) 3 SCC 184, Anugrah Narain Singh v. State of U.P., (1996) 6 SCC 303, Chief Electoral Officer v. Sunny Joseph, 2005 (4) KLT 599, Sathyan V.V. v. Election Commission of India, 2008 (4) KHC 245, Chirayinkeezhu A. Babu v. Delimitation Commission, 2010 (2) KLT 957, Nanu v. State Delimitation Commission, 2010 (3) KLT 932, and Balachandran v. State of Kerala, 1995 (2) KLT 448. As regards the merits of the matter, the learned Standing Counsel submitted that the constitutional and statutory provisions only prohibit successive reservation of the same constituency for the same reserved category and since successive reservation of a few constituencies are inevitable, procedure for allotment of seats is prescribed in such a fashion that a constituency reserved for a particular category is not reserved successively for that category. It was also argued by the learned Standing Counsel that unless this court holds that the procedure adopted by the Election Commission is contrary to the constitutional and statutory provisions, there is no reason why this court should interfere with the procedure W.P.(C). Nos.21038 & 21821 of 2020 ..13..
prescribed by the Election Commission, if at all the writ petitions are maintainable.
8. In reply to the arguments advanced by the learned Standing Counsel for the Election Commission as to the maintainability of the writ petitions, Adv.Sri.P.Deepak submitted that the constitutional provisions, viz, Articles 243- O(a) and 243-ZG(a) do not preclude this Court from entertaining writ petitions of the instant nature and what is prohibited in terms of said provisions is only challenge against the validity of any law relating to the delimitation of constituencies and allotment of seats to such constituencies made or purporting to be made under Articles 243-K and 243- ZA of the Constitution. It was argued that the petitioners do not challenge the validity of any law relating to delimitation of constituencies nor do they challenge any law relating to allotment of seats to such constituencies made under Article 243-K or Article 243-ZA of the Constitution and what is under challenge in the writ petitions is only the procedure followed by the Election Commission in the matter of distributing the reserved seats among the constituencies and the bar under W.P.(C). Nos.21038 & 21821 of 2020 ..14..
Articles 243-O(a) and 243-ZG(a) of the Constitution do not, therefore, apply to these cases, submits the learned counsel.
9. I have considered the submissions made by the learned counsel for the parties on either side. The questions fall for consideration are (1) whether the writ petitions are barred by Articles 243-O and 243-ZG of the Constitution and (2) if not, whether the Election Commission is justified in reserving Ward No.2 of Kalady Panchyat and Ward No.6 of Pala Municipality, which were successively reserved in the two previous elections for two different reserved categories, again for a reserved category in the ensuing election.
10. Question 1: The Constitutional provisions relevant in the context of W.P.(C) No.21038 of 2020 are Articles 243-K and 243-O. The said Articles read thus:
"243-K. Elections to the Panchayats.-- (1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor.
(2) Subject to the provisions of any law made by the Legislature W.P.(C). Nos.21038 & 21821 of 2020 ..15..
of a State, the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine:
Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment.
(3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1).
(4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats."
xxxxxxxx "243-O. Bar to interference by Courts in electoral matters.--
Notwithstanding anything in this Constitution,--
(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 article 243K, shall not be called in question in any court;
(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."
W.P.(C). Nos.21038 & 21821 of 2020 ..16..
Similarly, the constitutional provisions relevant in the context of W.P.(C) No.21821 of 2020 are Articles 243-ZA and 243-ZG. The said Articles read thus:
"243-ZA. Elections to the Municipalities.-- (1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities shall be vested in the State Election Commission referred to in article 243K.
(2) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Municipalities."
xxxxxxx "243-ZG. Bar to interference by Courts in electoral matters.--
Notwithstanding anything in this Constitution,--
(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 article 243ZA shall not be called in question in any court;
(b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State."
No doubt, Articles 243-O(a) and 243-ZG(a) of the Constitution W.P.(C). Nos.21038 & 21821 of 2020 ..17..
bar challenge against the validity of any law relating to delimitation of constituencies and allotment of seats to such constituencies, made or purporting to be made under Articles 243-K and 243-ZA of the Constitution. As noted, the case set out by the Election Commission is that the constituencies in Kalady Grama Panchayat and Pala Municipality are delimited constituencies and therefore, allotment of seats to the constituencies in the said local bodies cannot be challenged. As explicit from Articles 243-O(a) and 243-ZG(a) of the Constitution, in order to apply the bar under the said provisions, the validity of a law relating to the delimitation of constituencies or relating to allotment of seats to such constituencies made or purporting to be made either under Article 243-K or Article 243-ZA of the Constitution should be under challenge. A perusal of Articles 243-K(4) and 243-ZA(2) of the Constitution would indicate that the laws referred to in the said Articles are laws made by the concerned legislatures. Section 7 of the Kerala Panchayat Raj Act and Section 6 of the Municipality Act are certainly laws falling within the scope of the aforesaid Articles. The aforesaid statutory provisions, W.P.(C). Nos.21038 & 21821 of 2020 ..18..
