Andhra Pradesh High Court - Amravati

The State Of Andhra Pradesh vs S.V. Chiranjeevi on 9 March, 2021

Bench: Arup Kumar Goswami, C.Praveen Kumar

   

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI AY
TUESDAY, THE NINTH DAY OF MARCH, TWO THOUSAND AND TWENTY ONE = *s
:PRESENT;
THE HONOURABLE THE CHIEF JUSTICE SREARUP KUMAR GOSWAMI
AND
THE HONOURABLE SRE JUSTICE C. PRAVEEN KUMAR
W.ALNO. 145 of 7024,
Between:
1.The State of Andhra Pradesh, Rep by its Principal Secretary to
Government, Municipal Administration Department, Secretariat,
Velagapudi.
2.The Eluru Municipal Corporation, Rep by its Commissioner,
West Godavari District.

kee Appellants/Respondent Nos, 1 & 5

AND

1. $.¥. Chiranjeevi, S/o Appa Rao, Aged about 52 Years, R/o. D.No. 20-E-36/2, Janapareddy vari Street, Kothapet Bun, West Godavari District.

2. M. Ramu, S/o Late Pothu Raju, Aged about 56 Years, R/o. D.No. 20- A-749, Kothapet, Ilviandurvari Veedhi, Eiuru, West Godavari District.

3. V. Srinivasa Rao, S/o Appalaswamy, Aged about 43 Years, R/o D.No. 16-B-344, Rani Nagar, 1st Road, Tangellamudi, Eiuru, West Godavari District.

4. Yandarnuri Lakshmi, W/o Kanaka Rao, 4th Division, Aged about 46 Years, R/o D.No. 3116, Maruthi Nagar, Eluru Mandal, Eluru, West Godavari District.

9. Bosi Mohan, Sio Maruthi Rao, 10th Division, Aged about 51 Years, R/o D.No.3-A-107,Main Bazar, Banda Veedhi, Eiuru, West Godavari District.

6. Tavva Aruna Kumari, W/o Ram Prasad, 12th Division, Aged about 47 Years, R/o RR Pet, Eluru, West Godavari District.

7. Gongadi Jnaneswari, W/o Bose Babu, 14th Division, Aged about 28 Years, R/o H.No. 570,Velamapeta, Near Ramalayam, Eluru Posangi, West Gedavari District.

8. Avula Chinna, S/o.Rangaiah, 15th Division, Aged about 70 Years, R/o. H.No. 6-A-1116, Chiranjeevi Bus Stand, South Street, Eturu, West Godavari District.

9. Vegi Sai Srikanya, D/o Vegprasad, 29th Division, Aged about 25 Years, Ro. M.No.16-B-6111, Tapimestri Colony, Tangelianiudi, Eluru, West Godavari District.

10, Paidi Balakrishna, S/o Paidi Venkat Rao, 19th Division, Aged about 27 Years, 1-1,No.1734-A, NTR Colony, Venkatapuram Panchayati, Eluru Mandal, West Godavari District,

11.M Nageswaramma, S/o Abraham Palas, 32nd Division, Aged about 37 Years, R/o 1435, Boys Convent, Vidyanagar, Eluru, West Godavari District.

12. Jala Balaji, S/o Surya Raa, 4th Division, Aged about 48 Years, R/o H.No, 1112121, Navab Pet, Eluru, West Godavari District,

13, Jala Sumathi, W/o 4th Division, Aged about 36 Years, Réo H.No.1112121, Navab Pet, Eluru, West Godavari District,

14, Jala Sivasankar, $/o Surya Rao, 4th Division, Aged about 38 Years, R/o H.No.1112168, Navab Pet Cotony, Eluru, West Godavari District.

15. Tera Venkateswara Rao, 4th Division, Aged about 68 Years, R/o H.No.111262, Navab Pet Colony, Eluru, West Godavari District,

16. Jain Kamalabal, Wio Sokalchend, 12th Division, Aged about 101 Years, R/o H,No.3-B-193, Clock Tower, Eturu, West Godavari District

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17. Mangal Bhosra, W/o Prakash, {1th Division, Aged about 56 years, R/o H.No.3-A-107, Eluru, West Godavari District.

