Allowed

S v. Chiranjivi v the State of Andhra Pradesh

Andhra Pradesh HC5 Mar 2020WP/3876/2020

Case brief

AI extract

What is this about?

The High Court of Andhra Pradesh allowed a writ petition challenging the final voters list of Eluru Municipal Corporation. The court found serious irregularities including insufficient time for objections, duplicate entries, missing door numbers, and a street dog listed as a voter. Despite the elective body, the court held that procedural impropriety and blatant errors vitiated the process.

What did the court decide?

Writ of Mandamus directing the respondents to rectify the errors and illegalities pointed out by the petitioners in the voters list before issuing the election notification.

S v Chiranjivi Vs the State of Andhra Pradesh — Election Law | Andhra Pradesh HC (2020)

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THE HIGH COURT OF ANDHRA PRADESH: AMARAVATI

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WRIT PETITION No.3876 OF 2020

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% Dated 05.03.2020 # S.V. Chiranjivi, s/o Appa Rao D.No.20F-3-6/2, Janapareddy Vari Street Kothapet, Eluru, West Godavari District and two others Vs. $ State of Andhra Pradesh Rep. by its Principal Secretary Municipal Administration Department , Secretariat, Velagapudi, Amaravati and three others JUDGMENT PRONOUNCED ON: 05.03.2020

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….. Petitioners ..Respondents

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THE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY

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Whether Reporters of Local newspapers may be allowed to see the Judgments?

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Whether the copies of judgment may be marked to Law Reporters/Journals

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Whether Their Ladyship/Lordship wish to see the fair copy of the Judgment?

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MSM,J WP No.3876 of 2020

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*** THE HON’BLE SRI JUSTICE M. SATYANARAYANA MURTHY**

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+ WRIT PETITION No.3876 OF 2020

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% Dated 05.03.2020

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S.V. Chiranjivi, s/o Appa Rao D.No.20F-3-6/2, Janapareddy Vari Street Kothapet, Eluru, West Godavari District and two others

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….. Petitioners

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Vs.

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$ State of Andhra Pradesh Rep. by its Principal Secretary Municipal Administration Department , Secretariat, Velagapudi, Amaravati and three others

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..Respondents

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! Counsel for the petitioner : M/s. K. Lalitha

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^ Counsel for the respondent :

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Learned Government Pleader for Urban Development & Municipal Administration

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Learned Standing Counsel for Eluru Municipal Corporation

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<GIST:

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HEAD NOTE:

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? Cases referred

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1985 AIR SC 1233

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1971 AIR SC 1348

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1977 AIR SC 1992

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1970 AIR SC 314

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1970 AIR SC 340

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1973 AIR SC 2602

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1988 AIR SC 61

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AIR 1996 PAT 9

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2019 (9) SCALE 573

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MSM,J WP No.3876 of 2020

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THE HON’BLE SRI JUSTICE M.SATYANARAYANA MURTHY WRIT PETITION No. 3876 OF 2020

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ORDER :

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This writ petition is filed under Article 226 of the Constitution of India, challenging the final voters list of Eluru Municipal Corporation, West Godavari District for the ensuing elections, as mandated under Rule 12 of Greater Hyderabad Municipal Corporation Act and contrary to Rules 10 and 12 of the Registration of Electors Rules, 1960 and violative of principles of natural justice and consequently direct the respondents to rectify the mistakes crept in the voters list prepared for Eluru Municipal Corporation elections by duly considering the objections raised by the petitioners.

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The petitioners are the members of Telugu Desam Party. The first petitioner was elected and served as Municipal Councellor, Eluru, the second petitioner is the District Committee Member of the Telugu Desam Party and the third petitioner is the Vice President of the Town Committee. All the petitioners are aggrieved by the action of the respondents in preparing the voters list in a hurried manner, giving go-bye to several provisions of law and detrimental to the interest of the public at large, including the petitioners, filed the petition.

