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Telangana High Court · body

2020 DIGILAW 24 (TS)

Appala Ganesh Chakravarthy v. State of Telangana

2020-01-07

P.NAVEEN RAO

body2020
ORDER : P. Naveen Rao, J. 1. Extensive submissions are made by learned counsel for petitioners Sri Naresh Reddy, pointing out several illegalities in pre-election process. 2. Learned counsel for petitioners pointed out 'hat in several wards, the voters are shown without reflecting the house numbers of the voters and in many cases, the house numbers are not mentioned but plot numbers are mentioned. Several illegalities were pointed out but the same are not rectified. Learned counsel for petitioner vividly demonstrated that in several wards, there are alterations in voters lists published by the Municipality contrary to entry in the voters list drawn by Election Commission of India. He has pointed out that in several wards, house numbers are mentioned as 00', inaccurate house numbers are shown, against open plot numbers, voters names are shown. These voters were not found in the respective wards in the voters list published by Election Commission of India, and brought into these wards with an intention to influence the result of the election to concerned wards. Further, particularly with reference to ward numbers 6, 7, 8 and 19 house numbers mentioned in the documents filed along with the counter affidavit are not shown in the voters list and house numbers varies in various lists. Learned counsel for petitioners further demonstrated that in certain wards, the boundaries reflected are also over lapping and it is not possible to reflect the same boundaries on North, South, East and West sides and this would show that the exercise was not properly undertaken. 3. Learned counsel would submit that as a former Chairman of the Municipality, having in depth knowledge of the topography of the Municipality, ever since the election process was set in motion, petitioner has been pointing out the illegalities committed, requesting to undertake corrections and make the record proper but his objections were not considered objectively. Copies of specific objections raised by petitioner are placed on record. He would therefore submit that entire exercise now undertaken is vitiated and elections cannot be conducted to the Municipality without rectifying glaring mistakes. 4. Learned standing counsel submits that the errors pointed out by the petitioner were already answered in the counter. He would submit that there were some typographical mistakes occurred in the reflection of boundaries and were corrected. He would therefore submit that entire exercise now undertaken is vitiated and elections cannot be conducted to the Municipality without rectifying glaring mistakes. 4. Learned standing counsel submits that the errors pointed out by the petitioner were already answered in the counter. He would submit that there were some typographical mistakes occurred in the reflection of boundaries and were corrected. He would submit that based on representation of voters and on verification of their residences, Aadhar Card, Ration Card and other details, their names are shown in respective wards though in the electoral list drawn by Election Commission of India, their residential addresses are forming part of other wards. However, there is no clear answer on the reflection of names of certain voters in wards without showing the house numbers and contrary to particulars shown in the electoral list published by Election Commission of India. Prima facie, it appears, those voters actually belong to other wards or are not residents of the Municipality. 5. Learned counsel representing State Election Commission submits that State Election Commission is not concerned with preparation of voters list and the Municipality is authorized to undertake the exercise and therefore cannot respond to the contentions urged on illegalities in the voters list and reflection of boundaries. 6. Prima facie, the exercise undertaken by the Municipality is not valid. As required by Section 195-A of the Telangana Municipalities Act, 2019 (for short, Act, 2019'), entries in the voters list drawn by Election Commission of India shall be the basis to determine total number of voters in the Municipality, arrive at average voters by deciding the total voters with total number of wards and apportion the voters in the respective wards. The Municipality has no competence to tinker with the voters' details. Allotment of voters to various wards depends upon the residential address shown in the voters list published by the Election Commission of India. Whereas, contrary to the entries in the voters list published by Election Commission of India the Municipality has changed the voters to different wards. The Municipality has no competence to tinker with the voters' details. Allotment of voters to various wards depends upon the residential address shown in the voters list published by the Election Commission of India. Whereas, contrary to the entries in the voters list published by Election Commission of India the Municipality has changed the voters to different wards. When electoral lists drawn by Election Commission of India contains details of the residence of a voter, but that voter has an objection to the house number reflected therein or claims that he/she has shifted his/her residence to another area and these two areas are formed into two different wards, it is for that voter to make an application to Electoral Registering Officer with request for change of his residential particulars and after such corrections are effected by Election Commission of India and notified, same can be taken note of. The exercise now undertaken by Nirmal Municipality would amount to tinkering with the voters list drawn by Election Commission of India and per-se illegal. The voters have to be shown in the concerned wards where the house numbers mentioned in the electoral list published by Election Commission of India is shown as part of the details mentioned against that ward. It appears, persons who are not enrolled as voters in the Nirmal Municipality are shown in the voters list prepared by the Municipality. 