S V Chiranjeevi vs The State Of Andhra Pradesh
2021 Latest Caselaw 1427 AP

MONDAY , THE EIGHTH DAY OF MARCH TWO THO

:PRESENT:

THE HONOURABLE SRI JUSTICE D.V.S.S.SOMAYAJULU

I.A. Nos. 1 and 2 of 2021

IN
Between :-

S.V. Chiranjivi, S/o. Appa Rao,
Aged about 52 Years,

A

W.P.No. 4110 of 2021

Resident of D.No.20F-3-6/2, Janapareddyvari Street,

Kothapet, Eluru, West Godavari District.

M. Ramu, S/o. Late Pothu Raju,
Aged about 56 Years,
Resident of D.No.20A-7-49, Kothapet,

Mandurvari Veedhi, Eluru, West Godavari District.

V. Srinivasa Rao, S/c. Appalaswamy,
Aged about 43 Years,

Resident of 16-B-3-44, oo,
Rani Nagar 1° Road, Tangellamudi, --
Eluru, West Godavari District.

Yandamuri Lakshmi, W/o. Kanaka Rao,

4" Division,

Aged about 46 Years,

Resident of 3-116, Maruthi Nagar,

Eluru Mandal, Eluru, West Godavari District.

Bost Mohan, S/o.Maruthi Rao,

10° Division,

Aged about 51 Years,

Resident of 3A-10-7, Main Bazar Banda Veedhi,
Eluru, West Godavari District.

Tavwva Aruna Kumari, W/o. Ram Prasad,
12" Division,
Aged about 47 Years,

Resident of RR Pet, Eluru, West Godavari District.

Gongadi Jnaneswari, W/o. Bose Babu,
14" Division,

Aged about 28 Years,

Resident of H.No.5-70, Velamapeta,
Near Ramalayam, Eluru Posangi.
West Godavari District.

Avula Chinna, S/o. Rangaiah,

15" Division,

Aged about 70 Years,

Resident of H.No.6A-1 1-16,
Chiranjeevi Bus Stand, South Street,
Eluru, West Godavari District.

DESH AT AMARAVATI
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9. Vegi Sai Srikanya, D/o. Veg: Prasas
29" Division,
Aged about 25 Years,
Resident of H.No.18B-6-444
Tapimestri Colony, Tangellamudi, Eluru.

10. Paidi Balakrishna, S/o Paidi Venkat Rao,
19" Division,
Aged about 27 Years,
Resident of H.No.4 1-34A, NTR Colony,
Venkatapuram Panchayati, Eluru Mandal,

11. M. Nageswaramma, C/o. Abraham Palas,
32™ Division,
Aged about 37 Years,
Resident of D.No. 14-35, Boys Convent,
Vidyanagar, Eluru, West Godavari Districi.
12. Jala Balaji, S/o. Surya Rao,
4" Division,
Aged about 48 Years, .
Resident of H.No. 4 4-12-1274, Navab. Pet,
Eluru, West Godavari District:

13. Jala Sumathi, W/o" Balaji,
4" Division, re
Aged about 36 Years, =).
Resident of H.No.1 1-12-7421, Navab Pei, ;
Eluru, West Godavari District. oe

14. Jala Sivasankar, S/o. Surya Rao,
4" Division,
Aged about 38 Years,
Resident of H.No.1 1-12-168, Navab Pet Colony,
Eluru, West Godavari District.

15. Tera Venkateswara Rao,
4" Division,
Aged about 68 Years, - _
Resident of H.No.11-12-62, Navab Pet Colony,
Eluru, West Godavari District.

16. Jain Kamalabai, W/o.Sokalchand,
12" Division, a
Aged about 1071 Years,
Resident of H.No.3B-19-3, Near Clock Tower,
Eluru, West Godavari District.

17. Mangal Bhosra, W/o. Prakash Bhosra,
11" Division,
Aged about 56 Years,
Resident of H.No.3A-10-7, Peruguchettu,

Eluru, West Godavari District.

18. Sandeepkumar Jain, Wo. Puthershai,
12" Division,
Aged about 44 Years,
Resident of H_No.3B-4 G-3,
Fiuru, West Godavari District
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Premkumar Jain, S/e. Naresh Jain,

11" Division,

Aged about 26 Years,

Resident of H.No.3A-1 3-4, Peruguchsetiu,
Eluru, West Godavari District.

. Padmavathi Bogaati, W/o. Amit Kumar,

12" Division,

Aged about 31 Years,

Resident of H.No.3B-19-3, Near Clock Tower,
Eluru, West Godavari District.

Madagaia Kanakarao, S/o. Chitti Babu,
50" Division,

Aged about 35 Years,

Resident of H.No.16A-20-32, MRC Coiony,
Eluru, West Godavari District.

. Santaka Kumari, W/o. Santaka Ramu.

50" Division,

Aged about 36 Years, oe
Resident of H.No.16A-20-64. MRC Colony,
Eluru, West Godavari District.

Chintada Appa Rao, S/o. Chintada Adinarayana,
50" Division,

Aged about 49 Years, .

