The State Election Commission, vs Varlaramayya,
2021 Latest Caselaw 1815 AP

     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 No.224 of 2021

                     (Taken up through video conferencing)

The State Election Commission
rep., by its Secretary, Krishna District,
Vijayawada.
                                                        .. Appellant
        Versus

Varla Ramayya, S/o Isaac,
aged about 67 years, Hindu,
Politburo member & General Secretary
of Telugu Desam Party, R/o 1-3-174/8,
Varla Yugandhar Marg, Vidhyadharapuram,
Vijayawada- 12 and others
                                                        .. Respondents

Counsel for the appellant : Mr. C.V. Mohan Reddy, Senior counsel for Mr. S. Vivek Chandra Sekhar

Counsel for respondent No.1 : Mr. Vedula Venkata Ramana, Sr.Counsel for M/s. Bharadwaj Associates Counsel for respondent Nos.2&3 : Mr. S. Sriram, Advocate General

ORAL JUDGMENT Dated: 07.04.2021

(per Arup Kumar Goswami, CJ)

Heard Mr. C.V. Mohan Reddy, learned senior counsel assisted by

Mr. S. Vivek Chandra Sekhar, learned counsel for the appellant. Also heard

Mr. Vedula Venkata Ramana, learned senior counsel for respondent 2 HCJ & CPK, J W.A.No.224 of 2021

No.1/writ petitioner and Mr. S. Sriram, learned Advocate General, for the

State.

2. This writ appeal is preferred by the State Election Commission

against an order dated 06.04.2021 in I.A.No.1 of 2021 in W.P.No.7778 of

2021.

3. In the writ petition, challenge was made to an Election Notification

No.1503/SEC-B1/2021 dated 01.04.2021 issued by the State Election

Commission proposing to conduct the elections for the Mandal Parishad

Territorial Constituencies (for short, 'MPTCs') and Zilla Parishad Territorial

Constituencies (for short, 'ZPTCs') in the State of Andhra Pradesh on

08.04.2021. By I.A.No.1 of 2021 filed in the writ petition, the writ

petitioner had prayed for grant of stay of all further proceedings pursuant

to the said Notification dated 01.04.2021.

4. Before proceeding further, it will be necessary to state that the

challenge was primarily mounted on the aforesaid Notification dated

01.04.2021 on the ground that the said Notification was issued in violation

of the order of the Hon'ble Supreme Court dated 18.03.2020 in

W.P.(C).No.437 of 2020.

5. The State Election Commission had issued a Notification dated

07.03.2020 to hold elections for local bodies with the schedule as under:

ELECTION SCHEDULE OF RURAL AND URBAN LOCAL BODIES - 2020

SL. Activity MPTC/ZPTC MUNICIPAL GRAM PANCHAYATS

No. (One Phase) BODIES [Two Phases)

(One Phase) PHASE-I PHASE-II

1. Issue of Election 07.03.2020 09.03.2020 15.03.2020 17.03.2020 Notification by the 3 HCJ & CPK, J W.A.No.224 of 2021

State Election Commission

2. Election Notice by the 09.03.2020 11.03.2020 17.03.2020 19.03.2020 Returning Officer / Election Officer

3. Receipt of 09.03.2020 11.03.2020 17.03.2020 19.03.2020 Nominations TO TO TO TO 11.03.2020 13.03.2020 19.03.2020 21.03.2020

4. Scrutiny of 12.03.2020 14.03.2020 20.03.2020 22.03.2020 Nominations

5. Appeal against 13.03.2020 -- 21.03.2020 23.03.2020 rejection of Nomination before the Revenue Divisional Officer / District Collector

6. Disposal of Appeals 14.03.2020 -- 22.03.2020 24.03.2020 (Before 1 PM) (Before 1 (Before 1 PM) PM)

7. Last date for 14.03.2020 16.03.2020 22.03.2020 24.03.2020 Withdrawal of (Before 3 PM) (Before 3 PM) (Before 3 (Before 3 PM) Candidatures PM)

8. Publication of Final 14.03.2020 16.03.2020 22.03.2020 24.03.2020 List of Contesting (After 3 PM] (After 3 PM) (After 3 PM) (After 3 PM) Candidates

9. Conduct of Poll, 21.03.2020 23.03.2020 27.03.2020 29.03.2020 wherever necessary (7 AM to 5 PM] (7 AM to 5 (7 AM to 1 (7 AM to 1 PM) PM) PM)

10. Counting of Votes and 24.03.2020 27.03.2020 27.03.2020 29.03.2020 Declaration of Results (From 8 AM) (From 8 AM) (After 2 PM) (After 2 PM)

INDIRECT ELECTIONS

1. Indirect elections to Members (Co-opted), Chairperson and Vice-Chairperson of Zilla Praja Parishads and Member (Co- opted), President and Vice-President of Mandal Praja Parishads will be held on 30.03.2020. The term of elected bodies will also commence from 30.03.2020.

