Andhra Pradesh High Court - Amravati
Manam Venkata Pranav Gopal, vs The State Of Andhra Pradesh, on 26 February, 2020
Author: M. Satyanarayana Murthy
Bench: M. Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY
WRIT PETITION Nos.1366 and 1781 of 2020
COMMON ORDER:
This Writ Petition No.1366 of 2020 is filed under Article 226 of the Constitution of Indian questioning the action of the 3rd respondent in issuing the Preliminary Notification vide Rc.No.9180/2005/TPSec/G1, dated 10.01.2020, published in the Andhra Pradesh Gazette, dated 11.01.2020, by fixing the boundaries for delimitation of all the 98 wards in Greater Visakhapatnam Municipal Corporation as per the boundary description mentioned in the notification, in violation of the Andhra Pradesh Municipal Corporations (Delimitation of Wards) Rules, 1996, (for short 'Rules,1996) and to declare the same as arbitrary, illegal and in violation of the Rules,1996 and consequently direct the 3rd respondent to fix the boundaries for delimitation of all the 98 wards in Greater Visakhapatnam Municipal Corporation by strictly following the Rules 4 and 8 of the Rules,1996.
The Writ Petition No.1781 of 2020 is filed questioning the action of respondent No.3 in issuing the notification in Form-VI vide Rc.No.9180/2005/TPSec/G1 dated 23.01.2020, published in the Andhra Pradesh Gazette dated 24.01.2020 for delimitation of wards in Greater Visakhapatnam Municipal Corporation without following the procedure prescribed under the Andhra Pradesh Municipal Corporations (Delimitation of Wards) Rules, 1996 and declare the same as illegal, arbitrary and unconstitutional, consequently, quash the notification issued in Form-VI vide Rc.No.9180/2005/TPSec/G1 dated 23.01.2020, published in the Andhra Pradesh Gazette dated 24.01.2020 and direct the respondents to fix the boundaries for delimitation of all the wards in Greater Visakhapatnam Municipal Corporation by strictly adhering to the procedure prescribed under the Andhra Pradesh Municipal 2 MSM, J W. P. Nos.1366 and 1781 of 2020 Corporations (Delimitation of Wards) Rules, 1996 (for short "Rules, 1996").
The contentions raised in both the petitions are identical except adding few grounds in Writ Petition No.1781 of 2020, with regard to the observations made during the pendency of the Writ Petition No.1366 of 2020 and change of Form-I to Form-VI under Rule 11 of the Rules, 1996. Hence, I deem it appropriate to decide both the petitions by common order.
The petitioner is the resident of H.No.177/14, M.V.P.Colony, Visakhapatnam. It is alleged that the Greater Visakhapatnam Municipal Corporation (here in after referred as 'GVMC') is the chief governing body of Visakhapatnam City. Visakhapatnam is one of the oldest municipalities in the Andhra region. It was set up as a municipality in 1858 later upgraded as Corporation in 1979. The GVMC was formed on 21.11.2005 by including the areas of the Visakhapatnam Municipal Corporation, the Gajuwaka Municipality and 32 villages. The GVMC is administered by an elected body headed by the Mayor. Now, the GVMC is further expanded by merging the municipalities of Bheemili and Anakapalle.
The 1st respondent issued G.O.M.S.No.358, Municipal Administration and Urban Development (G), Department, dated 31.12.2019, including the Grampanchayats of K.Nagarapalem, Kapuluppada, Chepaluppada, Nidigattu and J.V.Agraharam into the limits of GVMC.
3 MSM, J W. P. Nos.1366 and 1781 of 2020 The 1st respondent issued G.O.Ms.No.18, Municipal Administration and Urban Development (G2), Department, dated 10.01.2020 by fixing the strength of elected members of GVMC at 98 by increasing it from the present strength of 72. A Preliminary Notification vide Rc.No.9180/2005/TPSec/G1, dated 10.01.2020 was issued by the 3rd respondent by fixing the boundaries of all the 98 wards unilaterally merely to further the political interest of the party in power without following the procedure prescribed under the Rules,1996, published by G.O.Ms.No.570, Municipal Administration and Urban Development (Elec-
2), (M.A) Department, dated 06.11.1996. As per Rule 4 of the above G.O., the area of the Corporation shall be divided into Wards as notified by the Government under Rule 3, duly taking into account of the natural boundaries, geographical features and contiguity of the area. Wherever, natural boundaries could not be adopted survey numbers, T.S. numbers, important junctions or lanes shall be considered as far as possible. As per Rule 6 of the above G.O., Ward division shall commence from the North-East point of the geographical boundary of the Corporation and the wards shall be numbered in seriatum in clock-wise direction starting from the North-East point. As per Rule 7, Boundary description of each ward shall be prepared starting from the North-East point in clock-wise direction.
The boundaries of the wards have been fixed by taking into account the boundaries of the assembly constituencies, but not by taking into account the natural boundaries, geographical features and contiguity of the area. G.O.Ms.No.18, Municipal Administration and Urban Development (G2) Department, dated 10.01.2020 was issued by the 1st respondent and the Preliminary Notification was issued on 10-01-2020 and the same was published in the Andhra Pradesh Gazette on 11-01-2020 by fixing the boundaries of all the 98 wards. The 4 MSM, J W. P. Nos.1366 and 1781 of 2020 boundaries have been fixed with utmost haste without following the Rules merely to further the prospects of the party in power in the upcoming GVMC elections. The boundaries have been fixed without taking the natural boundaries, geographical features and contiguity of the area into consideration. The division of the GVMC has been divided into 98 wards and its total population as per the abstract of population covered in Ward/EB Wise is 18,99,582. As per the abstract average population for each ward shall be 19,383.4898 and the maximum population for ward shall not exceed 21,332 as per Rule 5. But, contrary to the Rule 5, the population in 50 wards is less than the average population and the population in 9 wards is more than the average variation of population, as per the table given under :
WARDS CONSTITUED WITH LESS THAN THE WARDS CONSTITUTED WITH 10 % MORE AVERAGE POPULATION THAN THE AVERAGE POPULATION 1, 2, 3, 4, 9, 10, 11, 12, 13, 15, 16, 17, 21,25, 31, 32, 33, 34, 35, 38, 42, 46, 47, 48, 7, 8, 18, 22, 27, 28, 81, 86, 97 49, 50, 51, 53, 54, 58, 59, 60, 61, 62, 63, 64, 65, 66, 71, 72, 73, 74, 76, 78, 79, 83, 84, 94, 95, 96 Therefore, the division of wards is against Rule 5 of the Rules, 1996, and on this ground, the impugned notification is liable to be set aside.