Resident of H.No.16A-20-54. MRC Colony,
Eluru, West Godavari District. .

Kommuri Lakshmana Rao, S/o. Pedda Appa Rao,
50" Division,

Aged about 51 Years,

Resident of H.No.16A-20-82/A, MRC Colony,

Eluru, West Godavari District.

Siddani Appalanaidu, S/o. Ramanaidu,

50" Division, .

Aged about 42 Years, So
Resident of H.No.16A-20-49, MRC Colony, °
Eluru, West Godavari District.

Kathi Moses Prabhakar, S/o. Jesudanam,
47" Division, - .

Aged about 514 Years, oe
Resident of H.No.16B-6-45, israei Pet,
Balayogi Vantena Road,

Eluru, West Godavari District.

Kathi Jodaniel, S/o. Moses Prabhakar Kathi
47" Division,

Aged about 19 Years,

Resident of H.No. 16B-6-45, israei Pet,
Balayogi Vantena Road.

Eluru, West Godavari District.

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Kancharla Rushi Sakina, S/c. Moses,
47" Division,

Aged about 42 Years,

Resident of H.No.16B-6-45, israe! Pet,

Balayogi Vantena Road,
Eluru, vvest Godavari District.

Vinukollu Naga Srihari, S/o. Lal Bahadur Sastry,
47" Division,

Aged about 21 Years,

Resident of H.No.16B-6-44, Israel Peia,

Eluru, West Godavari District.

0. Peeda Neelima, W/o. Peeda Suri Durgarao,

47" Division,

Aged about 24 Years,

Resident of H.No.16B-6-42, Israel Peta,
Eiuru, West Godavari District.

. Koia Shyam Babu, S/o. Prabhudas,

47" Division,
Aged about 45 Years,
Resident of H.No.16B-5-77, Israel Peta,
Eiuru, West Godavari District.

Kakumani Ravikumar, S/o. Yesu,

47" Division,

Aged about 44 Years,

Resident of H.No.16B-5-73, Israel Peta,
Eluru, West Godavari District.

Gunju Jessi Jeevan, S/o. Moses Gunju,
47" Division,

Aged about 22 Years,

Resident of H.No.1 6B-6-36, israel Peta,
Eluru, West Godavari District.

Junju Joseph Jaditya, S/o. Junju Moses,
47* Division,

Aged about 24 Years,

Resident of H.No. 16B-6-36, Israe! Peta,
Eiuru, West Godavari District.

And

1.

The State of Andhra Pradesh,

Rep. by its Principal Secretary to Government,
Municipal Administration Department,
Secretariat, Velagapudi, Guntur District.

The Chief Electoral Officer,

The State of Andhra Pradesh,

A.P. Secretariat Buildings, Velagapuci,
Amaravati, Guntur District.

Andhra Pradesh State Election Commission,
Rep. by its Commissioner, Vijayawada,
Krishna District.

... Petitioners 2. ke fT

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4.The District Collector and District Election Authority, West Godavari District, Eluru

5.The Eluru Municipal Corporation, Rep. by its Commissioner, Eluru,
West Godavari District.

6.The Electoral Registration Officer, Eluru Assembly Constituency,
Eluru, West Godavari District.

...Respondents in both I.As
(Respondents in-do-)

Counsel for the Petitioners in both petitions :SRI DAMMALAPATI SRINIVAS, SENIOR
COUNSEL FOR SRI VENKATESWARLU NIMMAGADDA
Counsel for the Respondent No.1 in both petitions : SRI KASA JAGAN MOHAN
REDDY- SPECIAL GOVT. PLEADER
Counsel for respondent Nos.2 to 4 & 6 in both petitions : SRI ASHWANI KUMAR, SC
Counsel for the respondent No.5 in both petitions : SRI MANOHAR REDDY-SC
|.A.No. 1 of 2021 :-

Petition under Section 151 CPC praying that in the circumstances stated in the
affidavit filed in support of W.P., the High Court may be pleased to direct the
respondents herein to restrain from issuance of any election notification for
conducting elections in respect of 5'h respondent corporation without complying the
orders of the Hon'ble Court passed in W.P.No.3876 of 2020, dated 05.03.2020 and
W.P.No.872 of 2020, dated 13.03.2020, pending disposal of W.P. No. 4110 of 2021, on

the file of the High Court.

|.A.No. 2 of 2021 :-

Petition under Section 151 CPC praying that in the circumstances stated in the
affidavit filed in support of W.P., the High Court may be pleased to direct the
respondents herein to stay all further proceedings in conducting elections in respect
of 5° respondent corporation without complying the directions of the Hon'ble Court
passed in W.P.No. 3876 of 2020, dated 05-03-2020 and W.P.No. 872 of 2020,
dated 13-03-2020, pending disposal of W.P. No. 4110 of 2021, on the file of the High

Court.

| The court while directing issue of notice to the Respondents herein to show
cause as to why this application should not be complied with, made the following
order.(The receipt of this order will be deemed to be the receipt of notice in the

case).

ORDER :-
 

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HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
IA.Nos.1 and 2 of 2021
in

W.P.No.4110 of 2021

ORDER :

This Court is faced with a very big legal dilemma in this

case at the interlocutory stage itself.

