Andhra Pradesh High Court - Amravati
D Govindu vs The Election Commission Of India on 4 April, 2019
Bench: C.Praveen Kumar, M.Satyanarayana Murthy
IN THE HIGH COURT GF ANDHRA PRADESH (Special Original Jurisdiction) (oie THURSDAY, THE FOURTH DAY OF APRIL \ aS TWO THOUSAND AND NINETEEN eS ~~ de ss ¥ 4 te NG eee PRESENT Xo Hole THE HON'BLE THE ACTING CHIEF JUSTICE SRI C.PRAVEEN KUMAR AND THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION NO: 3905 OF 2019 Sebween: 1. Dornigeni Govindu, S/o Bheernanna, aged 29 years, H.No 3/77, 3rd Ward, Kosigi, Kurnool district. 2. Pendekallu Eranna, S/o Venkayya, aged 36 years, H.No. 3-255, 3rd ward, Kosigi, Kurnool district. PETITIONERS 1. The Election Commission of India, rep by its Chief Electoral Officer, Room No. 192, Ground Floor, Building No.5, A.P. Secretariat, Velagapudi, Amaravati. 522238 2. The District Election Officer/ District Collector, Kurnool district. 3. The Tahsildar, Kosigi Mandal, Kurnaol District. . RESPONDENTS Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to pass orders particularly one in the nature of writ of mandamus declaring the action of the respondents locating the P.S.No.s 116 and 117 of the petitioners' Ward No. 3 of Kosigi Town to M.P Model Elementary School (JBM) Room Nos. 2 and 3 respectively situate in Ward No. 1 of Kosigi when there are sufficient facilities within the ward/poling area as arbitrary, illegal, contrary to the list poling stations published ceoandhra website and instructions of the 1st respondent published in its manual on Polling Stations and violative of Art 14, 19, 24 of the Constitution of India and consequently direct the respondents to restore/allot the petitioner's Polling Station Nos. 116 and 177 to Adiandhra Primary School or any other facility within the polling area of the 3rd ward. iA NO: 1 OF 2019 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 review the location Poling stations for electors of the 3rd ward namely of Palling Stations 116 and 117 of Kosigi Town and relocate within the ward or neighboring 5th ward. Counsel for the Petitioners: SRI KASA JAGANMOHAN REDDY Counsel for the Respondent Nos.1 & 2: SRI AVINASH DESAI Counsel for the Respondent No.3: GP FOR REVENUE The Court made the following: ORDER ---- * a Sone" "pte in THE HON'BLE THE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR | AND THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY | WRIT PETITION NO.3905 OF 2019 ORDER:
(Per Hon ble: Sri Justice MM. Satyanarayena Murthy) This wnt petition is filed by the petitioners under Article 226 of the Constitution of India, who are the residents of Kosigi Mandal, Kurnoal District to issue Writ of Mandamus to declare the action of the respondents locating P.S.Nos. 116 and 117 of the petitioners' Ward No.3 of Kosigi Town to M.P, Model Elementary School (JBM) Room Nos. 2 and 3 respectively situated in Ward No.!t of Kosigi, where there are sufficient facilities within the ward/ polling area as arbitrary, Wegal and contrary to the list of polling stations proposed in CEO Andhra Pradesh website and instructions of the first respondent published in its manual on polling stations and violative of Articles 14, 19 & 21 of the Constitution of India and consequently to direct the respondents to restore fallat petitioners' Polling Station Nos. 116 & 117 to Adiandhra Primary School ar to any other place.
Both the petitioners are the residents of Ward No.3, Kosigi, Adiandhra Primary Schoal is. still a polling booth for Ward No.3. Their names are at SLNos. 278 and 395 of Polling Station Nos. 116 & 117 respectively, After the construction of Anganwadi Centre in the same compound, the capacity of the premises has increased to accommodate more number of polling stations within Ward No.3. The allocation of polling stations as per list, published by the first respondent in their website is still showing Polling Station Nos. 116 & 117 as being allotted to Adiandhra Primary School, Kosigi. But, one Sri Niranjan Reddy, the then Tahsidar who worked as a puppet in the hands of TDP in ~charge candidate seems to have proposed for shifting of Booth Nos. 116 & 117 of 3 PAL te ADA WP_ 3805 of 2O19 Ward No.g without any notice to the local public, to M.P. Model School (JBM) of Ward No.1. He was recently transferred due to several complaints and irregularities under the instructions of Election Commission. The voters of Ward No.3 staged dharna on 28.01.2019 and 01.03.2019 and declared to boycott the election if Polling Station Nos. 116 & 117 are nat shifted back to its old location. The news item was published in Sakshi Daily on 01.03.2019 and 02.03.2015, The petitioners and some of the educated youth submitted a representation to the present Tahsildar and also sent another representation to the Election Commission to restore back Polling Station Nos. 116 & 117 to its ald lecation where there is plenty of space and additional space in Anganwadi Centre.
It is specifically contended that, exercise of vote is a fundamental right and the State is under obligation to provide free and peaceful atmosphere to exercise the right of franchise without fear. Paragraphs 1.4, 2.2 and 2.4 of the Polling Station Manual published by the Election Commission of India provide for allocation of voters among Polling Stations within the polling area and maximum distance between the polling 'stations. Ward No.2 is a sensitive zone and due to possible disturbances in the said part of polling area, those voters were allotted to palling station situated in Ward No.S. Whereas, the pelitioners who belong to Ward no.3 allocated to Polling Station Nos. 116 & 117 of Kosigi are now being forced ta pass through sensitive Ward No.2 to reach JBM School at Ward No.1, which is not warranted and not comfortable for the voters of Ward No.3. The distance from the end of the ward to the said polling station is around l to 1 "4 km. Therefore, it is inaccessible to the old and women voters due to hot surmmer.
