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2001 DIGILAW 1122 (AP)

Government of A. P. v. Gole Vivekananda

2001-09-26

S.B.SINHA, V.V.S.RAO

body2001
S. B. SEVHA, J. ( 1 ) THESE appeals arise out of a judgment dated 31st July, 2001 passed by a learned single Judge of this court in WP Nos. 12768 and 12909 of 2001 whereby and whereunder, following its earlier judgment dated 31-7-2001 in WP no. 14245 of 2001. the learned Judge directed the appellants herein to complete conduct of elections within a period of 90 days from the date of judgment. ( 2 ) THE judgment of the learned single Judge in the aforementioned writ petition viz. , WP No. 14245 of 2001 came up for consideration before this Bench in wa 1248 of 2001. By a judgment dated 20th August 2001, the Bench, while upholding a part of the judgment passed by the learned single Judge, modified the direction as regards the time fixed for holding of election stating: "the schedule of time required commences from 23-7-2001 and even according to the schedule, by 6-8-2001 the division of MPHS data Assembly- constituency-wise is completed. As noticed in the beginning of the judgment, the learned Additional Advocate-General submits that the Government requires 120 days for identifying BC voters from mphs data and marking them in the assembly electoral rolls, calling for objections and validating the BC voters in the electoral rolls after verification. This period of 120 days includes the period of training to be imparted to verification officers for a period of 10 days and marking BC voters in the electoral rolls as well as time required for making sufficient copies of the electoral rolls is 10 days. To our mind, this is too long a time for these two stages. The entire process of validating the marking of BC voters electoral rolls can be completed within a period of 80 days. Thereafter, even the preparation and publication of final electoral rolls and publication of notification of reservations can be completed within a period of 40 days. After publication of gazette notification specifying reservation of seats (wards) in Municipal Corporation of Hyderabad, the State Election commission can complete the election process within a period of 60 days. Thereafter, even the preparation and publication of final electoral rolls and publication of notification of reservations can be completed within a period of 40 days. After publication of gazette notification specifying reservation of seats (wards) in Municipal Corporation of Hyderabad, the State Election commission can complete the election process within a period of 60 days. In the result, for the aforementioned reasons, we dispose of this writ appeal by modifying the order of the learned single Judge directing the Government to complete the process of identification of BC voters, preparation and publication of final electoral rolls with BC voters and specifying by gazette notification reservation of seats/wards in Municipal corporation of Hyderabad for backward classes and all connected requirements within a period of 120 days from today (as the process started on 23-7-2001) and in any event not later than 10-12-2001. " ( 3 ) THE learned Advodajte-General, appearing on behalf of the appellants and mr. Prabhakar appearing on behalf of the State Election Commission submitted in the present appeals that their clients are unable to hold election as directed by the learned single Judge in the impugned order dated 31st July, 2001 keeping in view the aforementioned time frame of 90 days from the date of the order. ( 4 ) MR. Rama Rao, learned Counsel appearing on behalf of the writ petitioners submits that having regard to the discrepancy, occurring in paragraphs 10 and 11 of the counter-affidavit filed on behalf of the state to the effect that the time required for the process of identification of backward class voters and marking the same in the assembly Constituencies Polling Station- wise Electoral List is 15 days commencing from 1-8-2001 to 14-8-2001 and the time required for the process of making sufficient copies of Electoral Rolls marked with backward Class voters is 7 days from 14-9-2001 to 20-9-2001, the latter process ought to have been started on 15-8-2001 itself instead and in place of 14-9-2001. ( 5 ) IT is not in dispute that rajahmundry Municipality was converted into a Municipal Corporation in terms of g. O. Ms. No. 159, Municipal Administration and Urban Development (Elections) department dated 25th March, 1995. It appears that 10 Gram Panchayats were sought to be merged with the aforementioned municipality. ( 5 ) IT is not in dispute that rajahmundry Municipality was converted into a Municipal Corporation in terms of g. O. Ms. No. 159, Municipal Administration and Urban Development (Elections) department dated 25th March, 1995. It appears that 10 Gram Panchayats were sought to be merged with the aforementioned municipality. The question as regards the validity or otherwise of the State Policy came up for consideration before this Court in WP No. 15204 of 1998 and an interim order of Stay has been passed in WPMP 18174 of 1998. The said writ petition, however, has since been dismissed. In the meanwhile, the District Collector, East godavari, made a proposal to drop the 10 gram Panchayats from the proposed merger in the Corporation limits having regard to the fact that elections were already held on 15-7-2001 for MPTCs and ZPTCs where the said 10 villages are in existence. By reason of G. O. Ms. No. 389, MA, dated 29-8-2001, the Government accepted the said proposal. ( 6 ) PART IX-A was inserted in the constitution of India by the Constitution (Seventy-fourth Amendment) Act, 1992 which came into force from 1-6-1993. municipality is defined by reason of clause (e) of Article 243-P to mean: "an institution of self-Government constituted under Article 243-Q". ( 7 ) ARTICLE 243-Q mandates constitution of a Municipal Council for a smaller urban area and a Municipal Corporation for a larger urban area. Article 243-U deals with duration of Municipalities which is in the following terms: "every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer: provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution. (2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a municipality at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in Clause (1 ). (2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a municipality at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in Clause (1 ). (3) An election to constitute a municipality shall be completed,- (a) before the expiry of its duration specified in Clause (1); (b) before the expiration of a period of six months from the date of its dissolution: provided that where the remainder of the period for which the dissolved municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Municipality for such period. (4) A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Municipality would have continued under