Kerala High Court

A.P. Nazeer vs Union Territory Of Lakshadweep on 20 December, 2022

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
        THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                    &
           THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
                   TH
 TUESDAY, THE 20        DAY OF DECEMBER 2022 / 29TH AGRAHAYANA, 1944

                          WA NO. 1955 OF 2022
  AGAINST THE ORDER IN WP(C) 40183/2022 OF HIGH COURT OF
                        KERALA DATED 16.12.2022
APPELLANT/PETITIONER:

           A.P. NAZEER
           AGED 51 YEARS, S/O KASMI T.K,
           AYNEPURA, NEAR DRDO OFFICE,
           KAVARATTI, LAKSHADWEEP, PIN - 682555

           BY ADVS.
           P.DEEPAK
           NAZRIN BANU
           S.SREEKUMAR (SR.)


RESPONDENTS/RESPONDENTS:

    1      UNION TERRITORY OF LAKSHADWEEP
           REPRESENTED BY ITS ADMINISTRATOR,
           OFFICE OF THE LAKSHADWEEP ADMINISTRATOR,
           KAVARATTI, PIN - 682555

    2      THE ADMINISTRATOR,
           UNION TERRITORY OF LAKSHADWEEP
           OFFICE OF THE LAKSHADWEEP ADMINISTRATOR,
           KAVARATTI, PIN - 682555

    3      ELECTION COMMISSION, LAKSHADWEEP
           F-BLOCK, M.S. APARTMENTS,
           KASTURBA GANDHI MARG,
           NEW DELHI, PIN - 110001

           BY ADV
           SRI. S. MANU, DSG OF INDIA -R3
           SRI. S.SAJITH KUMAR-R1 & 2


     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
20.12.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
    W.A.1955/2022
                                     2



                           JUDGMENT

Dated this the 20th day of December, 2022

S. Manikumar, CJ.

Instant writ appeal is filed by the petitioner in W.P(C). No.

40183 of 2022, challenging the interim order dated 16.12.2022,

passed by a learned Single Judge.

2. Before the writ court, petitioner has sought for the

following reliefs:

"i. Issue a writ in the nature of certiorari or such other writ, order or direction calling for the records leading to Exhibit P4 & P6 and quash the same.

ii. Issue a writ in the nature of mandamus or such other writ order direction commanding the 3 rd respondent to keep in abeyance all proceedings for conducting elections to the Gram Panchayats constituted vide Exhibit P3 notification till such time as the populations of the territorial area of the Gram Panchayats constituted vide the said notification are ascertained in terms of Section 2 (t) of the Lakshadweep Panchayat Regulation, 2022.

iii. Issue a writ in the nature of mandamus or such other writ, order or direction restraining the 3 rd respondent from proceeding with Exhibit P6 notification till such time as the populations of the territorial area of the Gram Panchayats constituted vide Exhibit P3 notification are ascertained in terms of Section 2(t) of the Lakshadweep Panchayat Regulation, 2022."

3. Short facts leading to filing of the writ petition are as

under:

W.A.1955/2022

3.1. The petitioner is a citizen of India and a resident of

Kavaratti Island in the Union Territory of Lakshadweep. He is

the elected Vice-President of Village (Dweep) Panchayat,

Kavaratti representing Ward No:8. The duration of the current

Village (Dweep) Panchayats, including the Village (Dweep)

Panchayat Kavaratti constituted under the provisions of the

Lakshadweep Panchayat Regulations, 1994 (Hereinafter

referred to as LPR, 1994) will expire by 17.12.2022.

3.2. However, LPR, 1994 stands repealed by the

Lakshadweep Panchayat Regulation, 2022 (hereinafter referred

to as the LPR, 2022) which came into force with effect from 26 th

September 2022. However, by operation of Sub-section (2) of

Section 20 of LPR, 2022, members of the Panchayat functioning

immediately before the coming into force of the said regulation

shall continue to hold their office till the expiration of their

term.

3.3. In this writ petition filed under Article 226 of the

Constitution of India, petitioner seeks to call in question a

notification (Exhibit P4) issued by the Administrator allocating

constituencies/wards for the Gram Panchayats constituted vide W.A.1955/2022

Exhibit P3 notification dated 16.11.2022, without ascertaining

the 'population of the territorial area of the Gram Panchayat'

on the basis of the last preceding census of which relevant

figures have been published which is the mandate of Section

2(v) of LPR, 2022.

3.4. On the other hand, the only data available is the

Island-wise population figures from the Census India 2011,

which, however, cannot be made applicable for allocation of

constituencies/wards for Gram Panchayats, constituted under

the provisions of LPR, 2022, since the territorial area of the

Gram Panchayats constituted under LPR, 2022 is not co-

extensive with the territorial area of an Island. In fact, the

territorial area of an Island is now, under the provisions of LPR,

2022 and Exhibit P3 notification, divided among more than one

Gram Panchayats whereas, as stated herein before, the data

available from the last preceding census of which relevant

figures have been published is confined to the population of

the Island as a whole.

