Varla Ramaiah, vs The State Election Commission,
2021 Latest Caselaw 1813 AP

   HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

                       I.A.No.1 of 2021
                               in
                 Writ Petition No.7778 of 2021

ORDER:

The 1st respondent-The A.P. State Election Commission, who is

responsible under Article 243K of the Constitution of India to conduct

elections to the Panchayats, issued notification No.68/SEC-B1/2020

dated 07.03.2020 declaring its intention to conduct elections to

Mandal Parishad Territorial Constituencies (MPTCs) and Zilla

Parishad Territorial Constituencies (ZPTCs) within the State of

Andhra Pradesh. Along with the notification, it issued an election

schedule whereunder the election programme was to commence on

09.03.2020 with the issuance of election notice by the Returning

Officers on 09.03.2020 and ends with declaration of results on

24.03.2020. As per the aforesaid schedule, filing, withdrawal of

candidature and scrutiny of nominations were completed and a final

list of contesting candidates was also published on 14.03.2020. The

polling date was scheduled on 21.03.2020. However, due to outbreak

of COVID-19 pandemic, the 1st respondent issued another notification

No.68/SEC-B1/2020 dated 15.03.2020 as follows:

"The State Election Commission decided to exercise its plenary powers under Articles 243K and 243ZA of the Constitution of India to put on hold the election process of MPTCs/ZPTCs, Municipal Corporations, Municipalities and Nagar Panchayats with immediate effect for a period of (6) weeks or till the threat of spread of Covid-19 is arrested or declined and normalcy is restored facilitating public gatherings for conduct of elections. The election process will be continued from the stage where it is stopped in respect of UDPR,J

MPTCs/ZPTCs and Urban Local Bodies and will be completed following the relevant provisions of law (emphasis supplied).

Now, therefore, in exercise of the powers conferred under Articles 243K and 243ZA of the Constitution of India, the State Election Commission, hereby, order that -

i) all further election process in connection with conduct of elections to MPTCs and ZPTCs in pursuance of State Election Commission's Notification No.68/SEC-B1/2020 dated 07.03.2020 shall be stopped forthwith;

ii) all further election process in connection with conduct of elections to Municipal Corporations, Municipalities and Nagar Panchayats in pursuance of State Election Commission's Notification Nos.76/SEC-F1/2020-1 & 2 dated 09.03.2020; 77/SEC-F1/2020-1&2 dated 09.03.2020; 78/SEC-F1/2020-1&2 dated 09.03.2020; and 79/SEC-F2/2020 dated 09.03.2020 shall be stopped forthwith;

iii) the election process of MPTCs, ZPTCs and Urban Local Bodies will be continued after (6) weeks from now or after the threat of Covid-19 recedes, whichever is earlier; and

iv) the schedules already announced for Gram Panchayat elections are kept in abeyance until further orders."

2. Challenging the above notification dated 15.03.2020, the A.P.

State Government have filed Writ Petition (Civil) No.437 of 2020

before the Hon'ble Supreme Court. While observing that it did not

see any reason to interfere with the decision of the Election

Commission, the Hon'ble Apex Court disposed of the writ petition

with certain observations.

3. Since six weeks were elapsed after issuing notification dated

15.03.2020, the 1st respondent issued another notification No.68/SEC-

B1/2020 dated 06.05.2020 as follows:

"The State Election Commission, after careful consideration of the judgments and also other relevant facts, decided to issue further orders withholding the election process of MPTCs/ZPTCs and Urban Local Bodies until UDPR,J

further orders as the lockdown guidelines which prohibit public gatherings remain in force and process of removal of colours on Panchayat buildings is yet to be completed by the Government as per the directions of the Hon'ble High Court.

Now, therefore, in exercise of the powers conferred under Articles 243K and 243ZA of the Constitution of India and in continuation of the orders issued in Notification No.68/SEC-B1/2020 dated 15.03.2020, the State Election Commission, hereby, order that the paused election process of MPTCs/ZPTCs and Urban Locan Bodies shall remain stopped until further orders. The State Election Commission will review the situation from time to time in consultation with the State government and when the situation conducive for conduct of elections is restored, the paused election process will be resumed from the stage where it was stopped in order to complete it strictly complying with the directions of the Hon'ble Supreme Court and High Court in the judgments referred to above (emphasis supplied)."

It is pertinent to note that in the above notification, the 1st respondent

reiterated that whenever the situation becomes conducive for conduct

of elections, the paused resolution process would be resumed from the

stage where it was stopped.

4. While so, it appears, noticing that there was some respite from

the COVID-19 pandemic, the 1st respondent issued notification

No.513/SEC-B2/2020 dated 08.01.2021 to conduct elections for local

bodies. The last phase of the elections came to an end by 21.02.2021.