however, are not under challenge in the writ petitions. The said statutory provisions, of course, confer power on the State Government to fix the number of seats to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes as also women belonging to Scheduled Castes and Scheduled Tribes. Orders issued by the State Government fixing the number of seats to be reserved for the aforesaid categories are also not under challenge. On the other hand, what is under challenge in the writ petitions is the procedure adopted by the officers authorized by the Election Commission in the matter of distributing the aforesaid reserved seats as also seats reserved for women among the constituencies. The pointed question is as to whether the procedure adopted by the Election Commission in the matter of distributing the reserved seats among the constituencies could be regarded as laws falling within the scope of Articles 243-K and 243-ZA of the Constitution. A notification issued by the Election Commission of the National Capital Territory of Delhi, distributing the reserved seats among the constituencies of Delhi Municipal Corporation was under challenge in a batch of W.P.(C). Nos.21038 & 21821 of 2020 ..19..
writ petitions before the Delhi High Court in Ramesh Dutta v. State Election Commission, 2007 SCC Online Del 365. As in the instant case, the Election Commission of the National Capital Territory of Delhi has raised a preliminary objection in the said cases also as to the maintainability of the writ petitions, placing reliance on Article 243-ZG(a) of the Constitution. The Delhi High Court repelled the said contention holding that the said decision of the Election Commission would not fall within the scope of "the law" as provided for under Article 243-ZA of the Constitution and therefore, the bar under Article 243-ZG(a) of the Constitution does not apply. The relevant passages of the judgment read thus:
17. . . . . . For Clause (a) to apply, the 'validity' of a 'law' relating to the delimitation of constituencies or a 'law' relating to the allotment of seats to such constituencies must be in question. Moreover, such 'law' must have been made or purported to have been made under Article 243ZA. What is challenged in the present petitions is the notification dated 17.2.2007. Would this notification fall within the meaning of 'law'? Could it be said that the notification, if it is 'law', was made or purports to have been made under Article 243ZA?
These are some of the questions that need to be answered. . . ......
xxxxxx W.P.(C). Nos.21038 & 21821 of 2020 ..20..
18. A reference to Sub-article (2) of Article 243ZA would immediately make it clear that the 'law' that is referred to in Article 243ZG must be a 'law' made by the Legislature of a State and it must make provision with respect to matters relating to or in connection with elections to a municipality. The provisions of Sections 3 and 5 of the DMC Act are certainly 'law' of this kind. But, their validity is not in question. It is the notification which has purportedly been issued under these provisions that is under challenge . . . . .
xxxxxx
23. Coming back to the question of whether the Notification of 17.2.2007 is 'law' as is referred to in Articles 243ZA and 243ZG of the Constitution, I find that the 'law' that is referred to in Article 243ZA is a law made by a Legislature of a State. The notification dated 17.2.2007 has been issued, not by a legislative body, but by the exercise of a power under a statutory provision for issuance of such a notification. So, though in the wider sense, the said notification may fall within the ambit of 'law' as is commonly understood, it would not be 'law made by a Legislature of a State'. An examination of the issue of whether the notification was issued in exercise of a legislative function or an administrative function, may not be necessary, inasmuch as Article 243ZA of the Constitution speaks of a 'law made by a Legislature' and not a law made by a delegate in exercise of a legislative function under a particular statute. However, since this issue was discussed in the course of arguments, it would be instructive to note that the Supreme Court in the case of UOI v. Cynamide India Limited, (1987) 2 SCC 720 observed that while an attempt to draw a distinct line between a legislative and administration functions has been said to be 'difficult in theory and impossible in practice', it would be necessary that the line is W.P.(C). Nos.21038 & 21821 of 2020 ..21..
sometimes drawn as different legal rights and consequences may follow. The Supreme Court was of the view that the distinction between the two has usually been expressed as 'one between the general and particular'. A legislative act involves the creation and promulgation of a general rule of conduct without reference to particular cases; whereas, an administrative act is the making of and issuance of a specific direction or the application of a general rule to a particular case in accordance with the requirements of policy. The Court reiterated that legislation is a process of formulating a general rule of conduct without referring to particular cases and usually operating in the future and that administration is the process of performing particular acts, of issuing particular orders or of making decisions which apply general rules to particular cases.
