Andhra Pradesh High Court - Amravati
K Gopal Reddy vs Prl. Secy., M.A. U.D.Dept. 4 Ors. on 1 April, 2019
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
[IN THE HIGH COURT OF ANDHRA PRADESH (Special Original Jurisdiction} MONDAY , THE FIRST DAY OF APRIL TYG THOUSAND AND NINETEEN PRESENT THE HONOURABLE THE ACTING CHIEF JUSTICE C.PRAVEEN KUMAR AND THE HONOURABLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION (PIL) NO: 104 OF 2077 Between: K. Gopal Reddy, S/o Late K.Appal Reddy, 46 Years, Civil Contractor, R/o D.No, 44-18-31, Thatichetlapalem, Visakhapatnam - 16 ... PETITIONERS AND 1, State of Andhra Pradesh, Rep. by ifs Principal Secretary te Govt., Municipal Administration & Urban Development Dept. Secretariat, Velagapudi, Guntur District. 2. State Election Commissioner, For the State of Andhra Pradesh, Rep. by its Secretary, Budha Bhavan, Secunderabad. Election Authority and Commissioner of Municipal, Administration, State of Andhra Pradesh, Vijayawada, Krishna District. " 4. Visakhapatnam Greater Municipal Corporation, Rep. by, its Special Officer & Commissioner, Visakhapatnam Visakhapatnam District. District Collector,, Visakhapatnam, Visakhapatnam District, Andhra Pradesh Co an .. RESPONDENTS Petition under Article 226 of the Constitution of india praying that in the circumstances stated in the affidavit fled therewith, the High Court may be pleased to grant appropriate relief more in the nature of Writ of Mandamus under Article 226 of the Constitulion of india declaring the action of the Respondents not conducting elections for Greater Visakhapatnam Municipal Corporation in terms of the provisions of Greater Hyderabad Municipal Corporation Act, 1955 as arbitrary, illegal, malafide and discriminatory violating Article 14, 19(1)(g} and 21 of the Constitution of India and ultra vires of Greater Hyderabad Municipal Corporation Act, 1955 and issue consequential directions directing to forthwith conduct elections for Greater Visakhapatnam Municipal Corporation in terms of the provisions of the Greater Hyderabad Municipal Corporation Act and other related laws. WP(PILJMP. NO: 185 OF 2017 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the Respondents to forthwith conduct elections for Greater Visakhapatnam Municipal Corporation as per the provisions of the Greater Hyderabad Municipal Corporation Act, 1955 pending disposal of the Writ Petition. Counsel for the Petitioner+: SRI PV KRISHNAIAH Counsel for the Respondent Nos. 1 & 5: GP FOR MUNCIPAL ADMN AND URBAN DEV Counsel for the Respondent No. 4: SRI. S. LAKSHMINARAYANA REDDY, SC FOR GVMC Counsel for the Respondent Nos. 2 & 3: SRI V. V. PRABHAKAR The Court made the following: ORDER THE HON'BLE THE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE M. SATYANARAVANA MURTHY WRIT PETITION (PIL) No.104 OF 2017 ORDER; (Per Forvife Sri justice M. SURLY CO Lay SMrothuy Sri k.Gopal Reddy, claiming to be a public spirited persan resorted to this pro bano publico/Public Interest Lit gation seeking a writ of Mandamus declaring the action of the respondents in not conducting elections for Greater Visakhapainam Municipal Corporation in terms of the provisions of Greater Hyderabad Municipal Corporation Act, 1955 as a rbitrary, legal, malatide and discriminatory violating Article | 4, 99 (1) (@) and 21 of the Constitution of India and Greater Hyderabad Municipal Corporation Act, 1955 {fer short "GALM.C.Act') and issue consequential directions to forthwith conduet elections for Greater Visakhapatnam Municipal Corporation in terms of the Provisions of ihe G.HLM.C Act. The petitioner is a resident of Visakha patnam City and engaged in contracts, besides invalvement in pohtical activities of Indian National Congress. He is one of the aspirants to contest in Municipal Corporation elections for the office of Mayor scheduled to be hele in) future, but on aceount of non performance of the obligations of the respondents, he could nat contest in the elections. Mis specific contention is that the term of earlier elected Counselors of Greater Visakhapatnam Mun icipal Corporation was expired in the year 2012, but the authorities arc not conducting elections for the last S years even though it is the obligation of the authorities to conduct clections periodical Iv lor various offices like Ward m smibers, Mayor cic. Beesuse of the inaction of the respondents tn conducting elections for the Greater Visakha patnam Municipal Corporation, the MACY & M3SM4 WPIPEL) 10d 2017 development of Visakhapatnam city is paralyzed at the State level, obviously, based on the directions issued by the leaders of the ruling political party. No law authorized the respondents ta differ or withheld the elections indefinitely. Even in terms of GHLMLC. Act, when the term of the elected' council is expired, it is the duty at the respondents to conduct elections for the Greater Visakhapatnam Municipal Corporation. As per Section 6 of the G.H.M.C. Act the term of the alfice of Members is S yeers. Similarly, as per Section 7 of the CUWLM.C. Act, every general election shall be held in the manner