It is further contended that, there is sufficient space within and around the polling area and there is no justification to allat the petitioners 3 HAGA & MSM ,J WP S805 of 2075 polling station to Ward No.1. The then Tahsildar who worked as a puppet shifted Polling Station Nos. 116 & 117 of Ward No.3 to a far-off place beyond the sensitive zone is only with malafide intention to prevent voters af the locality, who are predominantly weaker sections; from exercising their franchise. Therefore, shifting of Polling Station Nos. 116 & livoaf Ward No.3 of Kosigi Town is illegal and arbitrary and prayed to issue a direction as stated supra.
Respondent Nos. 1 & 2 filed counter alleging that the petition is not maintainable, in view of the bar under Article 329(b) of the Constitution of India, as the ground urged in the petition is a ground available under Section 100 of Representation of the People Act, 1951 (for brevity 'Phe Act?) invalidating the election and when a remedy by way of election petition is available, petition under Article 226 of the Constitution of India is not maintainable. On this ground alone, the writ petition is Hable to be dismissed in lirnini.
The specific conterition of the respondent Nos. 1 & 12 is that, the present Polling Station Nos. 116 & 117 of Kosigi Village of Mantralayam Assembly Constituency have been bifurcated from the earlier Polling Station No.104 of Kosigi town and rationalization of polling stations is required to be conducted whenever number of voters exceed 1200 in a polling station located in a rural area and 1400 in a polling station located im an urban area. In the present case, since the number exceeded 1200 in the earlier Polling Station 104 of Kosigi Town, rationalization was done and the oid polling station was bifurcated into two Polling Station Nos. 116 & Liv, it is further submitted that, as there is no possibility to accommodate another polling booth at the earlier polling station, the respondent authorities located the existing station at M.P. Model ELIE School (JBM) at Kosigi Village, which is the best available building for & TAL Si AEM WP _ 3905 of 2019 accommodating the villagers of Kosigi after considering all the yardsticks and norms required for setting up a polling station.
It is also contended that, since the building of the earlier polling Station was dismantled and new building was constructed with two class rooms at down stairs and two rooms on the first floor, it is not possible to accommodate another polling booth at the earlier polling station which necessitated the respondent authorities to locate another best possible building to accommodate a bifurcated palling stations for Kosigi Village.
The building of Anganwadi Centre is not suitable to set-up a polling station since the respondents are obligated to provide assured minimum basic facilities at every polling station ke provision of rarnp for differently abled persons, providing drinking water, adequate furniture, proper lighting, help desk, toilets etc. The reason for locating polling station at M.P. Model Rlementary School (J13M) is justifiable and not tainted with any malafides.
Though right to vote is a constitutional right, such right cannot be stretched to contend that the petitioners also have a right to vote at their choice of palling station according to individual convenience. Therefore, mere location of a polling station at a different place does net amount to miringement of constitutional right. As there is necessity to set-up adequate polling stations, for the purpose of ensuing general elections, accordingly poling stations have been identified after taking various factors into consideration which are relevant to ensure free and fair clections.
It is submitted that, from the previous elections, there has been an increase of 10.1% of polling stations for the ensuing General Election which happened mainly due to rationalization of polling stations conducted in order to accommedate new voters who became cligible for the ensuing General elections. It is submitted that, currently the respondents authorities have set up 10,35,928 polling stations across India for ensuing 5 HACJ & MSMjJ WP_2505 of 2019 elections 2019 which figure stood at 9,28,000 for the previous elections held in 2014. It is contended that, individual comlort of the petitioners to vote in a particular station of their choice cannot be a ground to challenge the decision to shift the polling stations after in compliance of all the rules and regulations in fore. However, Polling Station Nos. 116 & 117 are located within 1 km from the residential area of the voters, which is also within the prescribed norms i.e. distance to be taken into consideration for setting up a polling station. Therefore, the distance of 1 km is in accordance with the norms and on this ground, the writ petition cannot be allowed, granting rehef as stated supra and prayed to dismiss the petition.
During hearing, Sri Kasa Jaganmohan Reddy, learned counsel for the petitioners vehemently contended that the decision taken by the Election Commission of India at the instance of District Election Officer on malafide recommendation is for extraneous purpose to prevent the voters af Ward No.3 to franchise their vote. At the same tirne, convenience of voters alone is the consideration and nat the canvenience of the staff of the polling stations. Therefore, when sufficient space is available in the Anganwadi Centre, respondents ought to have established the polling station in Anganwadi Centre, instead doing so, they shifted to Ward No.1, obvieusly for different reasons best known to them. It is also brought to our notice that the Electoral Rolls and the notification issued under Section 29 of the Act to contend that there is any amount af variation in the election list and management of polling boaths ta Electoral Ward No. 3 and setting up of polling booth at Ward No.1 for the Polling Station Nos. 116 & 117 and on account of aiteracy, it is difficult for them. ta franchise their vote undertaking journey of 1 km. Learned counsel alsa cantended that, when if is a ermand to set-aside the election, instead of awaiting till setting aside the election, the mistake crept in the process of setting up compelling circumstances can be set right at the threshold and there will 4 GLALAT Q) VIRM ol WAB_ 30S of 2014 mot be any difficulty in future and the parties need not cannot file election petition, as the decision on which will take years together.