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It is contended that the Government of Andhra Pradesh issued Notification vide G.O.Ms.No.240 Panchayat Raj and Rural Development (E&R) Department dated 31.12.2019 merging seven villages and later, pursuant to the notification, the third respondent Municipality called for objections and suggestions from the villagers, and later finalized larger area of city of Eluru by exercising power under Section 3 of the Greater Hyderabad Municipal Corporation Act.

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In the first week of February, the petitioners party office received the final list and on verification, they were surprised to find several discrepancies, variations, irregularities in the list. On 05.02.2020, the third respondent addressed a letter to all political parties, Tahsildar, Revenue Divisional Officer and District Collector, West Godavari stating that, as per the circular of the State Election Commission dated 31.01.2020, the list of Returning Officers to the 50 divisions is notified and later, sought for objections/suggestions from the petitioners by 07.02.2020 in the meeting to be held in the chambers of the third respondent.

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The Corporation has been divided under 50 divisions. The enquiry made by the petitioners reveals that in a very callous manner, the voters list is prepared with blatant mistakes which shocks the conscience of any person. The glaring defects are pointed out division wise, basing on the list submitted by the third respondent. It is contended that, as all these illegalities, irregularities or errors are explicit from the record, this Court can interfere by exercising power under Article 226 of the Constitution of India, and direct the respondents to rectify the mistakes or blatant errors, as pointed out by these petitioners in this petition and they are as follows:

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i	4^thDivision	In this division most of the voter’s door Numbers are shown as ‘00’. In other divisions also this mistake crept in.
ii	13^thDivision	In 13^thDivision, a dog was also given vote (dog photo is printed)
iii	8^thDivision	One voter is given 13 votes, with different EPIC No and serial numbers at different polling stations.
iv	23^rdDivision	Gents, Ladies ratio is shown at variance. When there are 600 SC Voters the figures are not correctly shown

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v	11^th & 12^th Division	Divisions 11 & 12 same street numbers and Door Numbers are repeated
vi	18^thDivision	Number of SC Voters are shown less when their number is around 1800
vii	3^rdDivision	Only shown as 4 SC Voters when they are around 1500
viii	49^thDivision	When the ST Voters are less shown as 2500 ST Voters
ix	1^stDivision	B.C Ward but BC’s Voters number is shown very less
x	3^rd, 6^th, 14^th, 15^th, 16^th, 19^th, 20^th, 22^nd, 28^th, 29^th, 32^nd, 34^th, 35^th, 35^th, 47^th, 48^thand 50^th Divisions	In all these divisions without any basis on their convenience the number of voters belonging to SC, ST, BC and others was shown exactly giving reverse numbers.
xi	24^thDivision	Only one (1) SC voter is shown

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Besides the above irregularities or mistakes, it is also contended that the respondents failed to comply with the provisions of the Representation of the People Act, Greater Hyderabad Municipal Corporation Act and The Registration of Electors Rules, 1960.

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The main objection of the petitioners is that, the maximum time provided for reply to objections for rectification of errors in the voters list is thirty (30) days and minimum time is fifteen (15) days. In the present case, Government of Andhra Pradesh issued Notification vide G.O.Ms.No.240 Panchayat Raj and Rural Development (E&R) Department dated 31.12.2019 merging seven villages and later, pursuant to the notification, the third respondent Municipality called for objections and suggestions from the villagers and later finalized larger area of city of Eluru by exercising power under Section 3 of the Greater Hyderabad Municipal Corporation Act and finally, divisions were notified on 25.01.2020. On the contrary, voters list was circulated to all political parties calling for objections

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by notice dated 03.02.2020 and a notice in Form -1 was issued stating that all orders of inclusion, deletion or correction issued on the basis of claims and objections till the date of election notification will be duly incorporate in the electoral roll of the Corporation. On 05.02.2020, the third respondent addressed a letter to all political parties, Tahsildar, Revenue Divisional Officer and District Collector, West Godavari stating that, as per the circular of the State Election Commission dated 31.01.2020, the list of Returning Officers to the 50 divisions is notified and later, sought for objections/suggestions from the petitioners by 07.02.2020. The final notification of voters list is contrary to Rule 12 of The Registration of Electors Rules, 1960.