24. Viewed in this light, it becomes immediately clear that the provisions of the DMC Act formulate the general rule for de- limitation, number of seats to be reserved for Scheduled Castes and women, the possibility of rotating such seats, etc. The specific and particular orders have been left to the Central Government. That has been done by virtue of notifications issued from time-to-time. The Notification dated 17.2.2007 is one such Notification. It relates to a particular situation applying the general Rules prescribed under the DMC Act. Therefore, in my view, the impugned Notification of 17.2.2007 would not fall within the description of a Notification having been issued in exercise of a legislative function. Identical issue arose before the Karnataka High Court also in Ravindra Nayak v. Karnataka State Election Commission W.P.(C). Nos.21038 & 21821 of 2020 ..22..
(ILR 2019 Karnataka 1409), where the challenge was against the notification issued by the Election Commission, allotting the reserved seats to various constituencies. The objection raised as to the maintainability of the writ petitions, placing reliance on Article 243-ZG was repelled by the Karnataka High Court also, in the following lines:
"Point No. 1:
In the petitions that have been filed, the challenges is to the notifications providing for reservation as regards Wards of Municipal Authorities issued pursuant to the Notification dated 02.02.2015 and similar notifications which stipulate the manner in which reservation and rotation ought to be made and maintained, by way of detailed Guidelines.
The issue of maintainability has been raised both by the State and as well as by the State Election Commission and needs to be determined in light of the contentions raised.
The bar, as pleaded, is said to arise from Article 243ZG of the Constitution of India, which provides as follows:-
243-ZG. Bar to interference by courts in electoral matters.--
Notwithstanding anything in this Constitution,--
(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 article 243ZA shall not be called in question in any court;
(b) no election to any Municipality shall be called W.P.(C). Nos.21038 & 21821 of 2020 ..23..
in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State." The notifications providing for reservation of Wards for different categories have been issued in apparent compliance with the Guidelines contained in the Notification dated 02.02.2015 and analogous notification (collectively referred to as "Guidelines"). All petitions challenge merely the validity of the reservation notifications and not any legislation. No challenge has been made to the validity of any law purporting to be made under Article 243ZA, instead what is sought is mere enforcement of law as reflected in the legislation and guidelines issued by the State, which provide for a reservation matrix and mandate rotation.
Article 243ZA of the Constitution of India talks of the power of superintendence of the State Election Commission as well as legislative power "with respect to all matters relating to, or in connection with, election to Municipalities." Till date, the aspect of reservation and rotation is not provided for in any legislation. In the absence of such legislative exercises and in light of the prayers sought for in the present case, there is no ouster of jurisdiction as such so as to examine the validity of the notifications issued by the State.
This Court in the case of G.SANGAPPA (supra), whilst interpreting notifications providing for category-wise reservation in the context of Karnataka Panchayat Raj (Reservation of Seats in Taluk Panchayat and Zilla Panchayat by Rotation) Rules, 1998, has interpreted Article 243O which provisions are in pari materia with provisions of Article 243ZG. At Para 7 whilst referring to the process of "allotment of seats"
as envisaged under Article 243O, it is observed that the bar W.P.(C). Nos.21038 & 21821 of 2020 ..24..
under Article 243O would come into play only when there is a challenge to the validity of a law relating to allotment of seats.
If the words, "allotment of seats" found in Article 243ZG are to be interpreted in the context of the preceding words, it can be said that the bar under Article 243ZG is only as regards the validity of any law relating to allotment of seats pertaining to any Constituency. The Division Bench of this Court in case of SURENDRABABU vs. STATE OF KARNATAKA AND OTHERS, while dealing with the challenge to amendments made to the Karnataka Municipal Corporation Act, 1976 at para 9 states that the bar under Article 243ZG would only apply where the notification could be termed to be a law under Article 243ZA and if not validity could be examined.
Even otherwise, the challenge herein is not to the Notification dated 02.02.2015 or analogous notifications which provide for the pattern and methodology of reservation, but only to the consequent notification passed as being not in accordance with the guidelines framed by the State itself. Hence, the prayers sought for is in fact to remedy non- adherence to the Guidelines, which encapsulate the mechanics of reservations and rotation. If that were to be so, action initiated to enforce the Guidelines could by no stretch of imagination, be construed to be a challenge as regards the validity of any law as envisaged under Article 243ZG.
If there were to be a legislation or delegated legislation passed prior to every term providing for reservation and rotation, examination as to the bar under Article 243ZG may perhaps have resulted in a different finding."
I am in respectful agreement with the views expressed by the Delhi High Court and Karnataka High Court. Needless to say, W.P.(C). Nos.21038 & 21821 of 2020 ..25..
the procedure adopted by the Election Commission in the matter of distributing the reserved seats among the constituencies cannot be regarded as laws falling within the scope of Articles 243-K and 243-ZA of the Constitution. In other words, the bar under Articles 243-O(a) and 243-ZG(a) of the Constitution do not apply to these cases.