Learned counsel for the petitioners placed rchance on the judgment of Supreme Court in Kalyan Kumar Gogoi v. Ashutosh Agnihotri and another!, wherein, the Apex Court specifically held that, change of vervuc for casting votes in breach of Sections 25 & 26 of the Act is a ground under Section 1OO(1}{d)}{iv) of the Act to set-aside the election. When the respondent issued notification in violation of Section 25 of the Act, and instead of driving these petitioners to file election petition, requested to issuc a direction for restoration of polling stations in Ward No.3 of Kosigi itself, Learned counsel also placed reliance on the judgment in and Judgment of Gauhati High Court in Tazuddin Ahmed v. Dhaniram Talukdar', wherein the Gauhati High Court alse reiterated the same principle. On the strength of the principles laid dewn in the above two Judgments, learned counsel for the petitioners requested to allow the writ petition, issuing a direction declaring the action of the respondents in setting up Polling Station Nos. 116 & 117 in Ward No.1 of Kosigi Mandal, 'as legal and consequently te restore the polling booths to Ward No.3 of Kosigi Mandal inchiding the voters to exercise their franchise without any fear.
Per vontra, Sri Avinash Desai, learned counsel for the respondents 1 & 2 contended that, the writ petition itself is mot maintainable, for the siraple reason that an election petition would not hie if polling stations were allegedly shifted without following the procedure contemplated under section 23 of the Act, it is a ground to set-aside the election under Section LOOUalaiv} of the Aet, the writ petition is not maintainable in view of the bar under Section 329(b) of the Act.
TAO RLS SO 832 2 ATR L959 Gan 128 7 HACI & MSM J WP 2905 af 2019 Yet, another contention raised by the learned counsel for the respondents ] & 2 is that, there is lot af procedure prescribed for publication of draft notification of polling calling for objections and issue of publication of final notification of polling stations. The respondents strictly adhered to the guidelines issued by Election Commission of India in Handbook for Returning Officer, February 2019, Decument 23 --- Edition I. When the respondents 1 & 2 followed procedure prescribed under law, this Court camnot examine the legality of the decision except the procedure that was adopted by the authorities considering the procedure in passing the order, Therefore, this Court cannot issue any Writ of Mandamus ONETCISING power under Article 226 of the Constitution of India.
Learned counsel for the respondents 1 & 2 further submitted that there is no sufficient accommodation te accommodate two polling stations within Ward No.3 in terms of the norms fixed by the Election Commission with reference to plinth area, to accommodate Electronic Voting Machines and VVPATs and other equipment in the polling stations, besides accommodating the election agents, polling agents, officers including the employee to identify the voters, besides the minimum amenities like toilets, drinking water etc. The Anganwadi Centre is a small building consisting of two rooms and plinth area of each room is about 150 eq ft approximately which is mot sufficient to accommodate polling stations and not in accordance with the norms of Election Commission of India. Therefore, as there was no option for the respondents to shift Polling Station Nos. 116 & in Ward No.i which is hardly at a distance of less than one kilometre, as admitted by the petitioners and if would nat cause any inconvenience to the vaters. So far as the difficulty to pass through Ward No.2, the election officials should provide necessary protection including poahee patrol.
& Li On Wi WP 3905 of 2019 Therefore, it is also not a ground to issue any direction for shifting Polling Station Nos. 116 & 117 to Ward No.3, as sought for by these petitioners and prayed for dismissal of the writ petition.
Considering rival contentions, perusing the material available on record, the points that arise for consideration are as follows:
ft) Whether the petition under Article 226 of the Constitution of india is maintainable when the ground urged in the petition is @ ground to set-aside the election, ir view of Section 1OO({I div) of the ActP
2) Whether respondents 1 & 2 followed procedure prescribed under Section 25 of the Act and the guidelines issued by Eiection Commission af India in exercise of powers under Section 324 in setting up Polling Station Nos. 116 & 117 Ward No.1 of Kosigi Mandal, for franchising votes by voters of Ward No.3. If, net whether a direction be issued to restore Polling Station Nos. 116 & 117 in Ward No.3 of Kosigi Mandal and set-
up the polling stations at the convenience of the petitioners and other voters of Ward No.3?
POINT NO.1:
Admittedly, the writ petition is filed under Article 226 of the Constitution of India, challenging the action of the respondents in setting up Polling Station Nos. 116 & 117 in Ward No.1 for the voters of Ward No.3 on various grounds referred supra. During argument, reiterating the arguments raised in the writ petition, would draw attention of this Court that non-compliance af Section 25 of the Act r/w Rule 15 of the Coriduct of Election Rules, 1961 (for short 'The Rules} is a ground to sct-aside the clection under Section 100(1}{(djGiv) of the Act and placed reliance on Kalyan Kumar Gogoi v. Ashutosh Agnihotri ld ® MSM J AOS of 2019 and another (referred supra) and Tazuddin Ahmed v. Dhaniram Talukdar (referred supra}.
in Kalyan Kumar Gogoi v. Ashutosh Agnihotri and another {referred supra}, a motice was published inviting nominations from eligible candidates to contest the Assm State Legislative Assembly Election for 116 Dibrugarh Constituency and there were irregularities in shifting polling stations and the Apex Court held in paragraphs 11, 12 and 13 as follows:
"The first question to be cansidered is whether there had been or not & breach of the Act and the Rules in the corduct of the election at this carnstitvency. If is hardly necessary for this Court te go aver fhe evidence with a view to ascertaining whether there was or was nota breach of the Act anc the Rides in the canduct of the electian concerned, Haviryy read the evidence on recard, thus Court is in entire agreement with the decision of the learned Single /ucige Unat by the change of vere of casting vates, breach of the provisions of Sections 25 and 56 af the Act read unth Rule 15 af the Rules of 796] was comnutted by the. officials who were in charge of the conduct of the election at this constituency.