In the meanwhile, the 1st respondent also issued notification

No.581/SEC-F2/2021 dated 15.02.2021 for conduct of elections to

Municipalities and Nagar Panchayats by resuming the election process

from the stage of withdrawal of candidature in respect of

Municipalities and Nagar Panchayats. The elections to the

Municipalities and Nagar Panchayats were accordingly completed.

UDPR,J

5. Thereafter the 1st respondent issued notification No.1503/SEC-

B1/2021 dated 01.04.2021 to the following effect:

"Now, therefore, the State Election Commission, in exercise of powers conferred under Article 243K of the Constitution of India, Sections 151 (1) and 179(1) of Andhra Pradesh Panchayat Raj Act, 1994 (Act 13 of 1994) the State Election commission, Andhra Pradesh, hereby, resumes the election process of MPTCs and ZPTCs from the stage where it was stopped earlier (emphasis supplied) and calls upon the registered voters of all Territorial Constituencies of Mandal Praja Parishads (MPTCs) and of all Territorial Constituencies of Zilla Praja Parishads (ZPTCs) to elect their respective Members, except those specified in the Annexure enclosed."

Along with the notification, the 1st respondent issued election

schedule as follows:

1. Issue of Notification by the State 01.04.2021 Election Commission for resumption of adjourned election process of MPTCs and ZPTCs

2. Conduct of Poll, wherever necessary 08.04.2021 (From 7 AM to 5 PM)

3. Re-poll, if any 09.04.2021 (From 7 AM to 5 PM)

4. Counting of Votes 10.04.2021 (From 8 AM onwards)

5. Declaration of Results Soon after completion of counting of votes

Along with the notification, the 1st respondent also issued a

press note dated 01.04.2021 stating that the Model Code of Conduct

(for short, 'the MCC') has come into force with immediate effect in

the rural areas of the entire State and it shall remain in force till

completion of election process, meaning thereby the MCC will remain

in force from 01.04.2021 to 10.04.2021. Challenging the imposition

of MCC for only ten days as against the order of the Hon'ble Apex UDPR,J

Court in W.P. (Civil) No.437/2020 directing the Election Commission

to impose the MCC four weeks before the notified date of polling, the

instant writ petition is filed.

In I.A.No.1 of 2021, the petitioner prayed to stay all further

proceedings pursuant to the notification No.1503/SEC-B1/2021 dated

01.04.2021 (Stay of elections for MPTCs and ZPTCs scheduled to be

held on 08.04.2021) pending disposal of the writ petition.

6. The 1st respondent filed counter raising preliminary objections

against the writ petition and stay application. It inter alia contended

thus:

a) It is contended that the writ petition has been filed by the

petitioner in his individual capacity and not by the Telugu Desam

Party (TDP). The petitioner is also not a candidate who is contesting

the elections to the ZPTCs or MPTCs and therefore, cannot allege any

violation of his fundamental rights. Therefore, the petitioner in his

individual capacity cannot espouse any grievance in respect of the

manner of issuance of election notification by the 1st respondent. As

such the petition has no locus standi to maintain the writ petition and

the same is liable to be dismissed. The respondent reserves its right to

file additional counter affidavit controverting the other allegations

made by the petitioner at a later stage.

UDPR,J

7. Heard learned Senior Counsel Sri Vedula Venkata Ramana

representing Sri Balanaga Srinivas, learned counsel for the petitioner,

and learned Senior Counsel Sri C.V.Mohan Reddy representing Sri

V.V.Chandra Sekhar, learned counsel appearing for respondent No.1,

and learned Advocate General appearing for respondent No.2, and

learned Government Pleader for Panchayatraj & Rural Development

appearing for respondent No.3.