7. Conducting free and fair election is one of the fundamental aspects of democracy. Thus, Constitution of India created autonomous Election Commissions of India to conduct elections to Indian Parliament and State Legislatures and Election Commission at the State Level to conduct elections to Local Bodies. One of the fundamental requirements of fair election is to include all voters of an area, in this case Municipality, to enable them to exercise their right to elect public representatives of their choice. Thus, no voter of the Municipality can be excluded. At the same time, it is the duty of the State Election Commission and the State to ensure that there are no election malpractices which would influence the result of the election. One of the important parameters to eliminate such malpractices is to prepare proper voters list. Thus, no voter of the Municipality can be excluded. At the same time, it is the duty of the State Election Commission and the State to ensure that there are no election malpractices which would influence the result of the election. One of the important parameters to eliminate such malpractices is to prepare proper voters list. Having regard to this aspect of pre-election process, if serious illegalities are found in the voters lists of various wards, it is the duty of the State Election Commission and the Municipality to look into the grievances and rectify the mistakes. Prima facie, the Court noticed grave illegalities in the preparation of ward-wise voters list which may influence the result of election in the concerned wards and in spite of pointing out illegalities, they are not rectified. Having regard to purity of election process, it is eminently necessary to rectify the mistakes before conducting elections. 8. Having regard to the infirmities noticed above, which vitiate the election process, it is imperative to note down the principles laid down by the Supreme Court and this Court. They are as under: 8.1. Few aspects of the opinion expressed by the Constitution Bench of the Hon'ble Supreme Court in Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman (1985) 4 SCC 689, are as under: "a. We find it somewhat odd that, in the instant case, individuals whose rights are alleged to have been violated have not come to the Court at all. Not one out of the eight lacs. Persons who have come to the Court are members of a political party who claim to represent them. While we are on this question, it must be emphasized that election laws do not recognise political parties except in Rule 11(c) of the Registration of Electors Rules, 1960, the Election Symbols (Reservation and Allotment) Order, 1968, and Explanation 1 to Section 77(1) of the Act of 1951. The right to be included in the electoral roll or to challenge the inclusion of any name in the roll is a right conferred upon an individual and not upon any political party. The right to be included in the electoral roll or to challenge the inclusion of any name in the roll is a right conferred upon an individual and not upon any political party. The petitioners are espousing the cause of unnamed and undisclosed persons through a writ petition, which does not even claim to possess a representative capacity...." [para 16] b. The revision of electoral rolls is a continuous process which has to go on, elections or no elections, [para 17] c. The election has to be held on the basis of the electoral roll which is in force on the last date for making nominations. If that were not so, the easiest expedient which could be resorted to for the purpose of postponing an election to the Legislature would be to file complaints and objections, omnibus or otherwise, which would take days and months to decide. It is not suggested that claims and objections filed in the prescribed form should not be decided promptly and in accordance with law. But, the important point which must be borne in mind is that whether or not a revision of an electoral roll is undertaken and, if undertaken, whether or not it is completed, the electoral roll for the time being in force must hold the field. Elections cannot be postponed for the reason that certain claims and objections have still remained to be disposed of. Then, claimants and objectors could even evade the acceptance of notices and thereby postpone indefinitely the decision thereon, The holding of elections to the Legislatures, which is a constitutional mandate, cannot be made to depend upon the volition of interested parties, [para 19] d. Thus, the fact that an appeal is pending under Rule 23(1) against the decision of a Registration Officer under Rule 20, 21 or 21-A