Oliver Raju Rayi, vs Union Of India
2021 Latest Caselaw 601 AP

IN THE HIGH COURT OF ANDONRA PRADESH AT AMARAVAT!
Special Original Jurisdictien)

THURSDAY TNE FOURTH DAY OF FEBRUARY
TWO THOUSAND AND TWENTY ONE

 

PRESENT

THE HONOURASLE THE CHIEF JUSTICE ARUP KUMAR GOSWAMI
AND
THE HONQURABLE SRI JUSTICE 6.PRAVEEN KOMAR

WRIT PETITION (PIL) No: 28 OF 2021 & WE.No. 2031 OF 2024
WRIT PETITION (PIL) No: 28 OF 2023

Between:
Giver Ralu Rayl S/o nay David Raine Raiu, aged abouf 46 Years, Qeoug SeHON
Edyeationalist and Social Worker, Rio 622-8, AS, Giga Sparments, East Rant
Colony, xeeashapaan, andl hra Pradesh - S30017 Natianal Unique Identity NO. 2545
OSTO SBIS Ema. oliver rraykOamal.can
co PRhTOner
4. Union of India, Rep. by iis Secretary, _ Minist y of Panchayat Raj, Nrishibhavan,
New Delhi 120004
2. The slate af Anca Pradesh, Rep. by fs principal Secrelary, Panchayat Raj and
Rural Development Dept. \ slagapudk, Secretanal Building, suntur Dis
3. The Coramissioner, Fanch ayat Ral and Rural Develosment Dept, Tadepally,
Guniur Dist .
4. The State Election Cammissian of Andhra Pradesh, Slate 1° Floar New HOOs
Building, Opo. Indra Gandhi Municipal Stadium, Mus. Road Vyayawada §20010
Krishna District,

. Respondents

Petition under Ariicie
aircuretances stated in the

fraying that in the
uni may be sleased

 
    
 

  

 

    
  

fa i88ue B writ, orter oar nore arly 0 the nature of writ of
mandamus fe deviaring the more ly ane in the nature of Mandarsus by
reeling the respondents no. and '4 ts grepa ré a new Electoral Roll data for ihe
year 2025 and also direct the 3 mapond {ih Aas par the new

   
 

Siectoral Rall data ora duced hy fhe raspandent nes

LA NO: 1 OF 2623

Raia.

'.

Patition under Section 181 CPS praying that in the circumstances siated is te
affidavit fied in asuppart of fhe petition, the High Court may be pleased to direct the
respandenis No. 2 and 4 to inflate Ihe processes of collecting data of mew voter
meanwhiie suspend the notification No. SO/SEC-R2/2o24 Seated 28. 20280 ara
pending disposal of the above wri petition.

 
 
 

Counsel for the Potiianer: SRI NOY
Counsel for the Respondent No.t : SRI NARINATH.N, Asst Solicitor General
Saunsel for the Respondents 2 & 3: THE ADVOCATE GENERAL
FOR GP FOR PANCHAYAT RAJ & RURAL
DEVELOP MERT

Counsel for the Respondent No.d: SRI N.ASHWANI KUMAR, SC for SEC
 

WRIT PETITION NO: 2031 OF 2021

Between:

Dhulipalla Akhila, D/o. Srinivasarao, Age 18 Years, Occ: Student, 5-22/1, Namburu,
Guntur Dist.

..PETITIONER
AND

1. The State of Andhra Pradesh, rep. by its Principal Secretary, Panchayat Raj and
Rural Development Dept Velagapudi, Secretarial Buildings, Guntur Dist.

2. The State Election Commissioner of Andhra Pradesh, State, 1° Floor New
HODs Building, Opp: Indira Gandhi Municipal Stadium, M G Road Vijayawada
520010, Krishna District.

3. The Union of India, Rep by its Secretary, Ministry of Panchayat Raj,
Krishibhavan, New Delhi 110001.

4. The Commissioner, Panchayat Raj and Rural Development Dept, Tadepally,
Guntur Dist.

... RESPONDENTS

Petition under Article 226 of the Constitution of India praying that in the
circumstances stated in the affidavit filed therewith, the High Court may be pleased
to issue an appropriate Writ order or direction more particularly one in the nature of
Writ of Mandamus annousing the AP Panchayath Election Notification No.30/SEC-
B2/2021 DATED 23.01.2021 with the electoral roll of 2019, thereby taken away my
fundamental right to vote along with more than 3 lakh voters right to vote at the age
of 18 years as envised by the Constitution of India Art.326 ,is illegal, arbitrary and
unconstitutional, Consequent suspend the Notification No.30/SEC-B2/2021 DATED
23.01.2021.
IA NO: 1 OF 2021

Petition under Section 151 CPC praying that in the circumstances stated in
the affidavit filed in support of the writ petition, the High Court may be pleased to
direct the 2 respondent to suspend the Notification No.30/SEC-B2/2021 DATED
23.01.2021 pending disposal of the above writ petition.

