Andhra Pradesh High Court - Amravati
State Of Andhra Pradesh, vs The State Election Commission, on 15 February, 2021
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVAT__
MONDAY, THE FIFTEENTH DAY OF FEBRUARY, TWO THOUSAND AND TWENTY,ON
:PRESENT: :
THE HONOURABLE SRI JUSTICE D.V.S.S. SOMAYAJULU
|.A. No. 1 of 2021
IN
W.P.No. 3090 of 2021
Between :-
State of Andhra Pradesh, Represented by its Secretary, Consumer Affairs and Food
and Civil Supplies, Velagapudi, Secretariat Buildings, Amaravati, Guntur District
.. Petitioner
(Petitioner in W.P.No. 3090 of 2021
on the file of High Court)
AND
The State Election Commission, Andhra Pradesh, Represented by its Commissioner
...Respondents
(Respondents in-do-)
Counsel for the Petitioner =: THE G.P. FOR CIVIL SUPPLIES
Counsel for the Respondent : SRI N. ASHWANI KUMAR-STANDING COUNSEL
Petition under Section 151 CPC praying that in the circumstances stated in the
affidavit filed in support of W.P., the High Court may be pleased to direct the
respondent not to restrain the petitioner from commencement of the delivery of
essential commodities through the Mobile Dispensing Units pending disposal of
W.P. No. 3090 of 2021, on the file of the High Court.
The court while directing issue of notice to the Respondents herein to show cause
as to why this application should not be complied with, made the following order.(The
receipt of this order will be deemed to be the receipt of notice in the case).
ORDER
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU I.A.No.1 of 2021 In_ WRIT PETITION No.3090 of 2021 ORDER:
The main Writ Petition is filed questioning the order dated 05.02.2021 passed by the respondent herein, by which the launching of vehicles for door delivery of the essential commodities through the public distribution system in the rural areas was directed to be stopped till a neutral colour scheme was adopted for the said vehicles.
The brief background is being set out. It is stated that as per the G.O.Ms.No.15, dated 15.12.2019, the Government of Andhra Pradesh has decided to enhance the "last mile delivery"
of commodities under the Public Distribution System by which rations etc., would be delivered to the eligible recipients under the PDS Scheme through motor vehicles at the door step of the recipients' houses. The existence of the PDS scheme and the distribution of the essential commodities throughout the State is not in dispute. The present State Government has introduced the scheme by which 9260 vehicles would be deployed for the delivery of rice, sugar, wheat etc., directly to the consumer at his doorstep under the PDS scheme. The respondent passed an order dated 05.02.2021 directing the petitioner not to use the said vehicles for the delivery, because the existing colour scheme on the vehicles (in the opinion of the
a) State Election Commission) closely resembles the party colours of the party forming the present Government in the power and that the vehicles carry photographs of the Hon'ble Chief Minister and of the former Chief Minister. The respondent felt that these photographs / colour scheme on the vehicles would influence the voters in the ongoing elections. It is this order that is impugned.
Before going into the merits or demerits of the order, it is necessary to look into some more documents. First is the letter dated 27.01.2021 signed by the Commissioner of civil Supplies informing the State Election Commissioner-respondent that the present scheme of door delivery through vehicles is not a new scheme that is being launched and that is in fact a scheme which is initiated in 2019. This letter states that the procedure for the door delivery scheme was Officially launched on 06.09.2019 in Srikakulam District and the Hon'ble Chief Minister announced that it would be rolled out throughout the State. From December, 2019 further steps were taken i.e., acquiring rice, setting up of packaging units, packing bags etc. In August, 2020 a decision was taken to acquire four wheeler mini trucks. In September, 2020 administration sanction has issued and in November, 2020 instructions were issued for selection of beneficiaries to operate these vans. In November, 2020 instructions were issued to various departments and corporations to select the beneficiaries under S.C. quota, Christian minorities, Scheduled Tribes and dened Backward Classes. Bank of Baroda, a nationalized bank, issued loan sanctions in January, 2021.