On the one hand, is an order passed by a learned single Judge of this Court pertaining to the electoral rolls of the Eluru Municipal Corporation in WP.No.3876 of 2020 giving clear directions for correction of the electoral rolls of this very same Municipal Corporation before issuing an election notification for ensuring a free and fair election. This order has become final as it was not challenged although one year has expired by 05.03.2021. The present writ petition is filed questioning the inaction of the respondents in preparation and publication of the final electoral rolls in accordance with the directions in WP.No.3876 of 2020 dated 05.03.2020. As per the petitioners a "proper" electoral roll is not there for this Corporation and so they argue that there cannot be a free and fair election based upon a "defective electoral roll". They seek an interim order to

stay the election.

On the other hand, the respondents, rely on the well settled case law on the subject upon to argue that once the election process starts, the Court should not grant any order which would have the effect of interrupting the election etc. This

is their core legal submission. It is argued that as the election

notification was issued on 09.03.2020, the writ is not maintainable and no order whatsoever can be passed in this writ

petition.

The conflict before this Court is this:- Whether an order of a learned Single Judge passed after hearing of the parties pertaining to the electoral rolls of the very same Municipal Corporation can be ignored in the light of the law on the subject, which cautions this Court from granting an interim

order once an election process commences?

Till date this Court was very circumspect and wary in interfering in matters where the election process has commenced and has asked many petitioners ' approach the Election Tribunal. The question however in the facts of this particular case is - can this Court be a mute spectator if a prima

facie case is made out about the non-implementation of a

judicial order on the very same subject and it being ignored?

If yes - should this Court interfere after the election notification

is issued?

For the petitioners, Sri Dammalapati Srinivas, learned senior counsel appeared and argued the matter for Sri Venkateswarlu Nimmagadda. For respondent No.3 Sri Ashwani Kumar appeared. For Eluru Municipal Corporation, Sri Manohar Reddy appeared and Sri Kasa Jagan| Mohan Reddy, Special Government Pleader appeared for the State of Andhra

Pradesh).

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PETITIONERS SUBMISSIONS:

Appearing for the petitioners, the learned senior counsel argues that the order in WP.No.3876 of 2020 was passed on 05.03.2020. A short order dated 05.03.2020 (advance order) was communicated to the parties. This is filed by the

respondent-State. It is to the following effect:

"In the result, the writ petition is allowed directing the respondents to rectify the errors and illegalities pointed out by the petitioners, before issuing notification to conduct fair_and free elections in Eluru Municipal Corporation, without waiting for copy of this order, as requested by the learned Government Pleader for Municipal Administration, so as to proceed with the process of rectification of errors in Electoral Roll of

Eluru Municipal Corporation."

A detailed order was passed and communicated later. This detailed order is a part of the material papers. The learned

single Judge in this matter considered the following two points:

1) Whether the defects pointed out by the petitioners in the voters list causes prejudice to the rights of any electors or political party or the candidates to be contested in the ensuring election of the Eluru Municipal Corporation?

2) Whether the Bar under Article 243 (z)(g) of the Constitution of India disentitles to claim relief in

the writ petition?

After discussing the factual aspects and the position of law, he came to the conclusion that point No.1 is to be answered in favour of the petitioners. Thereafter, he decided point No.2,

wherein he considered the legal aspects including the bar

ot

against the Court exercising jurisdiction and came to the conclusion that the writ petition is to be allowed and that the errors and illegalities pointed out should be corrected before the

elections are conducted for the Eluru Municipal Corporation.

According to the petitioners, this order is not complied

with - either in letter or in spirit.

The learned senior counsel appearing for the petitioners draws the attention of this Court to the factual aspects considered by the learned single Judge in WP.No.3876 of 2020 before coming to the conclusions. One "Poorna Venkata Sai Mahesh Sannidhi" in the 8th Division is given about 15 votes. Several persons in different divisions were given votes without any Door Number. Large number of voters were shown with Door number '00', 000' or 0000'. <A dog was found to be allotted a vote in Sy.No.1615 along with photograph. The electoral roll is also added as a part of the impugned order and it

is filed as a material paper.

It is the contention of the petitioners that even as on date, the errors are not removed and there cannot be a free and fair election on the basis of this continuing "defective" list. He also draws the attention of this Court to the written instructions filed by the standing counsel for the State Election Commission dated 28.02.2021 and points out that pursuant to the orders of the Court in WP.No.3876 of 2020, the State Election Commission requested the Collector and District Election Officer vide its

letter SECC.No.82/SEC-F1/2020 dated 09.03.2020 to comply

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with the orders of the Hon'ble High Court. The Commissioner, Eluru. Municipal Corporation in his reply letter ROC.No.1509566/01/2013 dated 09.03.2020 submitted that the errors pointed out in the writ petition have been rectified. The State Election Commission mentions that thereafter they have notified the elections to the Eluru Municipal Corporation. The learned senior counsel submits that this is a physical and practical impossibility to state that on the very same day (09.03.2020) all the errors have been erased/corrected. The stipulated 30 /15 days public notice inviting objections was thus not issued as per him. He points out that the procedure stipulated under the 1960 Registration Electors Rules to ensure that a proper electoral roll is prepared includes giving public notice, publication of draft roils etc., and argues that on this

same ground the order in WP.No.3876 of 2020 was allowed.

