Yoshodha Nakka vs The State Election Commission Of ...
2021 Latest Caselaw 1263 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. 117, 118 and 120 of 2021

WRIT APPEAL No. 117 of 2021

                    (Taken up through video conferencing)

Yashodha Nakka, W/o. Guruprasad Nakka,
Aged about 21 years, Occupation:
Housewife, R/o. 19/339, Bhagyanagar
Colony, Jammalamadugu, Jammalamadugu
Mandal, YSR Kadapa District, and another.
                                                  .. Appellants/ Writ Petitioners
                                     Versus

The State Election Commission of State of
Andhra Pradesh, represented by its
Secretary, Vijayawada, Krishna District, and
(13) others.
                                                   ..Respondents/ Respondents

Counsel for the Appellants : Mr. Vedula Venkata Ramana, Sr. Counsel.

Counsel for Respondent No.1 : Mr. N. Ashwani Kumar, SC for State Election Commission.

Counsel for Respondent No.2 : Mr. S. Sriram, Advocate General, & GP for Municipal Administration & Urban Development;

AND

WRIT APPEAL No. 118 of 2021

Thodima Triveni Reddy, D/o. Thodima Siva Sankar Reddy, Aged about 21 years, R/o.

1/1269, Yattapu Colony, Jammalamadugu, Jammalamadugu Mandal, YSR Kadapa District, and two others.

.. Appellants/ Writ Petitioners Versus

The Andhra Pradesh State Election Commission, represented by its Secretary, 1st Floor, New HOD's Building, MG Road, Vijayawada, Krishna District, and another.

..Respondents/ Respondents

Counsel for the Appellants : Mr. Basva Prabhu Patil, Sr. Counsel Assisted by Sodum Anvesha

Counsel for Respondents : Mr. N. Ashwani Kumar, SC for State Election Commission.

AND

WRIT APPEAL No. 120 of 2021

Chappidi Vishnuvardhan Reddy, S/o.

Chappidi Ramanatha Reddy, Aged about 21 years, R/o. D. No. 15/1225, 2nd Road, Sanjeevanagar, Tadipatri Town, Anantapuram District, and five others.

.. Appellants/ Writ Petitioners Versus

The Andhra Pradesh State Election Commission, represented by its Secretary, 1st Floor, New HOD's Building, MG Road, Vijayawada, Krishna District, and two others.

..Respondents/ Respondents

Counsel for the Appellants : Mr. P. Veera Reddy, Sr. Counsel Assisted by Mr. Harish Kumar Rasineni

Counsel for Respondent Nos. 1 & 2 : Mr. N. Ashwani Kumar, SC for State Election Commission.

COMMON JUDGMENT (ORAL)

Dt: 02.03.2021

(per Arup Kumar Goswami, CJ)

1) Heard Mr. Vedula Venkata Ramana, learned Senior Counsel, in W.A.

No.117 of 2021; Mr. Basva Prabhu Patil, learned Senior Counsel, in W.A. No.118

of 2021, and Mr. P. Veera Reddy, learned Senior Counsel, in W.A. No.120 of

2021. Also heard Mr. S. Sriram, learned Advocate General & GP for Municipal

Administration & Urban Development and Mr. N. Ashwani Kumar, learned

Standing Counsel for State Election Commission, respectively.

2) Challenge in these Writ Appeals is to an Order, dated 26.02.2021, passed

in I.A. No. 1 of 2021 in W.P. No. 4200 of 2021, I.A. No. 1 of 2021 in W.P.

No.4292 of 2020, and I.A. No. 1 of 2021 in W.P. No. 4343 of 2021, declining the

prayer for an interim order and resultantly dismissing the applications, seeking

for an interim order. By way of interim applications, the Appellants herein have

sought for stay/suspension of Notification No. 578/SEC-F1/2021-1, 579/SEC-

F1/2021-1, 580/SEC-F1/2021-1 and 581/SEC-F2/2021, dated 15.02.2021, issued

by the State Election Commission. In the Writ Petitions, fundamentally the

prayer was made to set aside the aforesaid Notifications, dated 15.02.2021,

issued by the State Election Commission.