prescribed within three months before the day of retirernent of Members as specified in Section 6 of the G.H.M.C.Act. The obligation to conduct election is a Constitutional obligation of the authorities and failure to conduct election amounts to disowning their constitutional obligation by the respondents though the election was held inl 2007 for a period at five (8) years, which was expired in the year 2012. Obvious reason for not conducting elections is the inability of the respondents to conduct elections and such conduct is utter disregard of constitutional mandate under Article 343-U of Constitution of India. He afso made certain allegations about the opinion expressed by a Chief Minister of Andhra Pradesh in a public meeting to conduct elections for Greater Visakhapatnam Municipal Corporation in the year 2019 and other allegations about the political parties. On account of nonchalant attitude of the respondents herein, the elections were not conducted, which impair the right of the petitioner io participate in the election and requested to issue a cirection referred supra. HACE & MSM\d WPUPHL) 204 2027 Respondent Nowt filed counter denying maitcrial allegations inter aha contending that the Vishakhapatnam Municipal Corporation was consisting 72 wards while so, in the year 2013 the Pst respondent had issued G.O.Ms.no.37S dated 30.07.2013 for merger of Anakapalli Municipality along with S Grampanchayats namely hk Nagaraapaiem, Chapalapada, J V Agraharam, Salapuvanipalem, and volluru along with Bheermunipatnam Municipality with S Grampanchayats, Kapalupada, Nidigattu, Thadi, Rajupalem and Koppaka as the respective municipalities and Grampanchayats have passed resolutions and in pursuance of the said resalutions the respondent No.5 had recommended for merger of the Anakapalli Municipality along with 5S con tiguous srampanchayats, Accordingly, Bheemrunipathnam munici pality along with S contiguous grampanchayais have been merged in the respondent corporation by virtuc of G.O.Ms.no.375 dated 30.07.2013 issued by the 18 respondent. Tt is submitted that while issuing G.O.Ms.No.375 the 15 respondent had also issued G.O.Ms.No.369 dated 30.07.2013 cancelling the notification declaring the 5S grampanchayats which are in contiguity of Bheemu nipatnam municipality for merging into the respondent corporation as recommended by the commissioner and director af Mumicipal Adrainistration and ever since the Anakapalli munici pality and the S contiguous grampanchayats and the Bheemunipatnam mu nicipality Along with S contiguity grampanchayats were under the control and administration of the respondent carporation. While the matter stood thus, one Mr. Yerusu Appalakonda and four others have filed W.P.No.23942 of 2013 before this court challenging the action of the respondent No.1} in denatifying the HAC tke MSM, WRIPILA L049 SOT? Grampanchayats namely Kapulupada, Nidigattu as grampanchayats so as to inchide them in the respondent corporation under G.O.Ms.No.3869 dated 30.07.2013 in exercise of the power under Rule i2 [t) of A.P. Grampanchayats (declaration / denotification fconsutution of villages) Rules 2007. This Court was pleased to allow the writ petition holding that the District Collector is not the competent authority to issue notice under Rule 12 of rules calling for objections in its order dated 24.09.2013. Subsequently anether writ petition has been fled Le., W.P.No.31221 of 2013 in not coreducting elections to the said 5 grampanchayats which were deleted from the respondent carporation and the said W.P.No.31221 of 2013 was also disposed of directing the State Election Commission who is the respondent No.2 therein to conduct the election to the said 5 grampanchayats forthwith by order dated 05.03.2014. Pursuant to the orders passed by the Court in W.P.Na 31291 of 2013 the élections were conducted to the said 5 grampanchayats. One Mr. Velagapudi Ramakrishna Rao who is the member of Legisiative Assembly had filled W.P.No.23078 of 2013 challenging the action of the respondent No.1 in abolishing the Anakapalli and Bheemunipatnam municipalities under G.O.Ms.No.3873 and 374 dated 30.07.2013 and alse denotifying 10 grampanchayats under G.0,Ms.No.369 however the said writ petition is pending before this Court for acyudication. The Director of Municipal Administration had addressed a letter dated 30.08.2017 to the respondent corporation to prepare the delimitation proposal and in turn the respondent corporation had addressed ai reply dated 12.09.2017 informing that the respondent No.l had issued G.Q.Ms.No.311 dated 16.08.2017 for HAC & MAM WHYPIL) P64, 2027 fixing the strength of the elected members as 81 wards and it is also informed in the said letter that in view of ct he deletion of S grampanchayats which are contiguous to Bheemunipatnam nvunicipality by virtue of the orders passed by this Hon'ble court in W.P.No. 23942 of 2018 there is no contiguity with remaining areas of respondent cerporation and Bheemunipatnam municipality and sought for clarification in this regard. In pursuance of the letter addressed