Andhra Pradesh High Court - Amravati
Ysr Congress Party vs Election Commission Of India on 1 June, 2024
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lN THE HIGH COURT OF ANDHRA PRADESH :-. AMARAVATl
(special Original Jurisdiction)
SATURDAY, THE FIRST DAY OF JUNE
TWO THOUSAND AND TWENTY-FOUR
PRESENT
THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA
AND
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
WRIT PETITION NO: 12167 OF 2024
Between :
1. YSR Congress Party, A registered and Recogn-lzed Political Party
Having -Its State Office at Plot No.13, Suryadevara Township, Tadepalli,
Guntur, Andhra Pradesh - 522 501 Represented by its State General
Secretary Lella App-I Reddy
2. Lella Appi Reddy, S/o. Sambi Reddy Aged about 56 years, State
General Secretary, YSR Congress Party, R/o Flat No. 203, Golden
Towers, Kr'lshna Nagar Main Road, Opp. Jute Mill, Krishna Nagar,
Guntur-522006
...Petitioners
AND
1. Election Commission of lnd®la, Represented by its Chief Election
commissioner Nirvachan Sadan, Ashoka Road, New Delhi,110001
2. Chief Electoral Officer & E.O., Prl. Secretary to Govt., Room No 101,
Ground Floor, Penumaka - Amaravathi Rd, 4th Block, Velagapudi,
Andhra Pradesh 522503
3. Velagapudi Ramakrishna`Babu, S/o. Brahmeswara Rao, Aged about 63
years, occ-MLA, Visakhapatnam East Constituency, R/o.19311/2
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LIG74 Sector 5, MVP Colony, Visakhapatnam urban, visakhapatnam,
Andhra Pradesh 530017.
(Respondent No.3 was impleaded as per c.o.Dt.30.05.2024 vide
I.A.No,4 of 2024 in W.P.No.12167 of 2024.)
...Respondents
Petition under Article 226 of the Constitution of India praying that in the
circumstances stated in the affidavit filed therewith, the High Court may be
Pleased tO issue Writ, order or direction more particularly one in the nature of
writ of Mandamus declaring the Memo No.5369/EIecs.D2/2024 dated
25.05.2024 and Memo No.5369/Elecs.D2/A2/2024 dated 27.05.2024 issued
by the Respondent No. 2 herein as being illegal, arbitrary, unjust, vague, ultra
vI'reS, ViOlatiVe Of Articles 14,19 (1) (a) and 326 of the Constitution of India,
vI-OIative of the preamble of the constitution of India, violative of the
Representation of peoples Act,1951, violative of the conduct of Election
Rules, 1961 and vl'olative of Lr.No.464/Counting Process/2023-EPS dated
19.07.2023 that is issued by the Election Commission of India, and wl'thout
jurisdiction and consequently, set aside Memo No.5369/Elecs.D2/2024 dated
25.05.2024 and Memo No.5369/EIecs.D2/A2/2024 dated 27.05.2024 that are
Passed by the Respondent No.2 herein.
lANO:1 OF 2024
Petition under sectI'On 151 CPC praying that in the
circumstances stated in the affidavit filed in support of the petition, the Hl-gh
Court mayJ'be pleased to direct the Respondents to implement the
Lr.No.464/Counting Process/2023-EPS dated 19.07.2023 that is issued by the
Election Commission of India in true letter and spirit by suspending the
operation of Memo No.5369/Elecs.D2/2024 dated 25.05.2024, Memo
No.5369/EIecs.D2/A2/2024 dat`ed 27.05.2024 that are passed by the
Respondent No.2 herein and Lr.No.464/AP/SOU3/2024 dated 30.05.2024
issued by Respondent No.1, Pending disposal Of WP No.12167 of 2024, on
the file of the High Court.)
