Kerala High Court
Vinod Krishnan vs State Of Kerala on 21 March, 2025
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 21ST DAY OF MARCH 2025 / 30TH PHALGUNA, 1946
WP(C) NO. 40309 OF 2024
PETITIONER/S:
1 VINOD KRISHNAN,
AGED 48 YEARS
S/O.RAMACHANDRAN, VELLARAMPARA HOUSE, KARALMANNA.P.O.
PALAKKAD DISTRICT, PIN - 679506
2 SHAJI,
AGED 41 YEARS
S/O.MUHAMMEDALI, PARAKKAL HOUSE, NIRAPPARAMBU,
CHERPULASSERY.P.O. PALAKKAD DISTRICT, PIN - 679503
3 SIJU.M.,
AGED 46 YEARS
MAYILIPARAMBIL HOUSE, KARALMANNA.P.O. PALAKKAD
DISTRICT, PIN - 679506
BY ADVS.
M.ISHA
T.B.HOOD
RESPONDENT/S:
1 STATE OF KERALA,
REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,
LOCAL SELF GOVERNMENT (EM) DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
2 CHRUPULASSERY MUNICIPALITY,
REPRESENTED BY ITS SECRETARY, CHERPULSSERY.P.O.
PALAKKAD DISTRICT, PIN - 679503
3 DELIMITATION COMMISSION, KERALA,
REPRESENTED BY ITS SECRETARY, 4TH FLOOR, CORPORATION
BUILDING, THIRUVANANTHAPURAM, PIN - 695033
W.P(C) No. 40309 of 2024 2
4 KERALA STATE ELECTION COMMISSION,
REPRESENTED BY ITS SECRETARY, 27/6(2), VIKAS BHAVAN,
THIRUVANANTHAPURAM, PIN - 695033
5 DISTRICT ELECTION OFFICER,
OFFICE OF THE DISTRICT COLLECTOR, CIVIL STATION,
PALAKKAD, PIN - 678001
6 ADDL.R6. SHANAVAS BABU,
AGED 37 YEARS, S/O. ABUBACKER E, ERAKKINGAL HOUSE,
CHERUPLASSERY, PALAKKAD - 679506
7 ADDL.R7. SUBEESH. P,
AGED 40 YEARS, S/O. CHANDRAN, PANAMKUZHIYIL THEMMUM
MURI, KARALMANNA, CHERUPLASSERY, PALAKKAD - 679506
(ADDL.R6 AND R7 IMPLEADED AS PER ORDER 05-12-2024 IN
IA 1/24 IN WPC 40309/2024)
BY ADVS.
DEEPU LAL MOHAN
SHRI.DEEPU LAL MOHAN, SC, STATE ELECTION COMMISSION,
KERALA
P.A.MOHAMMED SHAH
RENOY VINCENT
SHAHIR SHOWKATH ALI
CHELSON CHEMBARATHY
ABEE SHEJIRIK FASLA N.K
NANDA SURENDRAN
SAHAL SHAJAHAN
AQUIN KURUVILLA TOM
M.N.MOHAMMED HUSSAIN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
14.03.2025, THE COURT ON 21.03.2025 DELIVERED THE FOLLOWING:
W.P(C) No. 40309 of 2024 3
JUDGMENT
This writ petition is filed by the residents of different wards of
the Cherpulassery Municipality, the 2 nd respondent herein. The
grievance raised by the petitioners is that, despite Ext.P4 notification
issued by the Government, constituting a Delimitation Commission,
the 3rd respondent herein, for the purpose of carrying out the
exercise of delimitation in all the Local Self Government Institutions
in the State by dividing the wards and fixing the boundaries thereof,
the 3rd respondent Commission had taken a decision not to carry
out such exercise for the 2nd respondent-Municipality.
2. The facts in brief are as follows:
The 2nd respondent-Municipality was constituted by the
Government as per GO(P)No.152/2015/LSGD dated 30.04.2015
under Section 4 of the Kerala Municipality Act, 1994. The said
Municipality was constituted by converting the then existing
Cherpulassery Grama Panchayat and adding three wards of
Thrikkadeeri Grama Panchayat. Upon constitution of the same, as
per GO(P)No.164/2015/LSGD dt.11.5.2015, the number of wards in
the Municipality was notified as 33. Thereafter, the Delimitation
Commission vide Ext.P2 order, divided the Municipality into 33
W.P(C) No. 40309 of 2024 4wards, by fixing the boundaries thereof, on 7.9.2015. According to
the petitioners, the delimitation process culminated in Ext.P2 was
conducted in a hurry within four months and there were
widespread complaints against the delimitation of wards.