by the Director of Municipal Administration dated 06.10.2017 the 1st respondent had issued a memo No. 19722/G2/2015 dated 30.10.2017 requesting the Director of Municipal Administration of Andhra Pradesh to follow the rules and instructions issucd on the issue of delimitation of wards pertaining to the respondent corporation. Subsequently the respandent. corporation had addressed a letter dated O7.07-2018 to the respondent No.l stating that in view Tae 5 « deletion of S grampanchayats which are contiguous to Bheemunipainam municipality by virtue of the orders passed by the Court in WY No. 23942 of 2013 dated 24.09-2013, there is no contiguity in the area of respendent corporation due to which the development aclivilies arc not taken up in ful fledged manner and it is also stated that during the visit of the Chief Minister on 21.06.8018 it was instructed to expedite the matter for conti suity of grampanchayats and take necessary action and the same is pending for consideration belore the respondent No}, As per Rule 4 of (Delimitation of wards rules 1996) as framed under G.OLMs.No.570 dated 06.13.1996 the area of the Corporation shall be divided into Wards as notified by the Government under Rule 3, duly taking' inte account the natural boundaries HAC & MSM WPUPUL TO SOL? Geographical features and contiguity of the area. Wherever natural boundaries could net be adopted survey numbers, T.S., numbers, important junctions or lanes shall be considered as far as possible. A bare reading of the above rule it is clear that the that the area of the respondent corporation shall be divided into wards duly taking into account the natural boundaries Geographical features and contiguity. in the instant case, in view of the deletion of 5 grampanchayats which are contiguous to Bheemunipatnam municipality the delimitation of wards cannot be prepared in view of lack of contiguity of the area as the merging of Bheemunipatnam municipality is continuing in the respondent corporation as on today, as there is no contiguity in the area of respondent corporation the respondent corporation had addressed a letter dated O7.07.9018 to the respondent No.1 to take necessary action and the same is pending. It is submitted that in view of pending W.P.No.23078 of #018 challenging the merger of Bheemunipatnam municipality and in view of lack of contiguity, the respondent corporation could not take steps for delimitation of wards and addressed a letter dated 07.07.2018 the respondent corporation to take necessary action for preparation of delimitation of wards, but so far ne action was taken. Therefore, for the reasons stated above, the elections could not be conducted for the Visakhapatnam Municipal Corporation, but not with any other intention and requested to dismiss the petition. earned counsel for the petitioner Sri PV Krishnaiah vehemently contended that keeping the Greater Visakhapatnam Municipal Corporation without council for more than seven years is nothing but mefficiency of the respondents in conducting clections for the Greater Visakhapatnam Mumicipal Corporation; as there was HAC f& MSM,t WR/[PUL) LO 2OP7 no elected body for the Corporation, developmental activities are not evenly distributed within the District and certain areas were totally overlooked. Keeping the Greater Visakhapatnam Municipal Corporation urider the control of Municipal Commissioner, who is the Chicf texecutive Officer of the Corporation, for such long time is against the purport and theory af lanal sclf governance, therefore, requested ta issue direction to conduct elections for Greater Visakhapatnam Municipal Corporation immediately. Whereas, Sri S.Lakshminarayana Reddy, Jearnecdl counse!] appearing for the respondent No.4 reiterated the contentions urged m the counter, whereas learned counsel for the respondent No.1 expressed inability of the respondent No.t to hold election due to deletion of S Gram Panchayats from the Cerporation area in view of the orders passed in. W.P.No.23942 of 2013 and no steps were taken till date to rectify the mistake and to conduct clections for the Panchayats. On the other hand, Sri Prabhakara Rano, learned counsel for the respondent No.3, expressed its readinoss te conduct elections whenever the Municipal Carporation expressed its readiness for preceeding further to conduet election and virtually reported no objection to conduct elections if the Municipal Corporation campiletes forrnalities for holding election. Considering rival contentions, perusing the material available on recard, the point that arises for consideration is: Whether a direction be issued against the respondents for conducting/holding elections for Greater Visakhapatnam Municipal Corporation by issuing a Writ of HAC & MSM Af WRATSL) 104 OOLF Mandamus in view of the circumstances narrated by the respondent No.4? POIN TF. It is undisputed fact that the period of council of Greater Visakhapatnam Municipal Corporation was expired in the year 2012, but the authorities admittedly did not hold arly periodical election for the Greater Visakhapatnam M uunicipal