3.5 In fact, this arrangement worked well, with the

provisions of LPR, 1994, since the territorial area of the ten W.A.1955/2022

Village (Dweep) Panchayats, constituted under the provisions

of LPR, 1994 was co-extensive with the territorial area of the

ten inhabited Islands of the Union Territory of Lakshadweep.

4. Considering the averments, prayers sought for, and

taking note of rules 3 and 5 of Exhibit P5 Lakshadweep

Panchayats (Election Procedure) Rules, 2022, writ court, vide

interim order dated 16.12.2022 in W.P(C). No. 40183 of 2022,

ordered as under:

"4. However, Rule 3 of Ext.P5 Lakshadweep Panchayats (Election Procedure) Rules, 2022 provides that subject to the provisions of Sections 12 and 57 of the Regulation, the Election Commission shall distribute the seats assigned to each Grama Panchayat, and District Panchayat to single member territorial Wards and delimit them on the basis of the latest census figures, having regard to the following provisions, namely:-

(a) All Wards shall, as far as practicable, be geographically compact areas and in delimiting them regard shall be had to physical features, existing boundaries of Administrative Units, facilities of communication and public convenience;

(b) Wards in which seats are reserved for the Schedules Tribes, women belonging to these castes or tribes and women shall, as far as practicable, be distributed in different parts of the Grama Panchayat and they shall be rotated by the Commission by draw of lots, so that it is ensured that seats are so reserved in all that wards of a Grama Panchayat and the District Panchayat, as W.A.1955/2022

the case may be, before such reservation is made in respect of a ward for the second time.

5. I find that the Rule 5 provides for considering other criteria than the population also, for delimitation. Ext.P5 Rules also provides for consideration of objection by the Election Commission. The tenure of the existing Panchayat Committees are to expire on 17.12.2022.

Taking into account Rule 3 of Ext.P5 Rules and the fact that the tenure of the present Committees are to expire on 17.12.2022, I find that the election process should go on as per the initiatives taken as the balance of convenience is heavily tilted in favour of the respondents. The election process however will be subject to further orders in this writ petition."

Being aggrieved, instant writ appeal is filed.

5. Though Mr. S. Sreekumar, learned Senior Counsel

appearing for the appellant, referred to various provisions

under the erstwhile Lakshadweep Panchayats Regulations,

1994, the current Regulations came in 2022, Article 243 of the

Constitution of India, and made submissions that population is

the only criteria for fixing the area of Grama Panchayat,

consequently, the seats etc., and also on the grounds raised,

and therefore, sought interference with the impugned order,

we are not inclined to set aside the impugned order in its W.A.1955/2022

entirety, for the reason that as per Exhibit P5, a draft of the

Lakshadweep Panchayats (Election Procedure) Rules, 2022 has

been issued vide Gazette Vol.VIII No.35 dated 26.9.2022, calling

for objections and as per Chapter-II, rule 3(2) of the draft Rules,

which deals with Delimitation of Grama Panchayats and District

Panchayats Wards, the Election Commission shall publish its

proposals for delimitation of wards, in the Official Gazette and

also in such other manner as it thinks fit, inviting objections and

suggestions in this regard.

6. As per Chapter-II of the said rules, the Election

Commission shall also specify a date by which, objections and

suggestions to the said proposals could be made. The

Commission shall also consider all objections and suggestions

which may have been received by it, by the date so specified

under Clause (b) and for the purpose of such consideration,

hold one or more public meetings at such place or places as it

thinks fit; and thereafter, by one or more orders, determine (i)

the delimitation of Grama Panchayat ward and (ii) the

delimitation of the District Panchayat ward.

7. Rules 4 and 5 of Lakshadweep Panchayats (Election W.A.1955/2022

Procedure) Rules, 2022, being relevant, are extracted

hereunder:

"4. Publication of Order and their date of operation: -

(1) the Commission shall cause each of its order made under rule 3 to be published in the Official Gazette.

(2) Upon publication in the Official Gazetie, every such order shall have the force of law and shall not be called in question in any court (3) Nothing in this rule shall affect the representation in the Gram Panchayat or in the District Panchayat as the case may be until its dissolution, existing on the date of publication in the Official Gazette of the final Order or Orders of the Commission relating to the delimitation of Gram Panchayat ward or District Panchayat ward, as the case may be, and any bye-election to fill any vacancy in such a Panchayat shall be held as if no such order had been made

5. Power of the Commission to maintain delimitation order up-to-date:

a) The Commission may, from time to time, by notification published in the Official Gazette, Correct any printing mistake in any order or any error arising therein from inadvertent sip or omission

b) Where the boundaries or name of any territorial division mentioned in the Order are or is altered, make such amendments as appear to it to be necessary or expedient for bringing the order up-to-date."

8. Mr. S. Manu, Deputy Solicitor General of India,

submitted that as regards delimitation, the last date for

submitting objection was fixed on 15.12.2022 and that

objections received shall be dealt with, in the manner as W.A.1955/2022

provided therefor in Rule 3(2) of Exhibit P5 Rules. Writ court

has proceeded on the premises that Rule 3 of the

Lakshadweep Panchayats (Election Procedure) Rules, 2022

provides for considering other criteria than population also for

delimitation. Writ court further observed that election process

would be subject to further orders in the writ petition.