does not constitute an impediment to the publication of the roll and to the roll, upon such publication, coming into force. Rule 20 provides for inquiry into claims and objections; Rule 21 provides for inclusion of names which are left out of the roll owing to inadvertence or error; while, Rule 21-A provides for the deletion of names of dead persons and of persons who cease to be, or are not, ordinary residents of the particular constituency. Rule 20 provides for inquiry into claims and objections; Rule 21 provides for inclusion of names which are left out of the roll owing to inadvertence or error; while, Rule 21-A provides for the deletion of names of dead persons and of persons who cease to be, or are not, ordinary residents of the particular constituency. Notwithstanding the fact that the roll contains these errors and they have remained to be corrected, or that the appeals in respect thereof are still pending, the Registration Officer is under an obligation to publish the roll by virtue of Rule 22. [para 20] e. Election laws are self-contained codes. One must look to them for identifying the rights and obligations of the parties, whether they are private citizens or public officials, [para 22] f. On the question as to the connotation of the word 'election' in Article 329(h), we may point out three decisions of this Court, one of which is N.P. Ponnuswami [ AIR 1952 SC 64 ] referred to above, the other two being Rampakavi Rayappa Belagali v. B.D. Jatti [ (1970) 3 SCC 147 ] and Mohinder Singh Gill v. Chief Election Commissioner, New Delhi [ (1978) 1 SCC 405 ] It was held in Ponnuswami [ AIR 1952 SC 64 ] that word 'election' is used in Article 329(5) in the wide sense of covering the entire process culminating in the election of the candidate. Fazi Ali, J., who spoke for the Court in that case, has referred to a passage in Halsbury's Laws of England to the following effect: (SCR p. 227) "It is a question of fact in each case when an election begins in such a way as to make the parties concerned responsible for breaches of election law, the test being whether the contest is 'reasonably imminent'. Neither the issue of the writ nor the publication of the notice of election can be looked to as fixing the date when an election begins from this point of view. Neither the issue of the writ nor the publication of the notice of election can be looked to as fixing the date when an election begins from this point of view. Nor, again, does the nomination day afford any criterion." In Rampakavi Rayappa Belagali [ (1970) 3 SCC 147 , 150 : AIR 1971 SC 1348 ], it was held that the scheme of the Act of 1950 and the amplitude of its provisions show that the entries made in an electoral roll of a constituency can only be challenged in accordance with the machinery provided by the Act and not in any other manner or before any other forum unless, some question of violation of the provisions of the Constitution is involved. In Mohinder Singh Gill [ (1978) 1 SCC 405 : AIR 1978 SC 851 : (1978) 2 SCR 272 ], Krishna Iyer, J., speaking for the Constitution Bench, has considered at great length the scope and meaning of Article 329(b) of the Constitution. Describing that article as the "Great Wall of China", the learned Judge posed the question whether it is so impregnable that it cannot be bypassed even by Article 226. Observing that "every step from start to finish of the total process constitutes 'election', not merely the conclusion or culmination", the judgment concludes thus: (SCC p. 427, para 26) "The rainbow of operations, covered by the compendious expression 'election', thus commences from the initial notification and culminates in the declaration of The return of a candidate." [para 27] g. We have expressed the view that preparation and revision of electoral rolls is a continuous process, not connected with any particular election. It may be difficult, consistently with that view, to hold that preparation and revision of electoral rolls is a part of the "election" within the meaning of Article 329(b). Perhaps, as stated in Halsbury in the passage extracted in Ponnuswami [MR 1952 SC 64 : 1952 SCR 218 , 234 : 1 ELR 133], the facts of each individual case may have to be considered for determining the question whether any particular stage can be said to be a part of the election process in that case. Perhaps, as stated in Halsbury in the passage extracted in Ponnuswami [MR 1952 SC 64 : 1952 SCR 218 , 234 : 1 ELR 133], the facts of each individual case may have to be considered for determining the question whether any particular stage can be said to be a part of the election process in that case. In that event, it would be difficult to formulate a proposition, which will apply to all cases alike, [para 28] h. Secondly, though the High Court did not lack the jurisdiction to entertain the writ petition and to issue appropriate directions therein, no High Court in the exercise of its powers under Article 226 of the Constitution should pass any orders, interim or otherwise, which has the tendency or effect of postponing an election, which is reasonably imminent and in relation to which its writ jurisdiction is invoked. The imminence of the electoral process is a factor which must guide and govern the passing of orders in the exercise of the High Court's writ jurisdiction. The more imminent such process, the greater ought to be the reluctance of the High Court