Corporation as required under the provisions of G.H.M.C. Act as well as Constitution of India. Respondserits/authorities gave different explanation for failure of the Municipal Corporation to hold election, though, the State Election Commission readily agreed to hold election subject to complance of other requirements by the Corporation and the State. As the Term of council was completed in the year 2012, the Election Commission has to start process of election within three months before the day of retirement of Members as specified in Section 6 of the O.HLM.C. Act. Section 6G of the G.H.M.C, Act, which is applicable to the Greater Visakhapatnam Municipal Corporation, prescribes the term of the office of elected members shall, save as otherwise expressly provided in this Act, be five years from the date appointed for the first meeting of the Corporation under clause {b}) of Section 88 and the last day of their term of office is in the Act referred to ag the day tor retirement, An ex-officio member shall hold office so long as he cantinues to be the member of the Legislative Assembly of the State or the 4 Legislative Council of the State or the House of the people, as the case may be. Thus, the term of office of elected members of council is MAGS & MSM WINPIL) 164, 2017 2) years in any event, except ex-officio members referred in Section 6 of the G.HLMLG. Act. lovery general election requisite for the purpose of the Act shall be held in the manner prescribed, within three months before the day lor retirement of the members as specified in Section 6 of the Act (Clause (1) of the Section 7 of the G.H.M.C. Act} Similarly every casual vacancy in the office of an elected member of a Municipal Corporation shall be reported by the Commissioner to the State Election Commission within fifteen days from the date of oceurrenee of such vacancy and shall be filled within four months from that date {clause (2) of Section 7 of the G.HLM.C. Act) Part DS-A introduced by 75" Atmendment to Constitution of india with cffeet from 01.06.1993 deals with the Mu nicipalities. The main abject of introducing this Chapter by 74 Amendment is that in many States the local badios were not workin @ properly and the timely elections were not being held and the nominated bodies were continuing for long periods. Elections had been irregijar and many times unnecessarily delayed or postponed and the elected bodies had been superseded or suspended without adequate justification at the whims and fancies of the State authorities. The new provisions were added in the Constitution with a view to restare the righthal place in political governance for local boclies. It was considered necessary to provide a constitutional status to such bodies and to ensure regular and fair conduct of clections. TAC & MSM WP(PIL) Jeb 2017 According to Article 243 (d) of the Constitution of India Municipality means the territorial area of a Municipality as notified by the Governor. Article 243Q deals the constitution of Municipalities and the word 'mumicipality' covers a 'municipal corporation'. According to Article 2430 (1) {a) a Nagar Panchayat for a transitional area, that is to Say, af area in transition from a rural areca to an urban area. According to Article 243Q (1) (b}) a Municipal Council for a smaller urban area, According to Article 243Q {1} (c) A Municipal Corporation for a larger urban area. The word 'Municipality' covers 'Municipal Corporation' as held by the Apex Court in "Cantonment Board, E ; p Secunderabad v. G.Venketram Reddy'". Article 2430 speaks of three institutions, namely, Nagar Panchayat, Municipal Council and Municipal Corporation. BP According to Article 243U of Constitution of India, every Municipality, unless sooner disselved under any law for the time being mm Jorce, shall continue for five years from the date appointed for its first meeting and na longer: provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution. On armiysis of Article 2430) of Constitution of India, the duration of Municipality is S years frorn the date of its first meeting. Itis incumbent upon the election commission and other authorities to canduct election in the manner prescribed within three months before the day of retirement of Members as specified under Article 243 (1) of the Constitution of India and Section 7 of G.M.M.C. Act "alk 1995 SC i210 1a HACE & MSM)3 WHIPLLL 104. 