It is further contended that GVMC area consists of 5 assembly constituencies in full, Anakapalle, Bheemili and Pendurty in part. Out of the 8 assembly constituencies only 4 assembly constituencies are represented by the ruling party MLAs and the remaining 4 Assembly constituencies are represented by the opposition MLAs. The entire delimitation exercise has been undertaken under the guidance and supervision of the ruling party MLAs and the constituency incharges. The entire exercise has been conducted to tilt the scales in
5 MSM, J W. P. Nos.1366 and 1781 of 2020 favour of the ruling party in the upcoming GVMC elections and the Preliminary Notification, dated 11.01.2020, has been issued by the 3rd respondent merely to further the electoral prospects of the party in power by not adhering to the rules framed under G.O.Ms.No.570, Municipal Administration and Urban Development (Elec-2) (M.A), dated 06.11.1996.
The GVMC requested the residents to file suggestions or objections, if any, to the 3rd respondent within seven (07) days from the date of the Preliminary Notification. The Gazette Notification was published on 11.01.2020 calling for objections / suggestions within seven days. Out of the seven days, there are only two working days left for receiving objections, which is nothing but a ploy to dilute the procedure prescribed under Rule 8 of the Rules,1996, published under G.O.Ms.No.570, Municipal Administration and Urban Development (Elec-
2) (M.A), dated 06.11.1996.
It is also contended that 11.01.2020 being Second Saturday, which is a holiday, that 12.01.2020 being Sunday, that 14.01.2020 and 15.01.2020 are being festival days of Bhogi and Sankranthi, which were also notified as public holidays and Kanuma is on 16.012020, which is also an optional holiday, out of seven days prescribed for receiving the objections/ suggestions from the residents of GVMC, only two working days were left to receive the objections / suggestions. Therefore, the 3rd respondent deliberately to deprive the residents of GVMC, issued the said notification in intervening four public holidays, one optional holiday and only two working days were left to submit their objections / suggestions. Therefore, the notification is contrary to law and rules, framed under the Rules, 1996.
6 MSM, J
W. P. Nos.1366 and 1781 of 2020
The 3rd respondent herein issued a Letter vide
Rc.No.9180/2005/TPSec./G1, dated 11.01.2020 to the MLA,
Visakhapatnam East Assembly Constituency, for submitting his views and suggestions on the draft notification published within three (03) days from the date of receiving of the said letter, so as to avoid delay in complying the objections / suggestions and to forward the same to the Government for taking necessary action by restricting the period prescribed under the Rule from seven (07) to three (03) days. The said letter was received by the MLA, Visakhapatnam East Assembly Constituency, during evening hours of 12.01.2020, out of the three days from 12.01.2020 there is only one working day and the action of the 3rd respondent to restrict the period for receiving objections / suggestions to three days instead of seven days is nothing but arbitrary, illegal and violation of the Rules,1996.
The revised time schedule for identification of Schedule Tribe, Schedule Caste and women voters in all the Municipal Corporations including the GVMC was issued by the 1st respondent vide Roc.No.13021/49/2019-D-2, dated 09-01-2020. As per the said circular, door-to-door survey for identification of ST, SC and women voters shall be conducted by marking the voters by underlining the voter, who is ST with green ball point pen and SC voters with red ball point pen by deputing sufficient number of persons by the said identification officers and against voter ST and SC respectively. The same surveyors shall encircle the women voters of all voters with black ball point pen based on the gender details available in the Electoral Roll of the Municipal Corporation as obtained from the Electoral Registration Officer. The identification of the voters by visiting door-to-door was also undertaken 7 MSM, J W. P. Nos.1366 and 1781 of 2020 during the Pongal vacation when most of the voters left to their native places to celebrate Pongal by locking their homes, by defeating the purpose behind the door-to-door identification of voters.
The specific ground urged in the Writ Petition No.1781 of 2020 is that the notifications issued under Rule 8 and 11 were not published in three languages i.e. Telugu, English and Urdu and it disabled the persons, who are exclusively Urdu knowing persons, to submit their objections. Therefore, this irregularity in publication of notifications in Form-I and Form-VI is sufficient to set aside the notifications. On this ground alone, the petitioner requested to set aside the impugned notification.
It is further contended that without publication of Final notification of delimitation of wards, the enumeration of STs, SCs and women voters shall not be done. After the publication of the Final Notification only, the enumeration of STs, SCs and women voters shall be undertaken. Hence, the exercise undertaken by the 1st respondent for identification of ST, SC and women voters is illegal.
Respondents did not file any counter in Writ Petition No.1366 of 2020, but respondent No.3 filed counter in W.P.No.1781 of 2020 denying all the material allegations while admitting about the issue of notifications in Form-I and Form-VI specifically contended that the respondent corporation had issued the preliminary notification proceedings no.9180/2005/TP section/ G1 dated 11.01.2020 by fixing the boundaries of all 98 wards as per the procedure prescribed under Andhra Pradesh Municipal corporations (Delimitation of wards) Rules 1996 which were framed pursuant to the G.O.Msno.570 MA and UD 8 MSM, J W. P. Nos.1366 and 1781 of 2020 (Election-2) dated 06.11.1996. Respondent No.3 denied the specific allegation made in the writ petition as to violation of G.O.Ms.No.570 MA and UD (Election-2) dated 06.11.1996.
