Holding

The Supreme Court held that the High Court was not justified in interfering with the election process; the remedy lies in filing an election petition, and the direction to allow separate voting for the 20 persons is unlawful.

Summary

The dispute arose from the Gram Panchayat elections in Nalgonda district, Andhra Pradesh, where the names of about 94 persons were deleted from the draft electoral roll. The affected persons filed a writ petition seeking to be allowed to vote. The High Court initially ordered that they could participate, but the election was already held. Subsequently, the High Court directed that the result not be declared and that 20 persons found eligible after a revenue officer’s enquiry should be allowed to vote separately. The Supreme Court held that once the election process is set in motion, courts cannot interfere by directing fresh voting or stalling the result; such matters must be addressed through an election petition under the Andhra Pradesh Panchayat Raj Act and its Rules. Consequently, the High Court’s direction was deemed unlawful, and the appeal was allowed.

Issues considered

Whether the High Court was justified in directing that 20 persons be allowed to vote after the Gram Panchayat election had been concluded.
Whether such judicial interference violates Article 243(o) of the Constitution and Section 33 of the Andhra Pradesh Panchayat Raj Act, 1994.
Whether the appropriate remedy for the aggrieved parties is an election petition before the Election Tribunal.

Legislation cited

Andhra Pradesh Panchayat Raj Act, 1994s. Section 33
Constitution of Indias. Article 243(o), s. Article 329(b)

Subjects

Election lawPanchayat electionsArticle 243(o)Election petitionInterim orderHigh Court jurisdictionElectoral rollsVoter franchiseElection tribunalConstitutional bar

Judgment

BODDULA KRISHNAIAH AND ANR. A
v.
STATE ELECTION COMMISSIONER, A.P. AND ORS.

MARCH 20, 1996

[K. RAMASWAMY, S.P. BHARUCHA AND B
K.S. PARI!'OORNAN, JJ.]

A11dhra Pradesh Pa11chayat Raj Act, 1994 : Sectio11 33.

A11dhra Pradesh Pa11chayat Raj Electio11 Tribullals ill respect of Gram C
Pallchayat Malldal Parishads alld Zi/a Parishad Rules, 1994: Rules 2(1)(2)
alld 12(d)(iii).

Collstitutioll of llldia, 1950: Anicle 243(0).

E/ectioll process-'-Power of Coun to illteifere with--<Jram Pallchayat D
• • Election-Draft Electoral Rolls-Deletion of names of 94 peiwn.1'-Writ-ln-
terim order by High Cowt a day before Election-lntedm order directing that
94 persons should panicipate in the electio11 but on the date of poll they could
1wt exercise their franchis.,-Directiolls sought for exercisi11gfranchise-l11ter-
im order by High Cowt 11ot to declare the result of the electi01t-High Coun E
also directing Reve11ue Divisional Officer to co11duct enquiry-Findi11g that 20
persons were eligible to be i11cluded in the voter's list-High Coun directing
that 20 perso11s found eligible should exercise their fra11chise sepamtely whe11
the poll was already over-Appeal agai11st Order of High Coun-Held the
order passed by the High Cowt was not con-ect in low i11 givi11g direction 11ot
to declare the result of the electio11 or to co11duct fresh poll for 20 persons, F
though the writ petitio11 was maintai11able-1he High Cowt, pe11ding writ
petitioll was not justified ill issui11g direction to stall the election process.

Meghraj Kothari v. Delimitation Commission, [1967] 1 SCR 400 =
AIR (1967) SC 669, cited.
G
N.P. Punnuswami v. Returning Officer, Namakkal Constitue11cy & Ors.,
[1952] SCR 218; Lakshmi Chara11 Sen and Ors. Etc. v. A.KM. Hassan
Uzzama11 & Ors. Etc., [1985] Supp. 1 SCR 493 aud State of U.P. & Ors. v.
Pradha11, Sangh Kshettra Samiti & Ors., [1995] Supp. 2 SCC 305, referred
to. H
687
688 SUPREME COURT REPORTS (1996] 3 S.C.R.

A CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5283-84
of 1996.

