Andhra HC (Pre-Telangana)
Kayathi Jayapal Reddy vs State Election Commission And Anr. on 9 October, 2001
Equivalent citations: 2001(6)ALD136, 2001(5)ALT587, AIR 2002 ANDHRA PRADESH 307, (2001) 6 ANDHLD 136 (2001) 5 ANDH LT 587, (2001) 5 ANDH LT 587
Author: B. Sudershan Reddy
Bench: B. Sudershan Reddy
ORDER
1. The petitioner in the instant writ petition prays for issuance of a writ of mandamus declaring the action of the State Election Commission in issuing a fresh notification dt.9-8-2001 notifying the election programme for conduct of election to the office of Sarpanch of Tandra Gram Panchayat of Veldanda Mandal of Mahabubnagar District as illegal and void. The petitioner accordingly prays for an appropriate direction to declare the petitioner as duly elected Sarpanch of Gram Panchayat, Tandra.
2. Before adverting to the question as to whether the impugned notification suffers from any legal infirmity, it may be necessary to briefly notice the relevant facts.
3. The first respondent herein issued notification dt.30-7-2001 proposing to hold the elections throughout the State of Andhra Pradesh to the Panchayat Raj institutions and accordingly issued the election programme for conduct of elections to the office of Sarpanch and Ward Members for Tandra Gram Panchayat also. The last date for filing of nominations was 4-8-2001. Several candidates filed their nominations seeking election to the office of the Sarpanch of the Gram Panchayat in question. The Election Officer found five nominations to be valid. The last date for withdrawal of nominations was 8-8-2001. Out of the said five candidates, four candidates have withdrawn their candidature on 8-8-2001 and accordingly submitted the proposal for withdrawal of their candidature to the Election Officer. The Election Officer accepted the same. The petitioner alone remained as the contesting candidate.
4. The Election Officer accordingly published list of contesting candidates as per Rule 11(1) of the Andhra Pradesh Panchayat Raj (Conduct Elections of Members and Sarpanch of Gram Panchayat, Members of Mandal Parishad and Members of Zilla Parishad) Rules, 1994 (for short 'the Rules') in form No.-8. The name of the petitioner alone was shown as the contesting candidate.
5. That immediately after such publication of the names of the contesting candidates, one person by name K. Prabhakar Reddy entered the office where the election process was going on and poured kerosene on papers and snatched away the nomination forms filed by the candidates seeking election to the office of the Ward members as well as the Sarpanch of three Gram Panchayais, namely, Tandra, Pothepalli and Kotra. It appears there is only one Election Officer for all the three Gram Panchayats. The Election Officer lodged a complaint in Veldanda Police Station to take necessary action against the said individual. The Election Officer accordingly reported about the incident to M. P. D. O. Veldanda who in turn sent a FAX message to the Collector informing about the incident and sought for the instructions in the matter.
6. It appears, the Collector and District Election Authority, Mahabubnagar sent a message dt.9-8-2001 to the first respondent State Election Commission about the incident. The State Election Commission after taking the facts into consideration came to the conclusion that the process of election has been interrupted within the meaning of Rule 4-A of the Conduct of Election Rules and accordingly issued fresh notification re-notifying the election programme. The said decision is impugned in this writ petition.
7. Sri D. Jagan Mohan Reddy, learned counsel appearing on behalf of the petitioner contends that the impugned notification issued by the first respondent-State Election Commission in so far as the election to the office of the Sarpanch of Tandra Gram Panchayat concerned suffers from legal infirmity. The decision of the State Election Commission, according to the learned counsel for the petitioner, is contrary to the conduct of Election Rules. It is submitted that the Election Officer ought to have declared the petitioner to have been duly elected as the Sarpanch, as there was only one validly nominated candidate to the office of the Sarpanch of the Gram Panchayat.
8. In the counter-affidavit the State Election Commission has taken the plea that even in a case where all but one nomination to one particular office is withdrawn, the unanimous election is also subject to judicial scrutiny on various grounds that the withdrawal is not in accordance with law or the withdrawal is under coercion and on such grounds as may be available for filing of an election petition. It is submitted that in the absence of the record, the Election Tribunal would not be in a position to adjudicate such dispute if any raised. In the instant case all the nomination forms have been taken away from the custody of the Election Officer. It is under those circumstances, the Election Commission came to the conclusion that the process of election was interrupted within the meaning of Sec.4-A of the Conduct of Election Rules. The impugned notification issued, according to the State Election Commission, does not suffer from any infirmity.
9. In the counter-affidavit, the State Election Commission raises the plea as to the maintainability of the writ petition. It is contended that the writ petition filed by the petitioner is not maintainable.
10. Sri Ramesh Ranganathan, learned Additional Advocate General conceded that this writ petition filed by the petitioner is maintainable and he is entitled for a declaration to have been duly elected as the Sarpanch of Gram panchayat.
11. In order to consider the issue as to whether the petitioner is entitled for any declaration to have been duly elected as the Sarpanch, the relevant Conduct of Election Rules have to be noticed.