3) In exercise of the powers conferred under Article 243-ZA of the

Constitution of India, Sections 10-A and 10-B of the Andhra Pradesh

Municipalities Act, 1965 and the Andhra Pradesh Municipalities (Conduct of

Election of Members) Rules, 2005 issued thereunder [as amended vide

G.O.Ms.No.118, Municipal Administration & Urban Development (G) Department,

dated 04.03.2020], the State Election Commissioner had called upon the

registered voters of the Municipalities and Nagar Panchayats specified in the

Annexure appended thereto, to elect Members of their respective Wards and,

also notified the programme for conduct of elections, vide notification

No.79/SEC-F2/2020, dated 09.03.2020. The Election Programme as indicated in

the said notification reads as under:

1 Display of Ward-wise Electoral Rolls by 11.03.2020 Election Officer under Rule 5 of the said Rules (Wednesday)

2 Publication of Election Notice under Rule 6 of 11.03.2020 the said Rules by the Election Officer. (Wednesday) (From this date onwards, Nominations can be filed from 11:00 AM to 3:00 PM)

3 Last Date for receipt of Nominations 13.03.2020 (Friday) (Up to 3:00 PM)

4 Scrutiny of Nominations 14.03.2020 (Saturday) (From 11:00 AM onwards)

5 Last date for Withdrawal of Candidatures 16.03.2020 (Monday) (Not later than 3:00 PM)

6 Date of Publication of List of Contesting 16.03.2020 (Monday) Candidates. (After 3:00 PM)

7 Date of Poll 23.03.2020 (Monday) (From 07:00 AM to 5:00 PM)

8 Date of Re-poll, if any 26.03.2020 (Thursday) (From 7:00 AM to 5:00 PM)

9 Date of Counting 27.03.2020 (Friday) (From 8:00 AM onwards)

4) By another notification No.76/SEC-F1/2020-1, dated 09.03.2020, in

exercise of the powers conferred under Article 243-ZA of the Constitution of

India, Section 24 of the Municipal Corporations Act, 1955 and Sections 11 and

14 of the Andhra Pradesh Municipal Corporations Act, 1994, the State Election

Commissioner had called upon the registered voters in the Municipal

Corporations of Vizianagaram, Eluru, Machilipatnam, Guntur, Ongole, Tirupathi,

Chittoor, Kadapa, Kurnool and Anantapur, to elect Members of their respective

Wards in accordance with the provisions of the said Acts and Andhra Pradesh

Municipal Corporations (Conduct of Election of Members) Rules, 2005 made

thereunder.

5) By another notification No.77/SEC-F1/2020-1, dated 09.03.2020, in

exercise of the powers conferred under Article 243-ZA of the Constitution of

India, Section 7 of the Visakhapatnam Municipal Corporation Act, 1979 and

Section 24 of the Municipal Corporations Act, 1955, the State Election

Commissioner had called upon the registered voters of Greater Visakhapatnam

Municipal Corporation to elect Members of their respective Wards in accordance

with the provisions of the said Acts and Andhra Pradesh Municipal Corporations

(Conduct of Election of Members) Rules, 2005 made thereunder.

6) By Notification No.76/SEC-F1/2020-2, dated 09.03.2020, the State

Election Commissioner fixed the appointed dates with respect to the said

elections, in pursuance of Sections 11 and 14 of the Andhra Pradesh Municipal

Corporations Act, 1994 read with Section 33 of the Municipal Corporations Act,

1955 (as amended vide A.P. Ordinance No.3 of 2020). The said notification

reads as under:

(a) 11.03.2020 As the date for the issue of Public Notice by the (Wednesday) Returning Officer under Section 35 of Municipal Corporations Act, 1955 (Nominations can be filed from this date from 11:00 AM to 3:00 PM)

(b) 13.03.2020 As the last date for making nominations (Friday) (Up to 3:00 PM)