Relying upon the judgment of the Mohinder Singh Gill v. the Chief Election Commissioner, New Dethi!, (Para 34/35) learned senior counsel argues that if there is a valid and a proper election, the Court cannot interfere, but if on the other hand, if the act complained of "taints" the course of election and is not done in furtherance of a free and fair poll, the Court can interfere. He submits that the same is also been followed in the case in Election Commission of India through Secretary v.

Ashok Kumar?. According to the learned senior counsel, the

1 (1978) 1 SCC 405 2? 2000 (8) SCC 216 . .

errors that were pointed out during the course of the hearing of WP.No.3876 of 2020 were not removed and that most of them continued to be there in the rolls even as on date. It is also highlighted more than once by the learned senior counsel that this order of the learned single Judge has not been challenged despite the expiry of one year time. It is his contention that the present action of the respondents is thus a blatant violation of the law and they have chosen to ignore the learned single Judge's decision. He also argues that the high Court is a Court of record and its directions must be honoured unless they are varied, modified or set aside. It is his contention therefore that as the respondent-State has not complied with the order and as there is no valid or proper electoral roll at all, the bar under the Constitution of India as exemplified in the case of Mohinder Singh Gill (1 supra) and other leading cases will not apply. He States that the "foundation" of a free/fair poll is a correct

electoral roll.

STATE ELECTION COMISSION: --

For the State Election Commission, no argument was advanced apart from highlighting the facts contained in the letter dated 28.02.2021, which is referred to earlier. This letter has been filed and is a part of the record. This is the letter that shows that on 09.03.2020 the election authority was directed to comply with the orders and they had replied that the orders were complied with. Thereafter they state that election

notification was issued on 09.03.2020 itself.

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RESPONDENT. STATE's SUBMISSIONS. -

ee ek LS SUBMISSIONS

Sri Kasa Jagan Mohan Reddy, learned Special Government Pleader appeared and argued for the State. The other counsels also argued on Similar lines, Sri Kasa Jagan Mohan Reddy also filed a compact disk showing the details of the corrections made in the electoral Toll. He also drew the attention to brief note which he has filed and also the data furnished by the Assistant Returning Officer showing the various corrections that are made

by the public as Per the Registration of Electors Roll, 1960.

As per him, the order of the learned single Judge is

and order of contempt must be passed also for misleading the Court. He draws the attention of the Court to the case status which is filed as material papers to argue that the matter was heard and disposed off on the very same day. He calls the €ntire order an abuse of the Process of the Court. He draws the attention of this Court to the Andhra Pradesh Municipal Corporations (Preparation and Publication of Electoral Rolls) Rules, 2001 (for short 'the 2001 Rules') and Particularly, Rules 3, 5 and 6 and argues that this Procedure has been followed. He relies upon the Registration of Electoral Rules 1960 (for short

'the 1960 Rules) to argue that this Procedure has been followed

we,

and relying upon the data given by the Assistant Returning Officer, he points out that approximately 15,000 corrections were made. He also points out that there is a specific procedure prescribed under the Statutes/Rules for correction of names/wrong entries. He relies on Rule 13 of the 1960 Rules and states that a claim for inclusion of a name should be made in Form-6 by a person desiring that his name should be included. A person, whose name is already included, can raise

an objection under Form-7 etc. Learned counsel submits that

the petitioners in this case did not file any such forms for

inclusion, deletion or correction. He submits that the respondent can only act according to the rules and cannot act contrary to the rules. He also argues that an advance order in WP.No.3876 of 2020 was communicated on 05.03.2020 and immediate action was taken to correct the errors by 09.03.2020. He also relies upon a circular issued by the State Election Commission to argue that neither Municipal Corporation Officials nor anybody else can make suo motu corrections. It is his contention that it is only the designated Officer who can

carry out the corrections.

The learned counsel also argues that as a fraud is played on the Court, it vitiates the entire order of the learned single Judge. It is also his contention that there is no 'inal electoral roll' before the learned single Judge and that no electoral list was filed before the learned single Judge also. He contends that the preparation of electoral rule list is a continuing process and

that therefore, it cannot be urged that the learned single Judge

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directed the correction of final electoral roll. Therefore, he argues that as the petitioners did not file the requisite form /application for correction etc., the State action is to be upheld. On the legal side he submits vehemently that as the election notification is issued; no interim order can be passed in view of the settled law on this aspect. He also relies on the Constitution Bench

decision of Mohinder Singh Gill (1 supra).

CONSIDERATION BY THE COURT:

The agony the Court faces is again reiterated: whether the State can ignore the order that has been passed in WP.No.3876 of 2020 and whether this Court should be a silent spectator to the same and allow the elections to go on at the States behest even if this Court finds that the order has not been followed by

the State in letter or spirit, more so as it relates to an "electoral

roll'?

