Disposed

A.P. Nazeer v. Union Territory of Lakshadweep

Kerala HC20 Dec 2022WA/1955/2022

Case brief

AI extract

What is this about?

In a writ appeal challenging an interim order on delimitation of Gram Panchayats in Lakshadweep, the two-judge bench remanded the matter to the writ court, directing it to explore counter affidavits regarding the Election Commission's rule-making process before final disposal. The appeal was disposed of accordingly without granting immediate final relief.

What did the court decide?

None granted; matter remanded to the writ court with new directions to explore counter affidavits and finalize objections before passing a final order.

A.P. Nazeer Vs Union Territory of Lakshadweep — Election Law | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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TUESDAY, THE 20TH DAY OF DECEMBER 2022 / 29TH AGRAHAYANA, 1944

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WA NO. 1955 OF 2022

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AGAINST THE ORDER IN WP(C) 40183/2022 OF HIGH COURT OF KERALA DATED 16.12.2022

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APPELLANT/PETITIONER:

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

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

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RESPONDENTS/RESPONDENTS:

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

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

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

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

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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

J U D G M E N T

Dated this the 20^th day of December, 2022

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S. Manikumar, CJ.

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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.

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Before the writ court, petitioner has sought for the

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following reliefs:

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“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.

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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.

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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.”

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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.

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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.

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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

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W.A.1955/2022

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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.

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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 coextensive 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.

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3.5 In fact, this arrangement worked well, with the provisions of LPR, 1994, since the territorial area of the ten

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W.A.1955/2022

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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.

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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:

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“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:-

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(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;

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(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

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W.A.1955/2022

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

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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.

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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.”

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Being aggrieved, instant writ appeal is filed.

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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

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W.A.1955/2022

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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.

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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.

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Rules 4 and 5 of Lakshadweep Panchayats (Election

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W.A.1955/2022

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Procedure) Rules, 2022, being relevant, are extracted

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hereunder:

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

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

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(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

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(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

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

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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

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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.”

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

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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

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W.A.1955/2022

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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.

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In that view, giving due consideration to the grounds and submissions made, we are of the view that issues raised have to be dealt with by the writ court, for which, a detailed counter affidavit is also required.

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Inasmuch as the objections have not been finalised and decision taken by the Election Commission with reference to Rule 3(2) of Exhibit P5 Lakshadweep Panchayats (Election Procedure) Rules, 2022, we direct that the objections be considered and a decision be taken as per the procedure to be followed. However, we make it clear that before issuing a final notification under Lakshadweep Panchayats (Election Procedure) Rules, 2022, orders be taken from the writ court.

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We deem it fit to pass the abovesaid order, for the reason that, if any final notification is issued, prima facie, no

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W.A.1955/2022

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writ petition is maintainable, after the election process has commenced.

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At this juncture, it is to be noted that upon publication of the final delimitation in the official Gazette, every such order shall have the force of law and shall not be called in question in any court.

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We have also taken note of the fact that writ court has made clear in its interim order dated 16.12.2022 that the election process however, will be subject to further orders in the writ petition.

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Let respondents file their respective counter affidavits within ten days. Reply, if any, also be filed.

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Writ court is requested to explore the possibility of disposing the writ petition, as early as possible.

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Writ appeal is disposed of accordingly.

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Sd/S. Manikumar, Chief Justice

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Sd/Shaji P. Chaly, Judge

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sou.xxxx

A.P. Nazeer v. Union Territory of Lakshadweep

Case brief

What is this about?

What did the court decide?

A.P. Nazeer v. Union Territory of Lakshadweep

Case brief

What is this about?

What did the court decide?

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