Counsel for the Petitioner : SRI GUNDALA SIVA PRASADA REDDY

Counsel for the Respondent No.1 & 4: THE ADVOCATE GENERAL
FOR GP FOR PANCHAYAT RAJ & RURAL
DEVELOPMENT

Counsel for the Respondent No.2 : Sri NNAASHWANI KUMAR, SC for SEC

Counsel for the Respondent No.3 : Sri NHHARINATH, ASG

The Court made the following: ORDER
 

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 PETITION (PIL) No.28 of 2021
and
WRIT PETITION No. 2031 of 2021

(Through Video Conferencing)
WRIT PETITION (PIL) No.28 of 2021

Oliver Raju Rayi, aged 46 years,

S/o. Rayi David Ratna Raju,

Occ: Educationalist and Social Worker,

R/o.6-22-8, A5, Gilgal Apartments,

East Point Colony, Visakhapatnam,

Andhra Pradesh - 530017 .. Petitioner
Versus

Union of India, rep. by its Secretary,
Ministry of Panchayat Raj, Krishibhavan,

New Delhi, and others .. Respondents
Counsel for the petitioner : Mr. N. Joy

Counsel for respondent No.1 : Mr. N. Harinath, ASG
Counsel for respondent Nos.2 & 3 =: The Advocate General
Counsel for respondent No.4 > Mr.N. Ashwani Kumar

WRIT PETITION No. 2031 of 2021

Dhulipall Akhila, D/o.Srinivasa Rao,

Age 18 years, Occ: Student, #5-22/1,

Namburu, Guntur District .. Petitioner
Versus

The State of Andhra Pradesh, rep. by its
Principal Secretary, Panchayat Raj and Rural
Development Dept., Velagapudi, Secretariat

Buildings, Guntur District, and others .. Respondents
Counsel for the petitioner : Mr.G.Siva Prasada Reddy
Counsel for respondent Nos.1&4  : The Advocate General
Counsel for respondent No.2 : Mr.N. Ashwani Kumar

Counsel for respondent No.3 : Mr. N. Harinath, ASG
 

2 HCJ & CPKJ
W.P. (PIL) No.28 of 20214
& W.P.No.2031 of 2021

ORDER (ORAL)

Dt:04.02.2021

(ARUP KUMAR GOSWAMI, CJ)

In view of an order passed by a learned single Judge on 01.02.2021, W.P.No.2031 of 2021 is tagged along with W.P. (PIL) No.28 of 2021. Accordingly, both the cases are considered

together and a common order is passed.

2. Heard Mr. N. Joy, learned counsel for the petitioner in W.P.(PIL} No.28 of 2021 and Mr. G. Siva Prasada Reddy, learned counsel for the petitioner in W.P.No.2031 of 2021. We have also heard Mr. S. Sriram, learned Advocate General, appearing for respondents 2 and 4, Mr. N. Harinath, learned Asst. Solicitor General appearing for respondent No.1 and Mr. N. Ashwani Kumar, learned standing counsel appearing for respondent No.3 in

both the cases.

3. W.P. (PIL) No.28 of 2021, which is a petition in the nature of public interest, is filed, essentially, contending that election to the Gram Panchayats is not conducted in a free and fair manner in view of the fact that names of new voters have not been enrolled in the electoral rolls, based on which the election is sought to be conducted. Prayer, accordingly, is made for a Writ of Mandamus directing respondents 2 and 4 to prepare a new electoral roll for the year 2021 and to direct respondent No.3 to conduct election as per the new electoral roll. As an interim measure, suspension of

the Notification dated 23.01.2021, by which the State Election

3 HCJ & CPKJ W.P. (PIL) No.28 of 2021 & W.P.NQ.2031 of 2021

Commission had declared the election schedule for ordinary

election to Gram Panchayats in four phases, is prayed.