(c ) 14.03.2020 As the date for the Scrutiny of Nominations (Saturday) (From 11:00 AM onwards)

(d) 16.03.2020 As the last date for Withdrawal of Candidatures (Monday) (Up to 3:00 PM)

(e) 16.03.2020 As the date of Publication of the Final List of (Monday) Contesting Candidates (After 3:00 PM)

(f) 23.03.2020 As the date on which a Poll shall, if necessary, be (Monday) taken (from 7:00 AM to 5:00 PM)

(g) 26.03.2020 As the date on which a re-poll, if any, shall be taken (Thursday) (from 7:00 AM to 5:00 PM)

(h) 27.03.2020 As the date of counting (Friday) (from 8:00 AM onwards)

7) Thereafter, the State Election Commission issued a notification dated

15.03.2020, relevant portion of which, reads as under:

"Now, therefore, in exercise of powers conferred under

Articles 243K and 243ZA of the Constitution of India, the State

Election Commission, hereby, order that -

1) 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, Dt. 07.03.2020 shall

be stopped forthwith;

2) 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, Dt.09.03.2020; 77/SEC-

F1/2020-1 & 2, Dt.09.03.2020; 78/SEC-F1/2020-1 & 2, Dt.

09.03.2020; and 79/SEC-F2/2020, Dt.09.03.2020 shall be stopped

forthwith;

3) 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

4) the schedules already announced for Gram Panchayat

elections are kept in abeyance until further orders.

8) A perusal of the above notification, dated 15.03.2020, will go to show

that on due consideration of the emerging challenges posed by Corona Virus

spread, the State Election Commission had taken a view that continuing with the

election schedule may be detrimental and harmful for the public health at large

and, accordingly, decided to exercise its plenary powers under Articles 243K and

243ZA of the Constitution of India, to put on hold the election process of Mandal

Parishad Territorial Constituencies (MPTCs) and Zilla Parishad Territorial

Constituencies (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. It was specifically stated therein that

the election process will be continued from the stage where it is stopped in

respect of MPTCs/ZPTCs and Urban Local Bodies.

9) The notification, dated 15.03.2020, was assailed by the State of Andhra

Pradesh before the Hon'ble Supreme Court in W.P.(C ) No.437 of 2020 and the

Hon'ble Supreme Court by order, dated 18.03.2020, had declined to interfere

with the decision of the Election Commissioner.

10) The State Election Commission issued notification No.578/SEC-F2/2021,

dated 15.02.2021, stating therein that the State Election Commission, on review

of the situation, had decided that the situation is conducive for resumption of

paused election process of Urban Local Bodies from the stage where it was

stopped on 15.03.2020. It was also stated therein that the election process was

completed upto the stage of "Scrutiny of Nominations" on 14.03.2020, and

accordingly, it was notified that the State Election Commission, in exercise of

powers conferred under Article 243-ZA of the Constitution of India, resumes the

election process from the stage of "Withdrawal of Candidature" in respect of the

Municipalities/ Nagar Panchayats specified in the Annexure appended to the

notification and called upon the registered voters of the Municipalities/Nagar

Panchayats specified in the Annexure appended to the Notification, to elect

Members of their respective Wards. The election programme for ensuring

elections was also notified, which is as follows:

1. Date of Commencement of Withdrawal of 02.03.2021 (Tuesday) Candidature (From 11:00 AM to 3:00 PM)

2 Last date for Withdrawal of Candidature 03.03.2021 (Wednesday) (Not later than 3:00 PM)

3 Date of Publication of List of Contesting 03.03.2021 (Wednesday) Candidates (After 3:00 PM)

4 Date of Poll 10.03.2021 (Wednesday)

(From 7:00 AM to 5:00 PM)

5 Date of Re-poll, if any 13.03.2021 (Saturday)

(From 7:00 AM to 5:00 PM)

6 Date of Counting 14.03.2021 (Sunday)

(From 8:00 AM onwards)

11) On the same day, Notification No. 578/SEC-F1/2021-1 for conduct of

ordinary elections to Municipal Corporations of Vizanagaram, Eluru,

Machilipatnam, Guntur, Ongole, Tirupati, Chittoor, Kadapa, Kurnool and

Ananthapur, Notification No. 579/SEC-F1/2020-1 for Greater Visakhapatnam

Municipal Corporation and Notification No. 580/SEC-F1/2021-2 for Vijayawada

Municipal Corporation were issued with programme of election similar to election

programme of Municipalities and Nagar Panchayats.