8. Learned Senior Counsel Sri Vedula Venkata Ramana broached

his arguments by referring the order of the Hon'ble Apex Court in

W.P. (Civil) No.437/2020 submitting that the State Government have

filed the said writ petition challenging the notification dated

15.03.2020 issued by the Election Commission putting on hold the

election process of MPTCs/ZPTCs/Municipal Corporations etc. for a

period of six weeks. The Apex Court did not see any reason to

interfere with the decision of 1st respondent and thus disposed of the

writ petition, however, with certain observations in view of the

grievances raised by the State Government that a large number of

developmental activities were suspended due to the imposition of

MCC for the aforesaid elections in the State of A.P. In that context,

the Hon'ble Apex Court agreed with the submission of learned

Additional Solicitor General that the imposition of MCC would not be

justified if the elections were postponed. Therefore, the Apex Court

directed the Election Commission to impose the MCC four weeks

before the notified date of polling. Referring to the said order learned UDPR,J

senior counsel would submit that the Apex Court has thrice directed

the Election Commission in its order to reimpose the MCC four weeks

before the date of polling. Learned senior counsel would strenuously

argue that the Election Commission of India and State Election

Commission draw their power to issue MCC on the eve of elections

from Article 324 and 243K of the Constitution of India respectively

and issuance of MCC is not an empty formality but to see that the

election process does not get vitiated and to ensure level playing field

between the contesting parties and particularly to see that the State

Government, who is one of the contesting parties in almost all the

elections, does not get extra advantage by promoting / announcing /

implementing any welfare schemes which might have an effect of

wooing the mind of the voters and thereby unduly tilt the balance in

favour of the ruling party. He would thus emphasise that the State

Election Commission being a party to W.P.(Civil) No.437/2020 it has

the responsibility to implement the direction of the Hon'ble Apex

Court in letter and in spirit and should impose MCC four weeks

before the notified date of polling to MPTCs and ZPTCs. Learned

senior counsel lamented that since the election schedule starts from

01.04.2021 and ends on 10.04.2021 and the MCC was made

operational only in the interregnum, the State Election Commission

cannot honestly claim that it has scrupulously implemented the

direction of the Hon'ble Apex Court. He would submit that the

direction given by the Apex Court in W.P. (Civil) No.437/2020 needs

to be enforced under Article 142 of the Constitution by all concerned, UDPR,J

particularly, the parties who are obligated thereunder. However, the

1st respondent shown utter disdain to the above direction and limited

the operation of MCC only for ten days that too without prior

intimation and permission of the Hon'ble Supreme Court. He would

further submit that the State Election Commission being a party to the

order in W.P. (Civil) No.437/2020 is estopped by the said judgment to

act in a different manner on the principle of estoppel by judgment, he

placed reliance on Hope Plantations Ltd. v. Taluk Land Board,

Peermade1. He would conclude that the petitioner is not interested to

halt the election process, but only intended to see that the direction of

the Hon'ble Apex Court is scrupulously followed by the State

Election Commission so as to maintain the level playing field for

holding fair and transparent mode of election.

9. Per contra, learned senior counsel Sri C.V.Mohan Reddy firstly

challenged the locus standi of the petitioner to file the writ petition.

He would contend that going by the description in the cause title of

the writ petition, it is evident that the petitioner has not filed the writ

petition on behalf of Telugu Desam Party. If he did so, the Party'

name would have been mentioned at first followed by his

representative capacity. He further argued that the petitioner is not a

contestant in the impending MPTC/ZPTC election. Therefore, neither

a political party's interest nor personal interest is espoused in the writ

petition to challenge the notification. Learned senior counsel would

thus argue that the petition is not maintainable in the present form and

(1999) 5 SCC 590 UDPR,J

if he wishes to challenge the notification as an individual, he should

file a Writ Petition [Public Interest Litigation (PIL)]. Regarding the

merits learned senior counsel argued that the Hon'ble Apex Court in

its order has not laid down any law, but only gave a direction

regarding the imposition of MCC. Therefore, the said direction should

be comprehended with reference to the background circumstances.

He would expatiate that challenging the notification dated 15.03.2020

issued by the 1st respondent postponing the elections for six weeks,

but continuing the MCC which was already made operational, the

State Government preferred the writ petition. In view of the

prevalence of COVID-19 pandemic, the Hon'ble Apex Court did not

wish to interfere with the decision of the Election Commission to

postpone the elections. At that juncture, the State Government

expressed its grievance that a large number of developmental

activities which were in the pipeline were suspended due to

imposition of MCC by the Election Commission. Considering the

fact that election was anyhow postponed and continuation of the MCC

will not serve any purpose, the Hon'ble Apex Court directed that the

developmental activities which were presently undertaken shall not be

interpreted till the MCC is imposed. In that context, the Apex Court

directed that the MCC shall be imposed for four weeks before the

notified date of polling. Taking these background facts into

consideration, he would argue, the Hon'ble Apex Court only placed

an outer limit of four weeks for imposition of MCC, but did not

specifically direct that invariably the State Election Commission shall UDPR,J

impose MCC for four weeks before the notified date of polling. He

thus argued that the direction of the Hon'ble Apex Court should be

understood in the context it was rendered, but it should not be

interpreted dehorse the factual background. He placed reliance on

Commissioner of Income Tax v. Sun Engineering Works (P)

Limited2 and Oriental Insurance Co. Ltd. v. Raj kumari3. Learned

senior counsel further argued that of late the State Election

Commission issued MCC for local body elections of 2021, as per

which the code shall come into force from the time elections are

announced by the State Election Commission and shall remain in

force till the completion of the election process. The MCC was

imposed accordingly between 01.04.2021 and 10.04.2021 and

therefore, there is no any violation. He finally argued that it is trite

law that when once election process is commenced, the Courts will

not interfere because speedy and timely election is the essential

requirement of a parliamentary democracy. He cited Kishansing

Tomar v. Municipal Corporation of the City of Ahmedabad4.