According to the petitioners, it was carried out in a haphazard and
unscientific manner without adhering to the guidelines issued by the
Delimitation Commission in this regard. Elections were carried out,
based on the division of wards as per Ext P2.
3. As per Ext.P5, the Government notified the constitution
of a Delimitation Commission on 14.06.2024 for carrying out the
delimitation exercise in all the Local Self Government Institutions in
the State, for the elections to be conducted in the year 2025.
Thereafter, Ext.P3 notification was published on 09.07.2024,
amending Section 6(3) of the Kerala Municipality Act by increasing
the minimum and maximum number of wards in the Municipalities,
as 26 and 53 respectively, from 25 and 52 respectively. Later, Ext.P4
notification was issued on 10.09.2024, refixing the number of wards
in all the Municipal Councils and Municipal Corporations. As per the
said notification, the number of wards fixed for the 2 nd respondent
Municipality was determined as 33, which was equal to the number
W.P(C) No. 40309 of 2024 5
of wards notified in the year, 2015.
4. The 3rd respondent-Commission published Ext.P6 guidelines
for carrying out the delimitation exercise consequent to the Exts.P3
and P4 notifications. In Ext.P6, it is specified that, as per
the Ext.P5 notification, a delimitation exercise is envisaged for all the
Municipalities/Municipal Corporations based on 2011 census, even
if there is no change in the number of wards. However, later, as per
Ext.P7, an amendment was brought in, in Ext P6 Guidelines,
wherein it is specified that, in respect of the Municipalities and
Municipal Corporations, where there is no change in the number of
wards, it is not necessary to carry out the delimitation exercise.
Thus, in the light of Ext.P7, the 3 rd respondent-Commission
excluded the 2nd respondent Municipality from the list of
Local Self Government Institutions where the delimitation exercise
is to be carried out. This writ petition is submitted in
such circumstances challenging Ext.P7 notification.
According to the petitioners, such an amendment
and consequential exclusion of the 2nd respondent Municipality
from the delimitation, is beyond the powers of the
3rd respondent Commission, and the same is unsustainable.
W.P(C) No. 40309 of 2024 6
A consequential relief to command the 3 rd respondent to carry out
the delimitation in the 2nd respondent Municipality was also sought.
5. A counter affidavit was submitted by the 1 st respondent in
response to the averments contained in the writ petition. The 3 rd
respondent also filed a statement opposing the reliefs sought in the
writ petition.
6. Heard Sri. T.B.Hood, the learned counsel for the petitioners,
Smt.K.R.Deepa, the learned Special Government Pleader for the 1 st
respondent, Sri. Deepu Lal Mohan, the learned Standing Counsel
for the 3rd, 4th and 5th respondents and Sri. P.A. Mohammed Sha, the
learned counsel appearing for the respondent Nos.2, 6 and 7.
7. The specific contention raised by the learned counsel
for the petitioners is that, the Government, while constituting the 3 rd
respondent Commission as per Ext.P5, under section 10 of the
Kerala Panchayat Raj Act, 1994, clearly specified that, the
Commission is constituted to carry out the delimitation process for
all Local Self Government Institutions in the State. In Ext.P6 guidelines
also, the said fact is clearly mentioned, thereby indicating that the
3rd respondent Commission understood Ext.P5 notification as the
one intended to carry out delimitation exercise in all the Local Self
W.P(C) No. 40309 of 2024 7
Government Institutions. Therefore, having been entrusted with the
task of carrying out the delimitation exercise in all such institutions, it
was not open for the 3rd respondent-Commission to exclude certain
institutions from the purview of such exercise, by bringing an
amendment to the Ext P6 Guidelines, in the nature of Ext.P7. It was
also contended that, the previous delimitation was ten years ago,
and several discrepancies existed in the said process. Besides, on
account of subsequent developments during the past ten years,
there must be changes in the distribution of population among the
wards and hence, a delimitation exercise is necessary to ensure the
equal distribution of population in the wards of the Municipality, as
mandated under the proviso to section 69 of the Municipality Act.