The next letter that is important is letter dated 28.01.2020 addressed by the respondent. He points out that the electoral code of conduct came into effect on 21.01.2021 but he permitted the launching of the scheme in urban areas and directed that further examination would be carried out since the colours on the vans are the colours of the ruling party. This letter dated 28.01.2021 was challenged by the State in W.P.(SR) No.2928 of 2021.
The order passed by the learned single Judge in W.P.(SR).No.2928 of 2021 is also part of the material papers. Paragraphs 8 to 11 of the Order dated 31.01.2021 in W.P.(SR) No.2928 of 2021, are important and a part of the same are reproduced hereunder:
"8, It appears from the aforesaid clauses the jurisdiction of the Commission to impose a restriction/prohibition on new as well as ongoing schemes cannot be faulted. However while imposing such an embargo, the Commission may look into the nature of the scheme, stage of completion and the necessity of its continuation, i.e., whether stoppage or delay of its utilization or functioning would be contrary to public interest. Moreover, instead of putting an absolute embargo or prohibition on such schemes of public interest, it is open to the Commission to ensure the commissioning of such schemes through civic authorities without associating political functionaries or fanfare or ceremonies of such nature, which would give an impression that commissioning of such scheme has been undertaken with a view to influence the electorate in favour of the ruling party. The scheme in question when judged from the aforesaid perspective is undoubtedly a public utility scheme --
undertaken by the State. Right to food and nutrition is a Fundamental Right of every citizen. It is also the constitutional duty of the Commission to ensure free, fair and impartial elections to the panchayats. How to balance the Fundamental Right to access to food and nutrition of the people on one hand with the constitutional duty to ensure purity of the election process on the other hand is an issue for the Commission to decide in the first place. In order to enable itself to do so after considering all aspects, the Commission had on a prima facie finding suspended the public utility scheme. Action of the Commission cannot be said to be either without jurisdiction or actuated with any bias or malice.
Seneca rnc eene Caner eseneces
11. In the light of the aforesaid submissions and as the Commission has not taken a final decision with regard to the issue whether the policy of supply of essential commodities via Mobile Dispensing Units may be permitted without affecting the fairness of the election process, I give liberty to the State to approach the Commission with necessary materials in order to demonstrate that the aforesaid policy falls within Clause (2) of the Model Code of Conduct and would be undertaken in the manner as has been envisaged therein, that is, by use of civic authorities alone without associating any political functionary or use of fanfare or ceremonies at the behest of political parties to justify their claim of proprietorship over the scheme. ...........ccccccccccseueeeeee While taking such decision, the Commission is advised to bear in mind its own observations with regard to utility of the scheme benefiting members of the weaker sections and the doctrine of proportionality entrenched in the realm of public law while resolving conflicts between competing right as in the present case, namely, the right of continued access to food and nutrition on one hand and the right to a free, fair and impartial election on the other.
The State thereafter through its Chief Secretary addressed a letter dated 01.02.2021 setting out its views on the matter and sought permission from the respondent to implement the scheme.
The impugned order dated 05.02.2021 was passed by the Respondent after considering the said letter, after examining the vehicles, and the last three paragraphs of the order are reproduced hereunder:
"The main purpose of the scheme being the delivery of food grains at door steps, a subsidiary purpose of projecting normal Government programmes is condonable. However, it would appear after due appreciation of facts, that projection of party manifesto is a primary and predominant objective if not an equal consideration to that of delivery of food grains. If the Government's goal is really welfare, they should be able to implement the scheme without insisting on colour scheme which is of trivial consideration. Insisting on 'form' father than focusing on 'content' in Commission's view is giving a short shrift to 'welfare'.
The Commission, therefore, would like to state in unambiguously terms that the neutral colour scheme to be adopted by the State Government shall be continued till the completion of MPTC/ZPTC elections under contemplation.