This. shows that the matter is governed by Section POOf Nelfiv) ef the Act, The question stil remains whether Ure condition precedent to the avoidance of the election of the returned candidate uthich requires proaf fram the electian petitioner, .e., the appellant that the result of the election Fecd been mitteriaily affected insofar as the returned candidate, Le, the respondent No. 2, was concerned, has beer established in this case, This Court finds that the learned Judge has recorded a finding that cogent and reliable evidence shauld be adduced by an election petitioner when. electian of the successful candidate ts challenged on the grand of breach of provisians of Section 1O0f(1 Najfie) of the Act, The coniention advanced by Dr. Rajiv DAeweon, learned counsel for the appellant, that the test of either bread probabilities or the test of suffieterey of evidence should be applied while deciding the question whether the result of the elected candidate is materially affected or not cannot be accepted"
Similar view was expressed by the Guwhati High Court in Tazuddin Ahmed v. Dhaniram Talukdar (referred supra}. The Delhi High Court in Bharat Bhushan v. Ved Prakash® wherein the palling station was shifted and wrongly inchided in SS-Rohtas Nagar, New Bethi in the list of polling on 8 } :
" AIR 1978 Dethi 199 1a HAGA de MMI , WP _SQ05 df 2019 stations notified on 30.05.1977, But, the High Court in paragraph 34 concluded that, Section 25 of the Act which makes provision for providing the polling stations in the constituency, does not lay down any limitation of tire for publishing a list showing the polling stations. It dass not contain any limitation for any amendments or corrigendum to the list published or any restriction of tirne to make amendments. Power conferred on the District Election Officer was exercisable from time to time, unless a different intention appears, as and when an occasion arises.
Therefore, in view of the principles laid down by the Apex Court, Gauhati High Court and Delhi High Court, it is abundantly clear that non- compliance of Section 25 of the Act r/w Rule 15 of the Pules isa ground to set-aside the election under 100(1}{d)fiv) of the Act and i is not in cortroversy, In view of the discussion in the earlier paragraphs, it is appropriate to decide whether the writ petition is maintainable, when Section 25 of the Act r/w Rule 15 of the Rules is not complied it is a ground to set-aside the election under Section LOO(1)(d)liv) of the Act.
Article 329(b) of the Constitution of India created an embarga to pass any orders when the election process is commenced. Time and AGA, right from 1954, in Ponnuswami v. Returning Officer, Namakkal Constituency? case the Apex Court succinctly held that the Courts cannot interdict the process of election by any orders. Clause (b) of Article 329 af the Constitution of India excludes the jurisdiction of the Courts to entertain any matter relating to 'election' which can be questioned only by an election petition under the law prescribed by the appropriate Legislature ie Chapters [-ll of the Act. Hence, a suit for setting aside an "MOS27 SCR 218 41 HACY & MSM,I WP S905 of 2019 election would not he. Election Process' in this context means the entire process culminating in a candidate being declared elected and is not confined to the final result. By reason of this clause, the following matters cannot, therefore, be challenged by a suit; the only remedy would be an election petition, which includes acceptance or rejection of a nomination paper by a Returning Officer, any matter which arises while the elections are in progress Le. at every stage from the time of the issue of the notification appointing a date for nomination till the results are declared and correctness of the electoral roll, except on the ground of contravention of Article 173 of the Constitution. Therefore, alleged violation of Section 25 of the Act r/w Rule 15 of the Rules at best is a ground to question the election under Section 100(1)}{dj(iv} of the Act.
in Mohinder Singh Gil v. Chief Election Commissioner' the Apex Court (& Judges) held that, Article 324 of Constitution of India deals with Constitution. af Election Commission and its role. Election Commission having power of superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of the President and Vice-President held under the Constitution, Therefore, the Election Commission is entitied to issue necessary directions in contingency. The words "superintendence, direction and contro)"
empowers the "Election Commussion to act in contingencies not provided fer by law and ta pass necessary orders for the conduct of the election.". The power conferred on Election Commission under Article 324 (1) of Constitution of India is a residuary power relating to electoral process, in areas unoccupied by legislation, which empowers the Commission ta issue * AIR 1978 SC 854 2 HARY & MSM J ~ WP_SOOS af 2018 elections. The opening words "superintendence. 00... sesees conduct of all elections" include powers as well as duties. Apart from powers conferred by the Representation of the People Act and the Rules made thereunder the Election Commissioner has ample powers under Article S24(1) itself, to make appropriate orders as to conduct of election ic. cancellation of poll and ordering repoll, according ta exigencies in particular areas.
Maintainability of writ petition under Article 226 af the Constitution of India is also discussed by the Apex Court in the above judgment, and held that, Article 329(b) is a blanket ban on legal proceedings including a petition under Article 826 to challenge electoral steps taken by the Election Commission and its officers for carrying forward the process of election starting from the notification by the President under Section 14 of the Act to its culmination in the formal declaration of the result of the election. The only remecy to challenge the legality of such steps is an clection petition to be presented after the election is over, 'calling in question the election'. No remedy is provided at ary intermediate Stage, even though the clispute relates to a Step anterior to the holding of the election, such as nomination. tence, even though an error of law relating to a mandatory provision is committed in the election process at any stage prior to the declaration of the result, the High Court under Article 226 cannot interfere with the process of election; the remedy to rectify such error, at that stage, lies before the Election Commission. The Supreme Court also made it clear that, if the petitioner seeks any remedy which would not be available in the election petition, a petition under Article 220 might possibly lie after the completion of the election.
Therefore, in view of the law declared by the Constitutional Bench of the Apex Court in the jud giments referred supra, including the decisions relied on by the learned counsel for the petitioners, non-compliance of 43 HAC] & MSM! ~ WE_39O5 of 2019 section 25 of the Act r/w Rule 15 of the Rules is a ground to question the election under Section TOO{]}(djiv} of the Act. In such case, the mistake, if any committed is only during the progress of the election process and that would give rise to an election petition and cansequently the writ petition under Article 226 is not maintainable, in view of the law declared by the Apex Court in the judgements referred supra. Therefore, this Court cannot grant any rebef ta interdict the process of election indirectly. Hence, we find that, in view af the bar under Section S29(b) of the Constitution of India, no relief can be granted m. the writ petition. Accordingly, the point is answered against these petitioners and in favour of the respondents.