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It is also contended that, one person by name Poorna Venkata Sai Mahesh Sannidhi s/o Venkata Satyanarayana Sannidhi is a voter in the 8^th Division with various serial numbers of voters. They are 1415, 1066, 1191, 1271, 993, 992, 1270, 493, 995, 1190, 1192, 1194 and 1196 in the same Ward, but with different serial numbers, EPIC No in different Polling Stations. When the said Poorna Venkata Sai Mahesh Sannidhi is a voter in 8^th Division of Eluru Municipal Corporation, he is not entitled to cast his vote in different polling stations with different serial number in the same division. This itself is a blatant error on the face of electoral rolls. Similarly, several voters were listed without door numbers and their inclusion in the voters list is doubtful, as there is every possibility of inclusion of voters other than the persons residing within the division. The division wise details are given in Annexure-I to identify the electors without door numbers within the division.

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Another, strange error in the list is for Sl.No.1615 in Polling Station No.194 for Voter Serial No.5928 with Voter name as Bunny

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Gara s/o Kuramayya Gara, D.No.24C-9-27, Age 19, Male, Epic No.WIO1996867. The photograph appearing in the voters list as against Sl.No.1615 is a street dog. These defects in the voters list is a blatant and serious error, which defeats the very purpose of holding elections for election of members of the divisions and contrary to the democratic principles and unless these defects are rectified, holding election to Eluru Municipal Corporation is without any purpose and requested to issue a direction to rectify the mistakes pointed out by the petitioners.

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None of the respondents filed counter affidavit.

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At the stage of hearing, learned counsel for the petitioners Sri S. Subba Reddy, appearing for Smt. K. Lalitha submitted vociferously that the defects pointed out in the writ petition will cause serious prejudice not only to the voters, but also to the person(s) of independent or political parties who are contesting in the elections and there is every possibility of inclusion of persons who are not the residents of those divisions, in the absence of any door numbers mentioned in the divisions list. Listing of street dog as a voter is a blatant error which indicates how the respondents have taken care in preparation of electoral rolls. Therefore, the respondents in utmost haste and in callous manner prepared the voters list, defeating the democratic principles to elect a person of their choice by the electors/voters. It is further contended that, failure to grant minimum 15 days time while calling for objections, is totally violative of Rule 12 of the Registration of Electoral Rules, 1960. Apart from that, though the de-limitation is completed, the bar under Article 243 (z)(g) of the Constitution of India will not come in the way, since these

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electoral rolls are for the Municipal Corporation governed by Section 12 of Greater Hyderabad Municipal Corporation Act.

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According to Section 12 of the GHMC Act, till issue of notification, the electoral rolls can be amended and finally voters list can be published. Therefore, the Bar under Article 243 (z)(g) of the Constitution of India will not come in the way to these petitioners to claim relief in this writ petition and requested to issue a direction to the respondents to rectify the mistakes pointed out by the petitioners, considering their objections.

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Whereas, learned Government Pleader for Urban Development and Municipal Administration contended that an appeal is provided under the Rules and when a statutory appeal is provided, the petitioners are bound to exhaust their remedy by way of appeal, but not by way of writ petition, which is purely a discretionary relief, on this ground alone, the writ petition is liable to be dismissed.

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Whereas, learned counsel for the Eluru Municipal Corporation/Respondent No.4 supported the contention of the learned Government Pleader for Urban Development and Municipal Administration, while refuting the contentions of the learned counsel for the petitioners.

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Considering rival contentions, perusing the material available on record, the points that arise for consideration are as follows:

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1) Whether the defects pointed out by the petitioners in the voters list causes prejudice to the rights of any electors or political party or the candidates to be contested in the ensuing election of the Eluru Municipal Corporation?

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2) Whether the Bar under Article 243 (z)(g) of the Constitution of India disentitles to claim relief in the writ petition.

