Bharatiya Janata Party, vs The Andhra Pradesh State Election ...
2021 Latest Caselaw 1918 AP

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY


                WRIT PETITION NO.7684 OF 2021


ORDER:

Bharatiya Janata Party, a registered political party,

represented by its Authorized Signatory Pathuri Nagabhushanam,

Vijayawada Krishna District, State of Andhra Pradesh and three

others filed the present writ petition under Article 226 of the

Constitution of India to issue Writ of Mandamus declaring the

Notification No.68/SEC-B1/2020 dated 15.03.2020 and the

consequential Notification dated 06.05.2020 of the first respondent

to the extent of recommencement of election process of Mandal

Praja Parishads Territorial Constituencies (MPTCs) and Zilla Praja

Parishads Territorial Constituencies (ZPTCs) in State of Andhra

Pradesh from the stage where it was stopped, depriving the

Petitioners from filing nominations and contesting the elections to

MPTCs and ZPTCs as illegal, irregular, arbitrary, unconstitutional

unjustified, unsustainable and contrary to the A.P. Panchayat Raj

Act and the Rules framed thereunder and set-aside the same

directing the Respondents to issue fresh notification duly allowing

the commencement of the election process for MPTCs and ZPTCs

from the beginning.

The first petitioner is the authorized signatory of Bharatiya

Janata Party. The second and fourth petitioners are residents of

Jammalamadugu Mandal and are Registered Voter Ids bearing

Nos.RGS1232735 at 85- Devagudi village and RGS1288034 in MSM,J

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131- Moragudi Village respectively. Similarly, the third Petitioner is

a resident of Kolakaluru, Tenali Mandal with a Registered voter Id

bearing NoNBT1810662 in Kolakaluru. The Petitioner Nos. 2 to 4

were born in the year 1999 and 2000 aged about 21 years as on

the date of filing the writ petition i.e 31.03.2021. The Petitioners

are aspiring to contest in the elections in their respective MPTCs

and ZPTCs to work for the betterment of their town on attaining

the age of 21 years which is the eligibility criteria to contest in

elections for the office of MPTCs and ZPTCs in their respective

districts.

It is specifically contended that, Article 40 of the

Constitution of India, while laying down the directive principles of

State Policy in its Part IV expected that the local bodies should be

endowed with such powers and authority as may be necessary to

enable them to function as units of the self government. Self

governance of the local body by the democratically elected body is

the avowed object. While Article 243-G expects the same in so far

as Panchayats are concerned and Article 243-W relates to the

Municipalities. Article 243-G contemplates that the Panchayats

shall be endowed with such powers and authority as may be

necessary to enable them to function as institutions as self

government. Part IX of the Constitution contains the provisions

relating to the Panchayats. According to Article 243 K (1), the

superintendence direction and control of the preparation of

Electoral Rolls and the conduct of all elections to the Panchayats is

vested in the State Election Commission. As per Article 243-K read

with Section 200 of Andhra Pradesh Panchayat Raj Act, 1994 MSM,J

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(Hereinafter referred to as "the Act"), the State Election

Commissioner is appointed by the Governor of the State. Part III of

the Act, 1994 comprising of sections 148 to 176 deals with the

constitution of Mandal Praja Parishads and election of members

from territorial constituencies. Section 149 deals with the

composition of Mandal Praja Parishads wherein as per clause (i)

persons have to be elected from each territorial constituency under

Section 151. Section 151 deals with election of members from

territorial constituency by the method of secret ballot. Section 155

stipulates that voters having completed the age of 21 years are

eligible to contest in the elections. Part IV of the Act, 1994

comprising of Sections 177 to 199 deals with the constitution of

Zilla Praja Parishads and election of members from territorial

constituencies. Section 177 deals with the composition of Zilla

Praja Parishads, as per clause (i) persons have to be elected from

each territorial constituency under Section 179. Section 179 deals

with election of members from territorial constituency by the

method of secret ballot. Section 183 stipulates that voters having

completed the age of 21 years are eligible to contest in the

elections.