Rule 11: Publication of List of contesting candidates:--(1) Two days after scrutiny of the nominations, the Election Officer shall prepare in Telugu language a list in Form 8 of persons whose nominations have not been rejected and who have not withdrawn their candidature and publish it on the notice board of his office.
(2) The list shall contain the names of the candidates in alphabetical order in Telugu and shall describe them as in their nomination paper and if poll is found to be necessary it shall also specify the distinctive symbols allotted to them, under sub-rule (3) of this Rule:
Proviso:
(3).....
Proviso:
(4).....
12. It would also be appropriate to notice Rule 12 which is to the following effect:
Rule 12: Declaration of Result of uncontested Election Candidate :--(1) If the number of contesting candidates is more than one, poll shall be taken.
(2) If there is only one validly nominated candidate, the Election Officer shall forthwith declare such candidate as duly elected in Form 9 and send the same to the Election Authority and the District Election Authority.
(3) Explanation.--For the purpose of Rules 12 and 13 contesting candidate means a candidate, who has been validly nominated and who has not withdrawn his candidature in the manner and within the time specified.
13. A plain reading of Rule 11 and 12 together, would make it clear that polling shall have to take place only in case where the number of contesting candidates is more than one. In case where mere is only one validly nominated candidate, the Election Officer shall forthwith declare such candidate as duly elected and issue a declaration accordingly in form No.9 prescribed for the purpose. The mandate to the Election Officer is to declare the result forthwith in case where there is only one validly nominated candidate. The Election Officer has no discretion in the matter to postpone the declaration of the election.
14. It would be evident that the Election Officer immediately after scrutiny of all the nominations shall prepare a list in form-8 of persons whose nominations have not been rejected and who have not withdrawn their candidature and publish it on the notice board and forthwith declare the result of the election where there is only one validly nominated candidate. Once it is clear to the Election Officer that there is only one validly nominated candidate, he shall not only notify the name of such candidate in the list in form-8 but also forthwith declare the result of such candidate. The Election Officer on no ground can postpone the declaration after having known that there is only one validly nominated candidate seeking election to a particular office.
15. In the instant case, the Election Officer accepted the notice issued by the candidates withdrawing their candidature for the office of the Sarpanch, There is no dispute about it. The Election Officer having accepted the withdrawal, included the name of the petitioner alone in the list prepared in form-8 but for no reason postponed the declaration of result of uncontested election.
16. It is clear from the record that the incident, if any, of snatching of the nomination papers occurred after the publication of the list of validly nominated candidates. So far as the office of the Sarpanch is concerned there is only one validly nominated candidate i.e., the petitioner. The incident has no bearing whatsoever upon the obligation casts upon the Election Officer to declare the election of the petitioner as duly elected to the office of the Sarpanch. The publication of list of contesting candidates and declaration of result of uncontested election candidates ought to have been simultaneously undertaken by the Election Officer. The Election Officer is duty bound to forthwith declare the result whenever there is only one validly nominated candidate. There is no discretion given to the Election Officer to postpone such declaration for whatever reason. Failure to declare the result has resulted in this situation leading to issuance of revised notification by the Election Commission.
17. The Election Commission obviously failed to take into consideration the nature and scope of Rule 11 and 12 of the Conduct of Election Rules. The Election Commission, in my considered opinion, ought to have issued directions to the Election Officer to declare the petitioner to have been duly elected as the Sarpanch of Tandra Gram Panchayat. The revised notification issued by the State Election Commission and its decision to hold the elections so far as the ward members of Tandra Gram Panchayat and other Gram Panchayats is concerned however, does not suffer from any legal infirmity. Undoubtedly Rule 4-A would get attracted so far as the election to the Ward members of Tandra Gram Panchayat other Gram Panchayats are concerned, since snatching away all the papers including the nomination papers and withdrawal forms has resulted in interruption of the election programme. There is no interruption of the election programme as such so far as the office of Sarpanch of Tandra Gram Panchayat is concerned. The failure on the part of the Election Officer in discharging his statutory duty has resulted in this situation. The State Election Commission had also committed an incurable error in issuing a revised election programme even in case of election to the office of the Sarpanch of Tandra Gram Panchayat. The decision of the State Election Commission is ultra vires.
18. The next question that falls for consideration is as to whether the writ petition is maintainable? The question raised is as to whether in terms of Art.243-0 of the Constitution of India, there is complete and absolute bar in considering any matter relating to elections to Panchayats on any ground whatsoever after publication of the notification for holding elections?
19. Article 243-0 of the Constitution of India reads as follows:
243-O. Bar to interference by cowls in electoral matters .--Notwithstanding anything in this Constitution,--
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243K, shall not be called in question in any Court;
(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.