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P O I N T No.1:

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The first and foremost contention raised by the learned counsel for the petitioners is that, when the electoral draft rolls are prepared 15 days minimum time shall be given to public, including political parties calling for their objections. In the present facts of the case, notification was issued merging seven villages in Eluru Municipal Corporation in West Godavari District vide G.O.Ms.No.240 Panchayat Raj and Rural Development (E&R) Department dated 31.12.2019 by exercising power under clause (f) of sub-section (2) of section 3 of the Andhra Pradesh Panchayat Raj Act, 1994, (Act 13 of 1994). Pursuant to the Notification issued by the Government, the third respondent has called for objections and suggestions from the public on or before 13.01.2020. But, de-limitation was notified on 25.01.2020. A draft voter list was circulated to all the political parties calling for objections by notice dated 03.02.2020, stating that all orders of inclusion, deletion or correction issued on the basis of claims and objections till the date of election notification will be duly incorporated in the electoral rolls of the Corporation. But the fourth respondent has prepared a final list on 05.02.2020 and further addressed a letter to the third respondent, calling for all party meeting to discuss about the election process, notifying the list of Returning Officers and other issues and on receiving communication, the petitioners made representation on 07.02.2020.

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As seen from the allegations made in Paragraph No.11 of the affidavit, filed along with this writ petition, notice dated 03.02.2020 was issued along with draft voters list calling for objections. But final

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voters list is published on 05.02.2020 itself i.e. within two days from the date of issuance of notice in Form-I.

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Rule 12 of Registration of Electoral Rules, 1960 deals with period for lodging claims and objections. According to it, every claim for the inclusion of a name in the roll and every objection to an entry therein shall be lodged within a period of thirty days from the date of publication of the roll in draft under Rule 10, or such shorter period of not less than fifteen days as may be fixed by the Election Commission in this behalf; provided that the Election Commission may, by notification in the Official Gazette, extend the period in respect of the constituency as a whole or in respect of any part thereof.

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Thus, minimum time of fifteen days shall be granted to submit objections or suggestions. Instead of granting minimum time of fifteen days, the respondents issued notice on 03.02.2020 calling for objections on the draft voters list and prepared final voters list on 05.02.2020 i.e. within two days time, even without waiting for shorter period of fifteen days prescribed under Rule 12 of Registration of Electoral Rules, 1960. On this ground, the final voters list is liable to be set-aside, since the minimum period of fifteen days was not given to the public, calling for objections against inclusion or exclusion of name in the roll and thereby, the public are disabled including the petitioners who are the members of the political party.

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Learned counsel for the petitioners pointed out inclusion of the name of one Poorna Venkata Sai Mahesh Sannidhi s/o Venkata Satyanarayana Sannidhi in D.No.7A-12-17 in the 8^th Division voters list at different survey numbers in different polling stations, the

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details of the said Poorna Venkata Sai Mahesh Sannidhi are shown hereunder for better appreciation of the case:

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According to Section 18 of the Representation of the People Act, 1950, no person shall be entitled to be registered in the electoral roll for any constituency more than once. The voter or elector can exercise their vote in one polling station in one election, but inclusion of the said Poorna Venkata Sai Mahesh Sannidhi with different EPIC numbers at different polling stations and at different serial numbers is a serious illegality, as there is a possibility of casting his vote in different polling stations, more particularly at Polling Station Nos.169, 132 and 131. Though, indelible ink mark on the finger is available, but, depending upon his identification by the Identification Officer at the Polling Booth, inclusion of one voter in different polling stations with different serial numbers and with different EPIC numbers is a serious illegality and such illegality would dent the election process, defeating the democratic principles, causing serious prejudice to the contesting candidates and the electors. Registration of said Poorna Venkata Sai Mahesh Sannidhi in one Ward more than once is contrary to Section 18 of the Representation of the People Act, 1950. On this ground alone, the action of the respondents in failure to rectify the mistakes is declared as illegal.

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Similarly, several persons in different divisions were included without mentioning any door number. Unless an elector/voter is a resident of particular division, he/she cannot be included in the voters list of a particular division to franchise or cast his/her vote in the elections. The details of the voters against whose names the door numbers are not mentioned are annexed to this order vide Annexure-I.