Learned Additional Advocate General also argued in similar

lines and tried to narrate that the Election Commission originally

issued a composite election schedule for various local bodies and due

to sudden outbreak of COVID-19 pandemic, it had postponed the

election by a notification dated 15.03.2020. However, since the MCC

was in operation though elections were postponed, the State

1992 (4) SCC 363

2007 (12) SCC 768

2006 (8) SCC 352 UDPR,J

Government challenged the said order and submitted to the Hon'ble

Supreme Court that a number of welfare and developmental activities

came to a grinding halt in view of the continuance of MCC despite

postponement of elections. It was in that context the Supreme Court

having found force in the submission of the State Government

directed that the present development activities which have already

been undertaken shall not be interrupted till the MCC was reimposed.

So far as the MCC is concerned, the Apex Court directed the Election

Commission that the MCC shall be reimposed four weeks before the

date of polling. Towing the line of Sri C.V.Mohan Reddy, learned

Advocate General would argue that the four weeks imposition of

MCC should be understood as an outer limit, but not as full four

weeks. Therefore, he would argue, there was no any deviation from

the direction of the Apex Court and as the election schedule has

already been issued, this Court may not interfere with it.

10. As a reply, the learned Senior Counsel Sri Vedula Venkata

Ramana argued that having regard to the gravity and importance of

the matter in view of the deviation committed by 1st respondent, the

locus standi aspect may not be considered seriously at least at this

stage of interlocutory application.

11. Heard.

JURISDICTION AND POWER OF CONSTITUTIONAL COURTS TO INTERVENE AND INTERDICT THE ELECTION PROCEDURE UDPR,J

12. History tells us that Sir Winston Churchill, the British Prime

Minister and one of the World's greatest Statesmen who led the War

Cabinet during World War-II, while moving a bill to extend the tenure

of House of Commons by one year beyond its original term due to the

fierce war, it is said, emotionally and regretfully commented as

follows for denying the voters the right to elect to new parliament

through the democratic election process:

"At the bottom of all tributes paid to democracy is the little man, walking into a little booth, with a little pencil, making a little cross on a little bit of paper - no amount of rhetoric or voluminous discussion can possibly diminish the overwhelming importance of that point."

The majestic edifice of a parliamentary democracy is strengthened at

its rock bottom by a free, fair and transparent election, be it a

Panchayat poll or Parliament election. All the democratic sovereigns,

world over have recognised the importance of holding periodic

elections to various constitutional institutions and paved way for

smooth and seamless holding of elections. India is concerned, the

superintendence, direction and control of the preparation of electoral

rolls and the conduct of the elections to Parliament and State

Legislatures has been entrusted to an independent constitutional

authority called Election Commission of India under Article 324 of

the Constitution of India. So also, the superintendence, direction and

control of the preparation of electoral rolls and the conduct of all the

elections to the Panchayats is vested in another constitutional UDPR,J

authority namely the State Election Commission headed by the State

Election Commissioner to be appointed by the Governor under Article

243K of the Constitution of India. Be that it may, the sacred duty of

both the Commissions in different domains at Central and State level

is to conduct the elections entrusted to them in a free, fair and

transparent manner by maintaining level playing field. For an elector,

freedom, fairness and transparency means a congenial atmosphere for

him to tread to polling station and exercise his right to franchise.

Level playing field means a congenial atmosphere in which every

party and candidate contesting the polls gets an equal opportunity to

carry out electioneering. It is only then the foundation of democracy

is vitalised.

13. Since an election at whatever level it be, is a sacrosanct ritual

and is expected to be performed with avowed duty mindedness by all

concerned, generally the Courts, particularly the constitutional Courts

would exhibit sluggish motility, nay, reluctance to interfere and

interdict with election process to halt the wheels of electoral

Juggernaut, unless the facts and circumstances so warrant their

inevitable intervention to purge the election process and thereby to

uphold the democracy.

The above principle is no more res integra and the Hon'ble

Apex Court and various High Courts have time and again reiterated

the same.

UDPR,J

14. In N.P. Ponnuswami and others Vs. Returning Officer,

Namakkal Constituency and others5, the nomination papers of the

appellant for one of the constituencies of Madras Legislative

Assembly were rejected by the Returning Officer. The appellant

unsuccessfully moved the High Court of Madras under Article 226 of

the Constitution. The writ was dismissed, in view of the bar of

jurisdiction of the Courts under Article 329(b) of the Constitution.

Having regard to the phrase 'no election shall be called in question',

the Apex Court agreed with the decision of the High Court of Madras.

15. In Meghraj Kothari Vs. Delimitation Commission and

others6, the High Court of Madhya Pradesh dismissed the writ

petition challenging the notification issued under Section 10 (1) of the

Delimitation Commission Act, 1962 delimiting certain Parliamentary

and Assembly Constituencies in the State of Madhya Pradesh.

Subsequently the Apex Court also dismissed the appeal, in view of

Article 327(a) of the Constitution saying that validity of any law

relating to the delimitation of constituencies or the allotment of seats

to such constituencies or purporting to be made under Article 327 or

Article 328 are beyond the pale of judicial scrutiny.