In exercise of the Rule making power under Section 268, the

State Government framed the A.P Panchayat Raj (Conduct of

Election) Rules, 2006 (for short 'Rules') to conduct election of

members of Gram Panchayat, Mandal Parishad and Zilla Parishad.

After the issuance of Election Notification by the first respondent,

the Election Notice under Rule 4 shall be prepared and published

by the Election Officer giving all the particulars and details of MSM,J

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election, the time gap between each stage of election, namely, filing

of nominations, last day for nominations, scrutiny for nominations,

withdrawal of nominations, publication of final list of candidates,

the day for poll, day for counting and the declaration of results.

The schedule given under the rules shall be strictly adhering to by

all concerned. Rule 7 confers wide powers and deals with re-

notification of Election Programme where the election process is

interrupted or altered. Under the said Rule, the first respondent

has the powers to re-notify the election programs commencing

from the filing of the nominations Rules 8 to 17 relate to the

candidates for contest in the election, while Chapter III, IV and V of

the Rules relates to the manner and method of voting on the

prescribed poll day.

The main endeavour of the petitioners is that, when election

Notification was issued initially on 07.03.2020 and fixed schedule

for elections, the petitioners were not eligible and not enrolled as

voters, as they were below 21 years. But, during interregnum

period, they attained majority of 21 years age and enrolled as

voters. However, due to covid-19 pandemic, elections were

postponed indefinitely. Later, the matter was carried to the

Supreme Court in W.P (Civil) No.437 of 2020 and the Apex Court

by order dated 18.03.2020 was pleased to uphold the validity of

the Notification dated 15.03.2020. Vide Notification dated

06.05.2020, the first respondent stopped the election process.

Later, the first respondent vide Notification dated 01.04.2021

proposed to conduct elections for ZPTCs and MPTCs from the stage

where it was stopped is without re-notifying the election, exercising MSM,J

WP.No.7684 of 2021

power under Rule 7 of the Rules. On account of issuing

Notification dated 01.04.2021 proposing to resume the election

process from the stage where they were stopped, deprived

Petitioner Nos. 2 to 4 from casting their vote and to contest in the

elections for MPTCs and ZPTCs, which is a constitutional right

guaranteed under the Constitution of India. Despite, the demands

made by these petitioners, the first respondent did not issue

notification exercising power under Rule 7 of the Rules and such

act of the first respondent is illegal, arbitrary and violative of

Articles 14 & 19 of the Constitution of India, besides the provisions

of Panchayat Raj Act and requested to issue a direction as stated

above.

The first respondent/State Election Commission filed

counter affidavit denying material allegations, while admitting

issue of Notification dated 07.03.2020 for conduct of ordinary

elections to MPTCs and ZPTCs, pausing the election process by the

first respondent due to Covid Pandemic and carrying the matter to

Supreme Court in W.P (Civil) No.437 of 2020, direction issued

therein. The following are the specific grounds urged in the counter

affidavit:

a) In exercise of powers conferred under Article 243-K of the

Constitution of India, Sections 151(1) and 179(1) of the

Andhra Pradesh Panchayat Raj Act, 1994, issued a

Notification No. 68/SEC-B1/2020 dated 07.03.2020,

notifying the programme for conduct of elections to the

MPTCs and ZPTCs in the State of Andhra Pradesh.

Parallelly, the Respondent also issued other notifications MSM,J

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notifying the schedule of elections to the Municipal

Corporations, Municipalities and Nagar Panchayats.

b) Thereafter, due to the unforeseen and unfortunate breakout

of the Covid-19 Pandemic which ultimately resulted in a

nation-wide lockdown, taking into account the fact that

proceeding with the election schedule may be detrimental

and harmful for the public health at large, exercised its

plenary powers under Articles 243-K of the Constitution of

India and Section 201 of Panchayat Raj Act read with Rule 7

of the Rules and issued a Notification No. 68/SEC-B1/2020

dated 15.03.2020 whereby further election process in

connection with the conduct of elections to MPTCs and

ZPTCs in pursuance of the Notification No.68/SEC-B1/2020

dated 07.03.2020 was postponed, forthwith. Vide the said

Notification, the first respondent also stopped forthwith, all

further election processes in connection with conduct of

elections to Municipal Corporations, Municipalities and

Nagar Panchayats in pursuance of the relevant Notification

schedules. The first respondent, vide Notification dated

15.03.2020 categorically stated that the election process of

MPTCs, ZPTCs and Urban Local Bodies will be "continued"

from the stage at which they had stopped i.e. the stage of

election process as on 14.03.2020.