11. As indicated above, large number of precedents have been cited by the learned Standing Counsel for the Election Commission to bring home the point that the writ petitions are not maintainable. Since all the cited decisions were not read at the time of hearing, I have taken pain to read those judgments and found that the issue whether the bar under Articles 243-O(a) and 243-ZG(a) would apply to a writ petition challenging the procedure adopted by the Election Commission in the matter of distributing the reserved seats among the constituencies, has so far not been considered in any case. Among the various decisions cited by the learned Standing Counsel, the decisions in Pradhan Sangh Kshettra Samiti, and Anugrah Narayan Singh were decisions rendered after introduction of Part IX and Part W.P.(C). Nos.21038 & 21821 of 2020 ..26..
IX-A of the Constitution. In Pradhan Sangh Kshettra Samiti, the Apex Court has observed that neither the delimitation of the Panchayat area nor of the constituencies in the said areas and the allotments of the seats to the constituencies could have been challenged before the High Court. Paragraph 45 of the said judgment, on which reliance was placed by the learned Standing Counsel for the Election Commission, reads thus:
"45. What is more objectionable in the approach of the High Court is that although clause (a) of Article 243-O of the Constitution enacts a bar on the interference by the courts in electoral matters including the questioning of the validity of any law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made or purported to be made under Article 243-K and the election to any panchayat, the High Court has gone into the question of the validity of the delimitation of the constituencies and also the allotment of seats to them. We may, in this connection, refer to a decision of this Court in Meghraj Kothari v. Delimitation Commission. In that case, a notification of the Delimitation Commission whereby a city which had been a general constituency was notified as reserved for the Scheduled Castes. This was challenged on the ground that the petitioner had a right to be a candidate for Parliament from the said constituency which had been taken away. This Court held that the impugned notification was a law relating to the delimitation W.P.(C). Nos.21038 & 21821 of 2020 ..27..
of the constituencies or the allotment of seats to such constituencies made under Article 327 of the Constitution, and that an examination of Sections 8 and 9 of the Delimitation Commission Act showed that the matters therein dealt with were not subject to the scrutiny of any court of law. There was a very good reason for such a provision because if the orders made under Sections 8 and 9 were not to be treated as final, the result would be that any voter, if he so wished, could hold up an election indefinitely by questioning the delimitation of the constituencies from court to court. Although an order under Section 8 or Section 9 of the Delimitation Commission Act and published under Section 10(1) of that Act is not part of an Act of Parliament, its effect is the same. Section 10(4) of that Act puts such an order in the same position as a law made by Parliament itself which could only be made by it under Article
327. If we read Articles 243-C, 243-K and 243-O in place of Article 327 and Sections 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 of the constituencies in the said areas and the allotments 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 objections were invited and no hearing was given. Even this challenge could not have been entertained after the notification for holding the elections was issued. The High Court not only entertained the challenge but has also gone into the merits of the alleged grievances although the challenge was made after the notification for the election was issued on 31-8-1994".
As evident from the extracted passage, Pradhan Sangh W.P.(C). Nos.21038 & 21821 of 2020 ..28..
Kshettra Samiti was a case where the validity of the delimitation of constituencies and the allotment of seats to them were under challenge. Further, that was a case where the High Court entertained a challenge against the validity of the delimitation of constituencies after the election notification. The observations made in the said judgment need to be understood in the above background and if it is so done, it can be seen that the said judgments cannot be accepted as an authority for the proposition canvassed by the learned Standing Counsel for the Election Commission.
12. The contention advanced by the learned Standing Counsel for the Election Commission placing reliance on the decision of the Apex Court in Anugrah Narain Singh is that it was held by the Apex Court in the said case that provisions relating to allotment of seats to constituencies would come within the ambit of the phrase "any law relating to the delimitation of constituencies or allotment of seats to such constituencies" and therefore, the same cannot be challenged in view of the bar under Article 243-ZG of the Constitution. Paragraph 34 of the judgment in the said case, W.P.(C). Nos.21038 & 21821 of 2020 ..29..
on which reliance was placed by the learned Standing Counsel for the Election Commission, reads thus:
Moreover, the U.P. Act of 1959 was amended to make it consistent with the provisions of Part IX-A of the Constitution. 'Population' was defined in Section 2(53-A) to mean "population as ascertained at the last preceding census of which the relevant figures have been published". This is identical to the definition given in Article 243-P(g). Section 32 which deals with delimitation, inter alia, provides that the State Government shall by order determine the number of seats to be reserved for Scheduled Castes, Scheduled Tribes, Backward Classes and for women. Section 7 lays down that in every Corporation, seats shall be reserved for Scheduled Castes, Scheduled Tribes and Backward Classes. There is a second proviso to Section 7 which lays down that if the figures of Backward Classes are not available, their population may be determined by carrying out a survey in the manner prescribed by the rules. These provisions come within the ambit of the phrase "any law relating to the delimitation of the constituencies or allotment of seats to such constituencies". The validity of this law cannot be challenged because of the protection given by Article 243-ZG of the Constitution. Therefore, the question whether the survey made by the State Government to ascertain the figures of persons belonging to Backward Classes was lawful or not cannot be raised in any Court.
