Ponnekanti Mallikarjuna Rao, vs Andhra Pradesh State Election ...
2021 Latest Caselaw 1463 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 PETITION (P.I.L.) No.55 of 2021

                       (Through video conferencing)

Ponnekanti Mallikarjuna Rao, S/o. Haribabu,
Aged 29 years, Advocate, R/o.4-1, near
Sachidanandam Market, Piduguralla,
Guntur District, Andhra Pradesh-522413                             ... Petitioner

                                    Versus

Andhra Pradesh State Election Commission,
1st floor, New HODs Building, M.G. Road,
Vijayawada-520 010, Krishna District, rep. by its
State Election Commissioner, and others                       ... Respondents

Counsel for the petitioner            :      Mr. P.V. Krishnaiah

Counsel for respondent Nos.1 & 5      :      Mr. N. Ashwani Kumar

Counsel for respondent Nos.2 to 4     :      Mr. S. Sriram, Advocate General

                               ORDER (ORAL)

Dt:09.03.2021

(ARUP KUMAR GOSWAMI, CJ)

We have heard Mr. P.V. Krishnaiah, learned counsel for the

petitioner, Mr. N. Ashwani Kumar, learned counsel for respondents 1 and 5

and Mr. S. Sriram, learned Advocate General for respondents 2 to 4.

2. By filing this Writ Petition (P.I.L.), the petitioner has questioned the

action of the 1st respondent in conducting elections for various

Municipalities and Municipal Corporations in the State of Andhra Pradesh.

3. It is to be noted, at the outset, that elections are due to be

conducted tomorrow, i.e. 10.03.2021 and this Writ Petition (P.I.L.) was

filed on 05.03.2021.

HCJ & CPKJ W.P. (P.I.L.) No.55 of 2021

4. Mr. P.V. Krishnaiah has drawn our pointed attention to paragraph

316.4 of the judgment dated 29.05.2020 passed by this Court in

W.P.No.8163 of 2020 and batch and contends that when this Court had

specifically laid down that the State Election Commissioner cannot

function for superintendence, direction and control of the preparation of

electoral rolls for, and the conduct of, all elections to the Municipalities

and the Municipal Corporations, the Notification issued by the

1st respondent cannot stand scrutiny for a moment and, therefore, by way

of interim measure, this Court may stay the elections to be conducted, by

suspending the Notifications issued for the above purpose.

5. Mr. S. Sriram, learned Advocate General, appearing for respondents

2 to 4, on the other hand, contends that reliance placed on paragraph

316.4 by the learned counsel for the petitioner, is misconceived as the

same is relatable to the State Election Commissioner who was appointed

by Notification dated 11.04.2020 on cessation of tenure of the incumbent

State Election Commissioner, who is arrayed as respondent No.5 herein,

and paragraph 318 of the aforesaid judgment makes it abundantly clear

that respondent No.5 herein is competent to hold elections.

6. Similar submission is advanced by Mr. N. Ashwani Kumar, learned

counsel for respondents 1 and 5.

7. It will be relevant to take note of paragraph 2 of the judgment

dated 29.05.2020 rendered in W.P.No.8163 of 2020 and batch, to

understand the challenges made in the aforesaid cases.

8. A perusal of paragraph 2 goes to show that challenge was made to

Ordinance No.5 of 2020, i.e. Andhra Pradesh Panchayat Raj (Second

HCJ & CPKJ W.P. (P.I.L.) No.55 of 2021

Amendment) Ordinance, 2020 dated 10.04.2020, promulgated by the

Governor of Andhra Pradesh, substituting Section 200 of the Andhra

Pradesh Panchayat Raj Act, 1994. Further challenge was made to

G.O.Ms.No.617 of Panchayat Raj and Rural Develoment (E&R) Department,

dated 10.04.2020, by which the Andhra Pradesh Panchayat Raj (Salaries

and Allowances, Conditions of Service, Tenure of State Election

Commissioner) Rules, 2020 were notified replacing the existing Andhra

Pradesh Panchayat Raj (Salaries and Allowances and Conditions of Service

of State Election Commissioner) Rules, 1994. The consequential

notification in G.O.Ms.No.618, Panchayat Raj and Rural Development

(E&R) Department, dated 10.04.2020, directing that the incumbent State

Election Commissioner (for short, 'the SEC') Dr. N.Ramesh Kumar, ceases

to hold office prior to completion of the tenure, and another

G.O.Ms.No.619, Panchayat Raj and Rural Development (E&R) Department,

dated 11.04.2020, appointing Justice V. Kanagaraj, Retired Judge of the

High Court of Madras, as SEC of Andhra Pradesh, for a period of three

years from the date of assumption of office, in consequence to cessation

of office by Dr. N. Ramesh Kumar have also been assailed.