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The reason for mentioning the door numbers in voters list is to avoid inclusion of voters outside, in the list, as per the choice of

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bureaucrats or the officials to conduct fair and free elections for the Corporations. If, a person who is not a resident within the division is included in the list, it would defeat the process of fair elections, since it would enable the outsider to franchise or exercise his/her vote within the division.

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As the petitioners have shown hundreds of such voters in the list, mentioning Door Number as ‘00’, ‘000’ or ‘0000’ as against the column mentioned for door number, the details are given in ward wise, both with photographs and list, this irregularity defeats the fair elections. But, as per Section 19 of the Act, only ordinary resident in that constituency is eligible to be registered as elector in that constituency. The word ‘ordinary resident’ is defined under Section 20 of the Act, that, failure to mention door numbers in the electoral rolls creates any amount of suspicion as to their residence to register themselves as voters in that division in the facts of the case. Hence, the error pointed out by the petitioners is a serious irregularity, which vitiates the entire fair process of election. On this ground also, the action of the respondents in publication of final list is liable to be set-aside.

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The most important contention raised before this Court is that, street dog photograph is printed in the voters list as an elector, as against Sl.No.1615 in Polling Station No.194 for Voter Serial No.5928 with Voter name as Bunny Gara s/o Kuramayya Gara, D.No.24C-927, Age 19, Male, Epic No.WIO1996867, the details are as shown below:

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It is a known fact that an animal is not a person and not a citizen of India to franchise its vote and at the same time, printing the photograph of a street dog clearly exhibits sheer negligence in preparation of voters list by the respondents.

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According Section 2(e) of the Representation of the People Act, 1959, the word ‘elector’ is defined as follows:

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"elector" in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in Section 16 of the Representation of the People Act, 1950 (43 of 1950);]

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The word ‘person’ alone is referred in the definition of ‘elector’, but does not include a street dog. Thus, it means that only a person is entitled to register as ‘elector’ but not an animal to franchise his/her vote. Section 19 of the Representation of the People Act, 1950, specified the conditions of registration as elector. Every person who is not less than the age of 18 years as on the qualifying date and is a ordinarily resident in the constituency, shall be entitled to be

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registered in the electoral roll for that constituency. The street dog is not a person referred under Section 19 of the Representation of the People Act, to register itself as an elector.

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If, for any reason, the street dog is permitted to register as an electoral or voter, the street dog is also entitled to contest in the election, being a voter of a particular division with specific EPIC number.

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In view of the provisions referred above, a street dog is not qualified to register as voter to franchise/cast its vote, since street dog is an animal but not an ‘elector’ within the meaning of Section 2(e) of the Representation of the People Act, 1951. Therefore, identifying a street dog as a voter with specific Epic number in the voters list is a serious irregularity. The irregularities pointed out by the petitioners narrated above are serious in nature which vitiates the fair and free elections to various divisions of Eluru Municipal Corporation, it is suggestive of administrative anarchy. This itself is suffice to exercise power under Article 226 of the Constitution of India to issue a direction to the respondents to rectify the mistakes in the voters list. Accordingly, the point is held in favour of the petitioners and against the respondents.

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P O I N T No.2:

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One of the major contentions raised by the learned Standing Counsel for Eluru Municipal Corporation before this Court is that, once the de-limitation is completed for the Eluru Municipal Corporation, this Court cannot exercise power of judicial review under Article 226 of the Constitution of India, in view of the Bar under Article 243-ZG of the Constitution of India, as Article 243-ZG

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of the Constitution of India has created an interdict on the power of the High Court to interfere with the election process of Municipal Corporation, as the preparation of electoral rolls is a part of election process.