As revealed from the extracted passage itself that the provisions held to be law relating to allotment of seats to the W.P.(C). Nos.21038 & 21821 of 2020 ..30..
delimited constituencies in the said case are provisions contained in the statute referred to in the paragraph concerning allotment of reserved seats as in Section 7 of the Kerala Panchayat Raj Act and Section 6 of the Kerala Municipality Act. The question is entirely different in the case on hand. The said judgement, according to me, has no application to the facts of the present case.
13. In Election Commission of India v. Ashok Kumar, (2000) 8 SCC 216, referring to the earlier decision in the case of Digvijay Mote v. Union of India, (1993) 4 SCC 175, the Apex Court held that the powers conferred on the Election Commission are not unbridled; judicial review would be permissible over a statutory body exercising its function affecting public law rights though the review would depend on the facts and circumstance of each case. It was held in the said case that the power conferred on the Election Commission has to be exercised not mala fide, not arbitrarily, not with partiality, but in keeping with the guidelines of the rule of law. In Ashok Kumar, the Apex Court has summed up W.P.(C). Nos.21038 & 21821 of 2020 ..31..
the powers of the Court, with reference to Article 329(b) of the Constitution which is analogous to Article 243ZG(b), thus:
"32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us herein above:
(1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.
(2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
(3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-
settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
W.P.(C). Nos.21038 & 21821 of 2020 ..32..
(4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court.
(5) The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material." As noted, Article 243-ZG(b) precludes the courts from entertaining a challenge against an election except by an election petition. Even with regard to matters falling within the scope of Article 329(b) of the Constitution which is pari materia to Articles 243-O(b) and 243-ZG(b), it is seen that judicial review is not completely barred and can be exercised W.P.(C). Nos.21038 & 21821 of 2020 ..33..
in respect of orders/decisions vitiated by malice, arbitrariness, etc. There is, therefore, no substance in the objection raised as to the maintainability of the writ petitions. No doubt, the power of judicial review has to be exercised having regard to the facts of the case and insofar as the election process in the case on hand is yet to begin, I do not find any impropriety in exercising the power of judicial review in a case of this nature. Question (1) is, therefore, answered in favour of the petitioners.
14. Question (2): Articles 243-D of the constitution reads as follows:
Article-243D. Reservation of seats.- (1) Seats shall be reserved for--
(a) the Scheduled Castes; and
(b) the Scheduled Tribes, in every Panchayat and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Panchayat as the population of the Scheduled Castes in that Panchayat area or of the Scheduled Tribes in that Panchayat area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Panchayat.
(2) Not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.
W.P.(C). Nos.21038 & 21821 of 2020 ..34..
(3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Panchayat. (4) The offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide:
Provided that the number of offices of Chairpersons reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayats at each level in any State shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayats at each level as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State:
Provided further that not less than one-third of the total number of offices of Chairpersons in the Panchayats at each level shall be reserved for women:
Provided also that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at each level.
(5) The reservation of seats under clauses (1) and (2) and the reservation of offices of Chairpersons (other than the reservation for women) under clause (4) shall cease to have effect on the expiration of the period specified in article 334.
(6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Panchayat or offices of Chairpersons in the Panchayats at any level in favour of W.P.(C). Nos.21038 & 21821 of 2020 ..35..
backward class of citizens."
Article 243-T of the Constitution reads as follows:
"243-T. Reservation of seats.--(1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipality and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the population of the Scheduled Castes in the Municipal area or of the Scheduled Tribes in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality.
(2) Not less than one-third of the total number of seats reserved under Clause (1) shall be reserved for women belonging to the Scheduled Castes or as the case may be, the Scheduled Tribes.
(3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Municipality.
(4) The offices of Chairpersons in the Municipalities shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide.
(5) The reservation of seats under Clauses (1) and (2) and the reservation of offices of Chairpersons (other than the W.P.(C). Nos.21038 & 21821 of 2020 ..36..
reservation for women) under Clause (4) shall cease to have effect on the expiration of the period specified in Article 334. (6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Municipality or offices of Chairpersons in the Municipalities in favour of backward class of citizens."