The order is passed by a Constitutional Court. The fact remains that this order dated 05.03.2020 has not been challenged at all till date. It is only attacked in the course of submissions of this writ as having been obtained by suppression of facts etc. In the latter half of the submission, it is also said that the order was obtained by fraud and it is therefore, vitiated,

since fraud vitiates even the most solemn actions.

On the question of fraud, this Court is of the opinion that a decision cannot be taken in a summary manner more so in an interlocutory application. Fraud as per the settled law has to be

very clearly pleaded and proved. In the case on hand, there is

no material available currently to hold that the earlier order is

vitiated by fraud. This issue is therefore left open.

This order in WP.No.3876 of 2020 is passed (as can be seen at page 28 of the material papers) after hearing all the learned counsel who appeared for the contesting parties and the

prayer in the writ is as follows:

".... to issue a writ order or direction more in the nature of writ of Mandamus declaring the action of the respondents in preparing the Final voters list for the Eluru Municipal Corporation Election without waiting for_objections_as mandated under Rule 12 of the Registration electors Rules 1960 as _ arbitrary illegal contrary to Sec 12 of Municipal Corporations Act and

Rule_10 and 12 of the Registration of Electors rules

1960 __and__Principles of Natural Justice and consequently direct the respondents to rectify the mistakes crept in the voters list prepared for the Eluru

Municipal Corporation Election by duly consider the

obligation and .." (Emphasis supplied)

The learned single Judge noticed while deciding point No.1 from page 35 that the rolls were prepared within two days from the date of issue of Form-1 and that the minimum period should be at least '15 days' for inviting objections or suggestions. Therefore, he held that on this ground the final voters list is liable to be set aside since the minimum period of 15 days was not given. The single Judge held that the list published on

05.02.2020 is the "final list" which he set aside.

Factually also he noticed certain glaring errors. (a) one

candidate has been given vote in different polling stations in

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different places (b) in page 39, several persons in several divisions were included without mentioning the door number.

(c) he highlighted the importance of a roll number for voting and found that large number of voters had door numbers '00' '000' or '0000'. He pointed out that this is a serious irregularity since a voter has to be already resident of that area before he is included as a voter. (d) Thereafter, he found that there is an entry about a street dog. The Learned Single Judge also

included the photograph of parts of the voters list in his order. Compact Disk and its Entries:

This Court requested the learned counsel for the State to file the voters list which is said to have been corrected for factual verification. The learned counsel has furnished a compact disk of the voters list. The compact disk reveals that the errors are still continuing. For example, in ward No.1, this Court finds that house No.0000 is still allotted to the voters at 191, 207, 211, 213, 245 to 249. In ward No.4, the 000 number is allotted to persons in Sy.Nos.32, 33 76, 125 to 130. The voter in list No.79 does not have a door number at all. Some more examples

are:

WARD - 2

e Sl.no -- 85, House number is given as "PLOT NUMBER" WARD - 3

e Sl.no --- 49, House number is given as "HOUSE NUMBE" WARD - 5

° Sl.no ~ 110, Voter Name and father name is given as "[][][]{][][][]

COU OTE?

e Sl.no -- 374, Voter name is given as "C3" and father name is given as "0" aan

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sNo 124 SINao 1,186 PSNO T47b SING 1,172

LésS Sooty TI) LE 6 ios &

otitons 1-149 matitons 3-109 IZOD: 32 Dotto DW 18 Bere *

es ae WIO1878602 DDE Be WIO1585504 WARD - 6 e Sl.no - 166, 167, House number is given as "---------------- " WARD - 7 e Sl.no - 40, House number is given as "274 Line" WARD - 8

e Sl.no --- 27, House number is given as "KATHEEPU VEEDH" WARD - 9

e Sl.no --- 18, House number is given as "THUPU VEESHI" WARD - 10

e Sl.no --- 29, House number is given as "95502280997E-3- 1-32" ° Sl.no - 77, 78, House number is given as "ELURU"

SLNO Ps No 137 SINo 971

cious 95502280997 E-3-1-32 bewm, 52 Bore 8 355 3G CQY3987260

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sNo 137 SINo 972 |

hdd O22 Oe Girtiy 9 Sods Soom Ho

etitend Eluru otMonds ELURU .

43 Borie 2 POIRIOy 58 Dorie 2 WIO3 14004 HS ao WIOIT0S1602

Procedure for Corrections /Objections in Electoral Rolls:

The relevant rules are the 1960 Rules and the 2001 Rules. Rule 6 of the 2001 Rules states that the objections to the entries in the rolls can be made as per the 1960 Rules. Rule 5 and Form-1 of the 2001 Rules deal with the publication of the rolls

and giving public notice for claims for corrections/omissions as per the 1960 Rules. Rule 12 of the 1960 Rules mandates a