8. The learned Special Government Pleader supported the
said contentions, contending that, while issuing Ext.P5 notification,
what was intended by the Government was to carry out the said
exercise in all the Local Self Government Institutions.
9. On the other hand, the learned Standing Counsel for the
3rd respondent specifically contended that, as far as the
delimitation process is concerned, the same can be carried out
only in respect of eventualities contemplated under Section 6 read
W.P(C) No. 40309 of 2024 8
with section 69 of the Kerala Municipality Act, such as, when there is
change in the population based on the census data or in cases
where there is change in the number of wards in the Institution as
per the notification issued in this regard by the Government. In this
case, there are no changes as referred to above. Therefore,
carrying out the delimitation process in the 3 rd respondent-
Municipality is not warranted as per the provisions and the 3 rd
respondent is not empowered to carry out such exercise.
10. Before considering the issues, the relevant Constitutional
and statutory provisions are to be examined. Article 243R of the
Constitution of India provides for the composition of Municipalities,
which reads as follows:
243-R. Composition of Municipalities.- (1) Save as provided in clause
(2), all the seats in a Municipality shall be filled by persons chosen by
direct election from the territorial constituencies in the Municipal
area and for this purpose each Municipal area shall be divided into
territorial constituencies to be known as wards.
(2) The Legislature of a State may, by law, provide-
(a) for the representation in a Municipality of –
(i) persons having special knowledge or experience
in Municipal administration;
(ii) the members of the House of the People and
the members of the Legislative Assembly of the
State representing constituencies which comprise
wholly or partly the Municipal area;
(iii) the members of the Council of States and the
members of the Legislative Council of State
registered as electors within the Municipal area;
(iv) The Chairpersons of the Committees constituted
under clause (5) of article 243-S;
Provided that the persons referred to in paragraph (i) shall not
W.P(C) No. 40309 of 2024 9
have the right to vote in the meetings of the Municipality;
(b) the manner of election of the Chairperson of a
Municipality.
Section 6 of the Municipalities Act contemplates the constitution of
Municipal Councils, which reads as follows:
“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 Councilors to be filled 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
Councilors in a Municipality notified under sub-section (1)
subject to criteria specified in sub – section (3).
(3) The number of seats of Councillors notified under sub-
section (1) or sub-section (2), shall be,–
(a)In the case of a Town Panchayat or a Municipal
Council —
(i) [twenty-six], 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-
six] 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-three] Councillors;
(b)In the case of a Municipal Corporation, ___
(i) [fifty-six], where the population in the area of the
Municipal Corporation does not exceed four lakhs, and
(ii)Where the population exceeds four lakhs, ,[fifty-six]
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].
W.P(C) No. 40309 of 2024 10
(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 14[the State
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 14[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,
Scheduled Tribes or Women from being a candidate to the
election to the unreserved seats in a Municipality.
W.P(C) No. 40309 of 2024 11
(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.
Section 69 of the Municipalities Act deals with the division of
municipalities into wards, and the said provision reads as follows:
“69. Division of Municipalities into wards for election, reservation etc.-
(1) For the purpose of election of Councillors to Municipalities, [the
Delimitation Commission constituted by Government under sub-
section (1) of Section 10 of the Kerala Panchayat Raj Act, 1994] shall,
after previous publication of the proposals inviting objections or
suggestions, if any and after considering the same, divide the
Municipalities into as many wards as there are number of seats as
notified under section 6 50 [and determine the boundaries thereof]:
Provided that the population of each ward in a Municipality shall, as far
as practicable, be equal.
(2) Copies of the proposals published and final orders issued under sub-
section (1) shall be published by affixing copies thereof on the notice
board of the office of the Municipality concerned, and in such
conspicuous places within the concerned municipal area. The fact of
such publication shall be published in the Gazette and in two local
newspapers having wide circulation within the municipal area
concerned.
[(2A) Every order issued by the Delimitation Commission with regard to
the division of wards and the determination of their boundaries under
this section shall be published in the Gazette and it shall have the force
of law.)]
(3) Only one Councillor shall be elected for each ward and election shall
be by secret ballot.
W.P(C) No. 40309 of 2024 12
(4) A person whose name has been included in the electoral roll of a
ward shall be entitled to vote in an election to that ward.