The aforesaid constitutional provisions mandate that seats shall be reserved for women, Scheduled Castes and Scheduled Tribes in general and also for women belonging to Scheduled Castes and Scheduled Tribes, in the manner indicated therein. The provisions aforesaid also provide that such seats may be allotted by rotation. Section 7 of the Kerala Panchayat Raj Act and Section 6 of the Kerala Municipality Act are the relevant statutory provisions. Section 7 of the Kerala Panchayat Raj Act reads thus:
"7. Composition of Village Panchayat. - (1) Every Village Panchayat shall consist of elected members equal to the number of seats notified under sub-section (1) of section 6.
(2) All the seats in a Village Panchayat shall be filled by persons chosen by direct election in accordance with the provisions of this Act.
(3) In every Village Panchayat, seats shall be reserved for the Scheduled Castes and Scheduled Tribes.
W.P.(C). Nos.21038 & 21821 of 2020 ..37..
(4) The number of seats reserved under sub-section (3) shall be determined by the Government and the number of seats so determined shall bear, as nearly as may be, the same proportion to the total number of seats in that Panchayat as the population of the Scheduled Castes in that Panchayat area or, as the case may be, of the Scheduled Tribes in that Panchayat area bears to the total Population of the Panchayat area, and such seats shall be allotted by the State Election Commission or an Officer authorised by it under sub-section (1B) of section 10 by rotation to different constituencies in that Panchayat area; Provided that where the Population of the Scheduled Castes or the Scheduled Tribes in a Panchayat area is not sufficient enough to make them eligible for reservation of any seat, one seat shall be reserved in that Panchayat, for the Scheduled Castes or the Scheduled Tribes having higher population. (5) Fifty percent (in the case of a fraction, it shall be fixed to the next higher integer) of the total number of seats reserved under sub-section (4) shall be reserved by the Government for women belonging to the Scheduled Castes or Scheduled Tribes as the case may be:
Provided that if the number of seats reserved for Scheduled Castes or, as the case may be, the Scheduled Tribes, under sub- section (4) is one, that seat shall not be reserved for women, belonging to Scheduled Castes or Scheduled Tribes, as the case may be.
(6) Fifty percent (in the case of a fraction, it shall be fixed to the next higher integer) including the seats reserved under sub-
W.P.(C). Nos.21038 & 21821 of 2020 ..38..
section (5) of the total number of seats in a Village Panchayat shall be reserved by the Government for women and such seats shall be allotted by the State Election Commission or the Officer authorised by it under sub-section (1B) of Section 10 by rotation to different constituencies in the Village Panchayat area.
(7) Nothing contained in sub-sections (3) to (6) shall be deemed to prevent members of the Scheduled Castes or the Scheduled Tribes or the women from standing for election to the non- reserved seats in a Village Panchayat.
(8) A Village Panchayat shall have a President and a Vice President elected by the members of the village Panchayat from among themselves."
Section 6 of the Kerala Municipality Act reads thus:
"6. Constitution of Council.-- (1) The Government shall, in accordance with the criteria specified in sub-section (3), notify the total number of seats of the Councillors to be filled up by direct election in a Town Panchayat, Municipality and Municipal Corporation considering the population of the area of the Municipality concerned.
(2) The Government may, after publishing the relevant data according to each census, vary the total number of seats of Councillors in a Municipality notified under sub-section (1) subject to the criteria specified in sub-section (3).
(3) The number of seats of Councillors notified under sub-
section (1) or sub-section (2), shall be,-- W.P.(C). Nos.21038 & 21821 of 2020 ..39..
(a) In the case of a Town Panchayat or a Municipal Council,--
(i) twenty-five, where the population in the area of the Town Panchayat or Municipal Council does not exceed twenty thousand, and
(ii) Where the population of the Town Panchayat or Municipal Council exceeds twenty thousand, twenty-five councillors for the population of first twenty thousand, and one each for every two thousand and five hundred of the population exceeding twenty thousand, subject to a maximum of fifty-two Councillors;
(b) In the case of a Municipal Corporation,--
(i) fifty-five, where the population in the area of the Municipal Corporation does not exceed four lakhs, and
(ii) Where the population exceeds four lakhs, fifty- five councillors for the population of first four lakhs and one each for every ten thousand exceeding four lakhs subject to a maximum of one hundred Councillors;
(4) The Councillors of every Municipality shall be elected by direct election.
(5) Specified seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipality. The number of seats to be reserved in a Municipality shall be determined by the Government. The number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the population of the Scheduled Castes in the municipal area or of the Scheduled Tribes in the municipal area bears to the total population of that area and such seats may be allotted by rotation to different wards in a Municipality as the the State W.P.(C). Nos.21038 & 21821 of 2020 ..40..