30day period for filing claims which can be reduced to a 15 day

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222 es x95 <8 period by the Election Commission. Failure to observe this rule was the essential ground on which the entire electoral list was set aside in the earlier writ petition (WP.No.3876 of 2020). Even after the order was passed in the presence of all the counsels and the advance order was communicated, it appears that this procedure and particularly the draft rolls, 30/15 day period etc., is not adhered to. The order was passed on 05.03.2020. The exact date of communication of the advance order is not clear, but the normal procedure is that it is communicated on the same day. As can be seen from the instructions filed by the State Election Commission, they requested the Collector and District Election Officer to comply with the orders by letter dated 09.03.2020. On the very same day (09.03.2020), the Commissioner, Eluru Municipal Corporation informs the State Election Commission that the order is complied with. Thereafter, on 09.03.2020, the election notification has issued. Even if the letter of the State Election Commission and the reply mentioned therein are ignored, it is apparent that the order in WP.No.3876 of 2020 was passed on 05.03.2020 and the election notification is issued on 09.03.2020. Thus it appears that the 30 day/15 day rule was not followed and objections were not called for. The note filed by the State and the data given does not disclose the dates/ period in which the corrections were carried

out or if the corrections were pursuant to the order

dated05.03.2020.

This Court, in view of the available material, finds it very

hard to believe that the entire electoral roll was corrected as pér~.

the advance order dated 05.03.2020 which clearly directed the respondents to correct the rolls before issuing the election notification and without waiting for a copy of the order. The statutory period for inviting objections etc., as per the Rule is 30 days or a minimum of 15 days. (Rules 1960). The Public should have been notified of the draft roll as per Rule 5 and From-1 of the 2001 Rules and given a 30/15 day notice for

correction /objections etc., as per Rule 12 of the 1960 Rules.

Therefore, prima facie, this Court has to hold that the order of the learned single Judge is not complied with and the

rule position is not followed.

The statutory rules are once again violated even after the

order of the single Judge.

Thus, this Court finds legally and factually that the directions in the order of the single Judge are not followed. That orders of the court are to be followed even if they are passed exparte or on merits, whether they are interim or perpetual etc., is not in doubt. The Division Bench Judgment of this High Court K. Mallaiah v. Sandeep Kumar Sultania® is apposite and is

relied upon.

RULE OF LAW: The Rule of Law is a part of the basic features of our Constitution. Adherence to the Rule of Law and strict compliance with the orders of the Courts are an integral part of

this. The disobedience of the Courts orders strikes at the root of

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the concept of the Rule of Law. The Hon'ble Supreme in Maninderjit Singh Bitta vs. Union of India (VOI, held as

follows:

26. It is also of some relevancy to note that disobedience of court orders by positive or active contribution or non-obedience by a passive and dormant conduct leads to the same result. Disobedience of orders of the court strikes at the very root of rule of law on which the judicial system rests. The rule of law is the foundation of a democratic society. Judiciary is the guardian of the rule of law. If the Judiciary is to perform its duties and functions effectively and remain true to the spirit with which they are sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs (refer = T.N. Godavarman Thirumulpad's case MANU/SC/2520/2006 : (2006) 5 SCC 1),

The fact that the high ranking officials did not obey the order makes it all the more disturbing. It can be argued that the Courts have the power to punish for contempt and send the Officers to jail etc., for disobedience. The fact however remains that a direction to correct the electoral roll was not followed and on this basis the election is now scheduled to be held. Contempt etc., may not therefore be the actual Solution/answer to the problem in this case where an election is proposed to be held

without a proper electoral roll.

This Court was contemplating calling for the entire records

at one stage but felt that the fuller, detailed examination is to bé

*2012(1) Scc 273

postponed to a later date to fix the responsibility if necessary on the people concerned. For deciding the present applications,

the material available is sufficient.

As per the law on the subject the fact that the electoral roll is not fully ready etc., is not a ground to postpone the election but the position in this case is-the electoral roll was found to be defective in its totality because of certain factual errors noticed and also legally incorrect as the minimum 15 day notice under the 1960 rules was not given to the public. This is not a case of an electoral roll not being ready - its a case of electoral roll set aside in its totality due to the failure to follow the statutory procedure. Hence the respondents were directed to correct the electoral roll before issuing the notification. The Single Judge held that the entire election will be vitiated and that it will not be a free and fair election. As mentioned earlier this order was passed on 05.03.2020 and the election notification was issued on 09.03.2020. The minimum 15 day notice(Rule 12 of 1960 Rules) was thus not complied and the corrections were also not

carried out after receiving objections. Electoral Roll and its Importance in the Election Process:-

The surviving questions are: as the electoral roll as not corrected as stipulated under law, can the elections be held? Can it said that it would be a fair poll? Lastly, can this Court

stop/interdict the said election?

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3.

An electoral roll is the foundation of the election. A five Judge Bench of the Hon'ble Supreme Court held as follows in

Chief Commissioner, Ajmer vs. Radhey Shyam Dani?:

"12. It is of the essence of these elections that proper electoral rolls should be maintained and in order that a proper_electoral roll should be maintained it is necessary that after the preparation of the electoral roll opportunity should be given to the parties concerned to scrutinize whether the persons enrolled as electors possessed the requisite qualifications. Opportunity should also be given for the revision of the electoral roll and for the adjudication of claims to be enrolled therein and entertaining objections to such enrolment. Unless this is done, the entire obligation cast upon the authorities holding the elections is not discharged and the elections held_on such imperfect electoral rolls would acquire no validity and would be liable to be challenged at the instance of the parties concerned. It was in our opinion, therefore, necessary for the Chief Commissioner to frame rules in this behalf, and in so far as the rules which were thus framed omitted these

provisions they were defective."