Respondent No.3 admitted about the division of entire Municipal Corporation into 98 wards fixing the strength of each ward by the Government vide G.O.Ms.no.18 MA dated 10-01-2020 and during the division of the wards natural boundaries, Geographical features and contiguity of the area has taken into consideration and wherever the consideration of natural boundaries could not be possible the sy.nos., TS.nos. important junctions and lanes have taken into consideration as per rule 4 of Andhra Pradesh Municipal corporations (Delimitation of wards) Rules, 1996. It is further submitted that the variation of the population shall not be more than 10% of the average population to each ward as far as possible, while Rule 4 provide to take the natural boundaries, geographical features and contiguity into account and as such the delimitation should be done keeping in view of the rule 4 and 5, as the rules are flexible to accommodate each other to avoid possible mal appropriation of the habitations or local area having definite geographical features and boundaries into different ward and this respondent corporation has maintained the variation of the population within 10% as far as possible and issued preliminary, notification in Form-I, dated 10.01.2020 inviting objections and suggestions. It is submitted that in so far, as the boundary description of each ward is concerned it has been prepared from north east point of the Geographical boundary of the corporation i.e., at Bheemili and the wards have been numbered from Bheemili onwards in clock wise direction starting from north point as per Rule 7 of the (Delimitation of Wards) Rules, 1996.
9 MSM, J W. P. Nos.1366 and 1781 of 2020 It is further contended that the total population in the respondent corporation as per 2011 census 98,00,801 and an average population of each ward has taken as 19,396 and the variation in population of wards has been maintained 10% of the average population of the ward as for as possible strictly as per rule 5 of the (Delimitation of wards) Rules i.e., Andhra Pradesh Municipal corporations (Delimitation of wards) Rules 1996 and entire exercise of delimitation of wards has been made strictly as per (Delimitation of wards) rules 1996 only.
Respondent - Corporation denied the alleged failure to grant sufficient time to submit objections on the preliminary notification issued in Form-I and Form-VI, contended that the respondent - corporation has kept open and maintained the counter in the office from 11.01.2020 to 17.01.2020, received suggestions and objections from the general public, almost 464 objections/suggestions were received from general public, whereas the petitioner did not submit any objection or suggestion to the preliminary notification. Therefore, it is not a ground to set aside the notification issued in Form VI of the Rules, 1996. Therefore, the petitioner has no locus standi to question the notification issued in Form VI as per Rule 11 of the Rules, 1996.
It is further contended that as per rule 8 of the (Delimitation of wards) Rules 1996 the preliminary notification issued under Form-I in Gazette in 1090 dated 11.01.2020, Form-VI dated 23.01.2020 and also published in two news papers i.e., one in Telugu and one in English papers besides displaying the notification on the notice board of all important Government offices situated within the limits of respondent corporation duly calling for objections and suggestions and the same has also been placed before the general body/special officer of the 10 MSM, J W. P. Nos.1366 and 1781 of 2020 Corporation for its suggestions and objections as contemplated under Rule 8 of (Delimitation of wards) Rules 1996.
It is the specific contention of respondent No.3 that conducting survey of S.C. and S.T. voters without delimitation is legal since the survey was conducted for different purpose i.e. preparatory work as per the assembly constituencies polling station wise, but not for enumeration of voters. Hence, the allegation that conducting survey of S.C., S.T. and women voters in the corporation area before delimitation is denied and on this ground, the notification issued in Form-VI cannot be set aside and the said ground is invented for the purpose of filing the present petition without filing any objection against the preliminary notification. Therefore, the said ground is liable to be rejected.
Finally, respondent No.3 contended that when the notification in Form-I was issued inviting objections/suggestions fixing 7 days time as prescribed in Rule 8 of the Rules, issuing notification in Form-VI after considering objections and suggestions by the respondents is in accordance with law and this Court has no jurisdiction to interfere with the process of election by exercising power of judicial review under Article 226 of the Constitution of India in view of the bar under Article 243ZG of the Constitution of India and in view of the law declared by the Apex Court in "Lakshmi Charan Sen V. A.K.M.Hassan Uzzaman1" and "Anugrah Narain Singh Vs. State of U.P.2", consequently, the writ petition is liable to be dismissed.
1 (1985) 4 SCC 689 2 1996 (6) SCC 303 11 MSM, J W. P. Nos.1366 and 1781 of 2020 During the hearing, Sri Dammalapati Srinivas, learned Senior Counsel for the petitioner would contend that when rules are framed by the State for delimitation of wards, the Corporation i.e., 3rd respondent is bound to strictly adhere to those Rules and complete the delimitation of wards in the Municipal Corporation. In the facts of the present case, the 3rd respondent conveniently invited the objections / suggestions by issuing Preliminary Notification Form-I within seven (07) days, one day before Pongal holidays i.e., intervention of four public holidays and one optional holiday, leaving only two working days to enable the public to submit their objections / suggestions on the delimitation of wards. On account of intervention of 4 public holidays and one optional holiday, out of the seven days granted by the 3rd respondent for submission of objections / suggestions, the public are deprived of their right to submit their objections / suggestions and on this ground alone, the notification issued under Rule 8 of the Rules, 1996, is liable to be set aside.
Another contention raised by the learned Senior Counsel is that total population of the GVMC is 18,99,582 and the same was divided into 98 wards increasing from 72 to 98 wards and the average population for each ward will be around 19,383 and as per Rule 5, the maximum population for ward shall not exceed 21,322. But, in certain wards, i.e., in the left side of the column of the table extracted above, the strength of the voters in the wards is shown far below the 10% permissible variation and in the right side column of the table, the population is shown far exceeding the 10% of the average population of the wards and this would amounts to violation of Rule 5 of the Rules,1996.