to do anything, or direct anything to be done, which will postpone that process indefinitely by creating a situation in which, the Government of a State cannot be carried on in accordance with the provisions of the Constitution. India is an oasis of democracy, a fact of contemporary history which demands of the courts the use of wise statesmanship in the exercise of their extraordinary powers under the Constitution. The High Courts must observe a self imposed limitation on their power to act under Article 226, by refusing to pass orders or give directions which will inevitably result in an indefinite postponement of elections to legislative bodies, which are the very essence of the democratic foundation and functioning of our Constitution. That limitation ought to be observed irrespective of the fact whether the preparation and publication of electoral rolls are a part of the process of 'election' within the meaning of Article 329(b) of the Constitution. [para 30(1)]" 8.2. In Anugrah Narain Singh v. State of U.P. (1996) 6 SCC 303 , the Hon'ble Supreme Court held that: "a. validity of laws relating to delimitation and allotment of seats made under Article 243-ZA cannot be questioned in any court. [para 30(1)]" 8.2. In Anugrah Narain Singh v. State of U.P. (1996) 6 SCC 303 , the Hon'ble Supreme Court held that: "a. validity of laws relating to delimitation and allotment of seats made under Article 243-ZA cannot be questioned in any court. No election to a municipality can be questioned except by an election petition. Moreover, it is well settled by now that if the election is imminent or well under way, the court should not intervene to stop the election process. If this is allowed to be done, no election will ever take place because someone or the other will always find some excuse to move the court and stall the elections, [para 12] b. But the principles laid down in Lakshmi Charan Sen case [(1985) 4 SCC 689] will apply in full force to municipal elections because various articles dealing with holding of municipal elections in Part IX-A of the Constitution are similarly worded. In fact, highest importance has been attached to holding of panchayat as well as municipal elections by the Constitution, [para 17] c. In the case of State of U.P v. Pradhan Singh Kshettra Samiti, AIR 1995 SC 1512 , the Supreme Court held that any challenge to the validity of the delimitation of constituencies or the allotment of seats to such constituencies and the election to any panchayat should not be entertained by Court except on the ground that before the delimitation, no objection was invited and no hearing was given." 8.3. In Eppala China Venkateswarlu v. Secretary to Government, Social Welfare (2006) 5 ALD 409, on review of precedent decisions, the Division Bench culled out the principles which govern disputes regarding elections to local bodies: "48. The propositions which can be culled out from the above noted judgments of the Supreme Court, this Court and of the Division Bench of Gujarat High Court are: (1) The word "election" appearing in Article 243-O and the provisions contained in the 1994 Act and the rules framed there under bears larger connotation. It embraces and includes all steps commencing from the date of notification by the Competent Authority, whereby the electorates are called upon to elect Sarpanchas and Ward Members and ending with declaration of result. It embraces and includes all steps commencing from the date of notification by the Competent Authority, whereby the electorates are called upon to elect Sarpanchas and Ward Members and ending with declaration of result. Reservation of offices of Sarpanch and Wards in favour of Scheduled Castes, Scheduled Tribes, Backward Classes and Women, preparation, printing and publication of electoral rolls (provisional and final), filing of nomination papers, scrutiny of nomination papers and withdrawal thereof, publication of the list of eligible candidates, allotment of symbols, appointment of election agents, the conduct of poll, counting of votes, declaration of results and all other ancillary steps taken for the purpose of holding elections fall within the ambit of the term "election". (N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, Mohinder Singh Gill v. Chief Election Commissioner, Election Commission of India v. Shiuaji and Election Commission of India v. Ashok Kumar (supra)) (2)(i) The bar contained in Article 243-O, which begins with non-obstinate clause, debars all Courts from entertaining any challenge to law relating to delimitation of constituencies or allotment of seat made or purporting to be made under Article 243-K or election to the Panchayats. This bar also operates against the High Court's power of judicial review under Article 226. (N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, Durga Shankar Mehta v. Raghuraj Singh, Election Commission of India v. Shwaji and Election Commission of India v. Ashok Kumar (supra)) (ii) The proposition contained in clause (i) above is subject to the condition that challenge to the delimitation may be entertained in exceptional cases where no objections were invited and no hearing was given provided that such challenge is made before issue of notification for holding election. (State of UP. v. Pradhan Sangh Kshetra Samiti (supra)) (iii) The bar contained in Article 243-O(b) operates only till the adjudication of election dispute