c) The validity of the Notification No. 68/SEC-B1/2020 dated

15.03.2020 whereby the first respondent paused the election

process, on account of the Covid-19 Pandemic, with an

intention to resume and continue the election process once MSM,J

WP.No.7684 of 2021

normalcy is restored, was considered by the Hon'ble

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

Supreme Court, vide Order dated 18.03.2020 upheld the

validity of the Notification No. 68/SEC-B1/2020 dated

15.03.2020.

d) The first respondent issued a Notification No. 68/SEC-

B1/2020 dated 06.05.2020 pursuant to the Notification No.

68/SEC-B1/2020 dated 15.03.2020 and in consequence to

the Order dated 18.03.2020 passed by the Hon'ble Supreme

Court in WP (C) No. 427 of 2020. Vide the said Notification,

the first Respondent categorically stated that the election

process that was paused vide Notification dated 15.03.2020

would continue from where it was stopped, upon restoration

of normalcy.

e) Upon the receding of the effect of the Covid-19 Pandemic,

the first Respondent issued a Notification No.578/SEC-

F2/2021 dated 15.02.2021, stating therein that the first

respondent, in review of the situation, had decided that the

situation is conducive for resumption of the paused election

process of Urban Local Bodies from the stage as on

14.03.2020. Similarly, the first Respondent, on the same

day i.e. 15.02.2021, issued 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 MSM,J

WP.No.7684 of 2021

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

Municipal Corporation. The election process with respect to

the bodies referred supra was resumed and continued from

the stage where they had paused on 14.03.2020.

f) Challenging the Notifications issued on 15.02.2021, various

persons approached this Court vide WP No. 4290 of 2021

and batch. In the said Writ Petitions, the decision of the first

Respondent to resume the elections which were paused on

15.03.2020 on account of the Covid-19 Pandemic was

challenged and the Petitioners therein prayed that the

Notification be issued once again and the election process

begin afresh mainly on the ground that a number of persons

had become eligible between 15.03.2020 and 15.02.2021 to

contest the elections. Along with the said Writ Petitions, the

Petitioners also filed Interlocutory Applications seeking stay

of all further proceedings pursuant to the Notifications

issued on 15.02.2021. After an elaborate hearing on the

Interlocutory Applications, the Learned Single Judge of this

Court, vide common order dated 26.02.2021 dismissed the

Interlocutory Applications.

g) The Petitioners therein filed WA No. 117 of 2021, WA No. 118

of 2021 and WA No. 120 of 2021 before the Division Bench

of this Court, vide Order dated 02.03.2021 was not inclined

to interfere with the Order passed by the Learned Single

Judge and dismissed the Writ Appeals. Along with the Writ

Appeals, a Public Interest Litigation W.P.(PIL)No.51 of 2021

was also instituted agitating issues similar to the one raised MSM,J

WP.No.7684 of 2021

in the Writ Appeals and the Division Bench vide Order dated

02.03.2021, dismissed the Public Interest Litigation filed

therein as well.

h) The Division Bench, while passing its Orders on 02.03.2021,

was pleased to observe as follows:

"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."

The validity of the Notification dated 15.03.2020 was tested

before the Courts and failed in their attempt. But, the present

petition is filed for identical relief for conducting MPTCs & ZPTCs

elections. It is contended that this petition is liable to be dismissed

by applying the same principle and requested to dismiss the writ

petition.

Though, Bharatiya Janata Party is the first petitioner, it did

not raise any specific contention about infringement of right of the

political party to claim writ of mandamus, except making certain

allegations by petitioner Nos. 2 to 4 about depriving their right to

vote and contest in the elections.