In the instant case it may have to be noticed that the petitioner herein is not raising any dispute about the election of any returned candidate as such nor the petitioner is challenging the validity of any law relating to the delimitation of the constituencies or the allotment of seats to such constituencies made under Art.243K. What is challenged by the petitioner is the revised election programme issued by the State Election Commission in purported exercise of its power under Art.243K of the Constitution of India on the ground that a situation had arisen where the election process is interrupted on account of certain circumstances beyond the control of the Election Officer. Judicial review of the decision making process by the State Election Commissioner is challenged. The decision sought by the petitioner is intended to sub serve the progress of the election already held pursuant to the notification dt.30-7-2001. The direction sought is intended to facilitate the completion of the election process that had commenced pursuant to which nominations by various candidates to the office of the Sarpanch were filed leading to publication of the list of names of validly nominated candidates. The petitioner seeks direction compelling the respondents to complete the election process inevitably resulting in the declaration of the results. The direction sought for by the petitioner is not for interrupting, obstructing or protracting the election proceedings in any manner nor the petitioner challenges the election of any returned candidate, nor any step and proceedings commencing from the date of notification of the election is called in question.
20. The Supreme Court in Election Commission of India v. Ashok Kumar, , after referring to its decisions in C. Subrahmnnuyam v. K. Ramanjaneyulu, , Anugrah Narain Singh V. State of U.P., , Digvijay Mote V. Union of India, ), M. V. Elisabeth V. Hanvan Investment and Trading (P) Ltd., 1993 Supp. (2) SCC 433, Lakshmi Charan Sen v. A.KM. Hassan Uzzamnan, ), Election Commission of India V. State of Haryana, 1984 Supp. SCC 104), A.KM. Hassan UJzzaman V. Union of India, , Mohinder Singh Gill V. Chief Election Commissioner, N.P .Ponnuswami V. Returning Officer, Namakkal Constituency, , deduced the following conclusions:
(1) If 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 Election 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) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention 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 therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court.
(5) The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made -out by raising the pleas with particulars and precision and supporting the same by necessary material.
As has been observed in preceding paragraphs elsewhere the petitioner is not seeking any relief to stall or interrupt or protract the election proceedings. The dispute raised by the petitioner, in my considered opinion, is not hit by the bar of Article 2430 of the Constitution of India. In Digvijay Mote V. Union of India, , the Supreme Court while considering the power of superintendence, direction and control of election in the hands of the Election Commission as vested in it as per Article 324 of the Constitution of India observed that the power conferred is not unbridled. Judicial review will still be permissible. Therefore, it cannot be said that all the decisions of the State Election Commission or the State Election Commissioner are immune from challenge. The superintendence, direction and control for and the conduct of all elections to the panchayats no doubt vests in the State Election Commission. The decisions of the State Election Commission taken in purported exercise of power under Art.243K of the Constitution of India are not normally interfered with by this Court as long as such power is exercised not mindlessly nor mala fide nor arbitrarily nor with partiality. The power is required to be exercised in keeping with the guidelines of the rule of law. If the power conferred upon the Election Commissioner is misused, certainly the court has power to strike down the act. There is nothing like an unbridled discretion conferred on the State Election Commission. Such conferment is unknown to a civilised system governed by rule of law and constitution. In Election Commission of India V. Union of India, 1995 Supp. (3) SCC 643, the Supreme Court observed that "there are no unreviewable discretions under the constitutional dispensation. The overall constitutional function to ensure that constitutional authorities function within the sphere of their respective constitutional authority is that of the courts."
21. The impugned notification issued by the State Election Commission so far as it revised the election programme to elect the Sarpanch of the Gram Panchayat is in the nature of reversing the process of election already set in motion by notification dt.30-7-2001 issued by the very State Election Commission. The notification has the effect of obstructing the election programme. The Election Commission in exercise of its power under Art.243K of the Constitution of India ought to have directed the Election Officer to declare the result of the election held to the office of the Sarpanch of the Gram Panchayat. Instead the State Election Commission itself had committed an illegality in issuing the impugned notification which in affect and reality prevented the Election Officer from declaring the only one validly nominated candidate as duly elected. The decision of the State Election Commission is amenable to the judicial review by this court in exercise of its jurisdiction under Art.226 of the Constitution of India.
22. For all the aforesaid reasons, I am of the considered opinion that the writ petition filed by the petitioner is maintainable. The plea taken by the State Election Commission is accordingly rejected.
23. The second rerspondent-Election Officer committed an illegality in obstructing the election process, since he failed to declare the petitioner to have been duly elected as the Sarpanch of Tandra Gram Panchayat. The petitioner is the only validly nominated candidate remained in the fray only to be declared as the validly elected Sarpanch. The events or incident of stealing away of the nomination papers after the publication of the list of validly nominated candidates has no bearing whatsoever so far as the petitioners claim is concerned for declaring him as duly elected as the Sarpanch of the Gram Panchayat. The result in form-9 ought to have been declared, since the petitioner at the relevant time was the only one validly nominated candidate seeking election to the office of the Sarpanch.
24. For all the aforesaid reasons, the writ petition is allowed. The impugned notification proposing to hold fresh elections to the office of the Sarpanch, Tandra Gram Panchayat is set aside. The petitioner is duly declared to have been elected as the Sarpanch of Gram Panchayat, Tandra. All necessary consequential steps shall be taken by the authorities concerned. There shall be an order accordingly.
25. The writ petition is accordingly allowed. No order as to costs.