(5) No delimitation of wards or change of wards for the purpose of
reservation shall be made in a Municipality after its constitution except
for the purpose of general election to that Municipality and no such
delimitation or change of wards shall, in any manner, affect the
existing Municipality.”
11. When carefully examining the Constitutional and
statutory scheme as revealed from the above provisions, I am of the
view that, the reliefs sought in the writ petition cannot be granted
for the reasons hereinafter mentioned. It is to be noted in this regard
that, the specific contention raised by the 3rd respondent is that, the
power of the Commission to carry out the delimitation is confined to
the situations where there is change in the population on account
of the publication of figures in a new census, or there is change in
the number of wards as per the notification issued by the
Government under section 6 of the Municipality Act. On carefully
going through the stipulations contained in Section 69 of the
Municipality Act, it can be seen that the said provision
contemplates the division of Municipalities into wards based on the
number of seats as notified under Section 6 of the Municipality Act.
When going through section 6 of the Municipality Act, it can be
seen that, sub-section (1) contemplates for notifying the total
W.P(C) No. 40309 of 2024 13
number of seats to be filled up by direct election, considering the
population of the area of the Municipality. The expression
‘population’ is defined in Art.243 P(g) which reads as follows: ”
‘population’ means the population as ascertained at the last preceding
census of which the relevant figures have been published”. As far as
the population as referred to above is concerned, what is
applicable is the 2011 census, which was already relied on during
the process of delimitation conducted in the year, 2015. There is no
change in the same even now, and hence, for that reason, no
delimitation is necessary.
12. Another situation that warrants a delimitation process is
based on the change in seats as notified under section 6(1) of the
Municipality Act. Of course it is true that, the Government brought
in an amendment in section 6(3) of the Municipality Act as per
Ext.P3 notification, by refixing the minimum and maximum number
of wards in the Municipalities. The criteria contemplated under
Section 6(3) for determining the number of wards remained the
same, even though the minimum and maximum wards were
changed. However, even after re-ascertaining the number of wards
in the light of the amendment brought in as per Ext.P3, there is no
W.P(C) No. 40309 of 2024 14
change in the number of wards in the 2nd respondent Municipality
and accordingly, Ext.P4 notification was issued by the Government
fixing the number of seats in the 2 nd respondent Municipality as 33
which remained the same as that of the number mentioned in 2015
notification. As mentioned above, section 69(1) contemplates
division of the Municipality into many wards as there are number of
seats notified under section 6. In this case, there is no change in the
number of seats and the delimitation exercise for the said number
of wards was already carried out in the year 2015 when the 2 nd
respondent -Municipality was formed.
13. The contention raised by the learned counsel for the
petitioners is mainly based on the proviso to section 69(1), which
contemplates that the population of each ward in a Municipality
shall, as far as practicable, be equal. It was also contended by the
learned counsel for the petitioner that the Government constituted
the 3rd respondent Commission as per Ext.P5 by clearly declaring
the purpose for such constitution, as for carrying out the delimitation
for all local level institutions. Therefore, it was obligatory for the 3 rd
respondent Commission to carry out the said exercise, irrespective
of the question whether there is any change in the number of seats.
W.P(C) No. 40309 of 2024 15
According to the petitioners, since the intention of the government
was as mentioned above, the 3rd respondent Commission could not
have taken a decision not to carry out such exercise in respect of
Local Self Government Institutions where there is no change in
number of seats. It was also contended that, there is no provision
that enables the 3rd respondent Commission to take such a decision
under the Kerala Municipality Act or the Delimitation Commission
for the Kerala Local Self Government Institution Rules, 2005. It is also
to be noted in this regard that, the learned Special Govt. Pleader
also made clear that, while constituting the 3 rd respondent
Commission as per Ext.P5, they intended to carry out the
delimitation in all the Local Self Government Institutions. It was also
pointed out that the notification for constituting the 3 rd respondent
Commission for the above purpose was published on 14.6.2024,
whereas the amendment altering the minimum and maximum
number of wards was brought in only on 09.07.2024 as per Ext.P3.
Therefore, it was pointed out that, at the time when the notification
for the constitution of the 3rd respondent Commission was published,
there was no change in the number of seats, but yet in Ext.P5
notification, the requirement to carry out the delimitation for all the
W.P(C) No. 40309 of 2024 16
Local Self Government Institutions were insisted. Therefore,
according to the petitioners, the lack of change in the number of
seats cannot have any consequences, as far as the obligation of
the 3rd respondent to carry out the delimitation exercise is
concerned.