During hearing, Ms. Sodum Anvesha, learned counsel for the

petitioners reiterated the contentions urged in the affidavit, while

submitting that, due to failure of the first respondent, the

petitioners were deprived of their right to elect and contest in the

elections, which is a constitutional right guaranteed under the MSM,J

WP.No.7684 of 2021

constitution to a voter. Apart from that, by the date of notification

for elections for Urban Local Bodies, ZPTCs and MPTCs, the

petitioners were not eligible to register themselves as voters.

However, elections for local bodies such as panchayats and

municipal bodies was postponed by Notification dated 15.03.2020

for a period of six weeks or any other date on the ground of spread

of Covid-19; stopped vide Notification dated 06.05.2020 and later

resumed the process of election vide Notification dated 01.04.2021.

In the interregnum period, the petitioners attained age of 21 years

and they became eligible for registration of voters. But, on account

of issue of notification, the petitioners became ineligible to elect

representatives of their choice and vote in the election of ZPTCs

and MPTCs. Therefore, they were deprived of their constitutional

right and the entire process of election has to be stopped and

requested to issue a direction as stated supra.

Sri C.V. Mohan Reddy, learned Senior Counsel appearing for

the first respondent opposed the petition on the ground that the

issue involved in this writ petition is no more res integra, in view of

the order passed by the learned Single Judge in I.A.No.1 of 2021 in

W.P.No.7778 of 2021 dated 06.04.2021 and affirmed by the

Division Bench of this Court in W.A.No.224 of 2021 07.04.2021

and no further adjudication is required based on the same

judgment.

Considering rival contentions, perusing the material

available on record, the sole point that arises for consideration is"

MSM,J

WP.No.7684 of 2021

"Whether the petitioners who were not voters as on the date of Initial Notification dated 07.03.2020 are entitled to claim relief of cancellation of Notification dated 15.03.2020 and consequential Notification dated 06.05.2020 and whether a direction to re-notify the election process for MPTCs & ZPTCs be given. If so, whether this Court can issue Writ of Mandamus, as claimed by these petitioners?

P O I N T:

Admittedly, the petitioners were not registered voters as on

the date of Notification dated 07.03.2020, as they did not attain 21

years of age. It is also equally not in dispute that, after finalization

of list of contesting candidates and publication of the same in the

notice board, the first respondent took a decision to pause the

election process, exercising power under Article 243-K of the

Constitution of India, vide Notification dated 15.03.2020. Later,

the matter was carried to the Supreme Court in W.P (Civil) No.437

of 2020 and the Apex Court by order dated 18.03.2020 was

pleased to uphold the validity of the Notification dated 15.03.2020.

Vide Notification dated 06.05.2020, the first respondent stopped

the election process. Thereafter, as the pandemic Covid-19 has

resumed, vide Notification dated 01.04.2021, decision was taken to

continue the process of election from the stage where it was

stopped and resumed the elections for MPTCs and ZPTCs fixing the

date of polling as 08.04.2021.

In view of the specific contentions raised by the learned

counsel for the petitioners that the petitioners became eligible

during interregnum period and they were deprived of their right to

exercise vote and elect their representative, which is a right MSM,J

WP.No.7684 of 2021

guaranteed under the Constitution of India, it is necessary to

advert to the relevant provisions of the Constitution of India, the

Andhra Pradesh Panchayat Raj Act, 1994 and Rules framed

thereunder.

Elections to the house of people and to the legislative

assembles of the State and public bodies like ZPTC, MPTC, Urban

Local Bodies etc is based on "Adult Suffrage", as enunciated under

Article 326 of the Constitution of India. According to it, Elections to

the House of the People and to the Legislative Assemblies of States

to be on the basis of adult suffrage The elections to the House of

the People and to the Legislative Assembly of every State shall be

on the basis of adult suffrage; but is to say, every person who is a

citizen of India and who is not less than twenty one years of age on

such date as may be fixed in that behalf by or under any law made

by the appropriate legislature and is not otherwise disqualified

under this constitution or any law made by the appropriate

Legislature on the ground of non residence, unsoundness of mind,

crime or corrupt or illegal practice, shall be entitled to be registered

as a voter at any such election.