POINT NO.2 The other ground raised by the learned counsel! for the petitioners is that, though sulficient accormmodation is available to locate Polling Station Nos. 116 & 117 in Ward No.3, the respondents set-up polling station at Ward No.J and the voters have to pass through Ward No.2 which is a disturbed area, though sulficient accommodation is avanable in Anganwadi Centre, constructed in the same premises of Adiandhra School in Ward No.3, which is in contravertion of the guidelines issued by the Election Commission of India for setting up polling stations. Learned counsel has drawn attention. of this Court to downloaded electoral roll Assembly Constituency, 145 - Mantralayam, Kurnool District to show that, in the electoral roll against Kosigi, for voters ~ G. Ramularmma and M. Venkata Lakshmi, the polling station was MP Model Elementary School (Aadi Andhra} Sehool, Nerth Wing, Kosigi and MP Model Elementary Sehool (Aadi Andhra} School South Wing, RKosigi respectively. But, whereas, in the official natification issued under Section 25 of the Act, the polling station is at MP Model Elementary School (JIRM), Room No.3, Kosigi. As there is lot of discrepancy in the official voter electoral list and LA MAG a MISMO WP_2005 of 2019 notification issued under Section 25 of the Act, it may lead to confusion in the display of voters to franchise their votes and they will be deprived of their coristitutional right.
Learned counsel for the petitioners also referred to the guidelines issued by the Election Commission known as Manual on Poling Stations January 2016, Document 1 ~ Edition 1 in support of his contentions. At the sare time, the Election Commission of India also issued. guidelines for setting wp of polling stations for voters in Handbook for iselurning Officer, February 2019, Document 23 -- dition L. Clause 2.1 deals with general procedure to be followed for identifying polling Stations, it is extracted for better appreciation hereunder:
Clause 2.1.1 says that, according to Section 25 af the Representation of the Peaple Act P95], the District iection Officer (DEQ) is responsible for the provision cf polling stations and the publication af the list of palling stations, Clause 2.1.2 stipulates that, the electoral rolls are prepared part wise, Generally, there is one palling station corresponding 2.1.2 to a part. Sometimes, there can be more than one polling station jor a part. For example, in some areas, there are separate polling stations for men and women. Similarly, if the number of voters is large, there can be main and auxiliary polling stations in the same part In sueh cases, where there are more than one palling stations in a part, the electoral roll is still printed part wise. However, in the marked copy of the electoral rail which is gwen tothe Presiding Officer at the time of poll, names af those voters who are not allowed to vote in. that polling station are struck off.
According to Clause 2.1.3 the polling stations are set up more or less on a permanent basis to cover well-defined polling areas. Change of polling stations may become necessary for several reasons. The list of polling stations should have the approval of the Commission. Any modification (except change in nomenclature, when the building ts not changed) requires the approval of the Commission. If the same list ig proposed to be adopted, no jresh approval of the Commission. is necessary and Cammission. should be intimated accordingly and/ar wherever modifications are proposed, the Commission's approval must be obtained.
15 HACE %& MSM, J WE_3905 of 2019 For identifyimg fresh Hst of polling stations, separate procedure is prescribed in Clause 2.2.1, and the procedure is as follows:
2.2.1 The fresh tists should be drawn up bearing in mind the following instructions:
aj The optimum number of polling stations to be set up in an Assembly Constituency should be determined by dividing the total number of voters in the constituency by 1000. This number will be an average for both the rural and the urban. constituencies, However, the Commission's instruction ts toe provide a polling station in the constituency by 1000. This number will be an average for both the rural and the urban constituencies. However, the Commission's instruction is to provide a poling station for every village having more than 300 voters, provided there is a suitable building for it.
b) A polling station should be provided for a well-clefined palling -- area, normally covering aot more than }200 electors in rural areas and 1400 electors i urber areas.
c) As far as practicable, the palling station should have a minimum area of 20 se.
meters so that there is no congestion inside the polling station.
dj Hatls/rooms should be well-lit and shouid ideally have two doors, so that one door can be used as the 'entrance' and the other us the 'exit' for the smooth and orderly conduct of poll.
¢) Polling stations should be set up in such @ manner that ordinarily, na vater is required to travel more than two kilometres to cast his vote. In sparsely populated hilly or forest area, this rule may have to be relaxed; in such cases to ensure that voters may not have to walk unduly long distances, palling stations may be set up for a smaller number af voters than the usual, Due consideration should be given ta the topography and the ease of travel for voters, JJn urban areas, nol more than four polling stations and, in rural areas, not more than tive polling stations should be located in the same building as far as possible, in order to avoid overcrowding and to facilitate maintenance of law and order.
gi If the polling station is for both men and women, there should be separate queues for them. For every mar entering the palling statian, two women should be allowed. The old, infirm, pregnmau women and differently abled persens should be allawed to enter the polling station withaut having to stand in the queue. When separate palling stations are provided for men and womer of a particular polling area, these should, as fur as possibile, he located in the same building.
HAC! fs MSM.
WE 2905 of 2019 a oh.
ao
h) As far as possible, the palling station should be set u P within the polling area. If a suitable building is net available in the area, then it may be set up outside the polling area bul as near to its own area as possible.
Y Where the polling area for a polling station comprises a number of willages, the polling station or stations shoule ordinarily be located in the uillage, which has the largest number of voters, However, if another village is more centrally located or has distinctly better facilities, it can be chasen as the location of polling station in preference to the village with the largest number of voters.
J Due consideration should be given to the existing obstructions like hills, forests, rivers, jungles, ete. For instance, no polling area should contain villages on either sidé of a big river; but where the village itself is divided by a river or stream it Should not be split up for polling purpose unless there are special reasons.