This was also a case of non-compliance with the procedures for correcting the election rolls. The finding of this five Judge Bench is that such an election will have no validity at all. The challenge was also under Article 226 of the Constitution. The importance of an electoral roll is also highlighted by the rules which provide for strict time frames, wide publicity, publication of draft rules etc., before finalization.

If the same is not done, in the prima facie opinion of this Court,

SAIR 1957 SC 304

| it goes to the root of the matter and is not a mere aberration ora technical flaw that can be ignored. An election is a case like this would an exercise in futility. This is not a case where an individual is now complaining to the Court that the electoral roll is defective in his or her individual case for him to be related to the Election Tribunal. This is a case where after adjudication, a learned single Judge found that the final electoral roll of the Eluru, Municipal Corporation is defective. The petitioners claim that the process of democracy will become a mockery and will affect their statutory and fundamental rights. With such an electoral roll can the election go ahead? Will the usage of such

an electoral roll lead to a free and fair poll which is the very bed

rock or foundation of our democracy?

ALTERNATE REMEDY:TRIBUNAL -- The so called alternate remedy theory will not also work and it will not be ark efficacious remedy if this electoral roll continues as the Court feels that the edifice will collapse as the errors are not small but are very

large. The respondents who did not give the required notice

under Rule 12 of the 1960 Rules, or follow the procedure either

before the order in WP.No.3876 of 2020 or thereafter cannot rely on the alternate remedy principle and drive the electorate of the

city of Eluru to the Election Tribunals.

Once the statute prescribes the method to do an act; it must be done in that manner or not at all. This principle need not be repeated. The State should have followed the procedures

for correction as per the 1960 Rules and the 2001 Rules. The

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failure to follow the procedure is clearly visible -- not once but twice. Hence, they cannot say that no orders can be passed now or that the petitioners should avail their remedies after the elections are over. Despite the alternate remedy and the tribunals the Constitutional Courts are acting in certain election cases as can be seen in the decisions reported in AIADMK v, State Election Commission® and K. Venkatachalam v. A

Swamickan',

CONCLUSIONS: A) The following extracts from five Judges decision or the Hon'ble Supreme Court in Mohinder Singh Gill

(1 supra) are useful to be quoted here:

Para 2. If we may add, the little, large Indian shall not be hijacked from the course of free and fair elections by mob muscle methods, or subtle perversion of discretion by men dressed in little, brief authority. For 'be you ever so high, the law is above you'.

Para 15. Two prefatory points need to be mentioned as some reference was made to them at the bar. Firstly, an election dispute is not like an ordinary lis between private parties. The entire electorate is vicariously, not inertly, before the court. MANU/SC/0097/1958 > [1959]1SCR611 We may, perhaps, call] this species of cases collective litigation where judicial activism assures justice to the constituency, guardians the purity of the system and decides the rights of the

candidates. In this class of cases, where the

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common law tradition is partly departed from, the danger that the active judge may become, to some extent, the prisoner of his own prejudices exists; and so, notwithstanding his powers of initiative, the parties' role in the formulation of the issues and in the presentation of evidence and argument should be substantially maintained and care has to be taken that the circle does not become a vicious one, as pointed out by J.A. Jolowicz in 'Public Interest Parties and the Active Role of the Judge in Civil Litigation' (ss. p. 276). Therefore, it is essential that courts, adjudicating upon election controversies, must play a verily active role, conscious all the time that every decision rendered by the Judge transcends private rights and defends the constituency and the democracy of the country. Para 35. Article 329(b) halts judicial intervention during this period, provided the act possesses the pre-requisites of 'election' in its semantic sweep. That is to say, immunity is conferred only if the act impeached is done for the apparent object of furthering a free and fair election and the protective armour drops down if the act challenged

is either unrelated to or thwarts or taints the

course of the election.

In fact, in the judgment of the Hon'ble Supreme Court in

Ashok Kumar's case (2 supra)held as follows:

28. Election disputes are not just private civil disputes between two parties. Though there is an individual or a few individuals arrayed as parties before the Court_but the stakes of the constituency as a whole are on trial. Whichever way the lis terminates it affects the fate of the constituency and the citizens generally. A

conscientious approach with overriding consideration

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for welfare of the constituency and strengthening the democracy is called for. Neither turning a blind eye to

the controversies which have arisen nor assuming a

role of over-enthusiastic activist would do. The two

extremes have to be avoided in dealing with election

disputes.

30. To what extent Article 329(b) has an overriding effect on Article 226 of the Constitution? The two Constitution Benches have held that Representation of the People Act, 1951 provides for only one remedy; that remedy being by an election petition to be presented after the election is over and there is no remedy provided at any intermediate stage. The non-obstante clause with which Article 329 opens pushes out Article 226 where the dispute takes the form of calling in question an election (see para 25 of Mohinder Singh Gill's case, supra). The provisions of the Constitution and _ the Act read together do not totally exchide the right of a citizen to approach the Court so as to have the wrong done remedied by invoking the judicial forum; nevertheless the lesson is that the election rights and remedies are statutory, ignore the trifles even if there are irregularities or illegalities, and knock the doors of the courts when the election proceedings

in question are over."