by an adjudicatory forum created by or under any law made by the Legislature of the State. An order made by an adjudicatory forum constituted under the law made by the State Legislature can be called in question by filing a petition under Article 226 of the Constitution. An order made by an adjudicatory forum constituted under the law made by the State Legislature can be called in question by filing a petition under Article 226 of the Constitution. (3) The bar contained in Article 243-O operates at all stages of the election i.e. notification issued by the State Election Commission calling upon the electorate to elect Sarpanches and Ward Members; reservation of offices of Sarpanches in favour of Scheduled Castes, Scheduled Tribes, Backward Classes and Women; preparation, printing and publication of electoral rolls (provisional and final), filing of nomination papers, scrutiny and withdrawal thereof; allotment of symbols; appointment of election agents; counting of votes and declaration of result. (4) The bar contained in Article 243-O(b) does not operate qua challenge to the constitutionality of a statutory provision relating to elections, though, even in such a case, the High Court will be extremely loath to pass an interlocutory order which has the effect of stalling or jeopardizing the process of election or which may result in the constitutional hiatus on account of indirect violation of Article 243-K(3) read with Article 243-K(1). (5) The observations made in Harnek Singh v. Charanjit Singh supra) have to be read in the light of the law laid down by the Constitution Benches in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, Durga Shankar Mehta v. Raghuraj Singh, Mohinder Singh Gill v. Chief Election Commissioner (supra) and by three Judges Bench in Election Commission of India v. Ashok Kumar (supra). (6) The High Court may entertain petition under Article 226 of the Constitution if the prayer contained in such petition does not have the effect of interpreting or delaying the process of election (Election Commission of India v. Ashok Kumar (supra)". 9. It is the consistent view of the Hon'ble Supreme Court and this Court that once an election notification is issued, the writ Court should not interdict the election process. Further, it is also the view expressed by Hon'ble Supreme Court and this Court that when the issue considered by the writ Court is proximate to the election notification, the writ Court should not interfere and stop the election process. 10. Further, it is also the view expressed by Hon'ble Supreme Court and this Court that when the issue considered by the writ Court is proximate to the election notification, the writ Court should not interfere and stop the election process. 10. Having regard to the law laid down by the Supreme Court, as the infirmities noticed above are grave enough, while not imposing any spokes impairing the election process, there is still scope to attend to grievances ventilated by petitioners, which are apparently grave. As noted hereunder, it is still permissible for the State Election Commission and the respondents to attend to the mistakes in drawing up the voters list. 11. In this context, it is appropriate to note the provision in Section 195-A of the Act, 2019, which reads as under:-- "S. 195-A. Preparation and publication of electoral roll for a Municipality:--(1) The electoral roll for a municipality shall be prepared and published by the person authorized by the State Election Commissioner in such manner by reference to such qualifying date as may be prescribed and the electoral roll for a Municipality shall come into force immediately upon its publication in accordance with the rules made by the Government in this behalf. The electoral roll for a municipality shall consist of such part of the electoral roll for the Assembly constituency published under the Representation of the People Act' 1950 as revised or amended under the said Act, up to the qualifying date as relates to a municipality, or any portion thereof: Provided that any amendment, transposition or deletion of any entries in the electoral roll, or any inclusion of names in the electoral roll of the Assembly Constituencies concerned, made by the Electoral Registration Officer under section 22 or section 23, as the case may be, of the Representation of the People Act, 1950, up to the date of election notification, for any election held under this Act, shall be carried out in the electoral roll of the municipality and any such names included shall be added to the part relating to the concerned ward. Explanation:- where in the case of any Assembly constituency there is no district part of the electoral roll relating to the municipality, all persons whose names, are entered in such roll under the registration area comprising the municipality and whose addresses as entered are situated in the municipality shall be entitled to be included in the electoral roll for the municipality prepared for the purposes of this Act." 12. According to provision in Section 195-A(1) of the Act, 2019, the voters list published by the Election Commission of India under the Representation of Peoples Act, 1950 shall be the basis for preparation of voters list of a municipality, apportionment of voters to various wards, determination of social status, reservation of wards in favour of SC/ST/BC and Women and reservation of office of