Election Commission or an officer authorised by it may, determine for each general election:
Provided that where the population of the Scheduled Castes or the Scheduled Tribes in a municipal area is not sufficient to make them eligible for the reservation of any seat, one seat shall be reserved in that Municipality for the Scheduled Castes or the Scheduled Tribes having higher population.
(6) Fifty per cent (in the case of fraction, it shall be fixed to the next higher integer) of the total number of seats reserved under sub-section (5) shall be reserved for women belonging to the Scheduled Castes, or as the case may be, the Scheduled Tribes:
Provided that where the number of seats reserved for the Scheduled Castes or as the case may be, the Scheduled Tribes under sub-section (5) is only one, that seat need not be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.
(7) Fifty per cent (in the case of fraction, it shall be fixed to the next higher integer) (including the number of seats reserved for women belonging to the Scheduled Castes and Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved by the Government for women and such seats may be allotted by rotation to different wards in a Municipality as the the State Election Commission or an officer authorised by it may, by notification in the Gazette, determine for each general election.
(8) Nothing contained in sub-sections (5) to (7) shall be deemed to prevent persons belonging to the Scheduled Castes, W.P.(C). Nos.21038 & 21821 of 2020 ..41..
Scheduled Tribes or Women from being a candidate to the election to the unreserved seats in a Municipality. (9) The officer authorised in this behalf by the State Election Commission shall, by draw of lots, determine the wards to which seats reserved for Scheduled Castes and Scheduled Tribes under sub-section (5) and for Women under sub-sections (6) and (7) are to be allotted by rotation at such time and on such date and at such place as may be notified by the Commission.
(10) Immediately after deciding the reserved wards under sub- section (9), the State Election Commission shall notify the list of wards so reserved, in the manner prescribed." While the constitutional provisions provide for a minimum of one third reservation for women in Panchayats and Municipalities, the statutory provisions aforesaid provide for a mandatory reservation of not less than 50% in favour of women in Panchayats and Municipalities. Like the constitutional provisions, the statutory provisions also mandate that the reserved seats shall be allotted by rotation to different constituencies. As conceded by the learned counsel for the petitioners, since the reserved seats exceed 50% of the total seats in every Panchayat and Municipality, W.P.(C). Nos.21038 & 21821 of 2020 ..42..
successive reservation in a few seats is inevitable in every Panchayat and Municipality. In a situation of this nature, having regard to the constitutional and statutory provision that the reserved seats shall be allotted by rotation, what could be aimed and achieved now is only to ensure that successive reservation in the same constituency has to be brought down to a minimal by rotating general constituencies for the last election to reserved constituencies for the ensuing election. It is so held by this Court in Geethakrishnan v. State Election Commission, 2015 (4) KLT 297. The relevant passage in the said judgment reads thus:
The State Election Commission was well within its right to limit the draw of lots to the remaining 31 constituencies after rotating the 24 general constituencies of the previous election. The choice of the 4 constituencies from out of the remaining 31 constituencies by draw of lots to make up the reservation for 28 constituencies is legal. The State Election Commission cannot be castigated for having adopted such a course to tide over the situation not foreseen by the legislature. Successive reservation in the same constituency has been brought down to a minimal by rotating general constituencies for the last election to reserved constituencies for this election. (underline supplied) As indicated by this Court in the said judgment, what should W.P.(C). Nos.21038 & 21821 of 2020 ..43..
have been done by the Election Commission for compliance of the mandate of the constitutional and statutory provisions that the reserved seats shall be allotted by rotation, was first to earmark the general seats of the last election as reserved seats for the coming election and then make up the deficit by draw of lots, after excluding the seats which were successively reserved for one or other category. The Election Commission has no case that such a course was not possible in the cases on hand for any reason. True, in constituencies where more than 65% of the seats are reserved, the Election Commission may have to reserve some seats successively more than two occasions as well. The population of Scheduled Castes and Scheduled Tribes in the State being around only 11% of the total population, a situation of the aforesaid nature would arise only in a minuscule number of Panchayats and Municipalities. In other words, in the majority of Municipalities and Panchayats in the State, the reserved seats may not exceed 65% and if that be so, reserving a seat for one or other category successively beyond two occasions is certainly a matter that should have been avoided having regard to the W.P.(C). Nos.21038 & 21821 of 2020 ..44..
constitutional mandate that the reserved seats shall be rotated. Since it is possible to allocate reserved seats in almost every Panchayat and Municipality in such a fashion that no seat would go reserved more than twice successively, there is no reason why the Election Commission should adopt a procedure where seats would go reserved for one or other category more than twice successively as in the instant cases.