18. Sandeepkumar Jain, 12th Division, Aged about 44Years, R/o.H.No.3- 8-193, Eluru, West Godavari District,

19, Premkurnar Jain, S/o Naresh Jain, 11th Division, Aged about 26 Years, R/o.H.No.3-A-134, Perugucheetlu, Eluru, West Godavari District,

20. Padmavathi Bagaati, W/o Amit Kumar, 12 Division, Aged about 31 Years, R/o.H.No.3-B-193, Near Clock Tower, Eluru, West Godavari District.

21, Madagaia Kanakarao, S/o Chita Babu, 50th Division, Aged about 35 Years, R/o 16-A-2032, MRC Colony, Eluru, West Godavari District.

22. Santaka Kumari, W/o Santaka Ramu, 50th Division, Aged about 36 Years, R/o.16-A-2064, MRC Colony, Eluru, West Godavari District.

23. Chintada Appa Rao, $/o Chintada Adinarayana, 50th Division, Aged about 49 Years, R/o. H.No.16-A-2054, MRC Colony, Eluru, West Godavari District.

24, Kommuri Lakshmana Rao, S/o Pedda Appa Rao, 50th Division, Aged about 51 Years, R/o.H.No.16-A-2082/A, MRC Colony, Eluru, West Godavari District.

25. Siddani Appalanaidu, $/o Ramanaidu, 50th Division, Aged about 42 Years, R/o.H.No. 16-A-2049, MRC Colony, Eluru, West Godavari District.

26, Kathi Moses Prabhakar, $/o Jesudanarn, 47th Division, Aged about 51 Years, R/o.H.No.16-B-645, Israel Pet, Balayagi Vantena Road, Eluru, West Godavari District. ,

27. Kathi Jodaniel, $/o Moses Prabhakar Kathi, 47th Division, Aged about 19 Years, R/o.H.No. 16-B-645, fsrael Pet, Baiayogi Vantena Road, Eluru, West Godavari District.

28. Kancharla Rushi Sakina, $/o Moses, 47th Division, Aged about 42 Years, R/o.H.No.16-B-645, Israel Pet, Balayogi Vantena Road, Eluru, West Godavari District.

29. Vinukaltu Naga Srihari, $/o Lal Bahadur Sastry, 47th Division, Aged about 21 Years, R/o.H.No.16-B-644, {srael Peta, Eluru, West Godavari District.

30. Peeda Neelima, W/o Peeda Sun Durgaraa, 47th Division, Aged about 24 Years, R/o,H.No.16-B-642, Israel Peta, Eluru, West Godavari District.

31. Kola Shyam Babu, $/o Prabhudas, 47th Division, Aged about 45 Years, R/o.H.No.16-B-571, Israel Peta, Eluru, West Godavari District.

32, Kakumani Ravikumar, S/o Yesu, 47th Divisian, Aged about 44 Years, R/o,H.No. 16-B-573, Israel Peta, Eluru, West Godavari District.

33. Gunju Jessi Jeevan, S/o Gunju, 47th Division, Aged about 22 Years, R/o.H.No. 16-B-636, Israel Peta, Eluru, West Godavari District.

34. Gunju Joseph Jaditya, $/o 47th Division, Aged about 24 Years, RJo.H.No. 16-B-636, Eluru, West Godavari District

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

36. The Andhra Pradesh State Election Cammission, Rep by its Commissioner, Vijayawada, Krishna District.

Contd...3....

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

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

bene Respondents.

Writ Appeal filed under Clause 15 of the Letter Patent, aggrieved by the common order passed in LA.No. 1 of 2021 and LA.No. 2 of 2021 dt. 8-3-2021 in W.P.No. 4110 of 2027.

LA. No. 1 of 2021 :-

Petition under Section 151 CPC praying that in the circumstances stated in the Memorandum of Grounds, filed in support of W.A, the High Court may be pleased to suspend the common orders dt. 8-3-2021 passed in {.A.No. 1 of 2021 and J.A.No. 2 of 2021 in W.P.No. 4110 of 2021 are liable to suspended te facilitate the competition of the election process as scheduled on 10-03-2020, pending disposal of W.A. No. 145 of 2021, on the file of the High Court.