2. Indirect elections to Mayor and Deputy Mayor of Municipal Corporations and Chairperson and Vice-Chairperson of Municipalities and Nagar Panchayats will be held on 31.03.2020. The term of elected bodies will also commence from 31.03.2020."

6. Subsequently, by a Notification dated 15.03.2020, the election

process in respect of MPTCs, ZPTCs, Municipal Corporations, Municipalities

and Nagar Panchayats was stopped forthwith, indicating that election

process of such local bodies would be continued after six weeks or after

the threat of COVID-19 recedes, whichever is earlier. The schedule which 4 HCJ & CPK, J W.A.No.224 of 2021

was announced for Gram Panchayat elections was kept in abeyance until

further orders.

7. The aforesaid Notification was challenged by the State of Andhra

Pradesh by filing Writ Petition (Civil) No.437 of 2020 before the Hon'ble

Supreme Court and the said writ petition, as is noticed earlier, was

disposed of on 18.03.2020.

8. Subsequently, a Notification dated 17.11.2020 was issued by the

State Election Commission stating that the Commission had decided to

hold elections to the Gram Panchayats in the month of February, 2021,

and that actual schedule would be finalized after due consultation with the

State Government and thereafter only, the election schedule would be

notified. The Notification dated 17.11.2020 was put to challenge by the

State of Andhra Pradesh by filing a writ petition before this Court, which

was registered as W.P.No.22900 of 2020. The said writ petition was

disposed of by an order dated 29.12.2020. It is not necessary for us to

dilate on the order dated 29.12.2020 passed by this Court, save and

except to state that the State Government was permitted to submit a

written version of its case enclosing all relevant materials in respect of its

pleas and the instructions/guidelines issued by the Union of India

pertaining to Covid-19, for consideration of the State Election Commission

and that the State Election Commission, after undertaking the consultation

process and after giving opportunity to the concerned officials of the

State, was to take final decision in the matter of holding elections.

9. Thereafter, an order dated 08.01.2021 was passed by the State

Election Commissioner seeking to justify holding of elections to the Gram

Panchayats contrary to the request made by the State Government for 5 HCJ & CPK, J W.A.No.224 of 2021

postponement of the elections. A schedule for holding ordinary elections

to the Gram Panchayats in four phases was published in terms of which

Election Notification is to be issued for Phase-I on 23.01.2021, for phase-

II on 27.01.2021, for Phase-III on 31.01.2021 and for Phase-IV on

04.02.2021. Conduct of poll, wherever necessary, was fixed on

05.02.2021, 09.02.2021, 13.02.2021 and 17.02.2021, for Phases I, II, III

and IV, respectively.

10. The said Notification came to be challenged in W.P.No.1158 of

2021 and an interim order was passed by the learned single Judge on

11.01.2021 suspending the Notification dated 08.01.2021. The order of

the learned single Judge came to be set aside by Division Bench by an

order dated 21.01.2021 in W.A.No.24 of 2021. The order of the Division

Bench was challenged before the Hon'ble Supreme Court in

SLP (C).No.1520 of 2021 and the same was dismissed by an order dated

25.01.2021.

11. Accordingly, elections were conducted for Gram Panchayats in

terms of the schedule notified earlier except treating the second phase as

the first phase and the polling for the first phase, which was slated to be

held on 05.02.2021, was conducted on 21.02.2021.

12. The State Election Commission had also issued a Notification

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

Municipalities and Nagar Panchayats by resuming the paused election

process in respect of 12 Municipal Corporations and 75

Municipalities/Nagar Panchayats. It was indicated that the Model Code of

Conduct had come into force with immediate effect and that the same

would remain in force till completion of elections. In connection with 6 HCJ & CPK, J W.A.No.224 of 2021

holding of such elections, three Notifications dated 15.02.2021 were

issued for giving election schedule for Municipal Corporations: One for

Vizianagaram, Eluru, Machilipatnam, Guntur, Ongole, Tirupati, Chittoor,

Kadapa, Kurnool and Ananthapur, one for Greater Visakhapatnam

Municipal Corporation and one for Vijayawada Municipal Corporation.

Another Notification dated 15.02.2021 was issued for conduct of ordinary

elections to Municipalities and Nagar Panchayats. In terms of the said

Notifications, the poll, wherever necessary, was fixed on 10.03.2021.