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In Lakshmi Charan Sen v. A.K. M. Hassan Ussaman¹ the Apex Court held that, the fundamental error from which the writ petition suffers is this: The fact that the revision of electoral rolls, either intensive or summary, is undertaken by the Election Commission does not have the effect of putting the electoral roll last published in cold storage. The revision of electoral rolls is a continuous process which has to go on, elections or no elections. For example, the revision of electoral rolls has to be undertaken under Section 21 of the Act of 1950, whether or not an election is impending. Sub-section (1) of Section 21 provides that the "electoral roll for each constituency shall be prepared in the prescribed manner by reference to the qualifying date and shall come into force immediately upon its final publication in accordance with the rules made under this Act". Sub-section (2) of Section 21 provides for the revision of the electoral roll prepared under sub-section (1). The proviso, which is important, says that if the electoral roll "is not revised as aforesaid", the validity or continued operation of the 'said' electoral roll shall not be affected. The controversy whether the proviso governs clause (b) of Section 21(2) only or whether, it applies to clause (a) of that section also is futile, though it may be interesting from the point of view of a textbook writer on the "Interpretation of Statutes". The crux of the matter is that if an electoral roll in not revised, its validity and continued operation remain un-affected, at-

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1 1985 AIR 1233

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least in a class of cases. That exemplifies an important principle which applies in the case of electoral rolls. Section 21(3) of the Act of 1950 confers upon the Election Commission the power to direct a special revision of the electoral roll. The proviso to that sub-section also says that until the completion of the special revision so directed, the electoral roll for the time being in force shall continue to be in force. That proves the point that election laws abhor a vacuum. Insofar as the electoral rolls are concerned, there is never a moment in the life of a political community when some electoral roll or the other is not in force. Section 23(3) of the Act of 1950 also points in the same direction. Under that provision, no amendment, transposition or deletion of an entry can be made under Section 22 and no direction for the inclusion of a name in the electoral roll of a constituency can be given, after the last date for making nomination for an election in the particular constituency. 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

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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."

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No doubt, as per the rules of The Representation of the People Act and in view of the constitutional provision under Article 243 (z)(g), this court shall not normally interfere with the election process. But, the electoral rolls are prepared based on the provisions of Greater Hyderabad Municipal Corporation Act, which is a special enactment, governing the preparation of elector rolls.

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Section 12 of the Greater Hyderabad Municipal Corporation Act reads as follows:

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The electoral roll for the Corporation shall be prepared (by the person authorised by the State Election Commissioner) in such manner by reference to such qualifying date as may be prescribed and the electoral roll for the Corporation shall come into force immediately (upon its publication) in accordance with the rules made by the Government in this behalf. The electoral roll for the Corporation shall consist of such part of the electoral roll for the Assembly [Ward] published under the Representation of the People Act, 1950 as revised or amended under the said Act, upto the qualifying date, as relates to the Cities of Hyderabad and Secunderabad or any portion thereof]

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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, upto the date of election notification, for any election held under this Act, shall be

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carried out in the electoral roll of the Corporation and any such names included shall be added to the part relating to the concerned ward.

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In view of the proviso to Section 12(1) of Greater Hyderabad Municipal Corporation Act, 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, upto the date of election notification , for any election held under this Act, shall be carried out in the electoral roll of the Corporation and any such names included shall be added to the part relating to the concerned ward.

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Hence, the proviso permits any amendment, transposition or deletion of any entries in the electoral roll till issue of notification for election. In the present facts of the case, election notification is not yet issued and therefore, the Bar contained in Article 243 (z)(g) will not come in the way, since the election to Eluru Municipal Corporation is governed by the Greater Hyderabad Municipal Corporation Act. Hence, I find that the Bar contained under Article 243(z)(g) of the Constitution of India, has no application, since the proviso to Section 12(1) of the GHMC Act i.e special enactment permits such electoral rolls till issue of final notification for elections.

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One of the major contentions raised before this Court is that, when an appeal is provided under Rule 23 of the Registration of Electoral Rules, 1960, the petitioners have to avail the remedy under Rule 22 of the said Rules, by filing an appeal against the final

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electoral rolls, since it is a statutory remedy provided under the Registration of Electoral Rules, 1960.