16. In Krishna Ballabh Prasad Singh Vs. Sub-Divisional Officer

Hilsa-cum-Returning Officer and others7, the petitioner filed writ

petition before the High Court of Patna challenging the declaration

MANU/SC/0049/1952=AIR 1952 SC 64

MANU/SC/0054/1966=AIR 1967 SC 669

MANU/SC/0172/1985=AIR 1985 SC 1746 UDPR,J

made by the Returning Officer regarding winning of 4th respondent in

the Islampur Assembly Constituency of Bihar Legislative Assembly.

In view of Article 329(b) of the Constitution, the High Court held that

the writ petition was not maintainable. The Apex Court, while

confirming the said order, observed that once the process of election

came to an end, only election petition was maintainable.

[

17. In Election Commission of India Vs. Shivaji and others8, the

Hon'ble Apex Court deprecated the interim orders passed by the High

Court of Bombay (Aurangabad Bench) postponing the last date of

withdrawal of candidature and date of election as without jurisdiction

in view of non-obstante clause employed in Article 329 of the

Constitution.

18. In Mohinder Singh Gill and others Vs. The Chief Election

Commissioner, New Delhi and others9, the challenge before the

Hon'ble Apex Court was the order of Election Commission to cancel

the election and to conduct fresh poll for whole of the Ferozepur

Parliamentary Constituency. The appellant approached the High

Court of Delhi with a writ petition challenging the order of the

Election Commissioner. The 3rd respondent therein objected that the

High Court had no jurisdiction in view of Article 329(b) of the

Constitution. The High Court holding that it had no jurisdiction to

entertain the writ petition, nevertheless proceeded to enter verdicts on

MANU/SC/0379/1987=AIR 1988 SC 61

MANU/SC/0209/1977=AIR 1978 SC 851 UDPR,J

the merits of all the issues. Hence the appellant filed the appeal

before the Apex Court by special leave. The Apex Court having

considered the embargo created under Article 329(b) of the

Constitution upon the Courts to entertain the disputes questioning the

elections except by an election petition, ultimately held that the Delhi

High Court had no jurisdiction to entertain the writ.

In the above judgment, the Hon'ble Apex Court has delineated

as to what types of issues for which decisions are sought from the

High Court would amount to calling in question the election and what

issues would not amount so, where the Court can intervene. It was

observed thus:

"29. What emerges from this perspicacious reasoning, if we may say so with great respect, is that any decision sought and rendered will not amount to 'calling in question' an election if it sub-serves the progress of the election and facilitates the completion of the election. We should not slur over the quite essential observation "Anything done towards the completion of the election proceeding can by no stretch of reasoning be described as questioning the election". Likewise, it is fallacious to treat 'a single step taken in furtherance of an election as equivalent to election'.

30. Thus, there are two types of decisions, two types of challenges. The first relates to proceedings which interfere with the progress of the election. The second accelerates the completion of the election and acts in furtherance of an election. So, the short question before us, in the light of the illumination derived from Ponnuswami, is as to whether the order for re-poll of the Chief Election Commissioner is "anything done towards the completion of the election proceeding" and whether the proceedings before the High Court facilitated the election process or halted its progress. The question immediately arises as to whether the relief sought in the writ petition by the present appellant amounted to calling in question the election. This, in turn, revolves round the point as to whether the cancellation of the poll and the reordering of fresh poll is 'part of election' and challenging it is 'calling it in question'."

UDPR,J

19. In Manda Jaganath Vs. K.S.Rathnam and others10, the Apex

Court has observed that whether the Returning Officer was justified in

rejecting Form-B submitted by the 1st respondent therein was not a

matter for the High Court to decide in the exercise of its jurisdiction

and the issue could be agitated by an aggrieved party in an election

petition only in view of specific prohibition created under Article

329(b).

It is important and pertinent to note that in the above judgment,

the Hon'ble Apex Court happened to discuss the aspect as to when the

High Court can interfere in election matters, by referring

Ponnuswami's case (5 supra) and Mohinder Singh Gill's case (9

supra). It observed thus:

"17. In the very same paragraph this Court, however, demarcated an area which is available for interference by the High Court and the same is explained as follows (emphasis supplied):

"But what is banned is not anything whatsoever done or directed by the Commissioner but everything he does or directs in furtherance of the election, not contrarywise. For example, after the President notifies the nation on the holding of elections under Section 15 and the Commissioner publishes the calendar for the poll under Section 30, if the latter orders returning officers to accept only one nomination or only those which come from one party as distinguished from other parties or independents, is that order immune from immediate attack. We think not. Because the Commissioner is preventing an election, not promoting it and the Court's review of that order will facilitate the flow, not stop the stream. Election, wide or narrow be its connotation, means choice from a possible plurality, monolithic politics not being our genius or reality, and if that concept is crippled by the Commissioner's act, he holds no election at all."