Elections to the aforesaid Municipal Corporations and Municipalities were

also conducted.

13. On 01.04.2021, Notification was issued for resumption of the

paused election process of MPTCs and ZPTCs. By the said Notification,

conduct of poll, wherever necessary, was fixed on 08.04.2021. A press

note dated 01.04.2021 was also issued stating that Model Code of

Conduct has come into force with immediate effect and that it shall remain

in force till completion of the election process. It is relevant to state that

before the elections were paused by the Notification dated 15.03.2020, on

14.03.2020, final lists of contesting candidates for MPTCs and ZPTCs were

published.

14. Mr. C.V. Mohan Reddy, learned senior counsel for the appellant,

submits that no rights of the writ petitioner, legal or fundamental, were

infringed and, therefore, the writ petition in the nature of public interest

litigation could not have been entertained by the learned single Judge.

The learned senior counsel submits that the learned single Judge granted

final relief to the writ petitioner by way of interim order, which is not

permissible in law as the writ petition is yet to be adjudicated upon. It is

also submitted by him that the order of the Hon'ble Supreme Court has to 7 HCJ & CPK, J W.A.No.224 of 2021

be understood in the context in which the same was passed and the

period of four weeks, as indicated in the order of the Hon'ble Supreme

Court, was the maximum period for which the Model Code of Conduct

could have been imposed by the State Election Commission. Drawing

attention of the Court to the Notification dated 07.03.2020, he submits

that the Model Code of conduct was not imposed by the State Election

Commission for four weeks for any of the elections for the Local Bodies

and so far as MPTCs and ZPTCs are concerned, it was imposed for a total

period of two weeks. As the publication of final lists of candidates had

already been made, the Model Code of Conduct was re-imposed for the

period from the date of resumption of poll process on 01.04.2021 to

10.04.2021. In respect of Municipal Corporations and Municipalities also,

the Model Code of Conduct was not imposed for four weeks by the

Notification dated 15.02.2021 and the same was not questioned and

accordingly, elections had been held. It is submitted that in any view of

the matter, the learned single Judge ought not to have stayed the election

process after the process had commenced. He further submits that full

preparations have been made for the purpose of holding election

tomorrow.

15. Mr. Vedula Venkata Ramana, learned senior counsel appearing for

the respondent/writ petitioner, submits that the order of the Hon'ble

Supreme Court being categorical that the State Election Commission shall

re-impose Model Code of Conduct four weeks prior to the date of the

election, there is no escape from the conclusion that the Notification

issued by the State Election Commission imposing Model Code of Conduct

for only a period of 10 days in respect of MPTCs and ZPTCs falls foul with

the order of the Hon'ble Supreme Court and, therefore, the order of the 8 HCJ & CPK, J W.A.No.224 of 2021

learned single Judge cannot be faulted with. When the order of the

Hon'ble Supreme Court is clear and categorical, the submission advanced

by Mr. C.V. Mohan Reddy that it was the understanding of the State

Election Commission that the period of four weeks as indicated by the

Hon'ble Supreme Court was the maximum period for which the Model

Code of Conduct could be imposed, is without any basis. So far as the

plea of locus standi is concerned, learned senior counsel submits that

every citizen has a right to demand a free and fair election and for

enforcement of the order of the Hon'ble Supreme Court and, therefore,

the plea of locus standi raised by Mr. C.V. Mohan Reddy is misconceived.

16. Mr. S. Sriram, learned Advocate General, submits that though it is

recorded in the order of the learned single Judge that he had endorsed

the argument of the learned senior counsel for the State Election

Commission, the material placed by him before the learned single Judge

was not considered. It is submitted by him that the writ petitioner, apart

from enclosing the Press Note dated 01.04.2021 and Notification dated

01.04.2021 issued by the State Election Commission, did not enclose the

previous election schedules issued by the State Election Commission and,

therefore, he has placed the same on record by uploading the earlier

Notifications relating to the election schedules of Panchayats and

Municipalities, to demonstrate that in those election schedules, Model

Code of Conduct for a period four weeks was not imposed. He submits

that even in respect of Gram Panchayat elections, the Model Code of

Conduct was not in force for a full period of four weeks as the Notification

was stayed for a period of 11 days from 11.01.2021 to 21.01.2021. He

submits that grievance that was expressed before the Hon'ble Supreme

Court was that when the postponement of elections had taken place, 9 HCJ & CPK, J W.A.No.224 of 2021

there could not have been any justification for continuing with the Model

Code of Conduct, as it would have seriously impacted various social

welfare activities that the State was undertaking. It was in the above

backdrop, the Hon'ble Supreme Court had directed imposition of Model

Code of Conduct four weeks prior to the date of polling. He submits that

when the said order is examined in the light of the backdrop in which the

grievance was expressed and when the original Notification was not issued

imposing Model Code of Conduct, which has no statutory basis, for a

period of four weeks, it has to be understood that the Model Code of

Conduct, at the maximum, could have been imposed by the State Election

Commission for a period of four weeks. He has also reiterated the

submission of Mr. C.V. Mohan Reddy that the learned single Judge ought

not to have interfered with the election process.