The Appeal coming on for hearing, upon perusing the Petition and the affidavit filed in suppart thereof and upon hearing the arguments of the Advocate General for the appellants and Sri Dammalapati Srinivas, Senior counsel appearing on behalf of Sri Nimmagadda Venkateswarlu for Respondent Nos.t to 34 and Sri N. Ashwani Kumar, Standing Counsel for respondent Nos.35 to 38, the Court made the following

ORDER:-

"(Taken up through video conferencing)

This appeal is preferred against the order dated 08.03.2021 passed in LA.No.2 of 2021 in W.P.No.4110 of 2021, whereby, by way of an interim order, election to Eluru Municipal Corporation, scheduled to be held tomorrow, [email protected], on 10.03.2021, is stayed.

This matter is taken up as lunch motion.

Heard Mr. S.Sriram, learned Advocate General appearing for the appellants.

Also heard Mr. Dammalapati Srinivas, learned Senior Counsel appearing for the Respondent-Writ Petitioners and Mr. N. Ashwani Kumar, learned Standing Counsel for the State Election Commission.

A mention was also made by Mr. Vedula Venkata Ramana, learned senior counsel, for taking up another matter arising out of the same order as lunch motion and permission was alse granted.

We have been informed that the said appeal has been returned back due to defects,

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it is submitted by Mr. Vedula Venkata Ramana that the said appeal was filed with an application for leave to appeal by a candidate, who fs in fray in the election which is stayed, as he was not a party respondent in the writ petition, It is submitted by him that the defects could not be rectified because of paucity of time as between the date

of order which is under appeal and the date of election, there is only one intervening day.

Having regard to the same, we consider it proper and expedient to afford him a hearing in the present appeal.

The learned Single Judge, during the course of his order, has taken note of a judgment rendered in W.P.No.3876 of 2020 in respect of Eluru Municipal Corporation. The learned Single Judge posed a question as to whether an order of the learned Single Judge passed after hearing the parties pertaining to the electoral rolls of the very same Municipal Corporation can be ignored, bearing in mind the law on the subject which cautions the Courts from granting an interim order once an election process had commenced.

The order dated 05.03.2020 passed in W.P.No.3876 of 2020 is in two forms: one is a short order styled as an advance order and the other is a detailed order. The advance order reads as follows:

"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 Pieader for Municipal Administration, so as to proceed with the process of rectification of errors in Electoral Roll of Eluru Municipal Corporation,"

The final order reads as follows:

"By applying the principle laid dawn in the above judgments to the present facts of the case, the pracedure followed by the electoral registration authority is contrary to various provisions referred above. In such case, this Court can exercise power of judicial review under Article 226 of the Constitution of india. Accordingly, the point is answered in favour of the petitioners and against the respondents,

in view of my foregoing discussion, | find that it is a fit case to allow the writ petition by issuing Writ of Mandamus, directing the respondents to rectify the errors and illegalities pointed out by these petitioners mentioned above, before issuing notification te conduct fair and free elections in Eluru Municipal Corperation.

in the result, writ petition is altawed, directing the respondents (i.e. Respondent No.3/District Collector, West Godavari District) to rectify the errors and iiegalities pointed out by these petitioners mentioned above, before issuing notification to conduct fair and free elections in Eluru Municipal Corporation. No costs."

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The learned Single Judge noted in the order that the date of exact communication of the advance order is not clear. When the final order was available is not indicated. What is noted is that from the instructions filed by the State Election Commission, it appeared that the State Election Commission, by fetter dated 69.03.2020, had requested the Collector and District Election Officer to comply with the order and on the very same day, the Commissioner, Eluru Municipal Corporation, informed the State Election Commission that the order had been complied with.

It is alsa on the very same date, j.e., an 09,.03,2020, that the election notification was issued by the State Election Commission.

The learned Single Judge had observed that as the 30/15 days' public notice was not issued inviting objections after the draft rail was prepared, evidently, when the election notification was issued on 09.03.2020, there could not have been compliance of the advance order dated 05.03.2020. The learned Single Judge observed that the greater/public good lies in following and obeying the orders of the Courts as compared to the inconvenience of postponing the election and a stitch in time was needed in the circumstances. It was recorded as follows:

"This Court after considering all of the above agonized

over the issue and felt that the greater good/public goad 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 W.P.No.3876 of 2020 is net 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 arders of the Court/Rule of Law cannot be "postponed". The orders have to be followed both in fetter 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 out a prima facie case as the electoral ral! being used is found to be factually and iegatly flawed. The same is not rectified and the stipulated 30/15 day public notice etc., was not issued inviting objectians after the draft roil was prepared. The rules were not follawed. Balance of convenience is in favour of the petitioners who want a proper electoral roti before the election on the basis of an order of this Court. if elections are postponed and they are held after the electoral roils are corrected inconvenience will be caused but, irreparable loss will not be caused to the respondents / the electorate and the election of a Mayar 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 lass and will sub-serve the larger public good

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by having a more representative/participative Municipal election. ft will also uphold the "Rule of Law" and ensure a free and fair pall on which the edifice called demacracy, rests.