4, W.P.No.2031 of 2021 is filed by a person who had attained the age of 18 years on 22.05.2020. In the writ petition, it is contended that, as the election to the Gram Panchayats is sought to be conducted as per electoral rolls of 2019, around 3 lakh voters would lose their right to vote. Accordingly, prayer is made to issue a Writ of Mandamus 'to suspend' the Notification dated 23.01.2021, by which election schedule for ordinary elections to Gram Panchayat, was notified by the State Election

Commission.

5. Mr. N. Joy, learned counsel for the petitioner in W.P. (PIL) No.28 of 2021, submits that a significant number of population of the State of Andhra Pradesh who have turned 18 years during the period 2019-21 will be deprived of their right to exercise their franchise and their absence has the possibility of impacting the election results. It is submitted that a responsibility is cast on both the State and the State Election Commission to see to it that elections are held on the basis of up-to-date electoral rolls. Drawing attention of the Court to paragraph 5 of the Judgment in the case of State Election Commission v. State of Andhra Pradesh, reported in 2021 SCC Online AP 66, he submits that learned Advocate General had made a submission that the revised list will be received by the Chief Electoral Officer of the

State Government latest by 15.01.2021 and thereafter, it would be

4 HCJ & CPKJ W.P. (PIL) No.28 of 2021 & W.P.No.2031 of 2021

duly forwarded to the State Election Commission by 22.01.2021 and in that circumstance, there can be no justification for holding the election on the basis of electoral roll published with reference

to 01.01.2019 as the qualifying date.

6. Mr. Gunda Siva Prasada Reddy, learned counsel for the petitioner in W.P.No.2031 of 2021, has submitted that the State Government and the State Election Commission are under an obligation to ensure that the elections are held on revised up-to-date voters' list, so that, in real sense, it can be said that there is free and fair election, because any election conducted without giving opportunity to the otherwise eligible voters would be not in keeping with the true tenets of democratic governance. It was the duty of the State Election Commission to ensure that voter list was updated and if there was lack of cooperation from the State Government in that regard, State Election Commissioner ought to have taken appropriate steps, he contends. In the aforesaid background, he contends that the action of the State Election Commission in conducting the election on the basis of electoral rolls with reference to 01.01.2019 as the qualifying date is arbitrary and illegal and accordingly, urges that this court ought to exercise power of judicial review to nullify the election. He has drawn the attention of the court to the judgment of the Hon'ble Supreme Court in the case of Chief Commissioner of Ajmer and

another v. Radhey Shyam Dani, reported in 1957 SCR 68.

5 HC) & CPKJ W.P. (PIL) No.28 of 2021 & W.P.No.2031 of 2021

7. Mr. S. Sriram, learned Advocate General, has drawn our attention to proviso to Section 11 (2) of the Andhra Pradesh Panchayat Raj Act, 1994 (for brevity "the Act") to contend that validity or continued operation of the electoral roll shall not be affected, in case electoral roll is not prepared and published in terms of Section 11 of the Act. As the existing electoral roll had not been updated, there is no illegality in holding elections on the

basis of such electoral roll, he submits.

8. On our specific query as to whether the revised electoral roll was forwarded to the State Election Commissioner by 22.01.2021, as referred to in paragraph 5 in the case of State Election Commission (supra), learned Advocate General submits that electoral roll in terms of the individual Gram Panchayats could not be delivered to the State Election Commission, though electoral roll for the Assembly Constituencies as on 01.01.2021, was

forwarded.

9. Mr. N. Harinath, learned Asst. Solicitor General, has submitted that as the election process had been initiated by the State Election Commission long back, there is no scope for interference in the present proceedings and both the writ petitions

are liable to be dismissed.

10. Mr. N. Ashwani Kumar, learned standing counsel, State Election Commission, has drawn our attention to the Notification dated 22.01.2021, which is part of the Writ Petition (PIL) papers at

page 29, to emphasize as to why it was necessitated to conduct

6 HCJ & CPKJ W.P. (PIL) No.28 of 2021 & W.P.No.2031 of 2021

election on the basis of electoral rolls already published with reference to 01.01.2019 as qualifying date and updated up to 07.03.2020. He has drawn the attention of the Court to the judgment in the case of Kishansing Tomar v. Municipal Corporation of the City of Ahmedabad and others, reported in (2006) 8 SCC 352, with particular reference to paragraphs 19 and 20, to contend that if the revision of the electoral roli cannot be carried out within a reasonable time, election has to be conducted

on the basis of the existing electoral rolls.

11. We have considered the submission of the learned counsel

for the parties and perused the materials on record.