Learned Senior counsel for the petitioner also specifically drawn the attention of this Court regarding population of Wards, more 12 MSM, J W. P. Nos.1366 and 1781 of 2020 particularly, Ward Nos.8, 11 & 18. The population of Ward No.8 is 22,544 and the population of Ward No.11 is 16,995. The variation is nearly 3,500, which is far exceeding the maximum of outer limit of 10%. Similarly, the population of Ward No.18 is 21,832. Hence, distribution of population to various Wards is not as per the Rule 5 of the Rules,1996. Therefore, on this ground alone, the notification is liable to be set aside. In support of his contention, he relied on a Judgment of Channala Ramachandra Rao Vs. State of Andhra Pradesh and others3 and also another Judgment of Apex Court of Association of Residents of Mhow (Rom) and another Vs. Delimitation Commission of India and others4.
Learned counsel for the petitioner further contended that when a notification was issued in Form-VI without considering the objections as to the delimitation of wards, more particularly non-compliance of Rule 4 and 5, flexibility of Rule 5 shall be limited to 10% in view of the specific language used in the Rules and in any event variation shall not exceed more than 10% on either side, but in various wards mentioned in the earlier paragraphs, the variation is more than 10%. Therefore, delimitation is contrary to Rule 5 of the Rules, 1996, merely because such flexibility is given to the Corporation, it shall not be treated as total flexibility. To support this view, learned counsel for the petitioner placed reliance on the judgment of Apex Court in "C.N.Paramasivam v. Sunrise Plaza through Partner5" and "Osmania University v. V.S.Muthurangam6"
3
2000 (2) A.P.L.J. 93 (HC) 4 (2009) 5 SCC 404 5 (2013) 9 SCC 460 6 (1997) 10 SCC 741
13 MSM, J W. P. Nos.1366 and 1781 of 2020 Learned counsel for the petitioner further contended that when the rules are not complied strictly, the Court can interfere with such process by exercising power under Article 226 of the Constitution of India. When respondent No.3 did not publish notification in three (3) languages as required under Rule 8 and 11 of the Rules, 1996, which disabled the Urdu knowing persons to submit their objections/suggestions, the same is sufficient to set aside the notification issued in Form-I and Form-VI as per Rule 8 and 11 of the Rules, 1996, requested to set aside the notification issued in Form-I and Form-VI under Rule 8 and 11 of the Rules, 1996.
Sri Kasa Jaganmohan Reddy, learned Special Government Pleader, contended that the 3rd respondent followed the procedure strictly in accordance with the Rules and the variation as pointed out is only just above 10% and no maximum limit is fixed under Rule 5, that it shall not exceed 10% of the average population. Therefore, variation of population exceeding 10% of average is not a ground to set aside entire notification.
It is contended that the mandatory requirement is more than 7 days, under Rule 8 of the Rules, 1996, for inviting objections / suggestions from the citizens of the Municipal Corporation of GVMC to publish finally in Form-VI, after considering the objections under Rule 8 and after following Rule 9, the 3rd respondent has to publish the same in Form-VI in Andhra Pradesh Gazette as final delimitation list and at the stage of consideration of objections / suggestions, preliminary notification cannot be set aside.
Sri Kasa Jaganmohan Reddy, learned Special Government Pleader appearing for the State vehemently contended that when Rule 8 is 14 MSM, J W. P. Nos.1366 and 1781 of 2020 amended by G.O.Ms.No.58 Municipal Administration and Urban Development (G) Department dated 12.01.2020, whereby it is notified that publication of Form-I and Form-VI shall be in Telugu and English only, while deleting the requirement of publication in 'Urdu'. Therefore, issue of notification in Form-I and Form-VI is strictly in accordance with the amended Rule 8 and Rule 11 as per G.O.Ms.No.58 Municipal Administration and Urban Development (G) Department dated 12.01.2020, consequently on the ground of violation of Rule 8 and Rule 11, notification issued either in Form-I or Form-VI cannot be set aside. He specifically contended that in view of the specific bar under Article 243-ZG of Constitution of India the Court cannot interfere with the delimitation process as it amounts to commencement of election process, apart from that no opportunity need be given to the petitioner or any other person and placed reliance on the judgment of the Apex Court in "Sundarjas Kanyalal Bhatija v. Collector, Thane, Maharashtra7" in support of his contentions and requested to dismiss the petition.
Sri S.Lakshmi Narayana Reddy, learned Standing Counsel for respondent No.3, reiterated the contentions raised by the learned Special Government Pleader, more particularly with regard to the power of this Court to interfere with the election process, placed reliance on the judgment of the Apex Court in Lakshmi Charan Sen V. A.K.M.Hassan Uzaman, (referred supra), wherein the Constitutional Bench held that the jurisdiction of this Court is limited when once the election process is started, and on the strength of the principle laid down in the said judgment, he requested to dismiss the petition.
7 (1989) 3 SCC 396 15 MSM, J W. P. Nos.1366 and 1781 of 2020 He also contended that in view of the bar under Article 243-ZG of the Constitution of India, election process cannot be stalled by the interference of Courts. In support of the same, he relied upon the Judgment of the Division Bench of this Court in Writ Petition (PIL) No.118 of 2019 and also the Judgment of the High Court of Telangana in Writ Petition (PIL) Nos.84 & 87 of 2019, where this Court and High Court of Telangana consistently took a view that the Court cannot interfere at the stage of delimitation process.
Now the point arises for consideration is :
Whether the 3rd respondent has violated the Rules 4, 5 & 8 of the Rules, 1996, in issuing Preliminary Notification in Form-I, vide Rc.No.9180/2005/TPSec/G1, dated 10.01.2020, and Form - VI in Rc.No.9180/2005/TP Sec./G1 dated 23.01.2020 and if so, whether this Court is competent to interfere in the process of election in view of the bar under Article 243- ZG of the Constitution of India?
