IN THE HIGH COURT OF ANDHRA PRADESH : AMARAVATI
HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE
&
HON'BLE MR. JUSTICE C. PRAVEEN KUMAR
Writ Appeal Nos.145 & 160 of 2021
(Taken up through video conferencing)
Writ Appeal No.145 of 2021
The State of Andhra Pradesh, Rep. by its
Principal Secretary to Government,
Municipal Administration Department,
Secretariat, Velagapudi & another
.. Appellants
Versus
S.V.Chiranjeevi, S/o Appa Rao, Aged
about 52 years, R/o D.No.20-E-36/2,
Janapareddy vari Street, Kothapet Bun,
West Godavari District & 37 Others
.. Respondents
Counsel for the Appellant : Advocate General Counsel for Respondents 1 to 34 : Mr. Dammalapati Srinivas, learned senior counsel assisted by Mr. Nimmagadda Venkateswarlu Counsel for Respondents 35 to 38 : Mr. Vivek Chandrasekhar Writ Appeal No.160 of 2021 T.Venkata Annapurna Seshukumari, W/o Srinivas, Aged about 50 years, R/o N.R.Pet, 25-7-11, Eluru, West Godavari District .. Appellant Versus 2 S.V.Chiranjeevi, S/o Appa Rao, Aged about 52 years, R/o D.No.20-E-36/2, Janapareddy vari Street, Kothapet, Eluru, West Godavari District & 39 Others .. Respondents Counsel for the Appellant : Mr. Vedula Venkataramana, learned Senior Counsel assisted by Mr. Balanaga Srinivas.
Counsel for Respondents 1 to 34 : Mr. Dammalapati Srinivas, learned senior counsel assisted by Mr. Nimmagadda Venkateswarlu Counsel for Respondent No.35 : Advocate General Counsel for Respondent Nos.36 to 40 : Mr. Vivek Chandrasekhar Dates of hearing : 09.04.2021 and 19.04.2021 Date of pronouncement : 07.05.2021 Counsel for Respondents 36 to 40 : Mr.Vivek Chandrasekhar COMMON JUDGMENT (per C. Praveen Kumar, J)
1. Since both these two appeals are filed, against the order passed in I.A. No.2 of 2021 in W.P.No.4110 of 2021, dated 08.03.2021, at the instance of State (W.A. No.145 of 2021) and Sri T.Venkata Annapurna Seshukumari (W.A.No.160 of 2021), who is the contesting candidate and not made a party before the learned Single Judge, the same are disposed of by this common order.
2. Originally W.P.No.4110 of 2021 came to be filed seeking issuance of writ of Mandamus to declare the inaction on the part of 3 the respondents in preparation and publication of final electoral rolls, de-limitation of wards, and reservation of seats in accordance with the directions of the Hon'ble Court in W.P.No.3876 of 2020, dated 05.03.2020, as illegal, arbitrary and violative of the provisions of the Acts and consequently to restrain the respondents to issue any election notification for conducting elections to the Eluru Municipal Corporation till the orders of this Court in W.P.No.3876 of 2020 are complied with. It would be appropriate to extract the findings arrived at in the order dated 08.03.2021 passed in I.A. No.2 of 2021 in W.P.No.4110 of 2021, which are as under :
"B) This Court after considering all of the above agonized over the issue and felt that the greater good/public good lies in the following and obeying the orders of the Courts when compared to the inconvenience of postponing the election and that a quia timet order or a stitch in time is needed in the circumstances.
1) This Court is prima facie of the opinion that the action of the Officials in not fully implementing the order in W.P.No.3876 of 2020 is not correct. If orders of the Constitutional Courts are not followed, it will lead to a breaking down of the "Rule of Law" as we know of it, which is a basic feature of our Constitution.
Elections can be postponed or re-scheduled. Obedience of the orders of the Court/Rule of Law cannot be "postponed". The orders have to be followed both in letter and spirit unless and until they are modified, varied or set aside. Till then, they must be followed by everyone who must remember this - "be you ever so high, the law is above you."
2) The petitioners have made out a prima facie case as the electoral roll being used is found to be factually and legally 4 flawed. The same is not rectified and the stipulated 30/15 day public notice etc., was not issued inviting objections after the draft roll was prepared. The rules were not followed. Balance of convenience is in favour of the petitioners who want a proper electoral roll before the election on the basis of an order of this Court. If elections are postponed and they are held after the electoral rolls are corrected inconvenience will be caused but, irreparable loss will not be caused to the respondents / the electorate and the election of a Mayor and the Corporator's will only be postponed for a certain period. The elections are being held after a long time in Eluru Corporation. Municipal administration was continuing till date without the Mayor etc. A postponement will thus not cause serious loss and will sub-serve the larger public good by having a more representative/participative Municipal election. It will also uphold the "Rule of Law" and ensure a free and fair poll on which the edifice called democracy, rests.