In the opinion of this Court, the errors/failures in the present case are not mere trifles. They "taint" and effect the validity of the elections. An election held with an imperfect electoral roll will not have validity as per the Bench of five judges in Chief Commissioner, Ajmer v. Radhey Shyam Dani (5 supra).In the case of Surender Kaur vs State of Punjab® the

High Court granted a stay at 2.00pm which was duly

"AIR 1996 SC 1507

communicated to the Returning Officer at 3.00 pm and also by 3.50 pm., but he closed the poll at 4.00 pm and declared that the 7th respondent was elected. The Hon'ble Supreme Court set aside the election as it was concluded/declared after the order

was passed /communicated and directed the re-poll to be held.

B) This Court after considering all of the above agonized over the issue and felt that the greater good /public good lies in the following and obeying the orders of the Courts when compared to the inconvenience of postponing the election and that a quia

timet order or a stitch in time is needed in the circumstances.

1) This Court is prima facie of the opinion that the action of the Officials in not fully implementing the order in WP.No.3876 of 2020 is not correct. If orders of the Constitutional Courts are not followed, it will lead to a breaking down of the "Rule of Law"

as we know of it, which is a basic feature of our Constitution.

Elections can be postponed or re-scheduled. Obedience of the orders of the Court/Rule of Law cannot be "postponed". The orders have to be followed both in letter and spirit unless and until they are modified, varied or set aside. Till then, they must be followed by everyone who must remember this - "be you ever

so high, the law is above you "

2) The petitioners have made outa prima facie case as the electoral roll being used is found to be factually and legally flawed. The same is not rectified and the stipulated 30/15 day public notice etc., was not issued inviting objections after the

draft roll was prepared. The rules were not followed. Balance of

Rw" ° convenience is in favour of the petitioners who want a proper electoral roll before the election on the basis of an order of this Court. If elections are postponed and they are held after the electoral rolls are corrected inconvenience will be caused but, irreparable loss will not be caused to the respondents / the electorate and the election of a Mayor and the Corporator's will only be postponed for a certain period. The elections are being held after a long time in Eluru Corporation. Municipal administration was continuing till date without the Mayor etc. A postponement will thus not cause serious loss and will sub- serve the larger public good by having a _é more representative/participative Municipal election. It will also uphold the "Rule of Law" and ensure a free and fair poll on

which the edifice called democracy, rests.

In that view of the matter, there shall be an interim order as prayed in IA.No.2 of 2021 and the elections to Eluru Municipal Corporation scheduled to be held on 10.03.2021 shall be stayed. It is left open to the respondents also to make a mid- course correction, salvage the situation and to rectify the

electoral rolls but strictly as per the law. No orders are called for in IA.No.1 of 2021 at this stage.

List the matter on 22.03.2021 for counters of respondents. ~">.

oes

Sd/-M.Suryanadha Reddy

ASSISTANT REGISTRAR // TRUE COPY// SECTION OFFICE

= \

GE ZIBPPAASY S

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1.One Fair Copy to the Hon 'ble Sri Justice D.V.S.5. Somayajulu(for his Lordships Kind Perusal) 2.8L.R. Copies.

3.The Under Secretary, Union of India, Ministry of Law, Justice and Company Affairs, New Delhi.

4.The Secretary, A.P. Advocates Association Library, High Court Buildings, At Amaravati.

5. The Principal Secretary to Government, Municipal Administration Department, State of Andhra Pradesh, Secretariat, Velagapudi, Guntur District.

6.The Chief Electoral Officer, State of Andhra Pradesh, A.P. Secretariat Buildings, Velagapudi, Amaravati, Guntur District.

7.The Commissioner, Andhra Pradesh State Election Commission, Vijayawada, Krishna District.

8. The District Collector and District Election Authority, West Godavari District, Eluru

9. The Commissioner, Eluru Municipal Corporation, Eluru, West Godavari District.

10.The Electoral Registration Officer, Eluru Assembly Constituency, Eluru, West Godavari District.

(Addressee Nos. 5 to 10 by RPAD)

41.Two CCs to Sri Kasa Jagan Mohan Reddy, Special Government Pleader, High Court of A.P., at Amaravati(OUT)

12.One CC to Sri Venkateswarlu Nimmagadda, Advocate(OPUC)

13.One CC to Sri Ashwani Kumar, Standing Counsel(OPUC)

14.One CC to Sri Manohar Reddy, Standing Counsel(OPUC)

15.One spare copy.

To

TKK

DRAFTED BY TKK DT.08-03-2021.

HIGH COURT

DVSS.J

DT.08-03-2021.

ORDER

l.A.Nos. 1 and 2 of 2021 IN W.P.No. 4110 of 2021

INTERIM STAY IN 1.A.No. 2 of 2021