AI Structured Summary
Not yet generated for this judgment
Judgment
P.S. Mishra, C.J.—After hearing learned Counsel for the parties we delivered the operative portion of the judgment in Court. Reasons for the order have been recorded by us in chambers and delivered in Court to-day which are as follows:
The Constitution, of India which is envisaged as the Union of States, has provided for a Parliament and State Legislatures and elections on the basis of adult suffrage. Insertion of Part IX of the Constitution is extended to Gram Sabha, a body consisting of persons registered in the electoral rolls relating to the area of panchayat at the village level, to exercise such powers and perform such functions at the village level as the Legislature of State may by law provide. The provisions for constitution of Panchayats and composition thereof provide for the Chair Person of a panchayat and other members whether or not chosen by direct election from territorial constituencies in the Panchayat area. The Legislature of the State has enacted the Andhra Pradesh Panchayat Raj Act No.XIII of 1994; as amended by Act V of 1995 to provide for the constitution of panchayats in the State and to carry out the purposes as envisaged under the Act, the State Government has framed rules u/s 268 of the Act. The process of elections, it seems, started with the contemplated preparation of the electoral roll and accordingly to elect the members and Chair Person of the panchayats. This, however, was preceded by the appointment of the State Election Commission under Article 243K by the Governor of the State. It has happened however that on grounds not only of prejudices for the reason of violation of the provisions of the Act and the Rules but also violation of the constitutional mandates in several respects, before elections are finally held and concluded, several persons/voters/candidates have moved this Court under Article 226 of the Constitution and a batch of such petitions have been disposed of by us vide our judgment dated 26-6-1995. The Government of the State has filed petitions seeking review of our judgment in certain respects.
Learned Advocate General has produced along with the review application an affidavit by an Officer of the Panchayat Raj, Rural Development and Relief Department of the State Government and annexed to the same "post judgment posers", which according to him have caused the filing of the review petition for certain clarifications and if necessary modifications in the directions of the Court and not outright rescinding or cancelling of the directions issued by us. The Foser with respect to the direction of the Court to the State Election Commission, to identify the territorial constituencies including panchayats which are reserved for Backward Class candidates and to ascertain the population of the Backward Classes in the territorial constituencies, and in case the population of the Backward Class in the said consti tuencies is on an average such that the same could be reserved by reference to the population, to declare the result of the election, and in case it is otherwise to direct for a fresh election by reallotment of seats based on population, is:
Will the identification of the territorial constituencies including panchaya ts which are reserved for Backward Class candidates and ascertaining the population of the Backward Classes in territorial constituencies involve identification of the territorial constituencies which should have been reserved but were not reserved and instead such constituencies were reserved which had inadequate population of the Backward Classes and thus will it not enter into all the territorial constituencies and the panchayats and therefore, until such verification, results of elections in all constituencies will have to be kept in abeyance.
According to the learned Advocate General, the State Election Commissioner has so read the direction and has stayed, notwithstanding the specific directions of this Court, publication of results in all territorial constituencies. With respect to the second direction of the Court, "Forthwith proceed with verification of the electoral roll of such wards in which names of voters have been added after the final publication of the electoral roll under sub- section (3) of Section 11 of the Act and in case he is satisfied that the voter or voters is/are a genuine person/persons, to declare the result of the election. If, however, the additional voters whose names are added after the publication of the electoral roll as contemplated under sub-section (3) of Section 11 of the Act, are not found genuine; direct for a fresh election", it is said, the inclusions/ deletions, therefore were made in three phases i.e..,
(i) before Zilla Parishad and Mandal Parishad elections,
(ii) during the period between Zilla Parishad and Gram Panchayat elections, and
(iii) before the Gram Panchayat elections.
The district-wise detail is given by the learned Advocate General in Appendix-B to the posers which shows, inter alia that 4044 Gram Panchayats are involved in additions and deletions between 1-1-1995 to 9-2-1995,8 Gram Panchayats are involved in additions and deletions between 11-3-1995 to 31-5-1995 and 109, Gram Panchayats are involved in additions and deletions between 1-6-1995 to 6-6-1995. He has, however, pointed out the magnitude of the task involved and its implications are tremendous and many. The notification dated 27-6-1995 issued by the State Election Commissioner (Appendix-C), according to the learned Advocate General has caused anxiety and hence the application for review. He has pointed out, with respect to the first direction, the State Election Commissioner has said, "To implement this direction, it requires the collection of data from each territorial constituency and Gram Panchayat reserved for backward classes. No doubt, it is a time consuming process since the data of backward classes population has to be collected for those constituencies also which have fallen to the lot of the other communities. In order to give effect to the said directions, all the Election Officers are hereby directed not to announce the results of the election of the territorial constituencies including Panchayats reserved for backward classes until further orders." With respect to the second direction also, the learned Advocate General has drawn our attention to what the State Ejection Commissioner has said, "This direction requires thorough scrutiny of others list in all the 16,000 and odd villages (and the 1.5 lakh and odd wards) which are going to poll and also verification of genuiness of the inclusion or exclusion of the voter after the final publication of electoral rolls. The State Election Commissioner therefore, after careful examination of the matter till the assigned work is accomplished, in view of the directions of the High Court, directs not to announce the results of the elections of all the territorial constituencies and for all the posts of Sarpanches until further orders."