14. However, I am not at all impressed with the aforesaid
arguments. Even if it is accepted that, the Government intended to
carry out the said exercise in all the Local Self Government
Institutions, irrespective of the question whether there is
increase/decrease in the number of seats, the question that arises is
whether the Government can authorise the Delimitation
Commission to carry out an exercise unless there are changes in the
population data or the number of seats. It is to be noted that, as
observed above, Section 69(1) of the Municipality Act
contemplates for division of the Municipalities into wards based on
the number of seats notified under Section 6 alone. As far as the
proviso to Section 69(1) is concerned, even though the same
contemplates that the population of each ward in the Municipality
shall be equal as far as practicable, the same by itself cannot be
the sole reason or the ground to warrant the delimitation exercise.
W.P(C) No. 40309 of 2024 17
This is because, the stipulations in the proviso are to be carried out
when a process of delimitation is warranted or necessitated on
account of the events referred to in the main section, viz. Section
69(1). In other words, the criteria mentioned in the proviso cannot
be taken as an independent ground to insist for a delimitation
process, in cases where no circumstances as envisaged in the main
section ie. Section 69(1) is in existence.
15. The Hon’ble Supreme Court has categorically held in
S. Sundaram Pillai and Others v. V.R. Pattabiraman and Others [AIR 1985
SC 582] that, the well established rule of interpretation of a proviso is
that, a proviso may have three separate functions. Normally, a
proviso is meant to be an exception to something within the main
enactment or to qualify something enacted therein which but for
the proviso would be within the purview of the enactment. In other
words, a proviso cannot be torn apart from the main enactment
nor can it be used to nullify or set at naught the real object of the
main enactment. A proviso to a section is not independent of the
section calling for independent consideration or construction
detached from the construction to be placed on the main section
as it is merely subsidiary to the main section and is to be construed
W.P(C) No. 40309 of 2024 18
in the light of the section itself as held in Ambattu Gopalakrishnan v.
Asst. Registar, Co-operative Societies (General), Palakkad & Others [AIR
1998 Ker 63]. Therefore, in the light of the above principles, the only
conclusion possible is that, to decide whether a delimitation
exercise is necessary or authorised as per law, what is relevant is to
find out whether the circumstances mentioned in section 69(1), the
main section, are in existence.
16. To find out whether the events contemplated under the
main section are in existence, an examination of section 6 of the
Municipality Act is also necessary. This is because, section 6 is the
provision that deals with the power of the Government to carry out
the delimitation exercise and the circumstances under which the
said power has to be invoked. Section 6(1) provides for notification
of the total number of seats of the Councillors in the Municipality
based on the population as per the criteria specified in sub-section
(3). Sub section (2) to Section 6 enables the Government to vary the
total number of seats fixed as per sub section (1), after publishing
the relevant data according to each census. Thus, when the
Government fixes the total number of seats based on the
population as per the census already published, it can be re-visited
W.P(C) No. 40309 of 2024 19
when new census data is published. Yet another situation where the
delimitation process is permissible is under sub-section 3, when there
is a change in criteria for determining the total number of seats and
a consequential change in the number. This is because, as per
Section 6(1), the total number of seats is to be determined based
on the population by following the criteria fixed in Section 6(3).
Therefore, when there are consequential changes in the number of
seats due to changes in criteria specified in sub-section (3), the
Government can order delimitation. The power of the Government
to carry out the delimitation consequent upon the change in
criteria under section 6(3) has already been upheld by a Division
Bench of this Court in State of Kerala v. Abdul Gafoor [2025 KHC OnLine
236]. Thus, apart from the circumstances referred to above, there
are no other situations contemplated in any of the Constitutional or
statutory provisions to enable the Government to carry out the said
exercise. Therefore, even if the Government mentions in Ext.P5, to
carry out the delimitation to all the Local Self Government
Institutions, so long as, the circumstances which warrant a
delimitation as contemplated under Section 6 r/w section 69 of the
Municipality Act are not in existence, neither the Government nor
W.P(C) No. 40309 of 2024 20
the 3rd respondent-Commission can carry out the exercise of
delimitation.