P O I N T:
It is an undisputed fact that the 3rd respondent issued Preliminary Notification, vide Rc.No.9180/2005/TPSec/G1, dated 10.01.2020, published in Andhra Pradesh Gazette, dated 11.01.2020, for fixing the boundaries on delimitation of 98 wards in GVMC with all other details granting seven (07) days time calling for objections /suggestions by exercising the power under Rule 8 of the Rules, 1996.
The first and foremost contention raised by the learned Senior Counsel for the petitioner is that the issuance of Notification is in violation of Rule 4 of the Rules, 1996. According to Rule 4, the area of the Corporation shall be divided into wards by the Government under Rule 3, duly taking 16 MSM, J W. P. Nos.1366 and 1781 of 2020 into account of the natural boundaries, geographical features and contiguity of the area. Whenever, natural boundaries could not be adopted survey numbers, T.S. numbers, important junctions or lanes shall not considered as far as possible.
As to non-compliance of this Rule as raised in Para Nos.8 & 9 of the Writ affidavit contending that the boundaries of the wards have been fixed by taking into account of the boundaries of the assembly constituencies, but not taking into account of the natural boundaries, geographical features and contiguity of the area. The petitioner did not disclose the details of any such violation, except making a bald allegation. The delimitation process is not commenced from the North- East of geographical boundary of Corporation, but that itself is not a ground to set aside the Notification, since the language used in the Rule 4, it is not mandatory. Hence the 3rd respondent is required to take into consideration of the geographical features and contiguity of the area. Whenever, natural boundaries need not be adopted, survey numbers, T.S. numbers, important junctions or lanes shall not considered as far as possible. The last words 'as far as possible' indicate that it is not a mandatory, therefore, failure to comply Rule 4, itself is not a ground to set aside the Notification in Form-I and Form-VI, published in the Gazette. Therefore, on the ground of violation of Rule 4 of the Rules, 1996, preliminary notification cannot be set aside. On the other hand, on perusal of Notification in Form-1 and Form-VI, the 3rd respondent specified the boundaries and description of each ward strictly in compliance of the Rules 6 & 7 of the Rules, 1996, therefore, based on non-compliance of the Rules 4, 6 & 7, the Notification cannot be set aside, since the 3rd respondent complied the requirements in substance.
17 MSM, J W. P. Nos.1366 and 1781 of 2020 Learned counsel for the petitioner mainly contended that when maximum cap of 10% variation is permitted "as far as possible", variation shall not exceed 10% of the average population. But the learned counsel for the respondents contended that it is a flexible rule and the language used in rule "as far as possible" gave any amount of flexibility to such rule. In "C.N.Paramasivam v. Sunrise Plaza through Partner"
(referred supra), the Apex Court had an occasion to consider the word "as far as possible", wherein the Apex Court held that the expression "as far as possible" indicates that all those provisions of Income Tax Rules are applicable except those which do not have any role to play in the matter of recovery of debts under RDDB Act, 1993. The phrase "as far as possible" may be indicative of a certain inbuilt flexibility, the scope of that flexibility extends only to what is "not at all practicable". Hence, the express "as far as possible" does not vest Recovery Officer with any discretion to depart from any provision. Therefore, flexibility is only up to 10% of variation on the average population in the present facts of the case. Though the facts are different in the judgment referred above, the language used in Section 29 of RDDB Act is almost identical to the language used in Rule 5 of the Rules, 1996.
In the said judgment, the Apex Court relied on "Osmania University v. V.S.Muthurangam" (refereed supra), wherein the question that fell for consideration was whether the age of superannuation of the non-teaching staff at Osmania University should be raised to 60 years when the same had been raised to 60 years for the University's teaching staff. Since Section 38(1) of the Osmania University Act, 1959 stated that the conditions of service for all salaried staff of the University shall be uniform "as far as possible", the decision in the case turned on the
18 MSM, J W. P. Nos.1366 and 1781 of 2020 meaning to be given to that phrase. It follows that while the phrase "as far as possible", may be indicative of a certain inbuilt flexibility, the scope of that flexibility extends only to what is "not at all practicable". The Supreme Court went on adverting to the meaning of the words "practicable" and "as far as possible" based on Webster's Dictionary and other dictionaries, but this court need not go into those definitions as the Supreme Court already decided the meaning of connotation "as far as possible."
If the above principles are applied to the present facts of the case, language used in Rule is identical, except the word "practicable". Therefore, as per interpretation given to the word 'as far as possible', the variation of population in different wards on average is far exceeding maximum limit of 10% variation. Therefore, such delimitation of wards at the whims and fancies of officials is impermissible under law, since, the maximum variation is 10% on either side of average population. Therefore, delimitation of wards by respondent No.3 is totally in violation of Rule 5 of the Rules, 1996.
Learned Counsel for the respondents mainly contended that the details of variation is not mentioned anywhere in the affidavit except bare allegation. This contention of the respondents cannot be accepted for the simple reason that the petitioner, in the writ affidavit in clear terms mentioned the details of wards constituted with 10% more than the average population and the wards constituted with less than 10% permissible violation on the average population, which are as follows:
WARDS CONSTITUED WITH LESS THAN THE WARDS CONSTITUTED WITH 10 % MORE AVERAGE POPULATION THAN THE AVERAGE POPULATION 1, 2, 3, 4, 9, 10, 11, 12, 13, 15, 16, 17, 21,25, 31, 32, 33, 34, 35, 38, 42, 46, 47, 48, 7, 8, 18, 22, 27, 28, 81, 86, 97 49, 50, 51, 53, 54, 58, 59, 60, 61, 62, 63, 64, 65, 66, 71, 72, 73, 74, 76, 78, 79, 83, 84, 94, 95, 96
19 MSM, J W. P. Nos.1366 and 1781 of 2020 Therefore, delimitation of wards with more or less permitted variation is clear contravention of rule, obviously for the reason best known to the officials accepted such delimitation. Therefore, on this ground impugned notifications are liable to be set aside.