2017 Going by the provisions coritained in Article 243U, it is clear that the period of five years fixed thereunder to constitute the Municipality is mandatery in mature and has to be followed in all respects. Tt ts only when the Municipality is dissolved for any other reason and the remainder of the period for which the dissolved Municipality would have continued is Jess than six months, it shall net be necessary to hold any elections for constituting the Municipality for such period. The State KHlection Commission shall not put forward any excuse based on unreasonable grounds that the election could not be completed in tame. The Election Cormnission shall try to complete the election belore the expiration of the duration of five years' period as stipulated in the Act. Any revision of electoral rolls shall be carried out in time and iit cannot be carricd out within a reasonable time, the election has ta be conducted on the basis of the then existing electoral rolls. [mn other words, the Election Cormmissicn shall complete the eleetion befeare the expiration of the duration of five years' period as stipulated in the Act anc not yield to situations that may be created by vested interests to posipone elections from being held within the stipulated time as held by the Apex Court in "Mishansing Tomar v. Municipal Corporation of the City of Amedabacd" The Apex Court farther held that the entire provision in the Constitution was inserted to see that there should not be any delay in the constitution of the new Municipality for every five years and in order to avoid the mischief of delaying the process of election and allowing the nominated badies to continue, the provisions have been (PONE USES 392 ACS & MSM, WRIPIL) Tia SEF suitably added to the Constitution. In this direction, it is necessary for all the State governments to recognize the significance of the State Election Commission, which is a constitutional body and it Shall abide by the directions of the Commission in the same manner in which it follows the directions of the Election Commission of India during the elections for the Parliament and State Legislatures. In fact, in the domain of elections to the Panchayats and the Municipal bedies under the Part TX and Part EX A for the conduct of the elections to these bodies the State Election Cornmission emoy the same status as the Election Comrnissiarn of india. it is incumbent upon the Election Commission to start the election process as mandated under Section 7 of GH.M.C. Act and Article 2430 of Constitution of India. But in the present case, the respondent No.2 ~ State Election Commission for one reason or the other did not take any steps till date though the period was expired about seven (7) years ago. One term of the council ie. 5 years period was over and half of the 2. term, approximately, is also over. In those circumstances, it can safely be coricluded that the responcent Nos.1 to 4 are not discharging their constitutional obligation to hold elections for the Greater Visakhapatnam Municipal Corporation. Even earlier also, a similar petition under Article 226 of Constitution of India is filed by one of the public spirited persons in W.P.No.3122] of 2013 and the Court passed an order directing to hold elections in view of the readiness expressed by State Election Comrnission, but for one reason or the other, the authorities --~ respondents herein did rat start election process even after expiry of 7 years approximately and such attitude of the authorities is lamentable. 13 HAC & MSM,F WPUPL) 104 2017 The main endeavour of the learned counsel for the respondent No.3 is that cue io orders of this Court in various writ petitions, 5 panchayats were deleted from Municipal Cerporation as the G.Os were issucd in violation of Rule 12 (9) of A.PiGram Panchayats (Declaration of Villages} Rules, 2007. Therefore, excuse pleaded by the Municipal Corporation for net holding clections by the respondents is not acceptable by applying the principle laid down by the Apex Court in "Kishansing Tomar v. Municipal Corporation of the City of Amedabad' (referred supra), wherein it is made clear that the State Election Commission shall not put forward any excuse based on unreasonable grounds that the clection could not be comy feted in time. The same principle can be applied to the present facts of the case as the lame excuse is put forward by the Municipal Commissioner of Visakhapatnam, respondent No.4. It is pertinent ta mete here that the perind of council icc. five {So} years was expired even before the order passed by this Court in W.P.No.31221 of 2073. More curiously, next term of five years was also expired. But the plea of inypassibility to conduct elections to the Municipal Corporation due to multifarious reasons is met acceptable and the Apex Court in the special reierence No.OL of 2002 with regard to Legislative Assembly elections to the State of Gujarat, held as follows: "However, we sire of the view that the employment of the words "on an expiration." occurring in Sretians 4 ane 15 of the Representation of the Peaple Act 19S) respectively show that the Mlection Commission is required fo take steps for holding election immediately on expiration of the term of the Assembly or its cissolution, although ao periccd has been provided for. Yet, there is anather indiealion ti Scetions It and 1S of the Representation of Peopie Act that the election process can he set in rmotien by issuing of novbeation prier to expiry of six rnonths of the eormead term of the Hause of the Peaple or Legislative Assembly, Clause {1} of Article 172 provides that whe promulgation of cmergency iy in operation, Parliament ny law can extend the duration of the Legislative Assembly not exnecsin gone year al a HAG ike