The learned Advocate General has drawn our attention to a Division Bench Judgment of the Supreme Court in State of U.P. and others etc. Vs. Pradhan Sangh Kshettra Samiti and others etc., . and read before us in particular the passage in which it is observed, "It is for the Government to decide in what manner the panchayat area will be delimited. It is not for the Court to dictate the manner in which the same would be done. So long as the panchayat areas and the constituencies are delimited in conformity with the constitutional provisions or without committing a breach thereof, the Courts cannot interfere with the same" and drawn our attention to the observations which the Supreme Court made with reference to an earlier judgment in Meghraj Kothari Vs. Delimitation Commission and Others, "It will be obvious that neither delimitation of the panchayatarea nor of the constituencies in the said areas and the allotment of seats to the constituencies could have been challenged or the Court could have entertained such challenge except on the ground that before the delimitation, no objections were invited and no hearing was given. Even this challenge could not have been entertained after the notification for holding the elections was issued."
Before we proceed to take notice of the contentions of the learned Counsel for the State Election Commissioner who has opposed the clarification/ review of the judgment by us, it appears on the sole ground that the State Election Commissioner has interpreted the judgment and accordingly issued notification dated 27-6-1995 end it seems he has chosen, it is So stated at the bar by the learned Counsel for the State Election Commissioner, to move the Supreme Court to seek a special leave to appeal in the Supreme Court against the judgment, we may dispose of any apprehension that we have gone in our judgment against the principles. We have said so specifically in the judgment and we reiterate that the Court shall not enter into the jurisdiction of the Government or the State Election Commissioner except in cases of violation of the constitutional provisions by them or when they act without jurisdiction in violation of the principles of natural justice and on grounds which fall in the rule of judicial review of law fog elections and challenge to the validity of any election.
The learned Counsel for the State Election Commissioner has not supported any review or modification of the order but has also not pointed out why this Court should desist from accepting the contention of the learned Advocate General and, if necessary, clarify or modify the directions so that the error or ambiguity, if any, or improper understanding of the directions of the Court may not affect the constitution of the grassroot democratic institutions. The learned Counsel for the writ petitioners have, though opposed the prayer of the learned Advocate General, but except the technical argument which is of no serious consequence, accepted that there is a chance of misunderstanding and a clarification is necessary.We donot however want to detain our judgment for technical reasons that the petitions are wrongly labelled as review petitions or that prayers made in the petitions are not proper, and give opportunity to the State Government and the State Election Commissioner to stay or not to implement the directions issued by us. Expressions ''review'', clarification'', ''modification'', ''cancellation'' etc. are used to invoke the Court''s jurisdiction to take notice of the error or ambiguity, if any, in the judgment of the Court. Where cancellation is necessary, the Courts cancel the judgments, where modification is necessary, the Courts modify the judgments and where only clarification is necessary, the Courts clarify the judgment.
We have noticed however that the words, "to direct for a fresh election by reallotment of seats based on population" are not read along with the limitation put by us in our Judgment, "it is obvious that the verifications aforementioned shall be confined to only such territorial constituencies which are reserved for Backward Class candidates....." We have no reasons to think that the Government of the State or any other person intended to magnify the consequences of the directions issued by us and thus invented something beyond the directions issued by us. We feel constrained however to add that the words ''by reallotment of seats based on population'' are a part of the directions to the State Election Commissioner, but for the purposes of the present election the verifications are kept confined by us to only such territorial constituencies which are reserved for Backward Class candidates. We make it clear that the expression, ''reallotment of seats'' in our Judgment in the first direction to the State Election Commissioner is not meant to re-open the allotment of seats to Secheduled Caste/Scheduled Tribe candidates as well as the open category territorial constituencies or disturb the election of those unanimously elected; it is confined only to territorial constituencies which are reserved for Backward Class candidates.