One of the contentions urged by the petitioner before this Court is with regard to violation of Rule 8 of the Rules, 1996.
I have already discussed in the above paragraphs about the minimum time permitted for submission of objections/suggestions to the Corporation. However, one of the grounds urged before this Court is that preliminary notification in Form-I and final notification in Form-VI was not published in Urdu, this contention is refuted by the learned Special Government Pleader for State relying on G.O.Ms.No.58 Municipal Administration and Urban Development (G) Department dated 12.01.2020, whereby the Rule 8 and 11 are amended, which are as follows:
Rule 8:
"The Commissioner shall issue a preliminary Notification relating to the proposal to divide/re-divide the Municipal Corporation into wards in Form-I and publish on the Notice Board of the Corporation and other prominent places in Telugu and English and call for suggestions from the General Public so as to reach Municipal Office within 7 days from the date of publication of the Notice. The Commissioner shall also place the said notice before the Municipal Council for its views, suggestions and objections".
Rule 11:
"The Government in consultation with Commissioner and Director of Municipal Administration examine the views of the General Body of the Corporation in the matter and approve the proposal dividing the Municipal Corporation into wards. The Final Notification shall be published in Andhra Pradesh Gazette in Form-VI by the Commissioner."
In view of the said G.O.Ms.No.58 dated 12.01.2020, publication of preliminary notification and final notification in Urdu language is 20 MSM, J W. P. Nos.1366 and 1781 of 2020 dispensed with. Therefore, violation complained by the learned counsel for the petitioner as to the failure of publication of notification in Form-I and Form-VI in Urdu language is hereby rejected.
The last ground urged before this Court is that seven (07) days time has been granted by the 3rd respondent for submitting objections / suggestions. But, the Gazette was published on 11.01.2020 and the subsequent dates i.e., 12.01.2020 being Second Saturday, holiday for all other State Government Offices and other offices. Similarly, 13.01.2020 (Sunday) is a public holiday, 14.01.2020 and 15.01.2020 being the important festival days of Bhogi and Sankranthi in the State of Andhra Pradesh, whereas, 16.01.2020 is the optional holiday for the employees, but 16.01.2020 need not be taken into consideration as it is only an optional holiday. On account of four (04) holidays, out of the seven (07) days, the citizens of GVMC are deprived of their right to submit their objections / suggestions called for by the 3rd respondent on the preliminary notification.
As per Rule 8, the Commissioner shall cause the publication of the preliminary notification regarding delimitation of wards in Form-I in the Andhra Pradesh Gazette in Telugu, Urdu and English Newspapers besides displaying the notification on the notice board of all important Government Offices situated within the limits of the Corporation, duly calling for suggestions and objections from the public within seven days from the date of publication. The Commissioner shall also place the said notification before the General body of the Corporation for its suggestions and objections. The language used in Rule 8, the 3rd respondent has to give seven (07) clear days time for submitting objections / suggestions from the date of publication. The purported rule is only to grant seven (07) days time from the date of notification for submitting objections / 21 MSM, J W. P. Nos.1366 and 1781 of 2020 suggestions on Form-I notification. Taking advantage of the language used in Rule 8, obviously, for different reasons, the 3rd respondent issued notification conveniently to deprive the right of the general public from submitting their objections / suggestions on the preliminary notification in Form-I, published in the Gazette. It is a known fact that during festival of Bhogi and Sankranthi in Andhra Pradesh region, public may leave the station to go to their relatives, thereby, the public could not exercise their right of submitting objections / suggestions within the specified time of seven (07) days, on account of their travel to different stations. Therefore, fixing seven (07) days of time, intervening four holidays and one optional holiday is nothing, but a serious illegality and in fact, allowing three days i.e., from 16.01.2020 to 18.01.2020, it is difficult to submit their objections / suggestions before the GVMC.
Learned Special Government pleader for Municipal Administration appearing for the respondents contended that several objections were received for consideration and entered into register in Form-II. But, the petitioner did not submit any objection on his behalf even on 18.01.2020, though the office was kept open. Precisely, no material was placed on record to substantiate his contention that the respondent's office was kept open and the concerned officer is present to receive the objections / suggestions during those days. In the absence of any details, it is difficult to accept the contention of the respondents that their office was kept open for receiving objections / suggestions on the notification issued in Form-I. The 3rd respondent did not give reasonable time under Rule 8 of the Rules,1996, in calling the objections / suggestions on the preliminary notification under Form-I. But, on this ground alone, the entire notification cannot be set aside.
22 MSM, J W. P. Nos.1366 and 1781 of 2020 The major ground raised by the learned Special Government Pleader for the 3rd respondent is that when the process of delimitation of wards is commenced in Municipal Corporations, the Court cannot interfere, since election process is deemed to have been commenced and the bar under Article 243-ZG of Constitution of India, which deals with the interference by Court in electoral matters of Municipal Corporations will come into force and it is extracted for better appreciation of the contention of both the parties.
Article 243-ZG: Bar to interference by Courts 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 243-ZA shall not be called in question in any Court ;
(b) No election to any Municipality shall be called in question except by an election petition presented to such authority and in such matter as is provided for by or under any law made by the Legislature of a State.
A fair reading of Article 243-ZG, it is clear that when delimitation of constituencies, or the allotment of seats to such constituencies, made or purporting to be done under Article 243-ZA, the same shall not be questioned in any Court.
Article 243-ZA deals with elections to the Municipalities:-
(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all 23 MSM, J W. P. Nos.1366 and 1781 of 2020 elections to the Municipalities shall be vested in the State Election Commission referred to in Article 243-K. (2) Subject to provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Municipalities.
Therefore, the election process is deemed to have been commenced on the date of preparation of electoral rolls for conducting elections etc., and in view of the bar under Article 243-ZG of the Constitution of India, the interference of Civil Courts is interdicted, in the process of delimitation.
