MADHUSOODANAN NAIR Vs. GOVERNOR OF KERALA

JUDGEMENT

(1.) Challenge is made in this writ petition to the decision made by the Government of Kerala to create the new District of Pathanamthitta. The petitioner is an advocate practising in the courts at Adoor, the sub divisional headquarters of one of the revenue divisions in Quilon District. The respondents originally impleaded to the proceedings are the Governor of Kerala, the State of Kerala, represented by the Chief Secretary to Government and the Special Officer appointed for taking steps in respect of the formation of the new District. The petitioner has sought for a declaration from this Court that the first and second respondents have no power to create a new District by an executive order. A writ of mandamus is also prayed for forbearing the respondents from implementing the decision to create the new District in the State as also a writ of the same nature forbearing the Special Officer from taking any further steps in her capacity for the formation of the Pathanamthitta District. By an amendment to the Original Petition, petitioner also seeks a writ of quo warranto calling upon the third respondent to show to the court under what authority she is holding the post as Special Officer.

(2.) The case of the petitioner in the matter is as follows. There is no legislation empowering the Governor or the State of Kerala to form districts or to alter the limits of the districts. In respect of the former Malabar area of the State, under the Kerala Adaptation of Laws Order the Madras District Limits Act, I of 1865 is in force. That Act makes it lawful for the State Government from lime to time to alter limits of existing districts or zilas. This statute had enabled the Government of Kerala to bifurcate the then Malabar District in January 1957 and form the new districts of Cannanore, Kozhikode and Palghat. Petitioner would further point out that it was on the basis of the same statute that the districts of Malappuram and Wynad were subsequently formed. However in the Travancore - Cochin area of the State this Act could have no application and as stated earlier no statute enables the Government to form new districts.

(3.) Under the Constitution Parliament is conferred with the power to form new States, to increase or diminish the area of any State and alter the boundaries and name of any State (Art.3). There is no corresponding power, according to the petitioner, given to the States to form districts or alter the boundaries of the districts. Art.154 vests the Governor with the executive power of the State. Art.162 provides that the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws but in any matter with respect to which the legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law made by Parliament upon...the Union or authorities thereof. Therefore the State through its executive head the Governor can exercise the Executive power only on such matters with which the legislature of the State has power to make laws and no other. The legislative powers of the State as stated in Art.246(3) of the Constitution are with respect to any of the matters enumerated in List II in the Seventh Schedule of the Constitution (referred to as the 'State List'). The executive power of the State is therefore, as per the contentions raised by the petitioner, conferred to the subjects specifically enumerated in List II of the Seventh Schedule. The formation of a district is not one of the subjects in List II. In respect of constitution of Municipal Corporations, Improvement Trusts, District Boards and other local authorities and village administration there is specific provision in Entry 5 in the State List. But not for formation, abolition or alteration of boundaries of districts. The petitioner would therefore urge that the State cannot trace its power of formation of a district to any entry in the State List and it is only in the Union List that power could be traced in view of Entry 97 of List I of the Seventh Schedule (the Union List). That 'entry' relates 'to any other matter not enumerated in List II or List III including any tax not mentioned in either of those lists.' Consequently according to him there is a total lack of jurisdiction for the State of Kerala to form a district in that part of the State where no specific enactment empowering the State to form a district exists.