MANU/SC/0346/2004=AIR 2004 SC 3600 UDPR,J

18. Of course, what is stated by this Court herein above is not exhaustive of a Returning Officer's possible erroneous actions which are amenable to correction in the writ jurisdiction of the courts. But the fact remains such errors should have the effect of interfering in the free flow of the scheduled election or hinder the progress of the election which is the paramount consideration (emphasis supplied). If by an erroneous order conduct of the election is not hindered then the courts under Article 226 of the Constitution should not interfere with the orders of the Returning Officers remedy for which lies in an election petition only."

20. From the above jurimetrical jurisprudence, the elucidation

acquired is that generally the Courts will not interlope in election

matters to adjudicate upon by exercising the plenary jurisdiction under

Article 226 of the Constitution, particularly when once the election

process begins, in view of the prohibition wielded under Article 329

of the Constitution. The aggrieved party has to move an election

petition before the appropriate authority. However, it is incorrect to

say that the scope of judicial review under Article 226 of the

Constitution in election matters is totally alien. As expounded by the

Hon'ble Apex Court in Mohinder Singh Gill's case (9 supra) the

Court can intervene in certain circumstances. For instance, when the

Election Commissioner's acts and orders, prevent fair election and

scuttle the level playing field or retard the progress of the election and

not promote the election in accordance with law, the Courts' review

will facilitate the flow of election. The Apex Court in the above case

cleared that the errors of the Election Commissioner or Returning

Officers if tend to have the effect of interfering in the free flow of the

schedule of election or hinder the progress of the election, the Courts'

intervention is permissible. In the said decision, it was also held that UDPR,J

every challenge will not amount to calling in question an election if it

sub-serves the progress of the election and facilitates the completion

of election. On the other hand, if a challenge is intended to stall the

election, the Court may not exercise its plenary jurisdiction and leave

the petitioner to seek remedy by way of an election petition.

21. In the light of above jurisprudence, it has now to be seen,

whether the direction of the Hon'ble Apex Court in W.P. (Civil)

No.437/2020 was to impose MCC for four full weeks before the date

of polling as contended by the petitioner or whether the said direction

only meant giving an outer limit of four weeks within which the

Election Commission has the discretion to impose MCC for a suitable

period as sought to be explained by the respondents, and if it is

ultimately held that the direction was issued to impose MCC for four

full weeks and thereby the notification dated 01.04.2021 falls foul of

the said direction, whether this Court can intervene with the election

process which has already commenced.

MODEL CODE OF CONDUCT AND THE DIRECTION OF THE HON'BLE SUPREME COURT.

22. As already stated supra, after the election schedule dated

07.03.2020 reached to the stage of preparation of final list of

contesting candidates and only the polling scheduled to 21.03.2020

was left over, the 1st respondent Commission was caught with the

dilemma regarding its further progress as the COVID-19 pandemic

stretched its tentacles all over the world by then. Hence, it issued UDPR,J

notification dated 15.03.2020 putting on hold the election process of

MPTCs/ZPTCs/Municipal Corporations etc. for a period of six weeks

or till the threat of spread of COVID-19 was arrested. The

Commission made it clear that the election process would be

continued from the stage where it was stopped. Be that it may, feeling

aggrieved by the stopping of elections, but continuing the MCC, the

2nd respondent-State of Andhra Pradesh filed W.P. (Civil)

No.437/2020 before the Hon'ble Supreme Court. The said writ

petition was disposed of on 18.03.2020. It is apposite to extract the

said order.

"The petitioner - State of Andhra Pradesh has filed this writ petition challenging the action of the respondent - Andhra Pradesh State Election Commission (for short, the Election Commission') in issuing a Notification dated 15.03.2020 postponing the elections for the local bodies such as Panchayats and Municipal Bodies by six weeks or any other date on the ground of spread of Corona virus (COVID 19).

We do not see any reason why this Court should interfere with the decision of the respondent - Election Commission to postpone the elections particularly since the postponement is due to possible outbreak of Corona virus (COVID 19) epidemic in the country. We therefore decline to interfere with the said decision of the Election Commission.

However, it appears that one of the grievances raised by the petitioner - State needs to be addressed. According to Mr. ANS Nadkarni, learned Additional Solicitor General appearing for the State, a large number of developmental activities have been suspended due to the imposition of the Model Code of Conduct for the aforesaid Elections in the State of Andhra Pradesh.

Mr. Nadkarni, learned Additional Solicitor General, submits that the imposition of the Model Code of Conduct would not be justified if the Elections are postponed.

We see much substance in the above submissions of the learned Additional Solicitor General. We therefore direct that the Election Commission shall impose the Model Code of Conduct four weeks before the notified date of polling. (emphasis supplied) Mr. Shekhar Naphade, learned Senior Counsel appearing for the respondent - Election Commission, submits that the State of Andhra Pradesh is not entitled to move this Court by way of filing writ petition under Article 32 of the Constitution of India.

