IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FIRST DAY OF APRIL, TWO THOUSAND AND FOURTEEN :PRESENT:
THE HON'BLE SRI KALYAN JYOTI SENGUPTA, THE CHIEF JUSTICE AND THE HON'BLE SRI JUSTICE SANJAY KUMAR PIL .Nos: 94 AND 97 of 2014 PIL .No: 94 of 2014 Between:
1 Bukya Saida, S/o Late Badru, Occ: Advocate, Resident of Donabanda Thanda, Mattampally Mandal, Huzurnagar , Nalgonda District.
2 K. Ramesh Reddy, S/o Vijaya Mohan Reddy Occ:: Adcovate, Resident of 23/858, Rama Reddy Nagar, Nellore District-524004.
3 V. Ramana Reddy S/o. Suryanarayana Reddy, Occ: Advocate, Resident of 25/1-1881, Vengalrao Nagar Road, Nellore District-524004.
4 M.V. Shiva Rao, S/o Late M.V.S. Mallikarjuna Rao, Occ: Advocate, Resident of Flat No. 301, Noble Saphire Apartments, Balaji Swarnapuri Colony, Rajeev Nagar, Hyderabad.
. Petitioners AND
1 The Government of Andhra Pradesh, Rep. by its Chief Secretary, General Administration Department, Secretariat, Hyderabad.
2 The State Election Commission, 3rd Floor, Buddha Bhavan, M.G. Road, Secunderabad-500003. Rep. by its Commissioner.
. Respondents Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed herein, the High Court may be pleased to issue a Writ, Order or direction more particularly one in the nature of Mandamus declaring the action of the respondents in proposing to count votes/polls and declare the results of the fourth ordinary elections to the Municipal bodies (Municipal Corporations, Municipalities and Nagarpanchayats) on 02.04.2014, shortly before conducting the upcoming elections to the Mandal Parishad Territorial Constituencies (MPTCs) as well as the General Elections to the Legislative Assembly as well as the Parliament, as arbitrary, illegal, unjust, violative of the Constitutional Rights guaranteed under the Constitution of India and violative of the Constitutional mandate of true democracy and free and fair elections, and for issuance of consequential directions to the respondents to count the Votes/polls and declare the results of the aforesaid elections to Municipal bodies after conclusion of the General Elections, 2014.
Counsel for the Petitioners : Sri Sudhakara Reddy Ponnavolu Counsel for the Respondent No.1 : G.P. for General Administration Counsel for the Respondent No.2 : Sri V.V. Prabhakar Rao PIL .No: 97 of 2014 Between:
V. Venkateswara Rao, S/o. Sri V. Chalapathi Rao Occ: Organising Secreatry - Ennikala Nigha Vedika, R/o. HIG.155, Phase-V, KPHB Colony, Kukatpally, Hyderabad.
. Petitioner AND
1 Election Commission of India, Rep. by its Secretary, Nirvachan Sadan, New Delhi.
2 The State Election Commission, Rep. by its Secretary, Buddha Bhawan, Secunderabad, Hyderabad, AP.
. Respondents Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed herein, the High Court may be pleased to issue an appropriate writ or order or direction, more particularly one in the nature of writ of mandamus; Declaring the action of the respondents in scheduling the counting and declaration of results of municipal and panchayat elections on 2.4.2014 and 8.4.2014, during the election schedule of the general elections of 16th Lok Sabha and A.P. State Legislature on 30.4.2014 and 7.5.2014, as arbitrary, illegal and violative of Art. 14 of the Constitution of India, affects the free and fair ensuing elections for 16th Lok Sabha and AP State Legislative Assembly; and consequently reschedule the counting of votes of Municipalities/Nagar Panchayats and Zilla Praja Parishads/Mandal Praja Parishads elections after completion of election process of 16th Lok Saba and AP State Legislature i.e. after 8.5.2014; Costs be awarded to the petitioners.
Counsel for the Petitioner : Sri S. Santosh Kumar Counsel for the Respondent No.1 : Sri Avinash Desai Counsel for the Respondent No.2 : Sri V.V. Prabhakara Rao These petitions coming on for hearing, upon perusing the Petitions and the affidavits filed herein and the order of the High Court dated 28-3-2014 made herein and upon hearing the arguments of the above named counsel, the Court made the following
ORDER: (per the Hon’ble The Chief Justice Sri Kalyan Jyoti Sengupta)
These petitions have been filed asking for a direction upon the respondents, particularly, second respondent, not to count the votes/polls and not to declare the results of the fourth ordinary elections to the Municipal Bodies on 02.04.2014 or any day prior to the date of conclusion of the General Elections, 2014 pending disposal of the above petition and to pass such other order or orders as are deemed fit and proper in the circumstances of the case.