Therefore, the person who is enrolled himself as a voter, is

entitled to vote and contest in the elections as on the date of

notification, as per the statute if any, fixing the date.

Part-III and Part-IV of the A.P. Panchayat Raj Act, 1994,

deals with Constitution and Incorporation, Composition, Powers,

and Functions of Mandal Praja Parishads and Zilla Praja Parishads

respectively. Section 151 deals with Election of members from MSM,J

WP.No.7684 of 2021

territorial constituencies. - (1) One member shall be elected to

the Mandal Praja Parishad from each territorial constituency

specified in Section 150 by the method of secret ballot by the

persons who are registered voters in the territorial constituency

concerned; Provided that a registered voter in the Mandal Praja

Parishad shall be entitled to contest from any territorial

constituency of the Mandal Praja Parishad. (2) For purpose of

preparation and publication of the electoral roll for the elections to

the office of member under this Section, the provisions of Sections

11 and 12 shall, mutatis mutandis apply, subject to such rules as

may be made in this behalf. Thus, the relevant date for

publication of electoral roll is specified in Sections 11 & 12 of the

A.P. Panchayat Raj Act, 1994.

Section 11 of the A.P. Panchayat Raj Act, 1994, deals with

Preparation and Publication of electoral roll for a Gram

Panchayat. According to subsection (1), the electoral roll for Gram

Panchayat shall be prepared by the person authorised by the

Andhra Pradesh Election Commissioner for Local Bodies in such

manner by reference to such qualifying date as may be prescribed

and the electoral roll for the Gram Panchayat shall come into force

immediately upon its publication in accordance with the rules

made by the Government in this behalf. The electoral roll for the

Gram Panchayat shall consist of such part of the electoral roll for

the Assembly Constituency published under the Representation of

the People Act, 1950 (Central Act 43 of 1950) as revised or

amended under the said Act, upto the qualifying date, as relates to

the village or any portion thereof; Provided that any amendment, MSM,J

WP.No.7684 of 2021

transposition or deletion of any entries in the electoral roll, or any

inclusion of names in the electoral roll of the Assembly

Constituencies concerned, made by the Electoral Registration

Officer under Section 22 or Section 23, as the case may be, of the

Representation of the People Act, 1950, up to the date of election

notification, for any election held under this Act, shall be carried

out in the electoral roll of the Gram Panchayat and any such

names included shall be added to the part relating to the last ward.

The explanation thereto specified that, where in the case of any

Assembly Constituency there is no distinct part of the electoral roll

relating to the village, all persons whose names are entered in such

roll under the registration area comprising the village and whose

addresses as entered are situated in the village shall be entitled to

be included in the electoral roll for the Gram Panchayat prepared

for the purposes of this Act.

Subsection (2) of Section 11 deal with electoral roll for a

Gram Panchayat; Subsection (3) deals with publication and

Subsection (4) deals the electoral roll for the gram panchayat. A

similar provision is contained in Part-IV of the A.P. Panchayat Raj

Act, 1994 i.e. Constitution and Incorporation, Composition,

Powers, and Functions of Zilla Praja Parishads. Therefore, one

must be a registered voter on the electoral rolls as on the date

specified by the Election Commissioner and as on the date of issue

of notification for conducting elections.

As admitted by these petitioners, Petitioner Nos. 2 to 4 were

not eligible for their enrolment as voters, as they were below 21 MSM,J

WP.No.7684 of 2021

years by the date of notification. Therefore, by the date of

notification dated 07.03.2020, these petitioners were not eligible

for their enrolment as voters in the voters list, apparently they are

ineligible either to vote to elect a representative or contest in the

elections for MPTCs and ZPTCs as on the date of notification.

A.P. Panchayat Raj (Conduct of Elections) Rules, 2006 were

formed in exercise of powers conferred under Section 268 of the

Andhra Pradesh Panchayat Raj Act, 1994.

Rule 4 of the Rules deals with issue of election notification

by the State Election Commission for fixing the schedule for

election. Rule 5 deals with display of voters list and Rule 6 deals

with issue of election notice by the Returning Officer. Rule 7 is an

important Rule which deals with Special Election Programme.

