No Data Regarding Exact Population: Kerala High Court Holds Notifications Declaring Lakshadweep's Gram Panchayat Constituencies Ultra Vires
The Kerala High Court recently held the notifications declaring the local area comprising villages; the number of wards; and calling for objections to the proposed delimitation of Gram Panchayat constituencies/ wards, issued by the Lakshadweep Administrator and the Election Commission (EC) for the Lakshadweep Village (Dweep) Panchayat elections, as premature and ultra vires the provisions of...
The Kerala High Court recently held the notifications declaring the local area comprising villages; the number of wards; and calling for objections to the proposed delimitation of Gram Panchayat constituencies/ wards, issued by the Lakshadweep Administrator and the Election Commission (EC) for the Lakshadweep Village (Dweep) Panchayat elections, as premature and ultra vires the provisions of Part IX of the Constitution of India and the Lakshadweep Panchayat Regulations, 2022.
Justice Raja Vijayaraghavan V. passed the above order on the ground that the same had been done without ascertaining the population of the territorial area of the Gram Panchayats that had been constituted.
The Court thereby directed the respondent administration and EC to initiate expeditious steps to ascertain the population of the territorial area of the Gram Panchayats in terms of Section 2(t) of LPR, 2022, before proceeding with Exhibit P6 notification and conducting the election to the Gram Panchayats constituted as per the said notification.
Factual Matrix
The petition was filed by a person who claimed to be the presently elected Chairperson of the Village (Dweep) Panchayat, Kavaratti. He challenged the notification issued by the Administrator of Lakshadweep, declaring the local areas comprising of villages specified in the notification to be Panchayat areas for the purposes of Lakshadweep Panchayat Regulations, 2022 (hereinafter 'LPR 2022') as ultra vires the provisions of Part IX of the Constitution of India and Sections 8 and 12 of LPR, 2022..
The LPR 1994 had initially been promulgated by the President of India for the establishment of Village (Dweep) Panchayat, and District Panchayat in Lakshadweep. The Village Panchayat for each of the 10 islands, as per the petitioner, was coextensive with the territorial area of the respective islands. The proviso to Section 8(2) provides the distribution of number of seats vis a vis the population of the Village (Dweep) Panchayat. The more populous islands were also accordingly, allotted more seats than the less populated ones.
It is the case of the petitioner that with the promulgation of LPR 2022 by the President, which came into effect from September 26, 2022, radical changes had been brought about. The island wise constitution of Village (Dweep) Panchayat was done away with, and the Administrator was vested with the power to declare any local area to be a Panchayat area. The Administrator was also conferred the power to conduct an enquiry and issue a notification declaring a local area comprising a Village or any combination of Villages to be a Panchayat area, and also to constitute a Gram Sabha by name for each Panchayat area, petitioner said. The Administrator accordingly, issued a notification bringing into effect as many as 18 separate Panchayat areas in place of the erstwhile 10 Village (Dweep) Panchayat. The petitioner alleges that as per the said notification, only 2 Panchayat areas, namely, Kalpeni and Kiltan, were coextensive with the territorial area of the said islands, in contrast to the previous norm. The petitioner further claimed that the Administrator had framed the Lakshadweep Panchayats (Election Procedure) Rules, 2022 (hereinafter 'LEP Rules 2022').
As per the Rules 2022, it has been stipulated that the EC is to distribute the seats assigned to each Gram Panchayat and District Panchayat to Single Member Territorial Wards and delimit them on the basis of latest census figures, pursuant to which the EC issued a draft notification for delimitation of the Wards and the 18 Gram Panchayats.
It was submitted by the Petitioner that the number of seats allotted for a Gram Panchayat can be determined by the Administrator only with respect to the population of the Territorial area of such Gram Panchayats, as ascertained at the last preceding census. The petitioner pointed out that the respondents had relied on the Island wise census instead undertaken in the year 2011, instead of using the population data of the Panchayat areas of the newly constituted Gram Panchayat. He thus averred that the impugned notifications by the Administrator were premature. It was further pointed out that reservations for women were also not granted through this exercise, thereby violating Section 12(8) LPR, 2022.