(Interim Prayer was amended aS Per C.O.dt.30.05.`2024 vide I.A.No. 3 of
2024 in W.P.No.12167 of 2024)
Counsel for the petitioner No.1: Sri P. Veera Reddy, Sen-tor Counsel
appearing on behalf of Sri S. Vivek Chandrasekhar
Counsel for the petitioner No.2: Sri Dr. Abhishek Manu Singhvi, Senior
counsel appearing on behalf of sri S. Vivek Chandrasekhar
Counsel for the Res ondent No.1: Sri Avinash Desai, Senior Counsel,
Standing Counsel for R1
Qgvnse[ for the Respondent N±±: Sri DS Sivadarshan,
Standing Counsel for R2
_counsel for the Responq£_nt No._-: Sri Posani Venkateswarlu, Senior
counsel & sri Ravi Teja Padir-I appearing on behalf Of Ms. Yaswani Pilla
THE COURT MADE THE FOLLOWING=
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IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
(Specl-aI Original Jurisdiction)
SATURDAY, THE FIRST DAY OF JUNE
TWO THO`USAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SMT. JUSTICE KIRANMAYEE MANDAVA
THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
WRIT PETITION NO: 12167 OF 2024
Between :
1. YSR Congress Party,
Represented by its state General Secretary
Lella Appi Reddy.
2. Lella Appi Reddy.
...PETITIONERS
AND
1| Election Commission of India
Represented by its chief Election Commissioner.
2. Chief EIectoraI Officer & E.O. PrI. Secretary to Govt.
3. Velagapudi Ramakrishna Babu.
...RESPONDENTS
ORDER:
(Per Hon'bl,e strut. Justi,ce Kircmmay ee Mandowa)
The proceedings under challenge in the present writ petition are the
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proceedings of the lSt respondent issued l'n connection with counting of postal
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ballot of voters on election duty."
2. The Writ Petition is filed seeking following reliefs:
"issue Writ, order or direction; more particularly c;ne in the nature of writ of
Mandamus declaring the Memo No.5369ftlecs.D2/2024 dated 25.05.2024 and
y?m? No.5369relecs.D2/A2/2024 dated 27.05.2024 issued by the Respondent
No. 2 herein as being illegal, arbitrary, unjust,, vague, ultra vires, v-IOIative of
Articles 14, 19 (1) (a) and 326 of the Constitution of India, violative of the
Preamble of the Constitution of India, violative of the Representation of Peoples
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Act,1951, violative of the Conduct of EIection Rules,1961 and violative of Lr.
No.464/Counting Process/2023-EPS dated 19.07.2023 that is issued by the
EIect-IOn Commission of India, and Without jurisdiction; and consequently, set
aside Memo No.5369/EIecs.D2/2024 dated 25.05.2024 and Memo
No.5369/Elecs.D2/A2/2024 dated 27.05.2024 that are passed by the Respondent
No.2 herein; and pass such Order Or Other Orders aS this Hon'ble Court deems f-It
and proper in the circumstances of the case."
3. The petitioner subsequently filed IA seeking amendment of the Prayer.
The said IA was allowed vide order dated 30.05.2024. The amended prayer
reads as under:
"issue writ, order or direction; more parficulariy one in the nature of writ Of
Mandamus declaring the Memo No.5369/EIecs.D2/2024 dated 25.05.2024 and
Memo No.5369/EIecs.D2/A2/2024 dated 27.05.2024 issued by the Respondent
No. 2 herein and Lr. No. 464/AP/SOU3/2024 dated 30.05.2024 issued by
Respondent No. 1 as being -IIlegaI, arbitrary, unjust, vague, ultra vireS, ViOlatiVe Of
Articles 14, 19 (1) (a) and 326 of the Constitution of India, violative of the
preamble of the Constitution of India, violative of the Representation of Peoples
Act,1951, violative of the Conduct of EIection Rules,1961 and violative of Lr.
No.464/Counting Process/ 2023 -EPS dated 19.07.2023 that is issued by the
EIection Commission of India, and without jur-ISdiCtiOn-, and consequently, set
aside Memo No.5369/EIecs.D2/2024 dated 25.O5.2024 and Memo
No.5369/EIecs.D2/A2/2024 dated 27.05.2024 that are passed by the Respondent
No,2 herein and Lr. No. 464 / AP / SOU3 / 2O24 dated 30.05.2024 issued by
Respondent No.1; and pass such order or other Orders aS this Hon'ble Court
deems fit and proper in the circumstances of the case."