MSM,J WOE) TO 4OUe time and this period shall not, jn any case, extend beyorel a period of six months after promulgation has ceased to aperate," "The aforesaid provisions do inclicate that on the premature dissolution of the Legislative Assembly, the Election Commission is requirect to initiate imimechate steps for halding election for consbtidting Legislative Asserobly on the first occasion and in any case within six months fram the date of premature dissolution of the Legislative Assem bly." While Concurring with the foregoing opinion, Pasayat, J. in paragraph 151, stated as follows: k & "fhe impossitvhty of holcirus the election is net a factor ageaunst the lection Commission. The maxim of Jaw impotentia excusal legem is intimately connected with another maxim of law les no cag cd impossibitic, impotentia excusat legem is that when there is a necessary dr invincible disability toe perform the mandatory part of the law that Mmpeatentia excuses, The law does not compel one to do that which one cannat possubly perforn. "Where the law creates a duty or charge, and the party is disabled to perform it, without ary default in him." Therefore, when it appears that the performance of the formalities prescribed hy @ statute has been rendered impossible by citcurmstances over which the Rersons interested had no control, Dke an act of God, the circumstances will be taken as a valicl excuse. Where the act of God prevents the compliance with the words of a statute, the statutory provision is not dertuded of its tnandatory character because of superverntig unpossibilily caused by the act of God. (See Broom's Legal Maxinis, 10th He., at pp 1962-53 and Craies an Status Law, 6th Edn., p. 208.) These aspects were highlighted by this Court in Special Reference Na. | of 1974. Situations may be created by interested persons to see that élections do not take place and the caretaker Government continues in office. This certainly wouid be against the scherne of the Constitution and the basic structure to that extent shall be corroded." The Apex Court in "Kishansing Tomar v, Municipal Corporation af the City of Amedabad™ (referred supra) made it clear that the entire prevision in the Corstitution was inserted to see that there should not be any delay in the constitution of the new Municipality for every five years and in order to avoid the mischief of delaying the process af election and allowing the nominated bodies to contin uc, the provisions have been suitably added to the Constitution. In this clirection, it ig necessary for all the State GOVErmnets to recognize HAG & MOSM of WRYPIDY bOd 2017 the significance of the State Election Commission, which is a constitutional body and it shall abide by the directions of the Commission in the same manner in which it follows the directions of the Election Commission of India during the clections for the Parhament and State Legislatures. In fact, in the domain of elections to the Panchayats and the Municipal bedices under the Part 1X and Part IX A for the conduct of the elections to these bodies they enjoy the same status as the Election Commission of India. In terrs of Article 243K and Article 243ZA(1) the same powers are vested in the State Election Come\rission as the Election Commission of India under Article S24. The words in the former provisions are in pari tmuateria with the Jatter provision. The words, 'superintendence, direction and control as well as 'conduct of clections' have been held + im the "broadest of terms" by the Apex Court in several decisions meluding in Re: Special Reference No. 1 of 2002 (ATR 2003 SC 87} and "Mohinder Singh Gill v. The Chief Election Commissioner, New Delhb". The Division Bench of this Court in Writ Petition No.31639 of 2011 and batch had an eccasion to deal with the issue similar to the present issuc and on considering the facts and circumstances of the case referring to the object of self government as enunciated by the Apex Court in "K. Krishna Murthy v. Union of India', whercin the Apes Court while dealing with reservations observed as follows: "96.The objectives of democratic decentralisation are not only tu bring governance Closer fo the people, but alee ta make it more participatary, incisive and accountable to the weaker sections of society." " {LOVBIRSCRAT2 * 2010) 7 SCC.202 By relying on the above principle, the Division Bench of this Court held that it is incumbent upon the State Election Commission and the concerned authorities to Carry out the mandate of the Constitution and to see that new bodies are canstituted in time and elections are conducted before the expiry of their duration of five years as specified in Article 243E of the Constitution. Thus, frorn the law declared by various Courts, it is a constitutional obligation of the State Election Commission ard local bodies i.e. local self government like Muriucipality and Panchayat to Start process of election as permitted under Article 243 of Constitution of India. In the event of failure, it clear amounts to violation of constitutional obligation or duty and the provisions