From the Judgment and Order dated 22.12.95 of the Andhra Pradesh
High Court in W.P. Misc. P. No. 16901/95, W.V.M.P. No. 2478, In W.P.
No. 13830, W.P.M.P. No: 16901 of 1995.
B
P.P. Rao, L. Nageshwara Rao, Vimal Dave, M. Narayana Rao and
B. Rajeshwara Rao for the Appellants.

M.M. Reddy, D. Prakash Reddy, K. Ram Kumar, Balasubramaniam
C and Ms. S. Usha Reddy, for the Respondents.
The following Order of the Court was delivered :

Leave granted. We have heard the counsel on both sides.

D The controversy relates to election to the Gram Panchayat, Nalgonda
District of Andhra Pradesh. The Notification was issued on June 7, 1995 • •
to conduct elections to the Gram Panchayat Under the Andhra Pradesh
Panchayat Raj Act, (No 13 of 1994) 1994 (For short the 'Act'). The
electoral rolls of the Gram Panchayat were required to be finalised 30 days
prior to the poll. It would appear that in the draft roll prepared by the
E competent authority, names of about 94 persons find their place but later
their names were delete. Consequently, they filed Writ Petition No. 3060/95

F
in the High Court including respondent No. 6-42 in this case. The elections
were held and on 27th June, 1995. By an order dated 26th June, 1995 the
High Court, by an interim order directed to allow 94 persons to participate
in the election but on the date of the poll they could not exercise their.
..
franchise. Subsequently, in WPMP No. 16901/95 the respondent No. 6-42
sought direction to permit them to exercise their franchise. By an interim
order dated July 6, 1995, the direction was issued by the High Court not
to declare the result of the election of the Gram Panchayat. The appellant
and proforma respondent No. 43 filed WVMP No. 2478/95 to vacate the
G direction issued by the High Court on July 6, 1995. On November 8, 1995,
the High Court directed the Revenue Divisional Officer (RDO), Nalgonda
to scrutinise the claims of respondent Nos. 6-42 and ascertain whether they
are residing in the village. By proceedings dated December 2, 1995, the
RDO found that only 20 persons were eligible to be included in the voters
H list as they were found living in the village, during the enquiry. On these
'
\
B. KRISHNAIAH v. STATE ELECTION COMMISSIONER A.P. 689

facts, the High Court by the impugned order dated December 22, 1995 A
directed that 20 persons out of respondent Nos. 6-42, who were found
eligible to vote should be allowed to participate in the election. Thus, these
appeals by. special leave.

The only question is whether the High Court would be justified in
giving the direction for participating the 20 persons who are found to be B
eligible to vote for exercising their franchise separately when the poll was
already over. Shri P.P. Rao, the learned senior counsel appearing for the
appellant contended that once the election process was set in motion, by
operation of Article 243(0) of the Constitution, the High Court was not
justified in directing 20 persons to participate in the. election. The ap- C
propriate remedy would be by way of an election petition. The object of
the Act, the Rules made thereunder and Article 243 (0) is to see that the
election process to the Gram Panchayat, once is set in motion, the process
should be culminated in the declaration of the result of election and any
dispute in relation to the conduct of the election would be subject matter D
., of an election dispute and would be dealt with by the appropriate Tribunal
in accordance with law. The High Court, therefore, was not justified in
giving the aforesaid direction. Shri K. Madhava Reddy, learned senior
y
counsel appearing for the respondents contended that the respondents
have filed the writ petition in January 1995 much earlier than the election
process notified questioning deletion of their names from the draft elec- E
toral rolls. It is found as a fact that though their names were appearing in
the draft electoral rolls, they were deleted without giving an opportunity to
the residents of village Narayanpur. In the enquiry, names of as many as
20 eligible persons were found and yet they were denied the exercise of
their right to franchise when the order passed by the High Court on June F
)I
26, 1995 in Writ Petition No. 3060/95 which was allowed to become final.
The direction to allow them to participate in the election was frustrated by
preventing them to exercise their franchise which is in the teeth of the
Court's order. Therefore, the High Court was justified in giving direction
in the writ petition. It is also contended that the High Court pending the
wr:t petition, gave the direction and it being discretionary, this Court would G
be slow to interfere with the order under Article 136 of the Constitution.