In that view of the matter, there shall be an interim order as prayed in I.A.No.2 of 2021 and the elections to Eluru Municipal Corporation scheduled to be held on 10.03.2021 shall be stayed. It is left open to the respondents also to make a mid-course correction, salvage the situation and to rectify the electoral rolls but strictly as per the law."
3. From a reading of the above findings it is very evident that I.A. was allowed on the ground that the directions given in Writ Petition No.3876 of 2020, for rectifying the mistakes in the electoral rolls were not complied with, after giving 30 days or 15 days time, as the case may be, from the date of publication of draft roll under Rule 10 of the Registration of Electors Rules, 1960.
5
4. Sri Vedula Venkataramana, learned Senior Counsel appearing for the appellant in W.A.No.160 of 2021, submits that the judgment in W.P.No.3876 of 2020 would become res judicata only if there is no appeal against the said order. When once an appeal has been preferred, the argument that the said judgment of the learned Single Judge in W.P.No.3876 of 2020 operates as a res judicata cannot be accepted. He further submits that it is impermissible for the learned Single Judge to entertain a Writ Petition at the instance of 34 persons and order stay of election without any specific enumeration of incompleteness or incorrect electoral rolls. Relying upon the 1 judgment in Anugrah Narain Singh v. State of U.P. he submits that so far as preparation of electoral roll is concerned, there are sufficient safeguards in the Act against any abuse of misuse of power. He also relied upon the judgment of the Hon'ble Apex Court 2 in P.T.Rajan v. T.P.M. Sahir in support of his plea.
5. The learned Senior Counsel further submits that even assuming for the sake of argument that the order in W.P.No. No.3876 of 2020 has not been complied with or not fully implemented, the only consequence would be an action for contempt and that will not constitute the basis for filing another Writ Petition seeking stay of election.
1 (1996) 6 SCC 303 2 (2003) 8 SCC 498 6
6. Learned Advocate General, while adopting the arguments advanced by Sri Vedula Venkataramana, learned Senior Counsel, would further submit that as the learned Single Judge draws sustenance from the earlier adjudication and therefore the correctness of the said order is integral to the comprehensive adjudication of this petition. He further submits that if the Writ Appeal No.146 of 2021 is allowed nothing remains to be adjudicated in the main Writ Petition and as such it may not be necessary for this court to again relegate the matter back to the learned Single Judge for adjudication on merits. While agreeing with the arguments advanced by Mr. Vedula Venkataramana, learned Senior Counsel appearing for the appellant in W.A.No.160 of 2021, the learned Advocate General would submit that the corrections as pointed out by the writ petitioners in the earlier round of litigation were almost carried out before issuing the final notification. Mistakes pointed out by the learned Single Judge for staying the elections do not stand to any legal scrutiny. According to him, missing of the surnames, house numbers etc., are individual grievances, which an individual should come forward with all necessary material for correction.
7. On the other hand, Sri Dammalapati Srinivas, learned Senior Counsel appearing for the Writ Petitioners would submit that as on date of passing of the interim order there is no appeal preferred by the State or by the third party and the argument of Sri Vedula Venkataramana that an appeal was pending on the date of passing of 7 the order may not be correct and as such the issue of res judicata will come into picture in the instant case. He further submits that the State Election Commission has taken specific stand before the learned Single Judge that they have directed the authority concerned to implement the order of the learned Single Judge and that a reply has been received stating that the orders passed in W.P.No.3876 of 2020 have been complied with. He took us through the findings to show that mistakes still exist. The learned Senior Counsel further submits that the learned Single Judge has taken pains to look into the voters list, compact disks etc., to find out that the objections placed were not complied with. Having stated before the learned Single Judge that the orders of the learned Single Judge have been complied with, the Writ Appeal cannot be entertained taking a contrary plea. In any event he would submit that since elections are already over, the matter can as well be sent back to the learned Single Judge for deciding the issues raised, namely, as to whether there was compliance with the order passed in W.P.No.3876 of 2020.
8. The issue that arises for consideration is whether the learned Single Judge was justified in staying the elections to the municipality.
9. In the order dated 09.03.2021 in W.A.No.145 of 2021, this Court passed the following order :
"Balancing the competing equities, as an interim measure, we direct that the elections shall be held in Eluru Municipal Corporation. We further direct that after the 8 voting is concluded, no further steps shall be taken towards counting and declaration of the result. The ballet boxes shall be kept in safe custody and they shall not be opened until otherwise directed by this Court. In our considered opinion, this course of action would safeguard the rights and interests of the rival parties.