of G.WM.C.Act. But abvioushy for different réasons, more particularly, on account of pohtics prevailing in the State, the State instruumentalities are delaying the election process for one reason or the other. Delay of months, at the best a year, is excusable, but seven (7} years is not excusable and such lethargic attitude of the State and its instrumentalitices in not conducting elections to the Greater Visakhapatnarn Municipal Corporation attendin g to the problems responding to letters addressed to the Government by the local bodies is may lead to administrative anarchy, The question of municipal leadership is of great significarice in urban governance in India. There are various models of the position of chief executive of an urban local body, predominantly tilting towards the 'strong mayor model either through 'presidentialisation' of the office or through a 'mayor-in-council' system. In Inca, it is the 'State appointed municipal commissioner' model that holds sway, ms ay HAC & MSM.) WPEILA PO BOTY sitting ever a popularly clected body. Thus, among the many urban reforms necdced to fix ailing city governance across India, the question of municipal feadership may not be one of pivotal Significance. Issues such as functional devolution to urban local bodies, strengthening their fiscal health and their comprehensive empowerment as "vibrant democratic units of self-government" are indeed central to the governance af cities, The role of 'chief exccutive' is important in the organization but it cannot be overstated. The chief executive leads the organization and drives it towards achieving organizational excellence. Internally, the chief executive provides strategic vision and direction, prescribes goals and objectives, inspires their team, and harnesses the abilities af employees to achieve success. Iuxternally, the chief executive represents the organization, communicates with other entiies arid people, and establishes the organization's credentials ar brand among stakcholders. But such chief executive officer cannot run the local government for years together and in the present case for a period of more than seven years since the State is not a mood to hold clections to the Cweater Visakhapatnam Municipal Corporation and its instrumentalities are unable to clear the hurdles, which are perennial in nature, despite Ietters addressee by the Corporation and the inaction on the part of the State and its instrumentalities is nothing but violating the constitutional mandate to hold clections to the Municipal Corporations for every period sacrificing democratic principles prescribed for development of Munici pal Corporations and such attitude is depreeable. HAC MSM.) WPRIPIL) 1O4, 2017 Similar direction was also issued by this Court in W.P.No.Si221 of 2013, then the Officials of the Municipal Corporation woke up from slumber and started addressing letters, but net purpose was served and the attitude of the officials of the Corporation and the State would clearly show that the State is not interested in holding elections clearing all hurdles. But such clearance of hurdles can never be Ad infinitum. As the focal governmenis are being run by people's representatives of that area, such representatives of local area are the best persons to attend the needs of locals. The purpose of focal governance is to decentrahzation of powers armong wings of three tier system of governance based on democratic principles, strictly in terms of constitutional frame work. Delay in formation of new council of local government may deprive the locals to participate in governance of local bodies. Therefore, to keep up the aim of 74th amendment of Constitution of India, the official respondents shall conduct election to local bodies for every five years, strictly adhering to clause 3 of Article 243U of Constitution of India. But delay or postponement of quinguennial election for local government should be an exceptional circumstance nota regular feature. A free and fair election based on universal adult franchise is the basic; the regulatory procedures vis-a-vis the repositories of functions and the distribution of legislative, executive and judicative roles in the total scheme, directed towards the holding of free clections, are the specifics. The superier authority is the election commission vide "Mohinder Singh Gill v. The Chief Election Commissioner, New Deth® (referred supra), This free and fair election to local bodies is also based on dernocratic principle, since, democracy being the basic 4S FLAC & MSM.S WRIPILD 2G4 2007 ieature of our constitutional set up, there can be no two opinions that free and fair clections to our legislative bodies alone would guarantee the growth of a healthy democracy in the country. In order to ensure the purity of the election process it was thou ght by our Constitution-makers that the responsibility to hold free and fair elections in the country should be entrusted ta an independent body which would be insulated from political and for executive interference. (vide: "TN Seshan v. Union Of