17. The contention of the learned counsel for the petitioners
that, once the Government decides to conduct delimitation in all
the Institutions, it is not open for the 3rd respondent Commission to
take a decision otherwise, is also not appears to be sustainable. This
is because, as observed above, such delimitation is contemplated
only in the circumstances mentioned in Section 6(1) read with
Section 69(1) alone, and evidently, no such circumstances are in
exercise.
18. Moreover, the stipulation in Ext.P5 to carry out the
delimitation in all the Institutions can only be treated as a general
instruction issued to the 3rd respondent-Commission. The mere
stipulation as above, will not take away the power of the
Delimitation Commission to examine whether there exists
circumstances mentioned in Section 69(1) read with Section 6 that
warrants a delimitation exercise in a particular Municipality. The
Government does not have a case that, while publishing Ext.P5
notification there was data before them that necessitated
delimitation exercise in all the Institutions. The Government also
W.P(C) No. 40309 of 2024 21
could not point out any defects in the delimitation process carried
out in the year, 2015 so as to warrant a revisit of the division of
wards. Therefore, under no circumstances, the general directions in
Ext.P5 can be treated as instructions that take away the powers
vested upon the Delimitation Commission to examine whether the
circumstances contemplated in Section 69(1) read with Section 6,
are in existence for conducting a delimitation. In this case, the 3 rd
respondent-Commission exercised that power and found that, with
respect to certain Local Self Government Institutions, no delimitation
is necessary, as there are no changes in the number of wards. This is
a decision that the 3rd respondent is competent and empowered to
take, being an independent body created to ensure a fair and
transparent delimitation process.
19. The learned standing counsel for the 3 rd respondent also
brought the attention of this Court to the subtle difference in the
stipulations relating to the Panchayats and Municipalities as
contemplated under Art. 243 C and 243 R of the Constitution of
India, respectively. It is to be noted that, Art. 243C deals with the
constitution of Panchayats, and the proviso to the said provision
contemplates that the ratio between the population of the
W.P(C) No. 40309 of 2024 22
territorial area of a Panchayat at any level and the number of seats
in such Panchayat to be filled by election shall, so far as it is
practicable be the same throughout the State. However, such a
stipulation is absent in Art.243 R, which deals with the composition of
Municipalities, which is very conspicuous. Even though the
requirement to have equal population in all wards in a Municipality
as far as practicable, is contemplated, the same is included as a
proviso to Section 69(1) of the Municipality Act. This Court has
already found that such a requirement cannot be the sole reason
for carrying out the delimitation, but it is a matter to be taken into
account when a delimitation is conducted on account of the
circumstances contemplated under section 6(1) read with Section
69(1) of the Municipality Act. Therefore, as far as the Municipalities
are concerned, the requirement of equal distribution of population
is not a Constitutional mandate as in the case of a Panchayat, but
it is a statutory requirement as contemplated in proviso to section
69(1). This is also a crucial aspect which is to be taken into account
while considering the powers of the Government or the Delimitation
Commission, for carrying out the delimitation exercise.
20. It was also contended by the learned counsel for the
W.P(C) No. 40309 of 2024 23
petitioners that, on account of various reasons, there could be
changes in the distribution of population among the wards in the
Municipality and therefore to address the same, a delimitation
process has to initiated even if there is no change in the number of
wards or in the change in the population data. However, as
observed above, so long as the requirement of delimitation is
confined to the circumstances as referred to above, the said
contention cannot be accepted. The stipulation in the proviso to
section 69(1) is confined to the situation when a regular delimitation
process is being carried out. Thus, It is to be reiterated in the light of
the above observations that, the change in the distribution of
population among the wards by itself is not a ground that
necessitates a delimitation process for the Municipalities and
therefore, an exercise to find out whether there is any such change
of distribution and to take a decision whether the delimitation is to
be carried out or not, is therefore futile, unwanted and not
authorised. Hence, the 3rd respondent-Commission cannot be
compelled to carry out such exercise.
21. Another contention of the learned counsel for the petitioners
is to the effect that, Ext.P5 notification contemplating delimitation
W.P(C) No. 40309 of 2024 24
for all the Institutions, was published even before the publication of
notification of amendment changing the number of seats.