4. Heard Dr.Abhishek Manu Singhvi, learned Senior Counsel and
sri p.veera Reddy, learned Senior Counsel appearing for Sri Vivek
chandrasekhar, learned counsel for the petitioners and Sri Avinash Desai,
learned senior counsel appearing for Sri Siva Darshan, learned counsel for
lst and 2nd respondents and Sri Posani Venkateswarlu, learned Senior
counsel for impleaded 3rd respondent.
5. Dr.Abhishek Manu Singhvi, learned Senior Counsel appearing forthe lst
petitioner contends that the proceedings dated 25.05.2024 and 27.05.2024
are in derogation of the statutory provisions of Rule 54 (A) and Rule 27 (F) of
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The Conduct of EIection Rules,1961 (for short {[Rules,1961") and he relies on
the decl'sion of the HonJble supreme court in the case of E/ecf,-on
Commission of India Vs. Ashok Kumar and others1. `
6. Learned Senior Counsel Sri P.Veera Reddy contends that aggrieved by
the proceedings dated 25.05.2024 and 27.05.2024, the Writ Petition is being
fl-led. It l®s stated that as the proceedings dated 25.05.2024 and 27.05.2024
were subsequently withdrawn by the 2nd respondent and the proceedings of
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the lSt respondent dated 30.05.2024 came to be issued7 The learned counsel
represents that thus, they have filed an IA seeking amendment of the prayer in
the Writ Petition challenging the proceedings dated 30.05.2024, and that the
said IA was allowed by this court (3rd Vacation Bench). The learned counsel
for the petitioner would contend that the lst respondent has no /ocus stand,I to
issue the impugned proceedings, in as much as in terms of the provisions of
Section 28 of The Representation of the people Act,1950 (for short "R.P.Act,
1950) and the provisions of sectl-on 169 of The Representatl'on of the people
Act 1951 (for short "R.P.Act,1951), it is the'Central Government, which, in
consultation with the Election Commission can make rules for carrying out the
Purposes Of the Act. And the Rules thus, if any, made are to be placed before
each House of the parliament.
7. He argues that the impugned proceedings issued by the lst respondent
are in derogation of the provisions of R.P.Act,1950 & 1951 and Rules,1961.
Referring to Rule 54A of the Rules, it is contended that the direction of the lSt
1 (2000) 8 Supreme Court Cases 216
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respondent through its proceeding dated 30.05.2024 stating that in the
declaration form in Form 13A, even if the attesting OffllCer does not Put his
name and designation or does not put his seal, shall be considered as valid
one, is not -lnconsonance with the provisions of the Rules.
8. lt is contended that Form 13A specifically provides for attestation Of the
s-lgnature of the voter, and mention of all necessary details of the attesting
offllcer i.e., attestor's name, address and designat®lon. lt is contended that as
categorically provided under the Rules,1961, the declaration Form has to be
signed by the voter in presence of, and get the same attested by an officer to
whom he is personally known or identified. lt iS his further contention that a
declarat'lon form which does not contain the attestor's name, address and
designat-Ion, as specified under Form 13A cannot be treated aS a Valid
declaration form and in the absence of a valid declaration form, the ballot
paper contained therein has to be rejected.
9. Further, referring to the provisions Of Rule 54Aofthe Rules, the learned
senior counsel contends that if, Form 13A is not duly signed or attested, the
returning officer shall reject the ballot paper. He contends that, in the light Of
the said legal pos-ltion, the impugned proceedings of the lst respondent
stating that Form 13A shall be considered val-ld even if the Same does not
contain the name and designation of the attesting officer, are not in
consonance with the statute and he further contends that the said proceedings
are 'lssued only in respect of state of Andhra Pradesh and tO nO Other States
in India. Thus, prays for set aside Of the Same.