We are not inclined to go into this question in the present writ petition due to the emergent circumstances in which the same is filed. The said question is left open for determination in an appropriate case.

UDPR,J

Mr. Nadkarni, learned Additional Solicitor General for the petitioner - State, submits that the Election Commission was not entitled to postpone the elections without appropriate consultation with the State Government. He relies upon the decision of this Court in Kishansing Tomar Vs. Municipal Corporation of the City of Ahmedabad and Others - (2006) 8 SCC 352.

According to Mr. Naphade, learned Senior Counsel for the respondent - Election Commission, the decision in Kishansing Tomar (Supra) does not require prior consultation.

This is also not a controversy which we consider appropriate for decision in this case in view of the order we propose to pass.

We direct that since the Election Commission has already taken the decision to postpone the Elections, there shall be a post decisional consultation with the State of Andhra Pradesh before the next date is notified by the Election Commission. The Model Code of Conduct for the elections shall be reimposed four weeks before the date of polling. (emphasis supplied) We further direct that the present development activities which have already been undertaken shall not be interrupted till the Model Code of Conduct is reimposed. (emphasis supplied) However, if the State Government wishes to undertake any fresh developmental activities, they shall do so only with the prior permission of the respondent-Election Commission.

In no circumstance, the State Government shall be prevented from taking necessary steps to curb the menace of Corona Virus (COVID 19) epidemic.

The instant writ petition is disposed of in the above terms. Pending interlocutory applications, if any, stand disposed of."

23. As can be seen, the Hon'ble Apex Court in its order has

admittedly given a direction regarding the imposition of MCC. Now,

the bone of contention is with regard to the length of the period of

such imposition of MCC by the Election Commission on resumption

of election process. I have given my anxious consideration to the

above order of the Hon'ble Supreme Court. When the learned

Additional Solicitor General appearing for the State of A.P. submitted

that large number of developmental activities have been suspended

due to the imposition of MCC for conduct of the elections and such

imposition would not be justified if the elections were to be

postponed, the Hon'ble Supreme Court found much substance in the UDPR,J

said submission of the learned Additional Solicitor General. Then the

Supreme Court directed that the Election Commission shall impose

the MCC four weeks before the notified date of polling. Then at a

later stage of the order also while giving directions to the State

Election Commission that there shall be a post decisional consultation

with the State of A.P. before the next date was notified, the Supreme

Court again reiterated that the MCC for the elections shall be

reimposed four weeks before the date of polling. It further directed

that the present development activities which have already been

undertaken shall not be interrupted till the MCC is reimposed.

24. On a plain reading of the above order, it is crystal clear that the

Hon'ble Apex Court has pellucidly directed that the Election

Commission shall reimpose the MCC four weeks before the date of

polling. Since there is no difference of opinion that generally a MCC

imposed will continue till the date of polling, the direction of the

Hon'ble Apex Court should be understood to mean that the MCC to

be imposed by the Election Commission shall continue for four weeks

till the date of polling. In that view, I am unable to countenance the

submission of learned senior counsel Sri C.V.Mohan Reddy and

learned Advocate General that the direction of four weeks was only an

outer limit, but not for four full weeks ending with the date of polling.

Even if the entire background facts relating to W.P. (Civil)

No.437/2020 are taken into consideration, one cannot come to a

conclusion that the Hon'ble Apex Court has given a discretion to the UDPR,J

State Election Commission to reimpose MCC for a suitable period out

of four weeks. Such a constrained meaning is neither textually nor

contextually permissible in my view. In this regard, the decisions

relied upon by Sri C.V.Mohan Reddy will not be of much use to his

case. In Commissioner of Income Tax's case (2 supra) it was

observed that a judgment must be read as a whole and the

observations from the judgment have to be considered in the light of

the questions which were before that Court. A decision of the Court

takes its colour from the questions involved in that case and while

applying the decision to a later case, the Courts must carefully try to

ascertain the true principle laid down by the decision of that Court

(Supreme Court) and not to pick out words or sentences from the

judgment divorced from the context. This is the principle laid down

by the Hon'ble Apex Court regarding the care that should be taken

while treating the previous judgment as a precedent to a subsequent

judgment. Absolutely there is no demur about the said principle.

However, the issue with us is not about the treating of earlier

judgment of the Hon'ble Apex Court as a precedent in a subsequent

case. The judgment in Oriental Insurance Co. Ltd. (3 supra) is also

relating to the precedents. The Hon'ble Apex Court cautioned that the

Courts should not place reliance on decisions without discussing as to

how the factual situation fits in with the fact situation of the decision

on which reliance is placed. The observations of Courts are neither to

be read as Euclid's theorems nor as provisions of the statute and that UDPR,J

too taken out of their context. These observations must be read in the

context in which they appear to have been stated.

25. Running the risk of the petition, it must be stated that we are not

applying any previous decision of the Hon'ble Supreme Court as a

precedent to the present case. On the other hand, we are only

applying the directions earlier given by the Supreme Court between

the same parties which have the relevance to the present conditions.