Having given our anxious consideration to the respective conten-
tions the question that arises for our consideration is whether the High
Court would be justified in giving direction, firstly, that respondent Nos. H
690 SUPREME COURT REPORTS [1996) 3 S.C.R.

A 6-42, in particular 20 persons, be allowed to participate in the process of
election after the election process was completed and consequently
whether the High Court would be justified in interfering with the election
process.

Section 33 of the Act envisages that no election held under this Act
B shall be called in question except by an election petition presented to such
authority in accordance with such rules as may be made in this behalf. In
exercise of the rule-making power under the Act, the Andhra Pradesh
Panchayat Raj Election Tribunals in respect of Gram Panchayats, Manda!
Parishads and Zila Parishads Rules, 1994 (for short, the 'Rules') were
C made. Under Rule 2 (1) provides that (s)ave as otherwise provided, no
election held under the Act, whether of a member, Sarpanch or Upa-Sar-
panch of Gram Panchayat, President (and Vice-President) of Manda!
Parishad and Member of Manda! Parishad Territorial Constituencies and
Chairman, (Vice-Chairman) of Zila Parishad and Members of Zila
Parishad Territorial Constituencies thereof, shall be called in question
D except by an election petition presented in accordance with the Rules to
the Election Tribunals as defined in sub-rule(2) by any candidate or elector
• •
against the candidate who has been declared to have been duly elected
(hereinafter called the returned candidate) or if there are two or more
returned candidates against all or any such candidates.
E
Rule 12 (d) (iii) of the Rules provides tne grounds to set aside the
elections which reads as under :

"If in the opinion of the Election Tribunal, the result of the election,
insofar as it concerns a Returned Candidate, has been materially
F affected, by any improper reception refusal or rejection of any vote,
or the reception of any which is void the Election Tribunal shall
declare the election of the Returned Candidate to be void".

Article 243 (0) of the Constitution envisages bar on interference by
courts in election matters. Nol\vithstanding anything contained in the Con-
G stitution, under sub-clause (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". Thus there is a constitutional bar on interference
with the election process except by an election petition, presented to an
H Election Tribunal as may be made by or under Jaw by the competent
B. KRISHNAIAH v. STATE ELECTION COMMISSIONER AP. 691

legislature and in the manner provided thereunder. Power of the court A
granting stay of the election process is not longer res integra.

In N.P. Punnuswami v. Retuming Officer, Namakkal Constituency &
Ors., (1952] SCR 218 a Constitution Bench of this Court had held that
having regard to the important functions which the legislatures have to
perform in democratic countries, it has always been recognised to be a B
matter of first importance that elections should be concluded as early as
possible according to time schedule and all controversial matters and all
disputes arising out of elections should be postponed till after the elections
are over so that the election proceedings may not be unduly retarded or
protracted. In conformity with the principle, the scheme of the election law C
is that no significance should be attached to anything which does not affect
the "election"; and if any irregularities are committed while it is in progress
and they belong to the category or class which under the law by which
elections are governed, would have the effect of vitiating the "election" and
enable the person affected to call it in question; they should be brought up D
before a special tribunal by means of an election petition and not be made
the subject of a dispute before any court while the election is in progress.
y
The same principle was laid down in Lakshmi Charan Sen and Ors.
Etc. v. A.K M. Hassan Uzzaman & Ors. Etc., [1985] Supp. 1 SCR 493. In
this case where the election process was set in motion the High Court E
granted ad-interim injunction of the further proceedings of the election to
the State Legislature. A Constitution Bench of this Court had held thus :

"The High Court acted within its jurisdiction in entertaining the
writ petition and in issuing a Rule Nisi upon it, since the petition F
questioned the vires of the laws of election. But, it was not justified
in passing the interim orders dated February 12, and 19, 1982 and
in confirming those orders by its judgment dated February 25, 1982.
Firstly, the High Court had no material before it to warrant the
passing of those orders. The allegations in the Writ Petition are of
a vagne and general nature, on the basis of which no relief could G
be granted. 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 power under
Article 226 of the Constitution should pass any orders, interim or
otherwise, which has the tendency or effect of postponing an H
692 SUPREME COURT REPORTS [1996] 3 S.C.R.