Resultantly, the order of the learned Single Judge is stayed."
10. Pursuant thereto, the elections to the Eluru Municipal Corporation were conducted, but, however, the results are not declared and even counting did not take place. As stated earlier, the learned Single Judge allowed the I.A. holding that there was no compliance of the order dated 05.03.2020 in W.P.No.3876 of 2020, namely, corrections of mistakes/errors pointed out by the writ petitioners in their representation and also not giving 30 days time to submit objections from the date of publication of the Draft Rolls under Rule 10 of Electors Rules, 1960 or for a shorter period of not less than 15 days as fixed by the Election Commission.
11. The correctness of the order in W.P.No.3876 of 2020 is subject matter of challenge in W.A.No.146 of 2021. The order passed therein would have a direct bearing on these two Appeals. In the said Writ Appeal, after hearing all concerned and perusing the material on record, the Court, after referring to judgments of the Hon'ble Apex Court in Lakshmi Charan Sen And Ors. Etc. vs. A.K.M.Hassan 9 3 Uzzaman and Ors. and P.T.Rajan v. T.P.M.Sahir and Others (2 supra) held as under :
"27. ... ... ... Further, as observed earlier, the period of 30 days or 15 days prescribed for raising the claim/objections relate to rolls prepared for the assembly constituency and the same cannot be read into the objection to be filed under the provisions of A.P. Municipal Corporation (Preparation and Publication of Electoral Rolls) Rules, 2001, more so, when the said rules are silent on that aspect.
34. From the above two judgments, it is also clear that preparation of Electoral Roll is a continuous process and even if a revision of Electoral Roll is not complete, the electoral roll, for the time being in force, must hold the field and the Election cannot be postponed for non- consideration of certain claims & objections.
35. For the aforesaid reasons, the finding of the learned Single Judge that the electoral roll that was published on 03.02.2020 is a draft roll is incorrect, further, there is no material on record to show that a voters list was published on 05.02.2020. As observed earlier, the proceedings dated 05.02.2020 relate to a meeting that was convened for declaration of polling stations in 50 divisions of the Corporation by the respective wards and the returning officers for the said polling stations.
36. Hence, the Writ Appeal is allowed and the order dated 05.03.2021 passed by the learned Single Judge in W.P.No.3876 of 2020 is set aside. No order as to costs."3
AIR 1985 SC 1233 10
12. It is also to be noted that the order impugned herein came to be passed after the commencement of election process. In such a situation, whether it is proper for this Court to interfere with the electoral process under Article 226 of the Constitution of India. This issue came up for consideration recently before the Division Bench of this Court in Smt. K. Ratna Prabha v. Election Commission of India (Writ Petition Nos.8866 & 9250 of 2021, dated 30.04.2021) wherein the Division Bench observed as under :
"More than 70 years ago the Apex Court in N.P. Ponnuswami and others v. Returning Officer, Nammakkal Constituency4 while underscoring the necessity of deference by judicial authorities to the election process in order to ensure effective and smooth conclusion of elections observed as follows:
"16. ....
(1) Having regard to the important functions which the legislatures have to perform in democratic countries, it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over, so that the election proceedings may not be unduly retarded or protracted.4
AIR 1952 SC 64 11 (2) In conformity with this principle, the scheme of the election law in this country as well as in England is that no significance should be attached to anything which does not affect the "election"; and if any irregularities are committed while it is in progress and they belong to the category or class which, under the law by which elections are governed, would have the effect of vitiating the "election" and enable the person affected to call it in question, they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress."
This view has been consistently followed by the Apex Court in Mohinder Singh Gill (3 supra), Lakshmi 5 Charan Sen v. A.K.M Hassan Uzzaman and West Bengal State Election Commission v. Communist Party of India (Marxist)6."
13. Having regard to the above and findings in W.A.No.146 of 2021, the two Writ Appeals i.e., W.A.No.145 of 2021 and W.A.No.160 of 2021 are allowed and the order dated 08.03.2021 passed by the learned Single Judge in I.A.No.2 of 2021 in W.P.No.4110 of 2021 is set aside. No order as to costs.
Before parting with the case, we hereby direct the State Election Commission to issue necessary guidelines and follow all the protocols and the instructions issued by the Election Commission of 5 MANU/SC/0567/1983 6 AIR 2018 SC 3964 12 India and also by the State and Central Governments at the time of counting.
All the pending miscellaneous applications, if any, are closed.
ARUP KUMAR GOSWAMI, CJ C. PRAVEEN KUMAR, J skmr