Andhra HC (Pre-Telangana)
Medisetty Chennakesavulu And Ors. vs Revenue Divisional Officer And ... on 3 October, 2001
Equivalent citations: 2002(1)ALT94
ORDER G. Bikshapathy, J.
1. These matters relate to the elections to Nerusupalle Grampanchayat of Chakrayapet Mandal, Cuddapah District. Therefore, all these writ petitions can be disposed of by a common order.
2. The three writ petitions were filed challenging the electoral notification published by the authorities on 16-08-2001 and consequential elections.
3. In one writ petition-W.P.No. 16848 of 2001, the contesting candidate has challenged the electoral notification and in another two writ petitions - W.P.Nos. 16637 of 2001 and 16849 of 2001, the candidates, whose names were deleted, have filed the writ petitions.
4. The issue that arises for consideration is about the validity of the electoral rolls prepared and published on 16-08-2001 by the District Panchayat Officer, Cuddapah, Cuddapah District. The petitioners are the residents of Nerusupalle Gram Panchayat in Cuddapah District. It is their case that 86 names which were in the electoral rolls and were existing as on the date of notification dated 30-07-2001 were wrongly deleted and 81 names were wrongly included in the electoral rolls by 16-08-2001, in which the petitioners names were also deleted without following the procedure as laid down under the provisions, of the Andhra Pradesh Panchayat Raj Act, 1994 (for short, 'the Act') and the Rules framed thereunder. The petitioners submitted that the preparation of electoral rolls is governed by the provisions of the Act and under Section. 11 of the Act, the electoral rolls, unless revised as directed in the said provision, continued to be valid, which were prepared prior to the election notification in respect of Assembly Constituency. Therefore, the electoral roll should govern the elections in the Gram Panchayat, unless any modification is made as per the directions issued under Section 11 of the Act.
5. In the instant case, the Government has not issued any instructions for revision of electoral rolls or any change. But, however, the Revenue Divisional Officer sent a communication dated 29-07-2001 informing the District Panchayat Officer that the Mandal Revenue Officer, Chakrayapet Mandal, recommended for inclusion and deletion of certain genuine voters as per the list after due notification and requested the authorities to include and delete certain names from the voters list of Nersupalle Gram Panchayat.
6. Therefore, he intimated the District Panchayat Officer on 29-07-2001 to delete the names and basing on the said letter, the District Panchayat Officer has effected the deletion and inclusion of voters and published the list on 16-08-2001 and elections took place on 17-08-2001. It is also stated that the writ petitions were filed earlier to the election and interim stay was also granted. But, however, the election took place on 17-08-2001 on the basis of electoral rolls dated 16-08-2001 wherein there was deletion and inclusion of voters, which is the subject matter of the writ petitions.
7. The learned Counsel for the petitioners Mr. D. Sudarshan Reddy submits that inclusion and deletion of names in the electoral rolls is illegal and contrary to the orders of the Government in G.O.Ms. No. 254, PRRD & R (ELECS.) Department dated 04-08-2001. Since the electoral rolls were finalised contrary to the provisions contained under Section 11 of the Act and the Rules framed thereunder, the entire process has to be declared as illegal and invalid. The learned Counsel would further submit that no election dispute need be raised, as the Supreme Court in Subhash Desai v. Sharad J. Rao had declared that inclusion and exclusion of voters could not be the subject matter of election dispute. Therefore, the writ petitions have to be allowed.
8. Learned standing Counsel appearing for the State Election Commission has, however, submits that inspite of repeated intimations, the State Election Commission did not give any instructions on this issue and, therefore, he expressed his inability to make any submissions in respect of the averments made in the writ petition. He also states that it can be deemed that he has no instructions. This state of affair has to take serious note of it. When the election dispute is the subject matter of writ petitions, the Election Officer is one of the respondents; it is not known why the instructions were not given by the Election Officer in spite of the intimations sent by the learned standing Counsel for the State Election Commission. The State Election Commission shall take initiation of action against the officers concerned in accordance with law. However, this Court is not inclined to postpone the matter on this ground and proceed to decide the matter on merits.
9. Learned Counsel appearing for the other respondents submits that whether the inclusion or exclusion is valid or not cannot be agitated in a writ petition filed under Article 226 of the Constitution of India. When the elections are set in motion, it will not be appropriate for this Court to obstruct the proceedings under Article 226 of the Constitution of India. Learned Counsel for the respondents submits that it is open for the petitioners to raise the appropriate election dispute, in which, all these issues can be decided basing on the evidence available on record. However, he submits that the writ petition itself is not maintainable and same has to be dismissed. Learned Counsel for the respondents relies upon the decisions of the Supreme Court in Boddula Krishnaiah v. State Election Commissioner and in Shyamdeo PD. Singh v. Nawal Kishore Yadav (2000 (8) SCC 46).
10. The issue for consideration in these writ petitions falls in a narrow compass. Admittedly, the electoral rolls were finalised and published on 16-08-2001 and election took place on 17-08-2001. Even though the elections were held, the results were not declared by virtue of the pendency of the writ petition.