The petitioner also sought for the issuance of directions to the EC, Lakshadweep, to keep the proceedings for conducting elections to the Gram Panchayat constituted as per the impugned notifications, in abeyance, until such time as the population for the territorial areas of the Gram Panchayat constituted in terms of the said notification were ascertained as per Section 2(t) of LPR, 2022.
Arguments of the Respondents
It was argued that the petitioner has no locus standi in this case since no legal or constitutional rights had been violated. It was pointed out that the Administration had given due regard to the census data while carrying out the delimitation exercise. It was submitted that the the division of wards, as per LPR, 1994, was carried out based on the Census data available with respect to each island, and that no census data was being maintained with respect to each island. It was added that in case of delimitation, apart from population, additional factors such as geographical compatibility, physical features, existing boundaries of existing units, facilities of communication, and public convenience, also had to be considered. It was further submitted that adequate provision had been made for reservation for women in the seats of Gram Panchayats as per sub-section 7 of Section 12 of LPR, 2022, and in seats of the Sarpanch in terms of sub-section 10(ii) of Section 12 of LPR, 2022.
It was added that as per Article 243L of the Constitution of India, the Union Territory is entitled to exceptions and modifications from other provisions of the Constitution while implementing the constitutional provisions regarding Panchayats, and in view of the LPR 2022 being notified by the President, any exception or modification to the other provisions would thus be within the scope of Article 243L. It was added that there was sufficient scope for rationalization in the constitutional provisions, and Article 243C only prescribed that the ratio between population and seats in panchayats ought to be the same throughout the State, as far as practicable.
Findings of the Court
A. On Maintainability
The Court perused Rule 113 of LEP 2022, and noted that the same confers locus standi to anyindividual to call in question any election whether he has voted at such election or not. The Court took note of the Division Bench decision in Krishnan v. Kerala State Cooperative Marketing Federation Ltd. (2022), and the Apex Court decisions in Bar Council of Maharashtra v. M.V.Dabholkar & Ors. (1975), and Ghulam Qadir v. Special Tribunal & Ors. (2002), wherein it had been laid down that except "for a meddlesome interloper or a busybody, a person whose interests/rights are in some sense infringed through the action of another can be seen as an aggrieved person for the purpose of initiating legal action". The Court accordingly found that the petitioner herein had the locus standi to file the petition.
B. Regarding Validity Of The Impugned Notifications
The Court at the outset perused Article 243C of the Constitution which stipulates that, "all seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area". It was noted by the Court that it would not be possible to carry out the exercise under the said provision without having an idea as to the population of the villages comprising the Panchayat area.
The Court next perused Article 243D which provides for 'Reservation of Seats' in Panchayats, and mandates that the number of reserved seats ought to be proportional to their population in the respective Panchayat area. The Court noted in this regard also that without an idea of the total population of the Panchayat area and the population of Scheduled Tribes in that Panchayat area, an exercise in terms of Article 243D could also not be carried out.
The Court noted that pursuant to the issuance of LPR, 2022, a 'sea change' had been brought about in the definition of 'Panchayat area'. Under LPR 1994, 'Panchayat area' was defined to mean the territorial area of a panchayat which, if read along with Section 8(1) was co-extensive with the territorial area of the respective island which is included in the First Schedule. However, as per LPR, 2022, it was defined as the territorial area of a Gram Panchayat declared by the Administrator under sub-section (1) of Section 3.
As per the first notification issued by the Administrator, Ext. P3, six islands coming under the schedule, namely Agatti, Amini, Androth, Kadmath, Kavaratti, and Minicoy, had been divided into 15 separate Panchayat areas, and the names of the 18 Gram Sabhas were issued. Subsequently, in exercise of the powers conferred on the Administrator under various sub-sections of Section 12 of the LPR 2022, the second notification, Ext. P4, had been issued declaring the number of seats to be allotted under Section 12(2) to each of the 18 Gram Panchayats and also the number of seats to be reserved for women and scheduled tribes. The Court found that the same was done on the basis of the island-wise census undertaken at the time of Census India 2011.