K) Setling up a polling station in a temporary structure should be avoided, in. vieu:
of the expenditure of erecting it and firther risk of fire, storm, etc. i} Ali villages in one polling area should fall in one administrative unit ike one police station, firkea, patwart circle ete. All polling areas within the constituency should be covered in the proposed polling stations. Ne area in the constituency Should be left out.
m} As far as possible, polling stations shaulil be located in schools (Government or aitled) and other Government or Semi-Government institutions, as the fierniture and equipment required would be available there and could be made use of without any extra cost to the State.
rn} The lecation of the polling stations in privute buildings or premises should generally be wvowded; but where this becomes unavoidable, written. consent of the awner Should be taken. In case the owner refuses to give written consent, the butidings should be requisitioned under Section 160 of RP Act 1951 if necessary. The private building so requisitioned shoulel be at the disposal of the Returning Officer at least 24 hours before the commencement of the poll and for the period required for the poll. The building and the area around it, up te a radius of two hundred meters, should be under the cantrol ofthe Presiding Officer. No watch and ward ar other personnel connected with the owner, whether armed or unarmed, should be allowed to remain either at the bolling station or uathin a racius of two hundred meters around it. The security arrangement at the polling station and within the above area on the poll day will be the responsiblity entirely of the State Police under the control of the Presiding Officer. Further, after naminations are filed, i should be ensured that the owner of such. private building is not a contesting candidate ar a known sympathizer or worker of any of the candidates at the election.
7 HACU & MSM WP S905 af 2019
a) Ne polling station should be located in police stations, hospitals, temples or places with religious significance
p) There should be no political party office within 200 meters of a polling station.
q) As faras possible, the palling stations shoukl be set up on Lhe ground floor of a building to facilitate voting for aged and disabled electars. Ramps should be installed far the use of such electors.
r) Electricity, drinking water and separate toilet facilities for men and women should be avauable as far as possible, s} The actual stte of each polling station should be chosen carefully in advance and materials, structures, fittings etc, necessary to set up a polling station complying with the requirements of law and practical convenience should be arranged.
Clause No.2.2.6 deals with Auxiliary Polling Stations. The procedure preseribed therein is as follows:
2.6.1 Before every revision af electaral roll, polling stations should be rationalized based on additions expected in the roll so that after the final publication, polling stations in urban areas do not have more than 1400 voters anc polling stations in rural areas da riot have more than 1200 voters, This will obviate the need to set up auxillary polling stations on the eve of the polls. However, in case, it does become necessary, auxiliary polling stations should be set up subject to following conditions:
a Auxitiary polling stations shall have the same serial number as that of the original polling station, bul.with a suffix "A*, *B", ete.
b) As far as practicable, the couxilicrry polling stations shall be located in the same building or premises as that of the original polling station.
c} The auxiliary palling station may be located in a separate building only wher unavoidable owing to non-avaltlability of suitable rooms, But it shall be within. the same area as that af the original polling station. d) Separate serial number shall nat be given to an auxiliary polling stetion even tf it is located vi @ separate bullding. It shall have the same serial number as that of the original polling station and its auxiliary polling station may be having the electors shown in the same part of the electoral roll.
Clause 2.7 preseribes procedure for listing of polling stations, Clause 2.8 stipulates procedure for publication of the list of polling stations in draft. According to Clause 2.8.1, under Section 25 of the Act, 1é HACSJ & MSM WP 2005 af 3019 1951, the District Election Officer is required to provide sufficient number of polling stations for every constituency, the whole or greater part of which lies within his jurisdiction, with the prior approval of the Election Commission. According to Clause 2.8.2, it should not ordinarily be difficult to decide the district in which the greater part of a constituency lies. Where, however, a Parllamentary constituency comprises, say, eight Assembly Constituencies and four of them He in one district, and the remaining tour in another district it may not be so easy to ascertain the district in which the greater part of the constituency lies. In such a case the Chief Electoral Officer should decide the question with reference to the location of the headquarter of the Returning Officer of the constituency, the number of volers of that constituency in different parts in the different districts or of the population of those parts and cammunicate the same to the District Election Officers of the districts concerned. The District ection Officer, of the district in which, according to the Chief Electoral Oflcer, the greater part of the constituency lies will then be responsible for the provision of polling stations for the entire Parlarnentary Constituency. According to Clause 2.8.3, it is also possible that in the case of a Parlamentary Constituency most of the component Assembhy constituencies may fall in one district and a portion or portions may fall in another district or districts. In such cases, the polling stations provided by the District Election Officer of the other district or districts should be adopted in whole by the District Election Officer of the district in which the major part lies as the polling stations for the Parhamentary Constituency for which he is required to provide polling stations. According to Clause 2.8.4 After the draft list has been prepared on the lines indicated above, the District Mlection Officer/ Returning Officer should publish the draft, for general information in the language or languages of the electoral roll for the constituency, for general information, inviting objections and 49 HAG) & MSMf WP 3905 of BOL suggestions by a specified date, alowing a period of not less than seven days. The notice regarding publication of the draft lst of polling stations and places at which it can be inspected should also be given in the local newspapers and written objections or suggestions imvited for consideration. Accarding to Clause 2.8.5, Copies of the lists shauld be supplied to the local branches of all recognized political parties and to the sitting members of the House of the People and Assembly Constituencies concerned ar to ex-members of the House of the Peaple or the Legislative Assembly in case the House of the People, or the Legislative Assembly stands dissolved. As per Clause 2.8.6 says that, the District Election Officer should thereafter call the party representatives and legislators for a meeting and discuss the draft list and the suggestions received about the same. Any bonatide person intending to be a candidate who wishes to take part in the discussions at this meeting should also be aliawed to do so and Clause 2.4.7 says that, the District Election Officer should then take his decision on suggestions, amend the draft list where necessary and finalize the draft list of polling stations for the constituency. He should then forward it, along with the map to the Commission, through the Chief Electoral Otfcer of the State, along with the serutiny sheet and the certificate in the forms prescribed in Annexure + and S. Clause 2.9 deals with final publication of the list of polling stations and the procedure stipulated for final publication is as follows:
2.9.1 The District Blection Officer for an Assembly Constituency shall publish the bst of polling stations provided by him, with the previous approval of the Election Camumuission, by making a copy thereaf available for inspection on CEO website and displaying a notice in the form given in Annexure 6 at his office and at the office of ERO of that constituency. The DEO shall also, as for as practicable, make a copy of the relevaru parts of the lst together with. the notice in the form appended available for inspection at the office of the Collector/ District Magistrate/Stubdivisional Magistrate / Revenue Divisional Officer / Judges and Munsif Courts / Prant Officer
20. HAC & MSM i WP_3965 af 2019 / Tahsildar / Amildar / Deputy Tahsildar / Sub-Registrar / Police Stations / Meauaadars or Sarpanches ar Union / Panchayat Ghars / Union Boards / District Board / Municipal Committee / Notified Area Committee, and at such other places and in such other manners as he may consider necessary and suitable. On such publication, the list shall be the list of polling stations for that constituency.