The second direction for verification of the electoral roll of such wards in which names of voters have been added after the final publication of the electoral roll under sub-section (3) of Section 11 of the Act is mainly for the reason of the additions under Rule 3-A in GO.Ms.No.879 dated 3-12-1994, as amended by G.O.Ms.No.72 dated 4-2-1995. G.O.Ms.No.72 has been published in the Official Gazette only on 7-2-1995. Additions, if any, under Rule 3-A, therefore, have been effected only after 7-2-1995. The chart which has been given to us and to which we have adverted earlier, Appendix-D to the Posers, shows that such additions/divisions shall affect 8+109, i.e., 117 Gram Panchayats and perhaps, a few more if there are some additions by the procedure under Rule 3-A between 7-2-1995 and 9-2-1995. There may be a few more Gram Panchayats in which additions have taken place after the publicatior of the notification for election on 7-6-1995. We have said clearly in our Judgment in this behalf, "the verifications......shall be confined to only such territorial constituencies.....in which new voters are added after the final publication of the electoral roll.
We appreciate the concern of the State Government that it has sought for clarification of the Judgment and brought to the Court''s notice facts which it "would have been made available at the time of the delivery of the Judgment, would have helped the Court in its objective which is reflected in its observations, "declaring, however, the election void will put the clock back to restart the whole thing, and the ultimate sufferrs will be the people, both for the reason of the delay in bringing democratic set up at the village level and the expenditure involved which is from the money belonging to the people and not the persons who have been spending it."Our words,"the State Election Commissioner is expected to understand the implications of the electoral practices and laws and accordingly approach the problem to keep the verification of such constituencies at the minimum level" have almost gone unheeded. The direction, "the results of elections in all other territorial constituencies and panchayats, however, without waiting for the verification aforementioned shall be published" have almost been floated.
We believe that the State Election Commission and the State Government have sufficient machinery and if they approach the problem together, there will be no impediment in achieving the desired result. We are informed at the Bar, and we have found that the Election Commission in its Notification dated 27-6-1995, un order to give effect to the directions of the Court, has re-appointed all the officers connected hitherto with the conduct of elections officers to complete the election process. The officers entrusted in this behalf have already completed the process of election except publication of the results. Having given our anxious consideration to the relevant aspects of the matter and the stage at which the State Election Commission has stopped the publication of the result, we are inclined to interfere with his order in the notification dated 27-6-1995 and direct as follows:-
(1) The Officers connected with the conduct of elections and who for the reason of their appointment previously for the said purpose and under the notification of the State Election Commission dated 27-6-1995 are authorised to do so, are directed to publish the results of the elections,
(a) which are unanimous;
(b) and of the territorial constituencies of Scheduled Caste and Scheduled Tribes; and (c) of the Open Categories; which are not covered by any additions after 7-2-1995 in the voters list.
(2) to proceed to verify the electoral rolls of such territorial constituencies, including panchayats, which are reserved for Backward Class candidates and in case the population of the Backward Classes in such constituencies is on the State average such that the same could be reserved by reference to the population, to declare the result of the election; otherwise, to declare the election void and direct for a fresh election.
(3) to proceed with the verification of the electoral rolls of such wards in which names of voters have been added after 7-2-1995 and if the newly added voters are found genuine, publish the result of election. If, however, there are some voters whose names are added after 7-2-1995 and who have voted but the result of election is not likely to be materially affected thereby, publish the result. If however in such a case the result is likely to be materially affected, not to publish the result and order for fresh election.
While giving these directions we may also advert to the submissions of the learned counsel for the State Election Commissioner that if the directions are carried out it would reduce the representation of Backward Classes from 34% and that because of unfilled vacancies, the Panchayats cannot be legally constituted. We are afraid, so far as the first is concerned, the apprehension is speculative and more imaginary than real. We have not directed any interference in the unanimous elections which include Backward Classes also. Besides while it is possible that in some cases, after the verification, some constituencies might be found as not liable to have been reserved for Backward Classes, yet some constituencies which ought to have been reserved but have been treated in the open category are more likely to elect Backward Class candidates only and the percentage of representation would not be affected. We may not be taken as expressing any opinion on the validity or otherwise of the extent of the reservation fixed under the Act for the Backward Classes.
So far as the second apprehension is concerned it is not legally sound as it is settled law that the vacancy/vacancies in respect of constituency/ constituencies would not affect the constitution of the House concerned for which reference may be made to AIR 1988 S.C. 613.
For the reasons aforementioned, in the result, the applications are allowed to the extent indicated above.