The Court perused the delimitation charts of 1994 and 2022 and discerned that at first look the same would make it appear that the endeavour by the Administration and the Election commission was well justified since it ensured the compliance of Article 243C as well as Section 12(3) of the new Regulation.
"However, on a closer scrutiny, it would be revealed that the exercise clearly violates the constitutional provisions and also LPR, 2022. There is absolutely no doubt that if the respondents were acting in terms of LPR, 2022, the Administrator had to initially act in terms of Rule 3(1)," the Court categorically ruled.
The Court noted that Ext. P3 was not preceded by a notification issued by the Administrator notifying the villages under clause (zj) of the LPR, 2022 r/w. Article 243(g) of the Constitution.
It observed that the Administrator was expected to carry out an enquiry and thereafter issue a notification declaring a local area, comprising of a village or a group of villages or any part or parts thereof or a combination of any two or more of them as Panchayat for LPR 2022, subsequent to which the headquarters of the Panchayat area would have to be specified, followed by a notification constituting a Gram Sabha by a name for each Panchayat area. This Gram Sabha in turn is to consist of persons registered in the electoral roll relating to a Gram, either a village or a group of villages. The Court noted that the respondents did not have any data regarding the inhabitant population of each of the Panchayat areas. The EC had also proposed delimitation of wards of all Gram Panchayats and the District Panchayats vide notification, Ext. P6, on the basis of the voters' list maintained by, and not on the basis of the inhabitant population. The number of wards were decided by the EC on the basis of figures of Census 2011.
"I am afraid the course adopted is contrary to the mandate of Articles 243C and 243D of the Constitution and also against LPR, 2022. This is because the allocation of wards to each Gram Panchayat under sub-section (2) of Section 12 is subject to the provisions of sub-section (3) of Section 12 and Article 243C of the Constitution of India. Without an exact idea of the population of the territorial area of the Gram Panchayat, it would not be possible for the respondents to put in operation either Section 12(2) or Section 12(3) in tune with Article 243C. To carry out the above exercise, the Administrator will have to notify the village/villages under Section 2(j) of the LPR, 2022 and those villages can only comprise the newly declared Panchayat area. A reading of the chart produced along with the additional counter clearly would reveal that the proportionate representation has been made on the basis of the voters list and not on the inhabitant population of the village or villages comprising the Panchayat area," the Court found.
The Court held that without accurate population data of the Village/group of villages comprising the Panchayat area, the ratio between the population of the territorial area of a Gram Panchayat and the number of seats in that Panchayat to be filled by election, could not be ascertained.
"I am of the considered opinion that due to the total absence of data with regard to the population as ascertained at the last preceding census of which relevant figures have been published. Exts.P3 notification declaring the local area comprising villages, P4 notification as per which the number of constituencies/wards were declared, and Ext.P6 notification calling for objections to the proposed delimitation of Gram Panchayat constituencies/ wards is premature. Going by Ext.P6, delimitation has been carried out based on the voters in the ward and not on the basis of the population at the micro level," the Court ruled.
The Court added in this light that the respondents ought to have ensured the provisions of Part IX r/w. the relevant provisions of LPR, 2022, and LEP, 2022 are complied with in its letter and spirit, since the exercise had been carried out on the basis of the voters' list and not on the basis of the inhabitant population.
It is on these grounds that the aforementioned directions were passed.
The petitioner was represented by Advocates P. Deepak and Nazrin Banu. Deputy Solicitor General of India Manu S., and Advocate V. Sajith Kumar appeared on behalf of the respondents.
Case Title: A.P. Nazeer v. Union Territory of Lakshadweep & Ors.
Citation: 2023 LiveLaw (Ker) 158