2.9.2 The District Election Officer can correct only printing or clerical mistakes, if ary, after such publication.
2.9.3 I shall not be necessary for the Returning Officer of a Parliamentary Constiiuency ta publish the list, a second time, except al his office, in case where elections ure being held simultaneously to the House of the People and the Legislative Assembly. He should, however, do so in the case of single election to the House of the People. 2.9.4 The entries in columns 4, 5, 8, Gand 10 of Annexure 3 ane the entries at the bottom of the list relating to the total number of voters, the total mumber of palling stations and the average munber of voters per polling stution, should be deleted before the final publication of the list.
2.9.9 The list of palling stations for an Assembly Constituency shall be published in 2.9.5 The list of palling stat foranaA bly Constituency shall be published in the language or languages in which the electoral roll for that corstituency ts published, Every modification as a result of variation in the number of voters within the polling area allotted to a polling station, consequent on the revision of electoral rolls, should be reported to the Commission for information. Changes in the location of polling stations arising out of shifting to new buildings or sites may become necessary, where the owner of the building or site originally proposed for a polling station has since become a contesting candidate or has strong sympathies for such candidate or political party, or because of the building being affected by any natural calamity. All such changes should be reported te the Commission for approval. Once the lists are approved, requests from political parties and individuals for shifting of the polling stations from one village te another or fram one site to another should be considered, only in extremely exceptional cases where there are overriding 21 WAC & MSM.) WP 3905 of 2G19 considerations of public convenience for the change proposed. If the District Election Officer/Returning Officer is satisfied, he should consult other political parties and contesting candidates and then only make his recommendations to the Commission in the matter.
District Election Officer should, on no account, make any change in the location of polling stations already approved by the Commission, without its prior approval, as any change may ultimately result in the election being declared void. Where changes become inevitable and have to be made, such changes should be referred to the Commission for prior approval. The changes should he fully publicized and all contesting candidates and political parties, ete., be informed in writing. (vide Clause 2.10}.
In view of the procedure prescribed by Election Commission of India, in the Handbook for Returning Officer, Pebruary 2019, Document 23 ~ Edition -I, only in extreme circumstances, the District Election Officer can take steps for change of polling stations, if satisfied in consultation with the poltical parties and contesting candidates and make a recommendation to the Hlection Commission for such change. The District lection Officer cannot take unilateral decisions in the matter of shifting of polling stations. Even in case of any inevitable shift of polling station, the District Election Officer cannot take amy steps, except with the prior approval of the Election Carmmission, In. view of the guidelines referred above, it is appropriate to consider a > J the contentions of the petitioner.
E The first difficulty expressed by the petitioners is that, Ward No.2 is a vulnerable area and it is difficult for the voters to pass through Ward No.2 to franchise their vote due to vulnerability. But, on this ground shift ae HAC f& MOM od WP _AGOE of BOL9 of Polling Station Nos. 116 & 117 to Ward No.3, is nat possible as there is no sufficient accommodation strictly in terms of the guidelines issued by Election Commission of (ncia to locate atleast one polling station as the available accommadation in Anganwadi Centre is not sufficient, since the prescribed minimum plinth area must not be less than 20 sq.mirs. But, the learned counsel for the respondents 1 & 2 contended that its phnoth area of Anganwadi Centre consisting of two reoms is less than the prescribed limits by Election Commission. Even if Ward No.2 is a vulnerable area, the Election Commission has to take steps in terms of Clauses 2.4 which deals with special provisions for vulnerable sections and Clause 2.5 which deals with prevention of intimidation to the voters of vulnerable sections of electorate -vulnerability mapping. When the District Election Officer took necessary steps, vulnerability is not a ground to issue direction for shifting Polling Station Nos. 116 & 117 from Ward No.1 to Ward No.3.
The other ground raised before us is that, the aged voters and women voters cannot travel for one kilometre to franchise their votes due to hot summer. As per the norms of Election Cornmission of India, polling station shall not be at a distance of more than two kilometres. But, the distance between Polling Station Nos. 116 & 117 and residential area of Ward No.3 is less than one kilometer. Therefore, the distance of one kilometre is not a ground toe issue direction.