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10. ln oppugnation, the learned senior counsel sri Avinash Desai
appearing for Sri Siva Darshan, the learned counsel for the lst and 2nd
respondents, placed before us a letter dated 25.05.2024 issued by the 2nd
respondent to the lst respondent seeking clarification as to whether the postal
ballot paper of an elector can be considered valid, if the declaration in
Form 13A is merely signed by the attesting officer without mentionI-ng name
and designatI'On and Without his/her Seal. He contends that pursuant to the
said letter of the 2nd respondent dated 25.05.2024, the lst respondent has
issued the impugned proceedings. And that the I-mPugned Proceedings are
not I-n derOgatiOn tO any Of the Provisions Of the Statute. Referring to Part lll of
the Rules,1961, he contends that Rule 18 specifies the persons who are
eptl'tled to llvofe by posfJJ at an election in parliamentary or assembly
constituency. Referring to the provisions of Rules 18,18A, 24, and 24(c), he
contends that the voting by postal ballot consists of different categories of
voters, and l{voters on election duty" is one of the said category. And those
voters who are on election duty posted at facilitation centres are entitled to
vote in the manner provided under Rule 24 of the Rules,1961. He further
referring to the instructions issued by the lst respondent dated 31.10.2023,
more specifl'caIIy the clauses 14.ll to 14.14 contends that facilitation centres
have been set up for voting by the '{voters on election duty" and that they have
to vote at such facilitation centres and not in any other manner and the entire
Procedure iS a fool-proof method and the entire voting process at facilitation
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centres are also videographed. He further contends that Rule 54A (4)
provides for counting of votes received by post and provides for
circumstances under which the postal ballot can be rejected. Only under the
said specified circumstances the ballot can be rejected. He, further referring
to the provisions of Section 100(1)(d)(iii)&(iv) of the R.P.Act,1951 contends
that dispute raised in the writ petition is in the nature of an election dispute
and that the petitioner has got a remedy of filing a petition under the provision
of Section 80 of the R.P.Act,1951. In support of his contention he relies on the
following judgments of the Hon'ble Supreme Court:
1. Mohinder Singh Gill and Another Vs. The Chief EIection
commissioner, New Delhi and others2
2. N.P.Ponnuswami Vs. Returning Officer, NamakkaI
constituency and others3
ll. The learned counsel thus prays fordismissal of the Writ Petition.
12. In reply to the submissions of the learned counsel SriAvinash Desai, Sri
P.Veera Reddy, the learned Senior Counsel submits that the instructions of the
authority cannot run contrary to the provisions of the statute and the Rules,
1961. In the absence of any rule making power vested in it, the lst respondent
cannot issue guidelines or clarifications or instructions in derogation of the
statute and the guidelines thus issued, if any, are liable to be set aside. ln
support of his contentions sri p.veera Reddy relies on the following judgments
of the Hon'ble Supreme Court.
|l) EIection Commission oflndiaVs. Ashok Kumarand others4,
: (i332) : i:3:::: g::: 8:::: :25
.
-til) V.A.Shabeer Vs. P.A.NiamathuIIa5
-til) Rajesekhar Gogoi Vs. State ofAssam6
'IV) Sharif-ud-Din Vs.AbduI Gani Lone7
v) Rajasthan State Industrial Development and Investment
Corporation vs. subhash sindhi cooperative Housing
Society, Jaipur and others8
v-I) Digvijay MoteVs. Union of India and others9
13. Sri Posani Venkateswarlu, appearing for the implead respondent
contends that the proceedings of the lSt respondent are in no way derogatory
to the provisions of the statute.
14. We have given our anxious consideration to the submissions of all the
learned Senior Counsels.
15. The point for consideration I'n the Writ Petition is (a) whether the
proceedings of the lst respondent dated 30.05.2024 are I'n derOgatiOn Of
the statutory provisions of the Rules,1961? And (b) whether the dispute
raised in the Writ Petition would amount to an election dispute within the
realm of Chapter II of the R.P Act,1951.
16. Chapter ll of the R.P Act,1951 deals with the presentation of
Election Petitions to the High Court and Chapter Ill, consisting of
Sections 86 to 107, deals with the trl-al of such Election Petitions.