India®"). In the present case, the independent body icc. State Election Commission was unable to act In accordance with law to discharge the constitutional anid statutory obligations to hold elections to Greater Visakhpatnam Municipal Corporation to uphold the obiect of constitutional 74th amendment. Keeping in view of principics laid down in "Kishansing Tomar v. Municipal Corporation of the City of Amedabad' (referred Supra}, a Division Bench of Karnataka WN igh Court in "P.R.Ramesh v. State of Karnataka" has categorically held thai process of merger of urban focal bodies and sore villages situated around the Mahanagara palike to form the BIBMP cannot be a reason to pastpane holding of election and that merely because certain arcas were to be merged to fortrm BRMP was no excuse to contend that the elections could be delaved, this was because, it would violate Article 243) of Constitution and issued a direction to hold election. Persuaded by the principle laid dawn by the Karnataka High Court and following the principle laid down by the Apex Court in "Kishansing Tomar v. Municipal Corporation of the City of Amedabad (rcferrad supra), we have no hesitation to hold that the respondents acted arbitrarily and postpone the clections to Greater 41995) 4 SOO 81 "201 1{2)SarLJIS2o ACY & MBM, WET) 104 201% Visakhapatnarn Municipal Corporation for a long period of 7 years cantrary to the objective af 74 amendment and in utter violation of Section 7 of Gi.H.M.C.Aet, Article 2430 of Constitution ef India. Since, the respondents failed te discharge their constitutional obligation, we find that it is a fit case to issue a direction to hald elections to Greater Visakhapatnam Mumicipal Corporation. In view of the constitutional mandate contained im Article 243U of the Constitution of India and Section 7 of GH.M.C. Act, the respondents are directed to discharge their constitutional obligation to hold elections within six months from today, starting its process to clear hurdles like issue of notification for inclusion of panchayats (referred supra) at least by exercising power under Section 479-A of CG.ELM.C Act fo merge the Gram Panchayats into Municipal Corporation, alternative by strictly adhering to the procedure pointed out in W.PLNo.31221 of 2013. In the evert of failure to hold elections within the period, it will lead to serious consequences as there was no local leader to manage the Municipal Corporation fer the benefit at public af Greater Visakhapatnam Municipal Corporation area. On aceount of such attitude of the Officials of the State, it is difficult to attend various works, depending on the need of public within the area. In view of our foregoing discussion, i is evident that the respondents miserably failed toe discharge their constitutional obligations to holed election to Greater Visakhapatnam Municipal Corporation based on lame excuse, which can be cleared within no time. But such excuse is not a ground for not holding elections in 24 HAC & MSM .J WPUPELL LOS 209 view of the law declared by the o > law declared by the Apex Court in "Kiskansing Tomar v Muniect i i icipal Corporation of the City of Amedabad (reterred supra}. In the result 5 rit ty , > result, the writ petition is allowed directing the respondents t eonduc : I ents to conduct clechons to Greater Visakhapatnam . a ~ed EU? cl APayray Mumicipe cermratiom within awe le tipal Corporation within six (6) months from today. No costs Consequently - sqhuenily, misceilane anotlicati ey ST | y: scellancous applications pending if any, shall stand closed. Sdi-V. SUDHA ASSISTANT REGISTRAR (TRUE COPY! £3 SECTION OFFICER One Fair Copy to the Hon'ble the Acting Chief Justice C. PRAVEEN KUMAR (For His Lordships Kind Perusal) One Fair Copy to the Hon'ble Sri. Justice M. SATYASNARAYANA MURTHY (For His Lordships Kind Perusal) To, 4. The Principal Secretary to Govt., Municipal Administration & Urban Development Dept., State of Andhra Pradesh, Secretariat, Velagapudi, Guntur District. _ The Secretary, State Election Commissioner, For the State of Andhra Pradesh, Budha Bhavan. Secunderabad. Election Authority and Commissioner of Municipal, Administration, State of Andhra Pradesh, Vijayawada, Krishna District. A. The Special Officer & Commissioner, Visakhapainam Greater Municipal Corporation, Visakhapainam Visakhapainam District. hh iA 5 District Collector, Visakhapainam, \isakhapatnam District, Andhra Pradesh 6. OLR Copies 7 The Under Secretary, Union of India Ministry of Law, Justice and Gornpany Affairs, New Delhi. 8, The Secretary, Advocate Association Library, High Court of Andhra Pradesh. 9. One CC to Si. PV. Krishnaiah, Advocate (OPUC) 40.One CC to Sri. S. Lakshminarayana Reddy, SC for GVMC (OPUC) 41.0One CC to Sri. VV. Prabhakar, Advocate (OPUC} 42. Two CCs to the GP for Municipal Admn. & Urban Dev., High Court of Andhra Pradesh. (OUT) 43. Two CD Copies. HIGH COURT DATED:04/04/2019 ORDER
WP(PIL).No.104 of 2017 .~ Allowing the WP(PIL) Without costs. ths <a ~ : en oh - ae oe z LOA yy Sy iy, _ % b nfl Ge % eed Pe 'wae? Mites, WLtccpppppestele eey, See, %, ' ey %,