In that view of the matter, there shall be an interim order as prayed in LA.No.2 af 2021 and the elections ta fluru) Municipal Corporation scheduled to be held on 10.03.2021 shail be stayed. it is feft open to the respondents also to make a mid-course cerrection, salvage the situation and to rectify the electoral ratls but strictly as per the law."

Mr. S.Sriram, learned Advocate General, would contend that while the advance order was limited to certain aspects, the final order enlarged the operative directions which was not known to the State or the State Election Cammission when the Notification dated 09.03.2020 was issued,

According to Mr. §. Sriram, what was contained in the advance order was implemented, which is refuted by Mr. Dammaiapati Srinivas, whe contends that there was no compliance whatsoever even with the advance order dated 05.03.2020.

Mr. S.Sriram has submitted that in a matter of the present nature, the learned Single Judge was not justified to stay the election process and, therefore, appropriate order may be passed staying the order of the learned Single Judge.

Mr. Darmmalapati Srinivas, on the other hand, supports the order of the learned Single Judge and contends that no fault can be found with the order of the learned Single Judge when a direction issued prior to the issuance of the election notification was flouted with impunity and as the present case stands on a differant footing, even though election process had commenced, for larger public good, election was required to be stayed. He contends that in the first place, without compliance of the mandate given in the order dated 05.03.2020 (advance order}, no steps could have been taken to initiate the election process.

Mr. Vedula Venkata Ramana has submitted that the order passed by the learned Single Judge has attained finality and in reality, it is a final order though passed at the interim stage. According to him, the aspects relating to balance of convenience and sufferance of irreparable loss and injury were not appreciated by the learned Single Judge in the right perspective. He submits that the election process was halted by the State Election Commission by notification dated 15.03.2020 in view of emergence of Covid pandemic and for long period of nearly a year, the petitioners in the earlier writ petition did not approach this Court questioning alleged inaction on the part of the Election Commission in taking steps towards implementation of the order dated 05.03.2020 and they had approached the Court at the eleventh hour, that too, without making the candidates whose nominations were accepted, as parties to the petition. He submits that the writ petition suffers fram non-joinder of necessary parties. Canvassing had come to an end and everything is made ready for the elections. He also submits that defective voters list cannot be a ground for halting an election process.

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The arguments advanced by the learned counsel for the parties, having regard to various facets, would require in-depth consideration.

Balancing the competing equities, as an interim measure, we direct that the elections shalf be held in Eluru Municipal Corporation. We further direct that after the voting is concluded, no further steps shail be taken towards counting and declaration of the result. The baflet boxes shall be kept in safe custody and they shall not be opened until otherwise directed by this Court. in our considered opinion, this course of action would safeguard the rights and interests of the rival parties.

Resuitantly, the arder of the learned Single Judge is stayed.

AS agreed to by the learned counsel for the parties, Registry will ist this appeal for consideration on 23.03.2021."

Sd/- B, NARASINGA RAO, ASSISTANT REGISTRAR fl?

PM oo

for ASSISTANT REGISTRAR

/FTRUE COPY}

4. The Chief Electoral Officer, Secretariat Buildings, Amaravati, Guntur District, Andhra Pradesh, 2, The Commissioner, Andhra Pradesh State Election Commission, Vijayawada, Krishna District.

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

The Electoral Registration Officer, Eluru Assembly Constituency, Eluru, West Godavari District, Two CCs to the Advocate General, High Court of A.P., (QUT) One CC to Sri Nimmagadda Venkateswarlu, Advocate (OPUC) One CC to Sri N. Ashwani Kumar, Advocate (QPUC) Two Spare copies.

TKK

HIGH COURT

HCI & CPK.J

DATED: 09-03-2021

ORDER

W.A, No. 145 of 2021

DIRECTION

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DRAFTED BY : TKK DATED: 09-09-2021.

HIGH COURT

HCJ & CPK.J

DATED: 09-03-2021