According to Rule 7, Notwithstanding anything contained in these

rules, where the election process is interrupted or the election

programme has to be altered on account of the orders of any court

of law or for other valid reasons to be recorded in writing, it shall

be competent for the State Election Commission either generally or

in respect of specified Gram Panchayat or Mandal Praja Parishad

or Zilla Praja Parishad, as the case may be, to alter the election

programme notified under sub-rule (2) of Rule 4 and re-notify the

election programme as it deems fit in the circumstances of the case

without having regard to the guidelines mentioned in sub-rule (3)

of Rule 4 and the Returning Officer shall give effect to the same;

provided that where the election programme is re-notified under

this rule commencing from the making of nominations, the MSM,J

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nominations already made shall be disregarded and the deposits, if

any, made under Rule 10 shall be refunded.

This power is vested with the State Election Commissioner to

resume or notify the election process which was stopped by

exercising power under Section 201 of the A.P. Panchayat Raj Act,

1994 and Article 243-K of the Constitution of India read with

Rule 7 of the A.P. Panchayat Raj (Conduct of Elections) Rules,

2006, State Election Commission can exercise such power to

resume the election process notified under Sub-rule (2) of Rule 4 of

the Rules and re-notify the election programme, if it is necessary.

It is an undisputed fact in the present case that the election

Notification dated 07.03.2020 was issued fixing the election

schedule for Urban Local Bodies, ZPTCs and MPTCs. But, the

elections were paused vide Notification dated 15.03.2020 due to

Covid-19 pandemic. Thereafter, the matter was carried to the

Supreme Court by the State Government in W.P (Civil) No.437 of

2020m where the Supreme Court issued the following direction:

"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. However, it appears that one of the grievances raised by the petitioner - State needs to be addressed. According to Mr. ANS Nadkarni, learned Additional Solicitor General appearing for the State, a large number of developmental activities have been suspended due to the imposition of the MCC for the aforesaid Elections in the State of Andhra Pradesh.

MSM,J

WP.No.7684 of 2021

Mr. Nadkarni, learned Additional Solicitor General, submits that the imposition of the MCC would not be justified if the Elections are postponed. We see much substance in the above submissions of the learned Additional Solicitor General. We therefore direct that the Election Commission shall impose the MCC four weeks before the notified date of polling. Mr. Shekhar Naphade, learned Senior Counsel appearing for the respondent - Election Commission, submits that the State of Andhra Pradesh is not entitled to move this Court by way of filing writ petition under Article 32 of the Constitution of India. We are not inclined to go into this question in the present writ petition due to the emergent circumstances in which the same is filed. The said question is left open for determination in an appropriate case. Mr. Nadkarni, learned Additional Solicitor General for the petitioner - State, submits that the Election Commission was not entitled to postpone the elections without appropriate consultation with the State Government. He relies upon the decision of this Court in Kishansing Tomar Vs. Municipal Corporation of the City of Ahmedabad and Others - (2006) 8 SCC

352. According to Mr. Naphade, learned Senior Counsel for the respondent - Election Commission, the decision in Kishansing Tomar (Supra) does not require prior consultation. This is also not a controversy which we consider appropriate for decision in this case in view of the order we propose to pass.

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 MCC 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 MCC 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. The instant writ petition is disposed of in the above terms."

In view of the orders passed by the Hon'ble Apex Court, the

State Election Commissioner is required to resume the election

process from where it was paused by re-imposing four weeks

Model Code of Conduct prior to the notified date of polling.

Therefore, the State Election Commissioner is under obligation to

resume the election process from the stage where it was stopped

and re-impose Model Code of Conduct for completion of the

process of election for MPTCs and ZPTCs along with other public

bodies. When such direction was issued by the Full Bench of the

Apex Court, the first respondent cannot exercise power under Rule

7 of the Rules and re-notify the election process to accommodate MSM,J

WP.No.7684 of 2021

these petitioners to contest in the elections or to vote or to elect

their representative. If, such request is accepted, it amounts to

violation of the directions issued by the Full Bench of the Apex

Court and therefore, such process cannot be permitted. If, the

request made by the petitioner Nos. 2 to 4 is accepted, holding

elections is a difficult task for anyone, since it is an unending

process, for the reason that, many persons may attain 21 years of

age and become eligible between the date of notification till date of

polling, thereby, it will be impossible to hold elections to public

bodies by the State Election Commission. Therefore, by exercising

power under Rule 7 of the Rules, the first respondent is not

excpected to re-notify the elections for ZPTCs and MPTCs on

account of attaining age of 21 years by these petitioners during

interregnum period i.e. from the date of cancelling Notification

dated 15.03.2020 till the date of filing this petition.