11. The only point that falls for consideration is whether the writ petitions are maintainable challenging the inclusion or deletion of the names in the electoral rolls?
12. Learned Counsel for the respondents heavily relies on the judgments of the Supreme Court referred to above. But in the instant case, it is to be seen that the rules were framed under Section 11 of the Act; and the said Rules were framed by virtue of the power conferred in Clause (1) of Sub-section (1) of Section 2 of Sub-section 11 of Section 151 (sic.) and Section 179 of the Act, in superscession of earlier instructions. The mode of publication of electoral rolls and the objections to be filed and the consideration of the objections are all contained in Rules 5 and 6 of the electoral rolls. In G.O.Ms. No. 111, PR, RD & R (Elec.III) Department dated 03-03-1995 the Rules called The Andhra Pradesh Panchayat Raj (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995 are framed. Rules 11 and 12 of the said Rules are relevant in this case, which are extracted below:
Rule 11: Whereat, an enquiry into an election petition, any candidate, other than a returned candidate, claims the seat for himself, the returned candidate or candidates or any other party to the proceedings may give evidence to prove that the election of such candidate would have been void if he had been a returned candidate and a petition had been presented complaining of his election.
Rule-12 : If in the opinion of the Election Tribunal,
(a) that on the date of his election, a Returned Candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Act, or
(b) that any corrupt practice as laid down under Section 211 of the Act has been committed by a Returned Candidate or his election agent or by any other person with the consent of the Returned Candidate or his election agent, or
(c) that any nomination has been improperly rejected, or
(d) that the result of the election, in so far as it concerns a Returned Candidate has been materially affected
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice, committed in the interest of the Returned Candidate by an Agent other than his election agent, with the connivance of the Returned Candidate, or
(iii) by any improper reception, refusal, or rejection of any vote, or the reception of any vote which is void.
(iv) by any non-compliance with the provisions of the Act, or any Rules or Orders made under the Act.
(A) The Election Tribunal shall declare the election of the Returned Candidate to be void.
(B) If the Election Tribunal holds the Returned Candidate guilty under Clause (b) and Clause (d) (ii) of this rule, the Election Tribunal shall in addition to declare the election of the Returned Candidate as void, shall also declare that the Returned Candidate shall be disqualified to contest in any elections under this Act, for a period of six years from the date of the order."
13. Therefore, when an election dispute is brought before the Election Tribunal, it is open for the candidate to challenge the election on any of the grounds raised in Rule 12 of the Rules, including Clause (4) of Sub-rule (d) of Rule 12 of Rules. Learned Counsel for the petitioners, however, submits that the said clause "by any non-compliance with the provisions of the Act, or any Rules or Orders made under the Act" has to be given restricted meaning as far as it relates to the election of the Grampanchayat and that too, if the dispute arises from the date of notification till the date of election only such disputes can be the subject matter in an election dispute and it cannot embrace the non-compliance of the entire provisions of the Act. Therefore, he submits that construed in that sense, the inclusion and exclusion of the names in the electoral rolls is outside the jurisdiction of the Election Tribunal and that cannot be agitated before the Tribunal.
14. I am unable to accept the contention of the learned Counsel for the petitioners. The Supreme Court in Subhash Desai v. Sharad J. Rao, held that inclusion and exclusion of names could not be subject matter of election. However, that is interpreted with reference to the clause to improper reception, refusal or rejection of any Panchayat, which is void. But in the instant case, it is clearly stated that non-compliance with the provisions of the Act also can be made as one of the grounds of challenge and whether the inclusion or exclusion was in accordance with law or whether in fact there is any inclusion or exclusion, if so whether the inclusion or exclusion is justified or not are all the questions liable to dealt with in the election dispute. Therefore, the contention that restricted meaning should be given cannot be accepted in view of the comprehensiveness of Clause (4) of Rule 12 (d) of the Rules referred to above.
15. It is also to be noted in this regard, the Supreme Court, time and again has been observing that when once the election process had begun, it would not be appropriate for the High Courts to stop the process under Article 226 of the Constitution of India. As rightly relied on by the learned Counsel for the respondents in Boddula Krishnaiah v. State Election Commissioner, and in view of the finding that it is open for the petitioners to challenge the validity or otherwise of the electoral rolls finalised on 16-08-2001, I am inclined to accept that the writ petitions are not maintainable. Even though the learned Counsel for the petitioners, tries to bring various inconsistencies and illegalities committed by the respondents in bringing about the effect of electoral rolls, I am not persuaded to accept the same, as it is a pure question of fact, which has to be decided by the appropriate authority, after taking evidence and other material on record into consideration.
16. For the reasons stated above, I hold that the writ petitions are not maintainable and accordingly they are dismissed. However, this order does not preclude the petitioners or other candidates, who were unsuccessful to challenge the validity of electoral roll in an election dispute. The respondents are directed to declare the results of the election held on 17-08-2001 and proceed further in accordance with law. No costs.