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Andhra Pradesh High Court
Judges : B.S.A.SWAMY, C.V.N.SASTRY, LINGARAJA RATH, M.N.RAO, P.S.MISHRA
S.Fakruddin - Appellant
Versus
Government Of A.P. - Respondent
W.P. Nos. 11106/95 etc.
Decided On : 06-26-95
Advocates Appeared :
Mr. M. Rabindranath Reddy, Mr. P. Innayya Reddy, Mr. V. Venkataramaiah
HELD: Rules in G.O.Ms.No.755 have changed the nomenclature of the State Election Commissioner and divided his functions by creating additional authorities to share his powers- Such as the Secretary of the State Election Commission who is designated as the Deputy Election Authority and the District Collector who is designated as the District Election Authority. The Act has not contemplated any role for persons who are not authorised by the State Election Commissioner or who are not notified by him as the election authority under Section 2(11) of the Act in the preparation and publication of electoral roll for a Gram Panchayat under Sec.11 of the Act and re-arrangement and re-publication of electoral roll under Sec.12 in the three situations envisaged therein. Matters falling under Sections 11 and 12 cannot be entrusted to any person who is not authorised by the State Election Commissioner, Any provisions for conducting elections are required to conform to Section 13 of the Act and the election authority notified by the State Election Commissioner alone is contempt to fix the elections subject to the directions of the State Election Commissioner. Rules in G.O.Ms.No.755 dated 30-11-1994 not only create new authorities for such purposes but take away the discretion of the State Election Commissioner to notify the election authorities. Rules relating to preparation and publication of electoral roll for a Gram Panchayat in G.O.Ms.No.879 dated 3-12-1994 have introduced the District Panchayat Officer and empowered him to re-arrange the electoral roll for the Gram Panchayat or any part of such roll and publish the same. Any person or authority other than a person authorised by the State Election Commissioner has no role in the preparation and publication of electoral roll and rearrange as stipulated under Section 11 (1), Section 11 (4) and Section 12 of the Act.
Even a person notified as the election authority under Section 2(11) cannot in the absence of authorisation a contemplated under Section 11 (1) and 12 of the Act proceed to re-arrange the electoral roll.
Exclusion or inclusion of the name of a voter in the electoral roll will have a bearing upon the electoral roll for the territorial constituency i.e., the ward under the Act. Such a function can be assigned only to a person authorised by the State Election Commissioner. By naming the District Panchayat Officer as the authority who can re-arrange the electoral roll for the Gram Panchayat or any part of such roll under Rule 3 in G.O.Ms.No.879 dated 3-121994, the Government while exercising its subordinate legislative power have taken away the power of the State Election Commissioner in this behalf and have thus travelled beyond the rule making power. Rule 3, for the said reason violates Section 11 and 12 of the Act.
They have entered into the domain of the State Election Commission and have assumed a jurisdiction which the law made by the State Legislature has not conferred on them. The theme of the power of the State Legislature to make laws for elections to Panchayats is fixed by Clause (4) of Article 243-K of the Constitution. Law making power of the State Legislature with respect to all matters relating to or in connection with elections to the Panchayats is limited by the jurisdiction of the State Election Commission under Clause (1) of Article 243-K of the Constitution. Rule 3 evidently has inherent infirmity of being in excess of the competence of the Government of the State. Rule 3_A which is introduced by G.O. Ms. No. 72 dated 4-2-1995 is clearly ultra vires Section 11 of the Act. The Electoral Registration Officer can have no role in the preparation of the electoral roll of the Gram Panchayat and thus any power given to him under the Rules to include any name or names in the electoral roll of a particular territorial constituency or ward will be without jurisdiction. The person authorised by the State Election Commissioner who alone is comptent to rearrange the electoral roll of a territorial constituency or ward as well as the State Election Commissioner are rendered incomptent by a rule which has contemplated an altogether independent machanism for the inclusion of names in the electoral roll. This rule for the said reason and for the reason that it is the District Panchayat Officer who is asked under this Rule to make necessary entries in the electoral roll of the Gram Panchayat on receipt of the orders of the Electoral Registration Officer has to be declared ultra vires the Act and Article 243-K (1) of the Constitution.