Clause (1) had it not been so dissolved". Article 243-ZA provides that an election to the Municipalities shall be conducted in the manner as laid down under a Legislative act. Article 243-ZF reads: 243-ZF. Continuance of Existing Laws and Municipalities :notwithstanding in this Part, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth amendment) Act, 1992, which is inconsistent with the provisions of this part, shall continue to be in force until amended or repealed by a competent legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier: provided that all the Municipalities existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative assembly of that State or, in the case of a State having a Legislative council, by each House of the Legislature of that state". ( 8 ) THE purport and object of inserting Part IX-A in the Constitution by reason of the Constitution (Seventy-fourth) amendment Act, 1992 is self-explanatory. By reason of Part IX and Part IX-A of the constitution, democracy at the grass-roots level was sought to be established. ( 8 ) THE purport and object of inserting Part IX-A in the Constitution by reason of the Constitution (Seventy-fourth) amendment Act, 1992 is self-explanatory. By reason of Part IX and Part IX-A of the constitution, democracy at the grass-roots level was sought to be established. Although in Part IX, one year s period has been fixed for holding election even in relation to a newly constituted Gram Panchayat, such a provision does not exist in Part IX-A. The question which would arise for our consideration thus is as to what should be the reasonable time for the purpose of holding election in relation to newly constituted Municipal Corporation? Applying the doctrine of harmonious construction as also the time limit set out in Articles 243-U and 243-ZF of the Constitution of India, we are of the opinion that the outer limit for holding an election should be one year from the date of constitution of the Corporation. The appellants, however, have utterly failed and neglected to comply with the constitutional mandate. We may also notice that although in terms of Article 243-ZA read with 243-K the independent authority, viz. , the State Election Commission has been vested with the duty to conduct election, it had also not taken any steps in that regard. ( 9 ) ALTHOUGH it was a fit case where a writ in the nature of mandamus directing the appellants herein and the State Election commission to hold an election ought to have been issued long back, the writ petitioners-respondents had approached this court only in the month of June, 2001. In the aforementioned situation and also having regard to the peculiar facts and circumstances of this case, the question that arises for our consideration would be as to what should be the reasonable period during which the appellants should be directed to complete the process of election? ( 10 ) AS noticed hereinbefore, this Bench, in WA No. 1248 of 2001 upon taking into consideration all aspects of the matter including the decision of the Apex Court in an unreported decision of the Supreme Court being Writ Petition (Civil) No. 719 of 1995, dated 12-8-1997, observed: "what would be the reasonable time for completing the stage of specifying reservations for the purpose of Article 243-T, Section 5 (2) of the Act and section 6 of the Corporations Act? The concept of reasonable period shall vary from case to case and from situation to situation. As noticed hereinbefore, Article 243-U (3) (b) mandates holding of election within a period of six months from the date of dissolution - of the municipal body. But the said period was provided in a normal situation. If a time lesser than six months is granted by the Court, the State itself is to be blamed therefor. Even knowing fully well that a writ petition has been filed questioning the validity of its inaction in holding elections for the last about 10 years the State has not taken any steps for preparation of the electoral rolls and identification of backward classes". ( 11 ) THE question as to what should be the reasonable period of time in the matter of holding and completing the process of election in a newly constituted Municipal corporation must be considered having regard to the facts and circumstances of each case. No legal principle in relation thereto can be laid down. The appellants in their counter-affidavit before the learned single Judge have inter alia pleaded that in terms of Section 6 of the A. P. Municipal corporations Act, 1994, the Government of andhra Pradesh made Rules known as municipal Corporation (Reservation of Seats) rules, 1995 and in terms of Rule 10 of the said Rules, it is necessary to draw lots for reservation of seats in favour of backward classes for the aforementioned purpose. It is beyond any cavil of doubt that identification of backward class voters is required to be carried out by Multipurpose household Survey Data as the basis. The State, for the purpose of holding election, is also required to carry out the instructions issued by the Election commission of Andhra Pradesh for which preliminary and final notifications are to be issued. The Government took a decision to conduct election to the rajahmundry Municipal Corporation on 21-7-2001 and as noticed hereinbefore the notification in that regard has since been issued on 29-8-2001. ( 12 ) APPLYING the tests laid down in this Court s Judgment dated 10-8-2001 in wa 1248 of 2001, we are of the view that the period mentioned thereunder should be the reasonable period for holding election to Rajahmundry Municipal Corporation. ( 12 ) APPLYING the tests laid down in this Court s Judgment dated 10-8-2001 in wa 1248 of 2001, we are of the view that the period mentioned thereunder should be the reasonable period for holding election to Rajahmundry Municipal Corporation. We, therefore, direct that the entire election process i. e. , identification of backward class voters and preparation and publication of final electoral rolls with backward class voters and specifying by Gazette notification reservation of seats/wards in Rajahmundry municipal Corporation for Backward Classes and all connected requirements should take place at an early date and not later than 10-12-2001 whereafter, the State election Commission may complete the process of election within a period of sixty days. ( 13 ) WHILE considering the question as to what should be the reasonable period, the Court has also taken into consideration the fact that if things are directed to be hurried through many mistakes may occur and a large number of people would be deprived of casting their vote. The same may result in not only a farce of democracy but also give rise to large number of election petitions which course of action in the opinion of this Court should be avoided. ( 14 ) FOR the reasons aforementioned, the writ appeals are allowed to the extent indicated above. There shall be no order as to costs.