The ground for the above prayer is summarized as follows:
That the result of the municipal elections may have a serious, if not, adverse impact in the minds of the electorate, who will be casting vote in the ensuing General Assembly Elections and Parliamentary Elections. In that situation, it would not be a free and fair election. Free and fair election is the bedrock of democratic polity. Parliamentary democracy is one of the basic features of the Constitution. Logically, free and fair election is also part of the basic feature of the Constitution. This legal principle is not disputed nor can it be.
Now, the question is whether result of any election in municipal bodies will influence the mind of the same voter or different voters in the same place or other places of the country or not and such influence would tantamount to antithesis to free and fair election as alleged.
This, in our view, is factually a debatable issue. If we say ‘yes’ at this stage without detail consideration, then, we shall be underrating power of electorate of forming rational opinion. In other words, electorates of mature democracy like ours are presumed to be gullible and incapable of forming rational judgment. It is difficult prima facie to accept with close proximity of timing of election schedule, the electorate will change opinion being influenced by the result of municipal election. We cannot think of this extreme situation. It may or may not be. Affidavits are required. At present, we do not find any strong, sufficient material on our hands to hold in past, the people have been influenced by the result of the election to cast vote in immediately future date. However, the learned counsel in the respective matters want to have an interim order of stay as the election is already over and the result will be declared tomorrow. So, they say, going by the balance of convenience theory, if the interim order is not granted now, these petitions will be rendered infructuous.
When these matters were filed, whatever material available were placed. But, when the matters were taken up for hearing on the first day, it was informed that on identical fact and situation, the Hon’ble Supreme Court has been pleased to re-schedule the election programme. For, it is settled position of law that once the election process is started by a notification, no Court of law can interfere with the same under any circumstances, except in case of patently illegal exercise of power. It is not the case here. The authority of the Election Commission is not challenged, consequently, their action. On that context, whether the Court can interfere with programme schedule or not.
Thereafter, the matters were accordingly adjourned to enable the parties to bring the order of the Hon’ble Supreme Court and on the adjourned date, the order, dated 27.03.2014, of the Hon’ble Supreme Court was placed before us. We set out the entire text of that order.
“These are applications filed by the Government of Andhra Pradesh seeking re-scheduling of the Election Programme for the Panchayat and other local bodies which was notified for 10th March, 2014 and is now requested to be re-scheduled to 6th April, 2014 and 11th April, 2014. The request is not opposed by any of the parties except the fact that the result of the election be declared after 7th May, 2014 as it has been pointed out that 30th April, 2014 and 7th May, 2014 are the polling dates for General Election in the State due to which the results of the Panchayat Polls and local bodies should be declared after 7th May, 2014.
We see no reason to decline this request as we accept the contention that the election of the Panchayat and other local bodies which could not be held on the notified date may now be re-scheduled and now be held on 6th April, 2014 and 11th April, 2014, as requested. Necessary notification be made in this regard.”
On that day, it was submitted by the learned counsel for the State Election Commission that the aforesaid order is ambiguous. On the other hand, the learned counsel for the petitioners and the State contended that the order is perfectly clear and it could be acted upon. At that juncture, the learned counsel for State Election Commission informed that his client would approach the Hon’ble Supreme Court for clarification and today, the matters are taken up for hearing and when the Court asked for the clarificatory order, if any, the learned counsel for the State Election Commission candidly says that the Hon’ble Supreme Court has declined to entertain the prayer for clarification. Therefore, we have no option, but to read and mean the order as it is.
The learned counsel for the State Election Commission submits that in this case, it is not possible for the State Election Commission to defer the declaration of result basing on our order, dated 03.03.2014 whereby the election to the Municipal Bodies has to be completed on or before 10.04.2014 and the order was taken to the Hon’ble Supreme Court and Special Leave Petition in connection thereto was rejected and order of rejection has also been produced before us and we have taken note of the same. The Hon’ble Supreme Court has said that the parties should be free to approach this Court and this Court was approached and ultimately this Court refused to grant any further extension.
Learned counsel for the State Election Commission further says that in view of the mandate of this Court as affirmed by the Hon’ble Supreme Court, so to say, action has been taken and election programme has been rescheduled. Under no circumstances, the declaration of result can be deferred in violation of the aforesaid order. He says that for counting of votes, all steps have been taken; the men and material have been mobilized and the Electronic Voting Machines after poll have been collected and preserved. There will be serious inconvenience if it is deferred for a future date and votes must be counted tomorrow itself as scheduled.
Sri K. Ramakrishna Reddy, learned Senior Advocate, appearing for one of the parties says that this Court has got ample power to do justice, if necessary, it can ignore the earlier final order as powers of this Court under Article 226 are almost akin to the powers of the Supreme Court under Article 142 of the Constitution of India. He has placed the following authorities in support of his argument.