15. Coming to the facts, in both cases, the aforesaid procedure was not followed by the Election Commission. In the election held during 2015, Ward No.2 of Kalady Grama Panchayat and Ward No.6 of Pala Municipality were reserved for Scheduled Caste Candidates. In the previous election held during 2010, the aforesaid wards were reserved for women. As such, the aforesaid wards ought not have been considered for reservation in the ensuing election. That apart, it is conceded by the Election Commission in the statements filed in the matters that the Election Commission has treated the seats reserved for Scheduled Castes and Scheduled Tribes in general in the election held during 2015 at par with the general seats of 2015 elections and straightaway W.P.(C). Nos.21038 & 21821 of 2020 ..45..
earmarked the same for women candidates in the ensuing election. This procedure is contrary to the dictum in Geethakrishnan that only general seats of the last election could have been reserved for reserved seats in the next election. Further, the Election Commission was not justified in treating the seats reserved for Scheduled Castes and Scheduled Tribes in the last election at par with the general seats of the last election for the purpose of earmarking the same for another reserved category in the ensuing election, for the said procedure violates the fundamental rights of equality guaranteed to the people residing in those wards, for the same is not only arbitrary but also discriminatory. I hold so because a person residing in a constituency has not only a right to elect his representative, but also a right to be elected as the representative of the people residing in that constituency. I take this view also having regard to the fact that on account of the said faulty procedure, a person residing in a particular constituency who is eligible to contest only from a general seat would be deprived of opportunity to contest for election for a considerably long period. As rightly illustrated by W.P.(C). Nos.21038 & 21821 of 2020 ..46..
the learned counsel for the petitioners, Ward No.2 of Kalady Grama Panchayat and Ward No.6 of Pala Municipality are likely to be reserved in the elections to come after five years also, if this practice is not interfered with. This is a situation which is certainly not contemplated by the lawmakers, but a situation which the lawmakers wanted to prevent and it is to ensure that objective that it was provided in the constitutional and statutory provisions that the reserved seats shall be allotted by rotation. Question (2) is also, therefore, answered in favour of the petitioners.
In the result, W.P.(C) No.21038 of 2020 is allowed, Ext.P3 order is quashed and the respondents therein are directed to undertake the exercise of allotment of reserved seats by rotation by draw of lots among the wards of the fourth respondent Panchayat, excluding wards which were reserved twice successively including Ward No.2. Similarly, W.P.(C) No.21821 of 2020 is also allowed, Ext.P1 order is quashed and the respondents therein are directed to undertake the exercise of allotment of reserved seats by rotation by draw of lots among the wards of the second W.P.(C). Nos.21038 & 21821 of 2020 ..47..
respondent Municipality, excluding the wards which were reserved twice successively including Ward No.6.
Sd/-
P.B.SURESH KUMAR JUDGE ds 01.11.2020 W.P.(C). Nos.21038 & 21821 of 2020 ..48..
APPENDIX OF WP(C) 21038/2020 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF PROCEEDINGS ISSUED BY THE LOCAL SELF GOVERNMENT INSTITUTIONS, GOVERNMENT OF KERALA EXHIBIT P2 TRUE COPY OF ORDER NO. L 63654/15 DT 26-09-2015 ISSUED BY THE DISTRICT COLLECTOR, ERNAKULAM EXHIBIT P3 TRUE COPY OF ORDER DT 28-09-2020 ISSUED BY THE DISTRICT COLLECTOR, ERNAKULAM.
ANNEXURE R2(A) THE PHOTOCOPY OF THE GUIDELINES FOR RESERVATION OF WARDS FOR GENERAL ELECTION 2020 IN LOCAL SELF GOVERNMENT INSTITUTIONS.
ANNEXURE R2(B) THE PHOTOCOPY OF ALLOTMENT/RESERVATION OF SEATS IN KALADY GRAMA PANCHAYAT DURING 2010,2015 AND ENSUING 2020 GENERAL ELECTIONS.
W.P.(C). Nos.21038 & 21821 of 2020 ..49..
APPENDIX OF WP(C) 21821/2020 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE PROCEEDINGS OF THE 3RD RESPONDENT DATED 30.9.2020 ISSUED UNDER SUB-SECTION (9) OF SECTION 6 OF THE KERALA MUNICIPALITY ACT 1994 IN RESPECT OF THE 2ND RESPONDENT MUNICIPALITY.
EXHIBIT P2 A TABLE SHOWING THE RESERVATION CHART OF THE WARDS OF THE 2ND RESPONDENT MUNICIPALITY FOR THE 2010, 2015 AND 2020 ELECTIONS.