In conclusion, the Government accordingly may take further action to produce a vehicle with neutral colour of its choice and offer it for inspection at the earliest to enable the Commission to approve the same and permit the introduction of the scheme in rural areas notwithstanding the multiple and substantial deficits now condoned, in due regard to the observation of the Hon'ble A.P. High Court."
This Court has heard learned Advocate General for the State and Sri N.Ashwani Kumar, learned standing counsel for the respondent. Both the counsel argued the matter at length at the interlocutory stage itself.
Learned Advocate General submits the following:
1. The scheme is formulated for the poor and downtrodden and is formulated in order to deliver the essential commodities through Public Distribution System directly at the door steps.
2. He points out that it is an ongoing scheme and is not a new scheme. Relying on the letter of the Commissioner of Civil Supplies, dated 27.01.2021, he submits that a step by step process has been detailed in this letter and it reveals that it has been initiated in July, 2019 and was followed up continuously. He points out that the beneficiaries were identified in November, 2020 and loans were sanctioned in January, 2021 for purchase of the vehicles.
3. He argues that it is a Government of Andhra Pradesh Scheme and not a party scheme and that therefore, it is purely a "State Programme".
4, He argues that the elections to the Panchayat are being held on non-party basis also.
5. Relying on the passages of the order of the learned Single Judge in W.P.(SR) No.2928 of 2021 as also the letter dated 8.01.2021 and the impugned order, learned Advocate General argues that both the learned single Judge and the State Election Commission held that the scheme should continue.
6. He states that more than 9,000 vans have been procured by the beneficiaries, who have secured the loans, and that they are lying idle because of the order granted. The financial losses are high as per the learned Advocate General.
7. He submits that the painting or repainting of the van will take a lot of time and would be very expensive and that the beneficiaries viz., the poor and the downtrodden would suffer if food grains are not delivered.
8. He also highlights the fact by relying on the writ affidavit, more particularly paragraphs 17 and 18 highlighted the financial and social losses that would arise not only to the State but also to the operators and the public / beneficiaries.
9. Learned Advocate General submits that public good should outweigh all other issues.
10. Relying upon the Supreme Court decision in Common Cause v Union of India! and the further order published in State of Karnataka v Common Cause and Others7learned Advocate General submits that the publication of the photographs of the Chief Minister or display of its feature is not contrary to the law, even during the election period.
11. Lastly, he points out from the photographs, which are filed, that if the van is viewed from all sides it only has the Government of Andhra Pradesh symbols and that it is being run by the Civil Supplies Department. The colours, green, blue, light yellow and white, which are used, in the submission of the learned Advocate General, are common colours and the 1(2015) 7 SCC 1 2 (2016) 13 SCC 639 | finding of the State Election Commission that ithe very closely match the party flag colours is not correct.
For all these reasons, learned Advocate General argues that the impugned order should be suspended, at least temporarily pending final decision, to enable the distribution of rice.
In reply to this, Sri N. Ashwini Kumar, learned standing counsel for the State Election Commission argues as follows:
l.that the State Election Commission recognized the importance of the scheme and that it benefits the public too;
2.that the impugned order is not a final order that has been passed and that this State Government was asked to repaint the van with neutral colours and come back to the State Election Commission;
3.that the State Election Commissioner is not inimically disposed towards the State or the party to which the Government belongs and that as the colour scheme of the van and the photographs that are highlighted therein will have a tendency to influence the voters he had to interfere in order to ensure that a free and fair election takes place.
4. It is also submitted that if the intention of the State Government was only to supply the food grains etc., it can comply with the order by painting the vans with neutral colours and then continue the scheme.
5. Relying upon the case laws cited, which are filed as a Separate annexure, learned standing counsel argues that in similar circumstances, the Madras High Court in a judgment reported in All India Dravida Munnetra Kazhagam and Ors., v The Chief Election Commissioner, Election Commission of India and Ors.,3 granted an order restraining the painting of two leaves, which was a party symbol. To the similar effect the judgment of the Kerala High Court reported in Rajaji Mathew Thomas v The Election Commission of India and Ors.,+. Learned standing counsel, therefore, argues that the impugned orders do not reveal any bias etc., and that the intention of the State Election Commission was only to ensure a free and fair poll.