Learned Special Government Pleader for the respondents relied on the Judgment of Division Bench of this Court in Writ Petition (PIL) N0.118 of 2019 (to which, I am one of the members in the Bench), dated 24.09.2019 in Vasireddy Rambabu and another Vs.State of Andhra Pradesh and others8, this Court relying on Judgment of Apex Court in State of U.P. Vs. Pradan Sangh Keshetra Samithi9, in Anugrah Narain Singh Vs. State of U.P., S.Fakruddin Vs. Government of A.P.10 and in Channala Ramachandra Rao Vs. State of Andhra Pradesh.
The Courts interference with the delimitation process is barred in view of the interdict contained in Article 243-ZG. He also relied on the Judgment of Division Bench of High Court of Telangana in Writ Petition (PIL) Nos.84 & 87 of 2019, dated 20.10.2019. He also relied on the Judgment in Anugrah Narain Singh Vs. State of U.P., in Lakshmi 8 AIR 1995 SC 1512 9 (1996) 6 SCC 303 10 AIR 1996 AP 37 24 MSM, J W. P. Nos.1366 and 1781 of 2020 Charan Sen V. A.K.M.Hassan Uzaman, (referred supra) wherein, it is held that the Courts cannot interfere with the delimitation process.
Learned Senior Counsel for the petitioner relied on the Judgment of High Court of Judicature at Hyderabad in Channala Ramachandra Rao V. State of Andhra Pradesh and Others, which I referred in the earlier Paragraphs, where a Single Judge after consideration of various Judgments including Lakshmi Charan Sen V. A.K.M.Hassan Uzzaman (referred supra) dealt with Article 243-O, which is in pari materia with the provisions of Article 243-ZG (a) and (b) and Anugrah Narain Singh V. State of U.P., and other Judgments of different High Courts.
In the light of the decided cases, the principles that emerged may be summarized as follows :
(i) By reason of Clause (a) of Article 243-ZG, the division of Municipality into territorial constituencies called wards or allotment of seats to such wards or the notification specifying the offices of Chairpersons of municipalities reserved to persons belonging to Schedule Tribes, Schedule Caste and other Backward Classes cannot ordinarily be challenged under Article 226 of the Constitution.
(ii) In view of the embargo placed by Clause (a) of the Article 243-ZG, a law providing for delimitation of constituencies and allotment of seats to such constituencies made by the State Legislature under Clause (6) of the Article 243T read with Clause (2) of Article 243-ZG and the Entry 5 of List - II of Seventh Schedule to the Constitution cannot be called in question under Article 226 of the Constitution.
25 MSM, J W. P. Nos.1366 and 1781 of 2020
(iii) The Principles (i) and (ii) are subject to the condition that if the delimitation notification is arbitrary and in the sense that before delimitation no objections were invited and no hearing was given to a limited extent, the same is amenable to judicial review by this Court under 226 of the Constitution.
The law laid down by the Single Judge of High Court is all most all inconsonance with the Judgment of the Anugrah Narain Singh and two other referred above, but only exception carved out by the learned single Judge is that if the delimitation notification is arbitrary and in the sense that before delimitation, no objections were invited and no hearing was given to a limited extent, the same can be interfered by the Court. Hence, the final notification issued in Form-VI is under challenge i.e., final notification in Form-VI of the Rules for delimitation.
Admittedly, the preliminary notification in Form-I was issued calling for objections / suggestions within seven (07) from the general public and the 3rd respondent received certain objections from various members of the public and entered the same into register in Form-II, but the objections were considered. Therefore, declaring that the notification as arbitrary, on account of failure to invite objections / suggestions and for not giving an opportunity of hearing to the limited extent and such question would arise only when a notification issued in Form-VI under the Rules,1996. Hence, I am unable to accept the contention of the learned Senior Counsel and the same is hereby rejected.
Learned Senior counsel for petitioner has also relied on the Judgment in Association of Residents of Mhow (Rom) and another Vs. Delimitation Commission of India and others, wherein, it was 26 MSM, J W. P. Nos.1366 and 1781 of 2020 held in Para Nos.23 to 26 of the Judgment, which dealt with delimitation of Constituencies under Section 9 (2) of the Delimitation Act, 2002. Section 9 (2) of the Act mandates the Commission to publish its proposals for the delimitation of the constituencies in the manner provided thereunder and delimitation of parliamentary constituencies and assembly constituencies, as the case may be, shall be only after consideration of all the objections and suggestions which may have been received by the Commission before the specified date for which purposes the Commission may hold one or more public sittings at such place or places in each State as it thinks fit. The Commission is not required to hold public meeting in each and every parliamentary constituency.
In para-26 of the same Judgment, the Apex Court held that proposals cannot emanate from any interested person. The distinction between the Commission's proposals and the objections and suggestions in response to such proposals is to be borne in mind. Every suggestion or objection cannot ultimately result in any fresh proposal by the Commission. The Commission is not under any legal or constitutional obligation to go on issuing any revised proposals depending upon every objection and suggestion as may be received by it in response to its proposals. In the same Judgment, the Apex Court referred Judgment of State of U.P. V. Pradhan Sangh Kshettra Samiti11 and Meghraj Kothari V. Delimitation Commission12 and arrived at a conclusion as follows :
38. In the present case, the Commission finally determined the delimitation of parliamentary constituencies in the State of Madhya Pradesh after considering all the objections and suggestions received by it before the specified date and got published its orders in the Gazette of India and 11 1995 Supp (2) SCC 305 12 AIR 1967 SC 669: (1967) 1 SCR 400
27 MSM, J W. P. Nos.1366 and 1781 of 2020 in the Official Gazette of the State as is required under Section 10 (1) of the Act. The orders so published puts them "in the same street as a law made by Parliament itself". Consequently that notification is to be treated as law and required to be given effect to.
39. For all the aforesaid reasons, we find no merit in this appeal. The appeal shall accordingly stand dismissed with no order as to costs.