12. The term of the Gram Panchayats had expired on 01.08.2018

and elections to the Gram Panchayats are long overdue.

13. It is apparent that updated revised electoral roll for individual Gram Panchayats was not available with the State

Election Commission, when the election schedule was announced.

14. An order dated 08.01.2021 was passed by the State Election Commissioner seeking to justify holding of elections to the Gram Panchayats in view of the request made by the State Government for postponement of the elections. A schedule for holding ordinary elections to the Gram Panchayats in four phases was also published in terms of which Election Notification was to be issued for Phase-| on 23.01.2021, for phase-ll on 27.01.2021, for Phase-jIl on

31.01.2021 and for Phase-IV on 04.02.2021. Conduct of poll,

a"

7 HC} & CPKJ W.P, (PIL) No.28 of 2021 & W.P.No.2031 of 2021

wherever necessary, was fixed on 05.02.2021, 09.02.2021,

13.02.2021 and 17.02.2021, for Phases I, Il, Ill and IV, respectively.

15. The said order dated 08.01.2021 was challenged in Writ Petition No.1158 of 2021. An interim order was passed on 11.01.2021 by the learned Single Judge, staying the order dated 08.01.2021. The order of the learned single Judge was assailed in Writ Appeal No.24 of 2021 by the State Election Commission. Para 5 as referred to in judgment of State Election Commission (supra) is an extract of the order passed by the learned Single Judge. The order dated 21.01.2021 passed by the Division Bench of this Court in W.A.No.24 of 2021 setting aside the order of the learned single Judge was assailed before the Hon'ble Supreme Court by the State of Andhra Pradesh in S.L.P. (C) No.1520 of 2021 and the same was

also dismissed by an order dated 25.01.2021.

16. Learned counsel appearing for the parties submit that due to litigation, Phase-| was deferred and the poll for Phase-| is now

scheduled on 21.02.2021.

17. In the Notification dated 22.01.2021, it is noted that while contemplating to hold Gram Panchayat elections, the State Election Commission had taken a decision to adopt latest Assembly electoral rolls published by the Election Commission of India with reference to 01.01.2021, as the qualifying date. Certain directions were also issued to complete preparation of the electoral rolls of 2021, by 25.01.2021. However, as the electoral rolls were not

revised, the Election Commission decided to adopt electoral rolls

8 HCJ & CPKJ W.P, (PIL) No.28 of 2021 & W.P.No.2031 of 2021

already published with reference to 01.01.2019 as qualifying date

and updated up to 07.03.2020.

18. Section 11 of the A.P. Panchayat Raj Act, 1994 deals with preparation and publication of electoral roll for a Gram Panchayat. Section 11(2) reads as follows:

[(2) The electoral roll for a Gram Panchayat:- (a) shall be prepared and published in the prescribed manner | by reference to the qualifying date,- (i) before each ordinary election; and (ii) before each casual election to fill a casual vacancy in the office of the Sarpanch and Member of a Gram Panchayat; and {b) shall be prepared and published in any year, in the prescribed manner, by reference to the qualifying date, if so directed by the State Election Commission: Provided that if the electoral roll is not prepared and published as aforesaid, the validity or continued operation of the said electoral roll, shall not thereby

be affected. ]

19. Section 11 (2) of the Act provides that continued operation of electoral roll in existence is in no way affected, if electoral roll is not prepared and published before each ordinary election and therefore, holding of election on the basis of existing electoral

rolls is permissible under the Act.

20. In Radhey Shyam Dani (supra), which was a judgment

rendered prior to introducing Part IX-A of the Constitution, it was

9 HCJ & CPKJ W.P, (PIL) No.28 of 2021 & W.P.No.2031 of 2021

observed that essence of the elections is that proper electoral rolls should be maintained and the elections held on imperfect electoral

rolls would acquire no validity.

21. In Kishansing Tomar (supra), the Hon'ble Supreme Court had occasion to observe that Part IX-A was inserted in the constitution by virtue of the 74° Amendment Act, 1992 and the object of introducing the provisions was that, in many States the local bodies were not working properly and the timely elections were not being held and the nominated bodies were continuing for long periods. In the context of Article 243-U, the Hon'ble Supreme Court had held that the duration of the municipality is fixed as five years from the date of its first meeting and no longer and it is incumbent upon the Election Commission and other authorities to carry out the mandate of the Constitution and to see that a new municipality is constituted in time and elections to the municipality are conducted before the expiry of its duration of five

years as specified in Article 243-U (1).

