Point of law: Election Commissioner appointed in exercise of powers under Section 200 of the A.P. Panchayat Raj Act, 1994 cannot function for superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities and the Municipal Corporations. The appointment must be made by the Governor in exercise of the power under Article 243K of the Constitution of India

ORDER :

ARUP KUMAR GOSWAMI, J.

1. We have heard Mr. P.V. Krishnaiah, learned counsel for the petitioner, Mr. N. Ashwani Kumar, learned counsel for respondents 1 and 5 and Mr. S. Sriram, learned Advocate General for respondents 2 to 4.

2. By filing this Writ Petition (P.I.L.), the petitioner has questioned the 1st action of the respondent in conducting elections for various Municipalities and Municipal Corporations in the State of Andhra Pradesh.

3. It is to be noted, at the outset, that elections are due to be conducted tomorrow, i.e. 10.03.2021 and this Writ Petition (P.I.L.) was filed on 05.03.2021.

4. Mr. P.V. Krishnaiah has drawn our pointed attention to paragraph 316.4 of the judgment dated 29.05.2020 passed by this Court in W.P.No.8163 of 2020 and batch and contends that when this Court had specifically laid down that the State Election Commissioner cannot function for superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities and the Municipal Corporations, the Notification issued by the st respondent cannot stand scrutiny for a moment and, therefore, by way of interim measure, this Court may stay the elections to be conducted, by suspending the Notifications issued for the above purpose.

5. Mr. S. Sriram, learned Advocate General, appearing for respondents 2 to 4, on the other hand, contends that reliance placed on paragraph 316.4 by the learned counsel for the petitioner, is misconceived as the same is relatable to the State Election Commissioner who was appointed by Notification dated 11.04.2020 on cessation of tenure of the incumbent State Election Commissioner, who is arrayed as respondent No.5 herein, and paragraph 318 of the aforesaid judgment makes it abundantly clear that respondent No.5 herein is competent to hold elections.

6. Similar submission is advanced by Mr. N. Ashwani Kumar, learned counsel for respondents 1 and 5.

7. It will be relevant to take note of paragraph 2 of the judgment dated 29.05.2020 rendered in W.P.No.8163 of 2020 and batch, to understand the challenges made in the aforesaid cases.

8. A perusal of paragraph 2 goes to show that challenge was made to Ordinance No.5 of 2020, i.e. Andhra Pradesh Panchayat Raj (Second Amendment) Ordinance, 2020 dated 10.04.2020, promulgated by the Governor of Andhra Pradesh, substituting Section 200 of the Andhra Pradesh Panchayat Raj Act, 1994. Further challenge was made to G.O.Ms.No.617 of Panchayat Raj and Rural Development (E&R) Department, dated 10.04.2020, by which the Andhra Pradesh Panchayat Raj (Salaries and Allowances, Conditions of Service, Tenure of State Election Commissioner) Rules, 2020 were notified replacing the existing Andhra Pradesh Panchayat Raj (Salaries and Allowances and Conditions of Service of State Election Commissioner) Rules, 1994. The consequential notification in G.O.Ms.No.618, Panchayat Raj and Rural Development (E&R) Department, dated 10.04.2020, directing that the incumbent State Election Commissioner (for short, ‘the SEC’) Dr. N.Ramesh Kumar, ceases to hold office prior to completion of the tenure, and another G.O.Ms.No.619, Panchayat Raj and Rural Development (E&R) Department, dated 11.04.2020, appointing Justice V. Kanagaraj, Retired Judge of the High Court of Madras, as SEC of Andhra Pradesh, for a period of three years from the date of assumption of office, in consequence to cessation of office by Dr. N. Ramesh Kumar have also been assailed.

9. Paragraph 316.4, which is the foundation of the case of the petitioner, reads as follows:

“316.4] The State Election Commissioner appointed in exercise of powers under Section 200 of the A.P. Panchayat Raj Act, 1994 cannot function for superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities and the Municipal Corporations. The appointment must be made by the Governor in exercise of the power under Article 243K of the Consti