(2000) 8 Supreme Court Cases 216
(2008) 10 Supreme Court Cases 295
AIR 2001 SUPREME COURT 2313
AIR 1980 SUPREME COURT 303
9 (2013)
(1993) 54 Supreme
Supreme Court
Court Cases 427
Gas;; 175
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The provisions of Section 80 of R.P.ACT,1951, read as under:
"8O. EIection petitions-No election shall be called in question except by an election
petition presented in accordance with the provisions of this Part."
The provisions of Section 100(1 )(d)(iii)&(iv) of R.P. Act,1951 read as
follows:
" 100. Grounds for declaring election to be void-(1) Subject to the provisions of
sub-section (2) of [the High Court] is of opinion-
@eee
That the result of the election, in so far as it concerns a returned candidate,
has been materially affected-
(i) ------
(ii) ------
(iii) by the improper reception, refusal or rejection of any vote or the
reception of any votewhich is void, or
(iv) by any non-complaince with the provisions of the Constitution or of this
Act or of any rules or orders made under this Act"
17. Section 100(1)(d)(iii)&(iv) provides that the High Court, upon the
trial of an Election Petition, comes to a conclusion that the election of a
returned candidate has been materially affected owing to the fact of
improper reception, refusal or rejection of any vote or reception of any
vote which is void, or by any non-compliance with the provisions of the
constitution or of this Act, or of any rules or orders made under this Act,
can declare the election to be void.
18. The HonJble Supreme Court in the case of Moh,-nderS,'ngh a,-// and
Another Vs. The Chief EIection Commissioner, New Delhi and others,
observed as under:
llKnowing the supreme significance of speedy elections in our system the
framers of the Constitution have, by implication postponed all election disputes
to election petitions and tribunals. ln harmony with this scheme Section 100 of
EZi=E
t
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the Act has been designedly drafted to embrace all conceivable infirmities which
may be urged. To make the project fool -proof Section 100 (1) (d) (iv) has been
added to absolve everything left over. The court has in earlier rulings pointed
out that Section 100 is exhaustive of all grievances regarding an election."
19. ln the light of the above principle laid down by the Hon'ble Apex
court, we hold that the issue raised in` the Writ Petition would squarely
fall within the clauses of Section 100(1)(d)(iii)&(iv), amenable to the
jurisdiction of this Court under Chapter ll of R.P.Act,1951.
20. While seeking interference of this Court under Article 226 of the
Constitution of India the reliance is placed by both the learned senior
counsel appearing for the petitioners on the decision of Hon'ble Apex
Court -ln the case of EIection Commission of India Vs. Ashok Kumar and
others, wherein it was observed as under.-
"32. For convenience sake we would now generally sum up our conclusions by partly
restatilng What the two Constitution Benches have already said and then adding by
clarifying what follows therefrom in view of the analysis made by us hereinabove:-
1) lf an election, (the term election being widely interpreted so as to include all
steps and entire proceedings commencing from the date of notification of
election till the date of declaration of result) is to be called in question and which
questioning may have the effect of interrupting, obstructing or protracting the
election proceedings in any manner, the invoking of judicial remedy has to be
postponed till after the completing of proceedings in elections.
2) Any decision sought and rendered will not amount to calling in question an
election if it subserves the progress of the election and facilitates the completion
of the election. Anything done towards completing or in furtherance of the
election proceedings cannot be described as questioning the election.
3) Subject to the above, the action taken or orders issued by EIection
Commission are open to judicial review on the well-settled parameters which
enable judicial review of decisions of statutory bodies such as on a case of mala
fide or arbitrary exercise of power being made out or the statutory body being
shown to have acted in breach of law.