9. Paragraph 316.4, which is the foundation of the case of the

petitioner, reads as follows:

"316.4] The State Election Commissioner appointed in

exercise of powers under Section 200 of the A.P. Panchayat

Raj Act, 1994 cannot function for superintendence, direction

and control of the preparation of electoral rolls for, and the

conduct of, all elections to the Municipalities and the

HCJ & CPKJ W.P. (P.I.L.) No.55 of 2021

Municipal Corporations. The appointment must be made by

the Governor in exercise of the power under Article 243K of

the Constitution of India."

10. It will be apposite to extract relevant portion of G.O.Ms.No.619

dated 11.04.2020, by which Justice V. Kanagaraj, Retired Judge of the

High Court of Madras, was appointed as the State Election Commissioner.

The same reads as under:

"...In terms of Ordinance No. 5 of 2020, dated.10-04-2020, and

consequent on cessation of tenure of the incumbent State

Election Commissioner, and in terms of amended Section 200

of the Andhra Pradesh Panchayat Raj Act, 1994, I, Biswa

Bhusan Harichandan, Governor of Andhra Pradesh hereby

appoint Sri Justice V.Kanagaraj, Retired High Court Judge, as

the State Election Commissioner for a tenure of three years

from the date of assumption of office."

11. It will also be expedient to extract relevant portion of G.O.Ms.No.11

dated 30.01.2016, by which respondent No.5 herein was appointed as

State Election Commissioner. The same reads as under:

"...In exercise of the powers conferred on me under Article

243 K of the Constitution of India read with Sub-Section (2) of

Section 200 of the Andhra Pradesh Panchayat Raj Act, 1994, I,

E.S.L. Narasimhan, Governor of Andhra Pradesh hereby

appoint Dr.N.Ramesh Kumar, IAS, as State Election

Commissioner for a period of five years from the date of

assumption of office."

HCJ & CPKJ W.P. (P.I.L.) No.55 of 2021

12. A perusal of the above two notifications would go to show that while

Justice V. Kanagaraj, Retired Judge of the High Court of Madras, was

appointed in terms of Section 200 of the Andhra Pradesh Panchayat Raj

Act, 1994, respondent No.5 herein was appointed by the Governor of

Andhra Pradesh, in exercise of powers under Article 243 K of the

Constitution of India read with Sub-Section (2) of Section 200 of the

Andhra Pradesh Panchayat Raj Act, 1994. In view of the above, having

regard to the contents of paragraph 316.4 of the judgment dated

29.05.2020 in W.P.No.8163 of 2020 and batch, on which reliance has been

placed by Mr.P.V. Krishnaiah, we are inclined to accept the submission of

the learned Advocate General that same is not relatable to respondent

No.5, i.e., the present incumbent State Election Commissioner.

13. This Court while disposing of W.P.No.8163 of 2020 and batch,

directed as follows:

"317. While allowing W.P.No.8163 of 2020, the promulgated

Ordinance No.5 of 2020 dated 10.04.2020 and the

consequential Rules i.e., the Andhra Pradesh Panchayat Raj

(Salaries and Allowances, Conditions of Service, Tenure of

State Election Commissioner) Rules, 2020 notified vide

G.O.Ms.No.617 dated 10.04.2020 and the Notification to cease

to hold the office of State Election Commissioner by

Dr.N.Ramesh Kumar (Mr.A) vide G.O.Ms.No.618 dated

10.04.2020 as well as the Notification of appointment of

Justice V.Kanagaraj (Mr.B) as State Election Commissioner

vide G.O.Ms.No.619 dated 11.04.2020 are hereby set-aside.

HCJ & CPKJ W.P. (P.I.L.) No.55 of 2021

318. The Respondent-State is directed to restore the position

of Dr.N.Ramesh Kumar as State Election Commissioner and

allow him to continue in the office until completion of the

tenure as notified vide G.O.Ms.No.11 dated 30.01.2016. He is

also entitled for all consequential benefits."

14. A perusal of the above paragraphs go to show that having set aside

the Ordinance and the consequential Notifications, position of the present

State Election Commissioner, i.e., the respondent No.5 herein, was

restored and he was allowed to continue in the office until completion of

his tenure, as notified by G.O.Ms.No.11 dated 30.01.2016.

15. Having regard to the aforesaid directions, we are of the considered

opinion that contention of the learned counsel for the petitioner that

respondent No.5 herein, i.e., the present incumbent State Election

Commissioner is disqualified by this Court to hold elections to

Municipalities and Municipal Corporations in the State of Andhra Pradesh,

is unfounded.

16. Consequently, this Writ Petition (P.I.L.) is dismissed. No order as to

costs. Pending miscellaneous applications, if any, shall stand closed.

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