26. Therefore, on a conspectus, I am constrained to hold that the 1st

respondent has not followed the direction of the Hon'ble Supreme

Court given in W.P. (Civil) No.437/2020 in letter and in spirit, in the

matter of imposition of MCC.

27. Now, the pertinent question is whether in view of a deviation

from the direction of the Hon'ble Supreme Court caused by the 1st

respondent, this Court can intervene with the election process. In my

considered view, the direction given by the Hon'ble Supreme Court in

its order should be regarded as given for doing complete justice in the

matter in terms of Article 142 of the Constitution and therefore, it is

binding on one and all including the parties to the said order.

Therefore, the 1st respondent, who is itself a constitutional authority

and also a party to the order, cannot repudiate its responsibility from

scrupulously implementing the said direction. As rightly submitted by

the learned senior counsel for petitioner, it is estopped by the

judgment from contending otherwise. Therefore, there is no other UDPR,J

way for the 1st respondent except implementing the direction of the

Hon'ble Apex Court in its true spirit. In this regard, the submission of

learned senior counsel for 1st respondent that a fresh Model Code of

Conduct for local body elections was issued in the year 2021 and the

1st respondent has scrupulously followed the same and therefore, there

is no deviation cannot be accepted. It should be noted that the

direction regarding the length of the period of imposition of MCC was

already given by the Hon'ble Apex Court way back on 18.03.2020

and the 1st respondent is bound to follow the said direction rather than

the latest Model Code of Conduct which was said to be issued in the

year 2021. If at all any difficulty is faced by the 1st respondent in the

matter of implementation of the direction of the Hon'ble Supreme

Court, it ought to have obtained suitable orders from the Supreme

Court. Without adopting such procedure the 1st respondent cannot

unilaterally take its own decision defying the direction of the Hon'ble

Supreme Court.

(a) A Model Code of Conduct is not an empty formality. There

should not be any demur that the avowed purpose of imposition of

MCC is to see that the level playing field is scrupulously maintained

and thereby, all the competing parties and individual contestants are

bound by the MCC and they get fair and equal opportunity in the

matter of contesting the election.

(b) It should also be noted that conduction of election is not a

rhetoric ritual, but a pious performance so that "the little man"

UDPR,J

described by Sir Winston Churchill freely castes his ballot to a

candidate of his choice and thereby a suitable candidate/party only

gets elected. If MCC is not made operational for the period as

directed by the Hon'ble Supreme Court, the 1st respondent cannot

have moral right to claim that it maintained the level playing field.

Thereby the entire election process gets vitiated. In the instant case,

since the act of 1st respondent is not in accordance with the direction

of the Hon'ble Supreme Court and as it tend to hamper the free, fair

and transparent election, in my considered view, the intervention of

this Court under the plenary jurisdiction under Article 226 of the

Constitution is inevitable, though in the normal circumstances this

Court having regard to a plethora of decisions, would not have

intervened.

28. Learned Senior Counsel for 1st respondent has argued about the

locus of the petitioner to file the writ petition in the present form.

According to him, since there is no personal violation of any right

much less fundamental right, he should have espoused his cause only

by way of W.P. (Public Interest Litigation). However, in my

considered view, having regard to the gravity of the error committed

by the 1st respondent in deviating from the direction of the Hon'ble

Supreme Court which is brought to the notice of this Court

necessitating its intervention, and also that the matter is only at the

interlocutory stage, the locus standi contention pales into

insignificance. In similar circumstances, the Hon'ble Apex Court UDPR,J

while reviewing its earlier decisions has given prominence to

violation of law committed by a public authority rather than the locus

standi plea taken by the appellant in that case and held thus:

"15. In the light of the expanded concept of the locus standi and also in view of the finding of the Division Bench of the High Court that the order of the Excise Commissioner was passed in violation of law, we do not wish to nip the motion out solely on the ground of locus standi. If the Excise Commissioner has no authority to permit a liquor shop owner to move out of the range (for which auction was held) and have his business in another range it would be improper to allow such an order to remain alive and operative on the sole ground that the person who filed the writ petition has strictly no locus standi. So we proceed to consider the contentions on merits."

29. In the light of the above discussion, there shall be stay of all

further proceedings pursuant to the notification No.1503/SEC-

B1/2021 dated 01.04.2021 issued by the 1st respondent until further

orders. However, for timely conduct of elections, the 1st respondent is

given an opportunity to file an affidavit before this Court on

15.04.2021 mentioning clearly that the 1st respondent will issue a

fresh election notification by scrupulously following the directions of

the Hon'ble Supreme Court in W.P. (Civil) No.437/2020 so as to

enable this Court to pass further orders.

Post on 15.04.2021.

_________________________ U. DURGA PRASAD RAO, J 06.04.2021 CBS/MVA