M.P.Special Police Establishment v. State of M.P. and others {(2004) 8 Supreme Court Cases 788} State of West Bengal and others v. Committee for Protection of Democratic Rights, West Bengal and others {(2010) 3 Supreme Court Cases 571} Jandrajupalli Purushotham v. District Collector, Prakasam, and others {2001(6) ALD 722 (DB)} Learned counsel for the petitioner in another petition, being, PIL.No.97 of 2012, in addition thereto says that the Division Bench decision of this Court in case of Jandrajupalli Purushotham vs. District Collector, Prakasam, Ongole, reported in 2001(6) ALD 722 has held on the same line. He has placed reliance on paragraph 14 thereof. We shall deal with it at appropriate time.
When we asked the learned counsel for the State Election Commission, what decision has been taken by his client in pursuance of the order passed by the Hon’ble Supreme Court dated 27.03.2014, he is fair enough to inform us that in terms of the decision of the Hon’ble Supreme Court, the election date for the Panchayat elections had been rescheduled. It will appear from the aforesaid judgment that the Hon’ble Supreme Court has not stated on what ground, the order of rescheduling was passed unless some other material in connection therewith are placed. The order cannot be a binding precedent to follow automatically.
These however are the prima facie findings and it will be dealt with after completion of filing of affidavits in these matters, more so, this order is not part of the pleading nor it is stated in the affidavit that on identical fact, the aforesaid order was passed because it could not be available at the time of drafting of petition and even filing of the same. It came later on. So, it is always open for the litigant to bring it on record later on to get the benefit thereof. When the order itself is produced before the Court, the Court can take note of the text of the same and not other things.
While adverting to the arguments of the learned counsel for the State Election Commission, we hold rescheduling of the counting cannot be fixed by this Court beyond 10.04.2014 under any circumstances, for, the order passed by this Court and affirmed by the Hon’ble Supreme Court is special and distinguished one from the present petition.
In paragraph 14 of the judgment of this Court (supra), it is said that “in any event, when once the election notification is issued no election including the delimitation of the constituencies or allotment of seats to such constituencies can be challenged in writ petition”. It is the settled law. But this judgment has also said that the writ jurisdiction can be exercised when it is found to be capricious and discriminatory action. In the case of Panchayat elections, the election programme was rescheduled by the Hon`ble Supreme Court on request being made virtually by all the parties therein, who are the respondents herein. Therefore, it is possible to change the schedule. We are unable to appreciate that in almost similar case stand was taken to reschedule election programme without understanding the Hon`ble Supreme Court’s Judgment clearly while in this case different stand is taken not to change schedule. We think this shifting stand is not permissible in the eye of law. We hold date of declaration of result of election can be changed within the time limit of above order of this Court.
We hasten to add that the date of the counting and result cannot be rescheduled under any circumstances contrary to and inconsistent with the mandate given by this Court. There will be no harm, if the counting date is rescheduled to 09.04.2014.
Accordingly, we direct the State Election Commission to do the counting and declare the result on 09.04.2014 itself because this order is not inconsistent or contrary to the order passed earlier because time limit fixed is within 10.04.2014.
Let counter-affidavit be filed by all the respondents within three weeks from date. Affidavit in reply has to be filed in two weeks thereafter. The matter will appear five weeks hence for hearing.
//TRUE COPY// To ASSISTANT REGISTRAR For ASSISTANT REGISTRAR
1 The Chief Secretary, General Administration Department, Government of Andhra Pradesh, Secretariat, Hyderabad. (By Spl. Messenger)
2 The Commissioner, State Election Commission, 3rd Floor, Buddha Bhavan, M.G. Road, Secunderabad-500003. (By Spl. Messenger)
3 The Secretary, Election Commission of India, Nirvachan Sadan, New Delhi. (By RPAD)
4 The Secretary, State Election Commission, Buddha Bhawan, Secunderabad, Hyderabad, AP. (By Spl. Messenger)
5 The Registrar (Judicial), High Court of A.P., Hyderabad.
6 One CC to Sri P. Sudhakara Reddy, Advocate (OPUC)
7 One CC to Sri S. Santosh Kumar, Advocate (OPUC)
8 Two CCs to the G.P. for General Administration, High Court of A.P., Hyderabad. (OUT)
9 Two spare copies. nnr HIGH COURT HCJ & SK,J DATED: 1-4-2014 NOTE: Matter will appear five weeks hence for hearing ORDER PIL.Nos. 94 & 97 OF 2014 DIRECTION HIGH COURT Nnr Date of Drafting : 4-4-2014 HCJ & SK,J DATED: 1-4-2014 NOTE: Matter will appear five weeks hence for hearing ORDER PIL.Nos. 94 & 97 OF 2014 DIRECTION