In the facts of the above judgment, the Commission finally determined the delimitation of parliamentary constituencies in the State of Madhya Pradesh after considering all the objections and suggestions received by it before the specified date and got published its orders in the Gazette of India and in the Official Gazette of the State as is required under Section 10 (1) of the Act. The orders so published puts them "in the same street as a law made by Parliament itself". Consequently that notification is to be treated as law and required to be given effect to. But the Commission did not consider the objections raised by the petitioner in the facts of the judgment. Though, the Commission is not under any legal obligation to go on issuing any revised proposals depending upon every objection and suggestion as may be received by it in response to its proposals, still it is the obligation of the Commission to look into the objections, more particularly when it is questioned at the preliminary notification stage as to the variation exceeding permissible limit on either side, but it was not considered.
"The most important aspect of the matter required to be borne in mind is that the proposals for delimitation published under Section 9(2) of the Act are with regard to the whole of the State. The proposals are not a constituency-centric one.
28 MSM, J W. P. Nos.1366 and 1781 of 2020 Determining the delimitation of Parliamentary Constituencies and Assembly Constituencies is a very complex and lengthy process. Section 9(1) of the Act mandates the Commission as to what are the factors apart from the provisions of the Constitution and provisions of the Act required to be taken into consideration which are noticed herein above. Section 9(2) mandates the Commission to publish its proposals for the delimitation of the constituencies in the manner provided thereunder.
It is true, determination of the delimitation of Parliamentary Constituencies and Assembly Constituencies, as the case may be, shall be only after consideration of all objections and suggestions which may have been received by the Commission before the specified date for which purposes the Commission may hold one or more public sittings at such place or places in each State as it thinks fit. The Commission is not required to hold public meeting in each and every Parliamentary Constituency. What the Commission required is to consider the objections and suggestions for its proposals before determining the delimitation of the constituencies in the entire State.
The proposals cannot emanate from any interested person. The distinction between the Commission's proposals and objections and suggestions in response to such proposals is to be borne in mind. Every suggestion or objection cannot ultimately result in any fresh proposal by the Commission. The Commission is not under any legal or Constitutional obligation to go on issuing any revised proposals depending upon every objection and suggestion as may be received by it in response to its proposals. Since the exercise of the delimitation is not with reference to any particular constituency, the suggestions or 29 MSM, J W. P. Nos.1366 and 1781 of 2020 objections, as the case may be, in respect of one constituency may have their impact at least on one or more of the adjoining constituencies."
Though the judgments of Apex Court laid down guidelines as to how objections and suggestions have to be considered by holding public meeting in one or two places of the State, the same was not done. Therefore, in the above said judgment, the Apex Court found fault with the procedure, which the commission followed.
In the present case, the petitioner has not filed any objections on the pretext that seven days time granted by the Corporation is intervened by five public holidays and two working days. Though, he explained the reasons, they are not sufficient to accept the contention that he has not filed any objections on account of intervention of five public holidays for the reason that the office was kept open to receive the objections or suggestions, it is not denied by the petitioner in the entire affidavit. In such case, the petitioner, who did not file his reply to counter, is not entitled to question the validity of delimitation of wards on the ground that the objections raised by several persons were not considered and delimitation was not done in accordance with the rules.
In the present facts and circumstances of the case, even if the principle laid down in the above judgment is applied, still the contention of the petitioner cannot be accepted as no objections were filed by him for consideration while issuing final notification in Form-VI under Rule 11 of the Rules, 1996.
In any view of the matter, objections of the petitioner do not deserve any consideration at this stage in view of the judgment of the Apex Court in "State of U.P. V. Pradhan Sangh Kshettra Samiti"
30 MSM, J W. P. Nos.1366 and 1781 of 2020 (referred supra) and other judgments including the judgment in "Lakshmi Charan Sen V. A.K.M.Hassan Uzzaman" (referred supra). Therefore, this Court cannot interfere with the process of delimitation of wards in view of the bar under Article 243-ZG of the Constitution of India.
In view of my foregoing discussion with reference to law and facts and bar under Article 243-ZG of the Constitution of India, this Court cannot exercise power to interfere with the process of election after publication of final notification under Rule 11 of the Rules, 1996, more particularly, when the petitioner did not file his objections on the preliminary notification issued in Form -I published under Rule 8 of the Rules, 1996. Apart from that it is not the case of the petitioner that the objections received by the Corporation were not considered, on the other hand, learned Special Government Pleader for the State submitted that 464 objections were received and considered, later final notification was issued.
In any view of the matter, the action of the respondents in the process of delimitation appears to be objectionable and contrary to Rule 5 of the Rules, 1996 despite raising such objection as to 10% variation on the average population. Such objection was not considered even at the time of issuing final notification though writ petition No.1366 of 2020 is pending before this Court and the Officials are aware of the pendency of the writ petition No.1366 of 2020, such conduct of the officials is highly reprehensible. The officials are bound to work in accordance with law, irrespective of the party in power. The political parties may come into power and go after sometime, but the officials will continue to serve till their retirement from service. It appears from the material on record, 31 MSM, J W. P. Nos.1366 and 1781 of 2020 the respondents - officials by exhibiting over enthusiasm utterly violated Rule 5 of the Rules 1996, but in view of Article 243-ZG, the hands of the Court are tied. Hence, this Court is of the opinion that there is no ground to interfere with the election process at this stage, in view of the Constitutional bar on the powers of this Court.
In the result, the writ petitions are dismissed. No costs. The miscellaneous petitions pending, if any, shall also stand closed.
___________________________________ JUSTICE M. SATYANARAYANA MURTHY Date : 26.02.2020 Rpd 32 MSM, J W. P. Nos.1366 and 1781 of 2020 THE HON'BLE SRI JUSTICE M. SATYANARAYANA MURTHY WRIT PETITION Nos.1366 and 1781 of 2020 Dated : 26.02.2020 rpd 33 MSM, J W. P. Nos.1366 and 1781 of 2020