A election, which is reasonably imminent and in relation to which its
writ jurisdiction is invoked.

The High Courts must observe a self-imposed limitation on
their power to act under Article 226, by refusing to pass orders or
given directions which will inevitably result in an indefinite
B 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
c 329(b) of the Constitution."

At page 497 it was further held that :

"Even assuming, that the preparation and publication of elec-
toral rolls are not a part of the process of 'election' within. the
D meaning of Article 329(b), the High Court ought not to have
passed the impugned interim orders, whereby it not only assumed
control over the election process but, as a result of which, the
election to the Legislative Assembly stood the risk of being
postponed indefinitely.''
E The same principle was reiterated when the election to the Gram
Panchayat was sought to be stalled in State of U.P. & Ors. v. Pradhan,
Sangh Kshettra Samiti & Ors., [1995] Supp. 2 SCC 305 at 331. The Court
observed thus :

F "What is more objectionable in the approach of the High is that
although clause (a) of Article 243 (0) of the Constitution enacts a
bar on the interference by the courts in electoral matters including
the questioning of the validity of any law relating to the delimitation
of the constituencies or the allotment of seats to such constituen-
cies made or purported to be made under Article 243-K and the
G election to any panchayat, the High Court has gone into the
question of the validity of the delimitation of the constituencies
and also the allotment of seats to them. We may, in this connection,
refer to a decision of this Court in Meghraj Kothari v. De/imitation
Commission, [1967] 1 SCR 400 = AIR (1967) SC 669. In that case,
H a notif:cation of the Delimitation Commission whereby a city which
B. KRISHNAIAH v. STATE ELECTION COMMISSIONER A.P. 693

had been a general constituency was notified as reserved for the A
Scheduled Castes. This Court held that the impugned notification
was a law relating to the delimitation of the constituencies or the
allotment of seats to such constituencies made under Article 327
of the Constitution, and that an examination of Sections 8 and 9
of the Delimitation Commission Act showed that the matters B
therein dealt with were not subject to the scrutiny of any court of
law. There was a very good reason for such a provision because if
the orders made under Sections 8 and 9 were not to be treated as
final, the result would be that any voter, if he so wished, could hold
up an election indefinitely by questioning the delimitation of the C
constituencies from court to court. Although an order under Sec-
tion 8 or Section 9 of the Delimitation Commission Act and
published under Section 10(4) of that Act puts such an order in
the same position as a law made by Parliament itself which could
only be made by it under Article 327. If we read Articles 243-C,
243-K and 243-0 in place of Article 327 and Sections 2 (kk), 11-F D
and 12-BB of the Act in place of Sections 8 and 9 of the Delimita-
tion Act, 1950, it will be obvious that neither the delimitation of
the panchayat area nor of the constituencies in the said areas and
y the allotments of seats to the constituencies could have been
challenged nor the court could have entertained such challenge E
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. The High Court not only entertained the
challenge but has also gone into the merits of the alleged grievance F
although the challenge was made after the notification for the
election was issued on 31-8-1994".

Thus, it would be clear that once an election process has been set in
motion, though the High Court may entertain or may have already enter-
tained a writ petition, it would not be justified in interfering with the G
election process giving direction to the election officer to stall the proceed-
ings or to conduct the election process afresh, in particular when election
has already been held in which the voters were allegedly prevented to
exercise their franchise. As seen, that dispute is covered by an election
dispute and remedy is thus available at law for redressal. H
I

t

694 SUPREME COURT REPORTS [1996] 3 S.C.R.

A Under these circumstances, we hold that the order passed by the
High Court is not correct in law in giving direction not to declare the result
of the election or to conduct fresh poll for 20 persons, though the writ
petition is maintainable. The High Court, pending writ petition, would not
be justified in issuing direction to stall the election process. It is made clear
that though we have held. that the respondents are not entitled to the relief
B by interim order, this order docs not preclude any candidate including
defeated candidate to canvass the correctness of the election. They are
free, as held earlier, to seek remedy by way of an election petition as
provided in the Act and the Rules.

c withoutThecosts.
appeals are allowed accordingly, but m the circumstances,

T.N.A. Appeals allowed.

'(