At the end, it is contended that there is canfusion with regard to polling stations as per final electoral rails and notification issued under Section 25. The electoral roll produced before us shows some discrepancy. But, itis not known whether the electoral rolls produced before this Court is final electoral rell notification or preliminary electoral roll notification. iy for any reason, there is any discrepancy, respondents 1 & 2 can be 22 HACE & MSM 3 WP 3905 pf 2079 directed to rectify the mistakes in the electoral rolls and polling stations in terms of the guidelines issued by the lection Comunission of India immediately, But, that would not give rise to any cause for shifting Polling Station Nas. L116 & 1i? fram Ward No.l to Ward No.8 where there is no suitable accommodation for setting up polling stations.
it is also brought to the notice of this Court by the learned counsel for the respondents 1 & 2 that, in the polling stations, not less than 7 persons have to be accommodated who shall be the employees, besides election agents of different polttical parties contesting for the office of Member of Legislative Assembly, and Parliament besides supporting staff like attenders ete. Apart from that, electricity is the prime requirement. But, according to the information, Anganwadi Centre has no electricity conmection and in such case, it is impossible to set up polling station in Anganwadi Certre by installing EVMs and VVPATs. Besides the above problems, there are sorne perennial problems, viz., Jacking basic amenities hke drinking water, toilets, ramps ete. Therefore, the Mlection Cammission took a decision that Anganwadi Centre is not feasible ta accommodate Polling Station Nos. 116 & Ll? at Ward No.3 of Kosigi Vilage and such arder cannot be interfered by this Court while exercising power under Article 226 of the Constitution of India, since the jurisdiction of this Court is limited to examine the correctness of the procedure followed in taking decision to locate Polling Station Nos.116 & 117 at Ward No.1 of Kosigi Village and not the decision taken by the authorities.
The power of judicial review under Article 226 is not directed against the decision, but is confined to the decision making process. Judicial review is net an appeal from a decision but a review of the marmer in which the decision is taken. The Court sits in judgement only on the correctness of the decision making pracess and not on the correctness of za HAC & MSmt J WP_3965 of ROTO the decision itself In the 'decision-making process', if the Court, tribunal or authority deciding the case, has ignored vital evidence and thereby arrived at erroneous conclusion or has muscenstrued the provisions of the relevant Act or misunderstood the scope of its jurisdiction, the Constitutional power of judicial review by the High Court under Articles 226 & 227 of the Constitution of India ean be invoked ta set right the errors and prevent gross inpustice to the party complaining. (vide. H.B. Gandhi v. Gopinath & Sons® and Style (Dress Land) v. Union Territory, Chandigarh').
® similar question came up for consideration before the Division Bench of erstwhile High Court of Andhra Pradesh with regard to change of polling stations from one station to another in Challa Ramakrishna Reddy v. Returning Officer, Banaganapalli and others' wherein the Division Bench held that, "Phe contention raised in this case is with regard to shifting of polling station N 8.37, 39 and 40 in Koilleuntla Assembly Constituency. Previously, these three polling stations were located at Gramachavadi, Panchayat Sairam (astern Wing) and Pan chayat Satram "(Western Wing}, bat now they have been shifted to Roorr No.3, ViH B Class, Raom No.5, VW A Class and Room No.S VIL A Class of "PHS respectively in Owk Village. The question relating to location of poling stations is purely a question of fact and is within the exclusive purview of the authorities conducting the elections, and it is not for this Court to adjudicate upon the said aspects, and in fact the said aspects are not Justiceable, more so in a petition under Article 226 of the Constitution of Inclia."
" (2992) Supp (2) SCC ae "{ 1899) 7 Soc ag 25 HACI & MSM al WP 2905 af at1E Since, the judgement rendered by the Division Bench of erstwhile Migh Court ef Andhra Pradesh is binding on this Court, in view of the law declared in ML. Subbarayudu v. The State. In view af the law laid down in the above pudernent, we hold that writ petition is not maintainable.
Therefore, the Court must confine j LS jurisdiction to examine the decision making process ane not to the legality of the decigior, smea this Court while exercising power of Judicial review under Article 226 cannot sit m an appeal against the decision of an authority. If, this principle is applicd ta the present facts of the case, if is difficult to aceept the contention of the learned counsel for res pondents 1 & 2. However, it is left open to the respondents to take Steps for amendment by Issuing errate or by issuing corrigendum to final list of electeral rolls or notification issued under Section 25 of the Act immedia tely, if any error or mistalee erept in.
(In view of our foregoin g discussion, we do net find a ny wround to grant relief to these petitioners. Consequently, the petition is liable to be dismissed, In the result, the writ petition is dismissed. No costs.
Consequently, miscellaneous applications pending if ary, shall stand dismisseci.
TAIR 1955 AP OF Sdi- LNAGA LAKSHM! ASSISTANT REGISTRAR HPRUE COPYiS SECTION OFFICER One Fair Copy to the Han'ble the Acting. Chief Justice Sri C PRAVEEN KUMAR : (For His Lordship's Kind Perusal) One Falr Copy to the Hon'ble Sri Justice M.SATYANARAYANA MURTHY (For His Lordship's Kind Peérusal) To,
1. The Chief Electoral Officer, Election Cormmission of india. Room No.192. Ground Floor, Building No.5, A.P Secretariat, Velagqapudi, Amaravati. 522226 The District Election Officer' District Collector, Kurnool District, The Tahsildar, Kosigi Mandal, Kurnool District.
9 LR, Copies.
The Under Secretary, Union of India. Ministry of Law, Justice & Campany Affairs, New Delhi.
The Secretary, Andhra Pradesh Advocates' Association Library, High Court Buildings, Amaravati.
f. Two-CCs te the GP for Revenue, High Court of Andhra Pradesh fOUT]
8. One CC to SRI KASA JAGANMOHAN REDDY, Advocate {[OPUC] : 9. One CC te SRI. AVINASH DESAI, Advocate [OPUC]
10.Two C.D. Copies, : MRC Oy O RON HIGH COURT DATED: 04/04/2019 ORDER WP.No.3905 of 2019 DISMISSING THE WRIT PETITION WITHOUT COSTS.
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