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It is a settled law that, when an appeal is provided under the statute, more particularly, under the Representation of the People Act, 1960, the parties cannot directly approach this Court by invoking power of judicial review under Article 226 of the Constitution of India for rectifying the electoral rolls, since the statute provides such remedy.

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In Pampakavi Rayappa Belagali v. B.D. Jatti² , the Supreme Court held that, the entire Scheme of the Representation of the People Act, 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 and not in other manner or before any other forum unless the question of violation of the provisions of Constitution is involved.

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Long line of perspective pronouncements in Nripendra Bahadur Singh v. Jai Ram Verma³ , Baidyanath Panjira v. Sita Ram Mahto⁴ , Kabul Singh v. Kundan Singh⁵ , Hariprasad Mulshanker Trivedi v. V.B. Raju⁶ , The Election Commission of India v. Shivaji⁷ and Rajendra Rai v. The Election Commission of India⁸ , the Supreme Court and the Patna High Court held that, when election process is completed, the Court cannot interfere with the election process, since preparation of electoral rolls as part of election process.

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2 1971 AIR SC 1348

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3 1977 AIR SC 1992

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4 1970 AIR SC 314

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5 1970 AIR SC 340

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6 1973 AIR SC 2602

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7 1988 AIR SC 61

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8 AIR 1996 Pat 9

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The Bar stated above will not come in the way to these petitioners, for the simple reason that Section 12 of the Greater Hyderabad Municipal Corporation Act, permits such 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.

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Hence, mere providing an appeal under the Rules is not a ground to deny the relief under Article 226 of the Constitution of India, more particularly, when the procedure followed by the respondents is illegal ex-facie . If the Court finds that the procedure followed by the administrative authorities is contrary to the statutory provisions or the procedure established, the Court can interfere with the administrative orders passed by the administrative authorities or quasi judicial authorities. In “ West Bengal Central School Service

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Commission v. Abdul Halim⁹ ” herein the Apex Court reiterated the

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following principles of judicial review.

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“It is well settled that the High Court in exercise of jurisdiction Under Article 226 of the Constitution of India does not sit in appeal over an administrative decision. The Court might only examine the decision making process to ascertain whether there was such infirmity in the decision making process, which vitiates the decision and calls for intervention Under Article 226 of the Constitution of India.

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In any case, the High Court exercises its extraordinary jurisdiction Under Article 226 of the Constitution of India to enforce a fundamental right or some other legal right or the performance of some legal duty. To pass orders in a writ petition, the High Court would necessarily have to address to itself the question of whether there has been breach of any fundamental or legal right of the Petitioner, or whether

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9 2019 (9) SCALE 573

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there has been lapse in performance by the Respondents of a legal duty.

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The High Court in exercise of its power to issue writs, directions or orders to any person or authority to correct quasi-judicial or even administrative decisions for enforcement of a fundamental or legal right is obliged to prevent abuse of power and neglect of duty by public authorities.

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In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan v. Mallikarjuna reported in AIR 1960 SC 137. If the provision of a statutory Rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari.

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The sweep of power Under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by a writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse.

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However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision.

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The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ Court does not interfere, because a decision is not perfect.”

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By applying the principle laid down in the above judgments to the present facts of the case, the procedure followed by the electoral registration authority is contrary to various provisions referred above. In such case, this Court can exercise power of judicial review under Article 226 of the Constitution of India. Accordingly, the point is answered in favour of the petitioners and against the respondents.

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In view of my foregoing discussion, I find that it is a fit case to allow the writ petition by issuing Writ of Mandamus, directing the respondents to rectify the errors and illegalities pointed out by these petitioners mentioned above, before issuing notification to conduct fair and free elections in Eluru Municipal Corporation.

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In the result, writ petition is allowed, directing the respondents (i.e. Respondent No.3/District Collector, West Godavari District) to rectify the errors and illegalities pointed out by these petitioners mentioned above, before issuing notification to conduct fair and free elections in Eluru Municipal Corporation. No costs.

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Consequently, miscellaneous applications pending if any, shall stand closed.

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JUSTICE M. SATYANARAYANA MURTHY

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Date:05.03.2020 sp

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