6. He also argues that the power of the State Election Commission to interfere in such matters is upheld by the learned Single Judge in W.P.(SR) No.2928 of 2021.
This Court after considering the submissions made notices that the order passed in W.P.(SR) No.2928 of 2021 is clear and categorical. The learned single Judge has held that the purpose of the scheme/utility of the scheme is to benefit the members of the weaker section and that the doctrine of proportionality should be kept in mind before the order is passed by the SEC by balancing the conflicting claims. Even the State Election Commission in its impugned letter noticed the importance of the scheme for the delivery of its commodities to the general public. So it is clear that the distribution of the 3 MANU/TN/0324/2014 = (2014) 3 MJ 580 4 MANU/KE/0286/2011 = 2011 (3) KLT(SN) 72 10 | commodities to the poor/needy etc., and its importance is not in doubt.
The surviving issue is therefore about the color scheme, photos etc., on the vans meant for the distribution and the order passed.
As far as the photographs of the leaders on the van, the colour scheme on the van and the highlighting of the Navaratnalu scheme is concerned, this Court is of the opinion that the Hon'ble Supreme Court of India in State of Karnataka v Common Cause and Others' answers many of the issues raised.
An analysis of the facts in this case shows that Public Interest Litigations were filed before the Honourable Supreme Court questioning the manner and method in which public funds were used for public advertisement etc., for deriving undue political advantage for political parties and personifying / glorifying certain individuals or leaders. The petitioners also raised an issue in this PIL about such practice becoming rampant on the eve of an election.
The Hon'ble Supreme Court of India then formed a committee to frame certain guidelines which were submitted to the Court. The guidelines were also considered by the Hon'ble Supreme Court of India. In paragraph 4-D of the guidelines it was stipulated by the committee that advertisements before and during the elections should be regulated and that during 5 (2016) 13 SCC 639 11 the period prior to the elections only advertisements as required by law ( Public health / safety advisory / job / contract advertisement) should be released. This was resisted by the Union of India in their submissions. The objections raised by the Union of India as can be seen from paragraph 20 of the SCC Online Web Edition of this judgment are as follows:
"90. A consideration of the objections filed by the Union would go to show that the Union seriously disagrees with the recommendations of the Committee in respect of the following matters:
1. Restricted publication of photographs of the government functionaries and political leaders along with the advertisement etc.,
2. Appointment of an Ombudsman.
3. The recommendation with regard to performance audit by each Ministry.
4. Embargo on advertisements on the eve of the elections."
After the arguments were heard the Hon'ble Supreme Court of India held as follows in paragraph 33:-
"33, We close the matters on the aforesaid note by approving and adopting the recommendations of the Committee "except" what has been specifically indicated above with regard to:
1. Publication of photographs of the government functionaries and political leaders along with the advertisement(s);
2. Appointment of an Ombudsman.
3. The recommendation with regard to performance audit by each Ministry.
4, Embargo on advertisements on the eve of the elections."
The embargo on advertisements on the eve of elections or the publication of the photographs of Government 12 | | functionaries and political leaders was thus not interdicted by the Hon'ble Supreme Court of India. In the judgment, the Hon'ble Supreme Court of India held that advertisements could be published only with the photographs of the President of India, the Prime Minister of India and the Chief Justice. Later, a review application was filed and the permission for publication was extended to the photographs of the Governors, the Chief Ministers etc. This is published in State of Karnataka case. Nothing to the contrary was brought to this courts notice. Therefore, as the law stands there is no strict embargo on spending public funds for the publication of the photographs of a Chief Minister of State on the eve of an election etc. The cases cited by the SEC are all cases prior to this judgement and are of the various High Courts and thus not strictly applicable.