As per the provisions of A.P. Panchayat Raj Act, referred

above, more particularly, Sections 11 & 12 of the A.P. Panchayat

Raj Act, 1994 and Part-III and Part-IV of the A.P. Panchayat Raj

Act, the registered voters who enrolled in the electoral rolls

specified in Sections 11 & 12 of the A.P. Panchayat Raj Act are

alone eligible to contest or to elect their representative, but not on

the date of polling. In the present case, notification was issued

fixing schedule for both rural and urban local bodies, including

MPTCs and ZPTCs. However, it was stopped due to unforeseen

reasons. The Supreme Court only directed to resume the process of

election and re-impose Model Code of Conduct for four weeks prior

to notified date of poll. In such circumstances, the Court cannot MSM,J

WP.No.7684 of 2021

compel the first respondent to re-notify the election process afresh,

enabling petitioner Nos. 2 to 4 to contest in the election and to

elect their representative in free and fair elections.

Right to vote and right to elect a representative of their own

choice in free and fair election is a fundamental right guaranteed

under the Constitution, as held by the Apex Court in Rajabala &

others v. State of Haryana1, where the Supreme Court held that,

the right to vote and right to contest at an election to a

PANCHAYAT are constitutional rights subsequent to the

introduction of Part IX of the Constitution of India. Both the rights

can be regulated/curtailed by the appropriate Legislature directly.

Parliament can indirectly curtail only the right to contest by

prescribing disqualifications for membership of the Legislature of a

State.

Thus, the petitioners are entitled to claim a right under the

Constitution to vote and contest in the elections. But, that right

must be a right accrued to Petitioner Nos. 2 to 4, as on the date of

election notification. They were admittedly not eligible for enrolling

their names in electoral rolls, as they were below 21 years, as on

the date of Notification dated 07.03.2020. Therefore, the

petitioners ineligible by the date of notification and they are not

entitled to exercise the constitutional right, as held by the Apex

Court in Rajabala & others v. State of Haryana (referred

supra). Therefore, the petitioners who were enrolled in the electoral

rolls, who became eligible subsequent to notification, hereby the

1 (2016) 2 SCC 445 MSM,J

WP.No.7684 of 2021

question of infringement or invasion of legal right as on the date of

notification does not arise. Hence, the petitioners are disentitled to

claim writ of mandamus for cancellation of Notifications dated

07.03.2020 and 06.05.2020, as the petitioners did not possess any

constitutional right as on that date and its infringement and

invasion does not arise. Hence, the petitioners are not entitled to

claim writ of mandamus and the issue involved in this matter is no

more res integra, in view of the law declared by the Division Bench

of this Court in W.A.No.224 of 2021. Of course, that is in respect

of municipalities and municipal corporations. However, the

principle laid down therein is squarely applicable to the present

facts of the case. Hence, by applying the principles laid down in

the above judgment and in view of judgment of Apex Court in W.P.

(Civil) No.437 of 2020 and relevant provisions of Act and Rules, the

petitioners claim cannot be accepted while holding that the

petitioners did not acquire any right to vote and right to contest in

the elections as on the date of notifications and no constitutional

right by Petitioner Nos.2 to 4 is infringed. Consequently, the writ

petition is liable to be dismissed.

In the result, writ petition is dismissed. No costs.

Consequently, miscellaneous petitions pending if any, shall

stand dismissed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY Date:21.05.2021

SP MSM,J

WP.No.7684 of 2021

THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

WRIT PETITION NO.7684 OF 2021 W

DATE 21.05.2021

SP