Therefore, it was contended that, the Government intended to
carry out the delimitation exercise even without any change in the
number of seats. While considering the said question, first of all it is
to be noted that, the period between Ext.P5 and P3 notifications is
very short. To be precise, Ext.P5 was published on 14.06.2024 and
Ext.P3 notification was published on 09.07.2024. Apparently, the
delayed publication of Ext P3 notification was due to the legal
formalities to be followed being an amendment to the statutory
provision. Therefore, in all probabilities, even while Ext.P5 notification
was published, a change in the number of seats was under
contemplation. Therefore, the said reason highlighted by the
petitioner alone cannot be a ground to conclude that, the
Government intended to carry out the exercise irrespective of the
change in the number of seats. Moreover, this Court has already
found that, the Government cannot carry out the said exercise in
the absence of any events as contemplated under Section 69(1)
r/w section 6 of the Kerala Municipalities Act. Therefore, the said
contention is also liable to be rejected.
W.P(C) No. 40309 of 2024 25
In such circumstances, after considering all the contentions and
examining the Constitutional as well as statutory provisions, I find
that, none of the reliefs sought in this writ petition are legally
sustainable and therefore this Writ Petition is dismissed.
Sd/-
ZIYAD RAHMAN A.A.
JUDGEpkk
W.P(C) No. 40309 of 2024 26APPENDIX OF WP(C) 40309/2024
PETITIONERS’ EXHIBITS
EXHIBIT P1 TRUE COPY OF GO (P) NO.152/2015/LSGD DATED
30.4.2015 PUBLISHED IN THE KERALA GAZETTE
EXTRA ORDINARY DATED 30.4.2015 AS
S.R.O.NO.270/2015EXHIBIT P2 TRUE COPY OF THE ORDER NO.S.D.C. 240/2015
DATED 7.9.2015 ISSUED BY THE 3RD
RESPONDENTEXHIBIT P3 TRUE COPY OF THE KERALA MUNICIPALITY
(SECOND AMENDMENT) ACT, 2024 (ACT 14 OF
2024) NOTIFIED AS PER
NO.23/LEG.C1/2024/LAW DATED 9.7.2024 AND
PUBLISHED IN THE KERALA GAZETTE EXTRA
ORDINARY DATED 10.7.2024, ALONG WITH
ENGLISH TRANSLATION THEREOFEXHIBIT P4 TRUE COPY OF GO(P) NO.49/2024/LSGD DATED
10.9.2024 IN SRO.NO.813/2024EXHIBIT P5 TRUE COPY OF GO (P) NO.36/2024 LSGD DATED
14.,6.2015 PUBLISHED IN THE KERALA GAZETTE
EXTRA ORDINARY DATED 15.6.2015 AS
S.R.O.NO.513/2024EXHIBIT P6 TRUE COPY OF THE GUIDELINES DATED
24.9.2024 ISSUED BY THE 3RD RESPONDENT FOR
DELIMITATION OF WARDS OF MUNICIPALITIES
AND MUNICIPAL CORPORATIONEXHIBIT P7 TRUE COPY OF THE NOTIFICATION
NO.SDC/30/2023 SDC 7 DATED 20.10.2024
ISSUED BY THE 3RD RESPONDENTRESPONDENT’S ANNEXURES
ANNEXURE-R3(A) THE TRUE COPY OF G.O(P)NO.151/2015/LSGD
DATED 30-04-2015, PUBLISHED IN THE KERALA
GAZETTE EXTRAORDINARY ON 30-04-2015 AS
S.R.O NO.269/2015ANNEXURE-R3(B) THE TRUE COPY OF G.O(P)NO.153/2015/LSGD
DATED 30-04-2015, PUBLISHED IN THE KERALA
GAZETTE EXTRAORDINARY ON 30-04-2015 AS
S.R.O NO.271/2015ANNEXURE-R3(C) THE TRUE COPY OF RELEVANT PAGES OF THE
W.P(C) No. 40309 of 2024 27KERALA GAZETTE EXTRAORDINARY PUBLISHED ON
07-09-2015 AS S.R.O NO. 576/2015 IN
RESPECT OF FINAL ORDER NO.SDC.240/2015
DATED 07-09-2015 ISSUED BY THE 3RD
RESPONDENTANNEXURE-R3(D) THE TRUE COPY OF GUIDELINES DATED 18-04-
2015 ISSUED BY THE 3RD RESPONDENT
ANNEXURE-R3(E) THE TRUE COPY OF JUDGMENT DATED 05-11-2024
OF THIS HON’BLE COURT IN
WP(C)NO.37287/2024
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