22. In the background of the above, the Hon'ble Supreme Court at paragraphs 19 and 20 of Kishan Singh Tomar (supra), stated as

follows:

"From the opinion thus expressed by this Court, it is clear that the State Election Commission shall not put forward any excuse based on unreasonable grounds that the election could not be completed in time. The

Election Commission shall try to complete the election

10 HCS & CPKJ W.P. (PIL) No.28 of 2021 & W.P.No.2031 of 2021

before the expiration of the duration of five years' period as stipulated in Clause (5). Any revision of electoral rolis shall be carried out in time and if it cannot be carried out within a reasonable time, the election has to be conducted on the basis of the then existing electoral rolls. In other words, the Election Commission shall complete the election before the expiration of the duration of five years' period as stipulated in Clause (5) and not yield to situations that may be created by vested interests to postpone

elections from being held within the stipulated time.

The majority opinion in Lakshmi Charan Sen & Ors. Vs. A.K.M. Hassan Uzzaman & Ors. (1985) 4 SCC 689 held that the fact that certain claims and objections are not finally disposed of while preparing the electoral rolis or even assuming that they are not filed in accordance with law cannot arrest the process of election to the Legislature. The election has ta be held on the basis of the electoral rolls which are in force on the last date for making nomination. It is true that Election Commission shall take steps to prepare the electoral rolls by following due process of law, but that too, should be done timely and in no circumstances, it shall be delayed so as to cause gross violation of the mandatory provisions contained

in Article 243-U of the Constitution."

11 HCJ & CPKJ W.P. (PIL) No.28 of 2021 & W.P.No.2031 of 2021

23. Aperusal of the dictum as laid down above go to show that if revision of electoral rolls cannot be carried out for some reason or other within a reasonable time, election has to be conducted on the basis of the existing electoral rolls. As noted supra, term of

the elected panchayats had expired long back on 01.08.2018.

24, In the case of Election Commission of India through Secretary v. Ashok Kumar & Ors., reported in (2000) 8 SCC 216, at paragraph 51, the Hon'ble Supreme Court stated as follows: "For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us

hereinabove:-

1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.

2) Any decision sought and rendered will not amount to calling in question an election if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the

election.

12 HC) & CPKJ W.P, (PIL) No.28 of 2021 & W.P.No.2031 of 2071

3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well- settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mata fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.

4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the Court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court.

5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end, Needless to say that in the very nature of the things the Court would act with reluctance and shall not act except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and

supporting the same by necessary material."

To,

RAM

--_

a oN

OONHM

13 HCJ & CPKI

W.P. (PIL) No.28 of 2021 & W.P.No.2031 of 2021

25. <A perusal of the above would go to show, amongst others

that the Court must guard against any attempt at retarding

interdicting, protracting or stalling of the election proceedings.

26. . . .

In view of the above discussions, we are of the considered

opinion that the challenge made in these Writ Petitions is without any merit and accordingly, both the Writ Petitions are dismissed.

N . .

9 costs. Pending miscellaneous applications, if any, shall also

stand disposed of.

SD/- M.RAMESH BABU ASSISTANT REGISTRAR fue HTRUE COPY! "

SECTIO OFFICER

'The Secretary, Ministry of Panchayat Raj, Union of India, Krishibhavan, New

Delhi 110001.

The Principal Secretary, Panchayat Raj and Rural Development Dept., State of Andhra Pradesh, Velagapudi, Secretarial Building, Guntur District.

The Commissioner, Panchayat Raj and Rural Development Dept., Tadepally, Guntur Dist.

The State Election Commission of Andhra Pradesh, State 1°! Fioor New HODS Building, Opp. Indra Gandhi municipal stadium, M.G. Road Vijayawada 520010, Krishna District.

One CC to Sri N-Joy, Advocate [OPUC]

One CC to Sri Gundala Siva Prasad Reddy, Advocate [OPUC]

One CC to Sri N.Ashwani Kumar, SC for SEC [OPUC]

One CC to Sri Harinath.N, Asst Solicitor General [OPUC]

Two CCs to GP for The Advocate General, High Court of Andhra Pradesh [OUT]

10.Two CCs to GP for Panchayat Raj & Rural Development, High Court of Andhra

Pradesh [OUT]

41.Two CD Copies

Choy

HIGH COURT

DATED: 04/02/2021

COMMON ORDER

WP(PIL).No.28 of 2021 & WP.No.2031 of 2021

DISMISSING THE WP(PIL) & WP WITHOUT COSTS