In addition, this Court also notices from a prima facie reading of the material that is now available that it cannot be strictly said that this is a new scheme that has been introduced by the party in power with the elections in mind. As mentioned earlier various steps taken for the launch of the scheme and the delivery of the commodities indicates that action is being taken since long before the actual code of conduct has come into force. The distinction between the State Government scheme and the ruling party's scheme is also a matter which requires further examination.
13As far as the colour scheme is concerned it is a fact that the party colours of the Y.S.R.C.P. party are Blue, White and Green with an image of schemes. Colour photographs of a van are filed as part of the record. If the colour scheme on the van is examined it is noticed that the colour green is the predominant colour. There is a shade of blue in the form ofa wave. The colour yellow is also used here. All of these are common colours. Apart from that the name of Andhra Pradesh State Civil Supplies Corporation is mentioned. The quality of the product (rice) is extolled in yellow and red. Similarly, in telugu the following words are highlighted (door step delivery of essential commodities). On the back of the van the picture of two leaders and the Navaratnas scheme is printed. In the middle of the circle images of two leaders are present with words written in a circle all around. On one side of the van there is a picture of current Chief Minister of the State.
In view of the judgment of the Hon'ble Supreme Court of India, this Court is of the prima facie opinion that mere presence of a photograph by itself cannot be said to be contrary to the law. Only in two places on the van - one the side and at the back, the pictures of the leaders can be seen. Rest of the van is painted with words, images etc., without the name of the political party or of its leaders. The colour green is the main / predominant colour used and it cannot be associated with a political party by itself. Apart from white (which is a neutral and a popular colour) the other colour of this political { 1 party is blue which is not predominantly used and is mixed with yellow. After considering the above this court is of the prima facie opinion that the conclusion in the impugned order is not correct and the prima facie impression is that it is not meant to highlight a particular party or its leaders.
Apart from all of this, on the question of proportionality this Court notices that the larger purpose behind the scheme is the delivery of food grains at the doorstep of the poor and the needy. The scheme as mentioned earlier is being implemented in the urban areas of the State. Thousands of vehicles have been purchased to deliver the commodities to 1.12 crore families covering 3.25 crore beneficiaries. The operators have purchased the vans. They have invested the money. The loans are repayable to a public sector bank. The cost of repainting all the vans etc., as directed is also a factor to be considered. In addition, two phases of the elections have already been completed to certain Panchayats in the rural areas by the time the matter was filed and heard. Therefore, the balance of convenience is in favor of the petitioners for all the above reasons and in the prima facile opinion of the court stopping the entire scheme till a neutral colour is approved by the respondent is not called for. The greater good in this case is the delivery of food grains/essential commodities to the needy. The crowding at the ration depots, the commute of the beneficiaries etc., can be avoided in this pandemic period if delivery is effected at the doorsteps.
15Apart from the facts - "Salus Populi Suprema Lex' or the health/welfare of the people is the supreme law is the titling legal factor for this interim order.
Therefore, the impugned order dated 05.02.2021 is temporarily suspended till 15-03-2021 (four weeks) and respondent is directed not to restrain the petitioner from using the mobile delivery vans for the delivery of the essential commodities till then.
Only prima facie opinions are expressed in this order and not final conclusions.
List the Writ Petition on 15.03.2021.
Sd/-V.Diwakar ASSISTANT //TRUE COPY// yan sees TRA SECT OFFICER To for
1.The Commissioner, State Election Commission, Andhra Pradesh.(By RPAD)
2.Two CCs to the G.P. for Civil Supplies, Hi i . , High Court of A.P., at Amaravat
3.One CC to Sri N. Ashwani Kumar, Standing Counsel(OPUC) aroun)
4.One spare copy.
TKK HIGH COURT DVSS.J DT.15-02-2021.
ORDER |L.A.No. 1 of 2021 IN W.P.No. 3090 of 2021 INTERIM SUSPENSION