Chairperson/Mayor. According to proviso to sub-section 1, the basis to finalise the electoral roll of municipality is electoral roll furnished by the Electoral Registration Officer upto date of notification, in this case 07.01.2020. After the electoral rolls are received in this manner, the concerned Municipality can undertake rectification of the mistakes and finalisation of the electoral rolls. This exercise is to ensure that all residents of the Municipality who are enrolled as voters be given opportunity to cast their votes and no voter be left out. Thus, publication of election schedule does not come in the way of undertaking the exercise to rectify wrong entries and to reflect the voters of all wards strictly as per the entries made in the electoral rolls published by Election Commission of India. The legislative intendment is clearly discernable from Sections 194, 195 and 195-A of the Act. The respondents cannot seek to hide under the mask of elections schedule announced on 23.12.2019 and proximity to actual notification to attend to the grievances on drawing up proper voters list when above provisions mandate otherwise. In view thereof, the election notification which is scheduled to be issued today does not come in the way of undertaking the rectification of errors, noticed above. 13. Another grievance expressed by learned counsel for petitioners is that in the voters list published on 4.1.2020 in various wards, the 10% ceiling limit fixed in Rule 5 is breached and in many wards there are more number of voters than the permissible limit. 13. Another grievance expressed by learned counsel for petitioners is that in the voters list published on 4.1.2020 in various wards, the 10% ceiling limit fixed in Rule 5 is breached and in many wards there are more number of voters than the permissible limit. In response to this contention, learned Additional Advocate General submitted that the determination of the electoral roll is. a continuous process and the municipalities have to take into consideration the electoral rolls furnished by Election Commission of India upto the date of election notification. As a consequence, from 1.1.2020 there will be new voters eligible to cast their vote and therefore the Election Commission of India furnished revised electoral rolls including some new names and depending on the residences of new voters, their names are shown in the concerned wards. The addition of voters in the concerned wards has no bearing on the exercise already undertaken and finalised. 14. Determination of voters' lists has two components. Firstly, delimitation, arrangement of wards, apportionment of voters into various wards and further exercise to be undertaken as required by rules notified in G.O. Ms. No. 78 Municipal Administration & Urban Development (MA) Department, dated 29.06.2019. All this is based on the electoral list furnished by Election Commission of India as on that date and final publication of ward-wise electoral list which shall be the basis for individual votes to exercise his/her franchise. This is a continuous process. However, the issue of distribution of voters to respective wards and reservation of wards cannot wait till the date of election notification and therefore the exercise undertaken with reference to delimitation of wards, distribution of voters to the respective wards and reservations cannot be changed on account of subsequent revision of electoral rolls by Election Commission of India. However, the revised electoral rolls made available to the respondents till date of notification can be the basis for enrolling them as voters of respective wards. Therefore, I do not see any error in publication of voters list by respondents on account of revised electoral rolls furnished by Election Commission of India. In the said manner even if there is variation in the final voters list breaching the 10% variation limit from ward to ward, such exercise is not illegal. This is clear from the reading of Section 195-A of the Act. 15. In the said manner even if there is variation in the final voters list breaching the 10% variation limit from ward to ward, such exercise is not illegal. This is clear from the reading of Section 195-A of the Act. 15. The respondents are directed to thoroughly examine the mistakes pointed out by the petitioner or any other person, already, with reference to reflection of names of voters in a ward even though that voter is not residing in that ward, the reflection of some open plots as residential houses and showing the names of voters, alignment of house numbers in the respective wards and wherever discrepancies are noticed shall take necessary steps to carry out the rectifications and publish ward-wise voters lists accordingly. It is made clear that this exercise does not come in the way of continuation of the election process, filing of nominations by candidates, etc but it is only for the purpose of identifying the voters who are entitled to vote and allocation of voters to concerned wards in accordance with entries reflected in the electoral rolls published by the Election Commission of India, and to enable them to cast their votes in the concerned ward. It is also made clear that this exercise also does not affect in any manner the arrangement of wards, the voters strength of respective wards and reservation of wards, already decided. Interlocutory Applications are accordingly disposed of.