In Section 9 of the Act which provides for reservation of seats of members of Gram Panchayats and in which by an amendment by Andhra Pradesh Act No.5 of 1995 Sub-Section (1-A) has been introduced, a reference is made to Section 7 for the purpose of fixing the number of seats for reserved categories. Sub-Section (1-A) of this Section has introduced the limit of reservation for the backward classes at 34 % of the total number of offices of the members of Gram Panchayats in the State and provided that the number of seats allocated to each Gram Panchayat shall be allotted by rotation to different wards in the Gram Panchayats. Total strength of a Gram Panchayat is determinable on the basis of the population and the reservations for Scheduled Castes and Scheduled Tribes as well as Back Ward Classes have to be and are· based on the population of such classes of people in the State. If population is left from reckoning and a territorial constituency is reserved in which adults eligible to vote are not falling in any reserved category, there can be no election at all. Lottery might lead to such uncertainity and in any case it cannot work, except in a situation where representation in a ward or territorial constituency of different communities is almost matching.
CONSTITUTION OF INDIA, Arts.226, 243 (O) and 243-K- Art. 243(O) does not take away jurisdiction of High Court under Art.226 to examine validity of any law relating to elections including delimitation of constituencies or allotment of seats under Art.243-K.
HELD: Art.243 (c) of the constitution of India does not take away the power of this Court under Article 226 of the Constitution to examine the validity of any law relating to the election including the delimitation of constituencies or the allotment of seats to such constituencies made or purporting to be made under Article 243-K of the Constitution. As respects challenge to the election or any intermediary stage in case there is an alternative effective and independent mechanism provided, the. Court shall abstain to interfere except on jurisdictional errors i.e., when infirmity is based on violation of constitutional mandate, mala fides, non-compliance with Rules of natural justice and perversity. It will be so for the reason of prudence as well as deference to the legislation by the Parliament in exercise of its constituent power.
( 1 ) THESE petitions under Article 226 of the Constitution of India have travelled through a hearing for admission before a learned single Judge, before a Division Bench, before a Full Bench and the Larger Bench of ours with the speed the Court could manage to generate keeping in view the nature of the cases and the urgency for their disposal the sooner the possible. The Division Bench which heard these petitions for admission noticed the contentions of the learned counsel for the petitioner in Writ Petition No. 11106 of 1995 and that of the learned Government Pleader and also the fact that a batch of writ petitions having a common contention are pending hearing before a Full Bench. The order dated 13-6-1995 directing the Registry of the Court to place the papers before the Chief Justice for appropriate orders as to posting reads as follows:-- "mr. M. V. Ramana Reddy, learned counsel for the petitioner, is challenging the method by which Kanekal Gram Panchayat was reserved in favour of Backward Classes by drawal of lots in accordance with what is adumbrated in Rule 8 (iii) of the Andhra Pradesh Panchayat Raj (Reservation of seats of Ward Members and Offices of Sarpanches of Gram Panchayats) Rules, 1995, issued in G. O. Ms. No. 285, Panchayat Raj Rural Development and Relief (Elec. III) Department, dated 20-5-1995. The learned Government Pleader contends that the validity of the aforesaid Rule cannot be gone into by this Court in exercise of its power under Article 206 of the Constitution of India, in view of the embargo contained in Article 243-O (b) of the Constitution of India, which reads:"243-0. Bar to interference by courts in electoral matters: Notwithstanding anything in this Constitution,-- (a ). . . . . (b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. " The learned Government Pleader also brought to our notice that notification regarding elections was already issued on 7-6-1995. If the learned Government Pleader s argument is to be accepted, it is contended by Mr. M. V. Ramana Reddy, learned counsel for the petitioner, it will amount to permitting unconstitutional laws to remain in operation on the basis of which elections can be conducted. It is brought to our notice that a Full Bench of this Court, presided over by Justice Lingaraja Rath, is hearing a batch of Writ Petitions in which one of the contentions raised relates to the constitutionality of Article 243-O (b ). Since that Full Bench is not meeting as the hearing was adjourned and as the elections will take place from 24th of this month Mr. M. V. Ramana Reddy, learned counsel for the petitioner, says that he will make a special mention before the Hon ble the Chief Justice about the difficulty he is facing. In the circumstances, the Registry may place the papers before the Hon ble the Chief Justice for appropriate orders as to posating. "the other cases found their way to the reference for hearing by a larger Bench, viz. , for the reason of common contentions raised without enlarging the scope of the hearing of the cases so as to admit any controversy of facts and as involving the extent of the validity of the laws operating in the field and their effect upon the ensuing elections. Since the proceedings before the learned single Judge and the Constitution of the Full Bench followed by the Special Bench which has finally heard the instant petitions about 900 and odd writ petitions have been filed which so ever around the contentions in the instant petitions. In the course of the hearing for admission the issues were enlarged or limited depending upon the facts and law in issue and it was decided that the cases should be heard on issues of law without entering into controversies of facts and thus avoiding any occasion for delays and without any need for the respondents to file their
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