12) Mr. Vedula Venkata Ramana, learned Senior Counsel, appearing for the

Appellants in W.A. No.117 of 2021 submits, that the learned Single Judge was

not justified in not granting an interim order, in as much as the election

programme had commenced with effect from the date of withdrawal of

candidature instead of filing of nominations. He has submitted that long period

had elapsed from the date of stoppage of election and, therefore, in the

interregnum, there may be many more willing aspirants, who would have

wanted to take part in the election, and depriving them is not conducive for a

democratic process.

13) Mr. Basva Prabhu Patil, learned Senior Counsel, appearing in W.A No.118

of 2021, draws attention of the court of Rule 7 of the Andhra Pradesh

Municipalities (Conduct of Election of Members) Rules, 2005 and submits that

the election programme notified by the Election Commission is contrary to the

said Rule.

14) Mr. P. Veera Reddy, learned Senior Counsel, appearing in W.A. No.120 of

2021, also endorsed the aforesaid submissions.

15) All the learned counsel for the appellants have sought to emphasise that

the Hon'ble Supreme Court did not consider the question relating to resumption

of the election process and, therefore, there is no impediment for this court to

interdict the election process since the resumption is started by not allowing

fresh nominations to be filed, but, from the stage of commencement of

"Withdrawal of Candidature".

16) On the other hand, Mr. S. Sriram, Advocate General as well as Mr. N.

Ashwani Kumar, learned Standing Counsel, State Election Commission, submit

that in view of the observations of the Hon'ble Supreme Court in the Order

dated 18.03.2020 in W.P. (C) No. 437 of 2020, the appeals deserve to be

dismissed.

17) It will be appropriate to extract relevant portions of the order of the

Hon'ble Supreme Court, which is as follows:

"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.

....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.

In no circumstance, the State Government shall be

prevented from taking necessary steps to curb the menace of

Corona Virus (COVID 19) epidemic."

18) The Notification, dated 15.02.2021, also came to be challenged in W.P.

(PIL) No. 51 of 2021 and this court by an Order, dated 01.03.2021, dismissed

the same.

19) The learned Single Judge had also taken note of the aforesaid order of

the Hon'ble Supreme Court while rejecting the interim prayer. Further, the

learned Single Judge also observed that a prima facie examination of Rule 7 of

the Rules shows that it confers power to State Election Commissioner to modify

or alter election programme. We also, prima facie, find that the State Election

Commissioner has the power to re-notify election programme as he deems fit.

20) We are of the considered opinion that the Notification, dated 15.03.2020,

having been challenged before the Hon'ble Supreme Court and in view of the

fact that the Hon'ble Supreme Court has declined to interfere with the

Notification, dated 15.03.2020, the contentions of the learned Counsel for the

appellants is without any merit. It cannot be countenanced that the Hon'ble

Supreme Court had adverted only to the postponement of the election and not

the subsequent part, where the Election Commissioner indicated that the

election process in respect of MPTCs/ZPTCs and Urban Local Bodies would be

continued from the stage where it is stopped.

21) In view of the above discussion, we are of the considered opinion that the

order passed by the learned Single Judge declining to pass interim order does

not warrant any interference.

22) Accordingly, the Writ Appeals are dismissed. No costs. Pending

miscellaneous applications, if any, shall stand dismissed.

ARUP KUMAR GOSWAMI, CJ                                   C. PRAVEEN KUMAR, J
                                                                         SM

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

WRIT APPEAL No. 117, 118 AND 120 of 2021 (per Arup Kumar Goswami, CJ)

Dt: 02.03.2021

SM