4) VVithout interrupting, obstructing or delaying the progress of the election
proceedings, judicial intervent-ion iS available if assistance of the Court has been
sought for merely to correct or smoothen the progress of the election
proceedings, to remove the obstacles`£h_erein, or to preserve a vital piece of
evidence if the same would be lost or desSiieyed or rendered irretrievable by the
time the results are declared and stage is set for invoking the jurisdiction of the
Court_
6fEZ5ffES
5^):h^:^S,:_u_rt JP_u_:tlPe1._V_ery. CirCyT.SPeCt.. anq act _with caution while entertaining
aJf!:_e!e:±i_On_ _djS.P_u_t? thPugh .r,ot hit by tP_e bar of Article 329(b) bL;t 5-;iddi; -i;:i
d^uun!n~g_t,he_pen_!Le_:_:,I_?f eI.Option p.roceedings. The Court mir:; 'gJ:;i ir€;:;:t`-a;;
a_tt_:I_P~tJ:_a:__ re±ardi?g, ,intPrryPfing, ProirraCting Or StaIIing--df -th€--iI-ioft;din
P^r_a.?3:d:i_nJg_:;_?_S[? Fas trp be taker..t.o see that there is no altteinpti-: uirI-iS5--t-i6
c_::L:^Sj.r~d~uls=n_c_=1_b!1 £PIing .a. petition outwardly innocuous -bit-6:s:i-;tiiII;--a
` ?:9:e..:u,gLe^?:_Pre!e_rf I_or_??Pieyi.n.g an..ulte_rior dr hiddi; -i;d :-ireiiI-i::;-t-; 's;y
tfi.at Win the yery nature of the things the court would ail--vi'ith--rill;it-irnii -drn'd
s_hsI!^no^t. .£cLt. .e_X_:3Pt_ o,r a ?Iear ar!q stro_rlg _Case for its in{6r;i;ti;; -iris-i;; i::i;n
T^a±^ by
Same oL:.t_b_y_ :a_i_S!:_g
necessary lfie, pI.e?s with parfiiiulars and preciSi-on-a-;i -i;iiifi;grt-ira
material."
21. ln the facts of the present case, as seen from the averments in the
writ affidavit, no malafide action on the part of the lst respondent is
attributed, in issul-ng the impugned proceedings dated 30.05.2024. The
letter issued by the lst respondent cannot be consl-dered as an arbitrary
order for it to fall within the prl-nciples laid down by the Apex court in the
case ofAshok Kumar. Apart from that, the impugned proceedings do not
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seem to explicitly contravene Rule 54A of the Rules, to interdict the
Procedure Of COuntl-ng Of VOteS at this Stage.
22. Therefore, this court is of the considered view that the dispute
raised in the present case would fall under the domain of chapter ll of
R.P.Act,1951 and the petitioners should challenge the impugned
Proceedings in a Properly constituted election petI-lion. It is further
observed that in case of any such remedy being availed by the
Petitioners, the ObServatl-OnS made herein above will not come I-n the way
of deciding the petl-lion filed under section 80 of the R.P.Act,1951.
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23. Accordingly, the Wr'lt Petition is disposed of leaving it open tO the
petitioners to pursue remedies in a properly constituted election petition.
No costs.
As a sequel, interlocutory applications pending, if any, Shall stand
closed.
N-it
Sd/-MSV NAVIN CHANDRA
DEPUTY REGISTRAR
//TRUE COPY//
/
To,
1. The Chief Election Commissioner, EIection Commission of India,
Nirvachan Sadan, Ashoka Road, New Delhi,110001
2. The Chief Electoral Officer& E.O., Prl. Secretary to Govt., Room No
lO1, Ground Floor, Penumaka -Amaravathi Rd, 4th Block, Velagapudi,
Andhra Pradesh 522503
3. Velagapudi Ramakrishna Babu, S/o. Brahmeswara Rao, Aged about 63
years, occ-MLA Visakhapatnam East Constituency, R/o. 19311/2
LIG74 Sector 5, MVP Colony, Visakhapatnam Urban, Visakhapatnam,
Andhra Pradesh 530017. (1 to 3 by SPEED POST)
4. One 6c to sri vivek chandra sekhar s, Advocate [OPUC]
5. One CC to Sri D S S'lvadarshan, Standing Counsel [OPUC]
6. One CC to Sri Avinash Desai, Standing Counsel [OPUC]
7. One CC to Ms. Yaswani Pilla, Advocate [OPUC]
8.` Two CD Copies
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I.
HIGH COURT
DATED: 01/06/2024
ORDER
WP|No|12167 of 2024
DISPOSING THE W.P. WITHOUT COSTS