17. We have considered the submissions made by the learned counsel

for the parties.

18. The order dated 18.03.2020 passed by the Hon'ble Supreme Court

in W.P.(C).No.437 of 2020 reads as under:

"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 10 HCJ & CPK, J W.A.No.224 of 2021

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.

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.

                              11                           HCJ & CPK, J
                                                    W.A.No.224 of 2021

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.

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.

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.

                                       12                           HCJ & CPK, J
                                                             W.A.No.224 of 2021

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."

19. The learned single Judge held that the State Election Commission

had not followed the direction of the Hon'ble Supreme Court in

W.P.(C).No.437 of 2020 with regard to imposition of Model Code of

Conduct in letter and spirit and, therefore, the deviation thereto cannot be

accepted. In view of the deviation noticed, the learned single Judge

observed that at the interlocutory stage, the contention advanced by the

learned counsel for the State Election Commission regarding locus standi

of the writ petitioner pales into insignificance. The learned single Judge,

on consideration of various authorities, as indicated in the order, had

observed that generally, the Courts will not interfere or adjudicate upon

an election matter by exercising powers under Article 226 of the

Constitution of India, particularly, when the election process begins, but

also noted that the Court can certainly intervene in certain circumstances.

The learned single Judge thought it fit that it was one of such matters

where Court can step in and stay the election process. Taking that view,

the learned single Judge stayed all further proceedings pursuant to the

Notification No.1503/SEC-B1/2021 dated 01.04.2021 until further orders.

Opportunity was granted to the State Election Commission to file an

affidavit on 15.04.2021 mentioning clearly that the State Election 13 HCJ & CPK, J W.A.No.224 of 2021

Commission would issue a fresh election notification by scrupulously

following the directions of the Hon'ble Supreme Court in W.P.(C).No.437

of 2020. Accordingly, the matter was directed to be listed on 15.04.2021.

20. The writ petition was filed on 03.04.2021 as house motion and the

appellant, having regard to the urgency of the matter, could file only a

preliminary affidavit.

21. A perusal of the impugned order of the learned single Judge would

go to show that the learned single Judge, in effect, while granting the

interim order, had virtually allowed the writ petition, though the writ

petition is still pending disposal. That the order has a ring of finality is

apparent in view of the direction to the State Election Commission to issue

a fresh notification. Furthermore, the learned single Judge, during the

course of the order, did not consider the aspect relating to elections held

after the order of the Hon'ble Supreme Court in respect of Gram

Panchayats, Municipalities and Municipal Corporations, for which the

Model Code of Conduct was not imposed for a period of four weeks. The

learned single Judge also did not specifically decide the issue of locus

standi of the writ petitioner.

22. We are of the considered opinion that there are contentious issues

to be adjudicated in the writ petition. Considering the matter in its

entirety, we set aside the order of the learned single Judge. Balancing the

competing equities, we direct that the poll can be conducted on

08.04.2021. We, however, direct that counting of votes shall not take

place and consequently, result of elections shall also not be declared till

disposal of the writ petition.

                                     14                            HCJ & CPK, J
                                                            W.A.No.224 of 2021

23. We dispose of this appeal in terms of the above directions. As the

learned single Judge had fixed the writ petition for consideration on

15.04.2021, Registry will list the writ petition, as directed by the learned

single Judge, on that date.

24. No order as to costs. Pending miscellaneous applications, if any,

shall stand closed.

ARUP KUMAR GOSWAMI, CJ                           C. PRAVEEN KUMAR, J


                                                                IBL/NN/MRR
                                15                       HCJ & CPK, J
                                                  W.A.No.224 of 2021

HON'BLE MR. JUSTICE ARUP KUMAR GOSWAMI, CHIEF JUSTICE & HON'BLE MR. JUSTICE C. PRAVEEN KUMAR

WRIT APPEAL No.224 of 2021

(Per Arup Kumar Goswami, CJ)

Dt: 07.04.2021

IBL/NN/MRR 16 HCJ & CPK, J W.A.No.224 of 2021