W.P. Nos. 33408, 33607 and 35675 of 2016. Case: S.K. Pushpalatha Vs The State of Andhra Pradesh and Ors.. High Court of Andhra Pradesh (India)
| Case Number | W.P. Nos. 33408, 33607 and 35675 of 2016 |
| Counsel | For Appellant: P. Keshava Rao, Adv. And For Respondents: G.P.'s, V.V. Prabhakara Rao and S.D. Goud, Advs. |
| Judges | P. Naveen Rao, J. |
| Issue | Constitution of India - Articles 243U, 243K(3), 324, 324, 325, 326, 327, 328, 329, 324(1), 327, 328, 329(b); Greater Hyderabad Municipal Corporation Act, 1955 - Sections 2, 2(15a), 5, 5(1), 5(1A), 6, 7, 7(2), 90, 91 |
| Judgement Date | December 09, 2016 |
| Court | High Court of Andhra Pradesh (India) |
Order:
P. Naveen Rao, J.
1. Heard Sri P. Veera Reddy, learned senior counsel holding for Sri Karri Murali Krishna, counsel on record for petitioner in WP No. 33607 of 2016; Sri P. Keshava Rao, learned counsel for petitioner in WP No. 33408, 2016, Sri P. Vinayaka Swamy, learned counsel for petitioner in WP No. 33408 of 2016, learned Government Pleader for Municipal Administration (AP) for respondents 1 & 2 in WP Nos. 33408 of 2016, for respondent No. 1 in WP Nos. 35675 and 33607 of 2016; Sri V.V. Prabhakar Rao, learned counsel for respondents 2 and 3 in WP Nos. 33607 & 35675 of 2016 and for respondent No. 5 in WP No. 33408 of 2016; Sri S.D. Gowd, learned counsel for respondent No. 4 in all the writ petitions; learned Government Pleader for Revenue (AP) for respondent No. 5 in WP Nos. 33607 and 35675 of 2016 and also for respondent No. 3 in WP No. 33408 of 2016.
2. Since in all three writ petitions, the subject of controversy is conduct of election to post of Mayor in Chittoor Municipal Corporation, all the writ petitions are disposed of by this common order.
3. W.P. Nos. 33408 and 33607 of 2016 are filed aggrieved by inaction of respondents in conducting election to the office of the Mayor of Chittoor Municipal Corporation in the vacancy that arose on 17.11.2015 and conducting election to the two vacant wards before holding election to the post of Mayor. In W.P. No. 35675 of 2016, petitioner opposes conduct of election to the post of Mayor before conducting elections to the vacant Ward Nos. 33 and 37. In other words, petitioner in W.P. No. 35675 of 2016 opposes the claim of the petitioners in the first two writ petitions. Petitioner in W.P. No. 33408 of 2016 is elected as Corporator for 35th Division of Chittoor Municipal Corporation. Petitioner in W.P. No. 33607 of 2016 is elected as Corporator to Ward No. 47. Petitioner in W.P. No. 35675 of 2016 is aspiring to contest one of the two vacant Wards.
4. Chittoor Municipal Corporation consists of 50 Wards/Divisions. Election to the Ward Members of Municipal Corporation was held in May, 2014. Elections to the Mayor and Deputy Mayor were held on 03.07.2014. The post of Mayor in Chittoor Municipal Corporation was reserved to a woman belonging to Backward Class community. In the election held on 3.7.2004, Smt. K. Anuradha, a person belonging to Backward Class and Corporator of 33 Ward, was elected as Mayor, and Sri R. Subramanyam, Corporator, was elected as Deputy Mayor. Mayor and her husband were killed in her office on 17.11.2015. On account of death of Smt. K. Anuradha, vacancy in the post of Mayor as well as Corporator to 33 Ward was created. There was a vacancy in 37 Ward also. The Chittoor Municipal Corporation is governed by the Greater Hyderabad Municipal Corporation Act, 1955 (for short the Act, 1955).
5. Learned Senior Counsel Sri Veera Reddy contended that conduct of elections to the posts of Mayor and Deputy Mayor are governed by 'Andhra Pradesh Municipal Corporations (Conduct of Election of Mayor and Deputy Mayor) Rules, 2005' (for short Rules, 2005), notified vide G.O. Ms. No. 762 Municipal Administration and Urban Development (Ele.II) Department, dated 19.08.2005. In terms of the proviso to Rule 8 of the Rules 2005, every casual vacancy in the office of Mayor should be filled up immediately, there is unexplained delay and no justification in not conducting election even after one year. He would submit that the said action of the State Election Commission amounts to arbitrary exercise of power in violation of statutory mandate.
5.1. He would further submit that the stand of the respondent-Election Commission that it has taken decision to conduct election to vacant Ward Members first before conducting election to Mayor is ex facie illegal. He would submit that by placing reliance on self-made executive instructions to defer conduct of election of Mayor is not valid when statute mandate conducting of such election as expeditiously as possible.
5.2. He would further submit that conducting elections to the post of Mayor is a simple procedure. It only requires convening of special meeting of Corporation with three day notice, whereas detailed procedure is envisaged for conducting of election to Ward members. The facts narrated in the counter affidavit would also disclose that there is a long drawn process before election to Ward members is conducted. Thus, when the process is simple, there is no justification to delay in conducting of elections for more than one year. When the statute does not require the full composition of elected ward members, it is illegal to defer the election of Mayor on the ground that there are two vacancies of Ward Members.
5.3. He would further submit that State Election Commission being a creature of the statute, it must work within four corners of the statutory mandate and cannot go beyond.
5.4. He would further submit that by its actions, the very object of reserving of Mayor in favour of the Backward Class community is defeated. The Deputy Mayor, who is holding the post of Mayor does not belong to Backward Class community and for more than one year, Backward Class community (woman) member is deprived of opportunity of becoming Mayor.
5.5. In support of his submissions, Sri P. Veera Reddy, relied on S. PRASADA RAJU v. STATE OF ANDHRA PRADESH AIR 1992 AP 351 and STATE OF PUNJAB AND OTHERS v. BHAJAN SINGH (2001) 3 SCC 565.
6. Sri P. Kesava Rao would submit that the legislative intent is clearly discernible by the scheme of the Act and Rules. There is absolutely no nexus between filling up of vacancies of ward members and Mayor. Thus, delay in conducting elections to the post of Mayor, which requires minimal procedure and very short time for conducting the election process, on the ground that there are two vacancies of Ward Members is contrary to the scheme of Act and Rules. The inordinate delay in conducting election to the post of Mayor and now further postponing on the ground that a schedule for conducting election to the post of Ward Members is drawn is not valid.
6.1. He would submit that only requirement to conduct election to Mayor is availability of a quorum as prescribed. Statute even dispenses with quorum in a given situation. Since there are only two vacancies and there are 48 Ward Members and other members of Electoral College, not conducting elections to the post of Mayor and linking such election to filling vacancies of ward members is nothing but arbitrary exercise of power and authority.
6.2. He would submit that Section 90 of Act, 1955 mandates conducting of election for vacancy in Mayor forthwith. On account of unjustified delay in conducting election to the post of Mayor, Deputy Mayor, who does not belong to Backward Class community and is not a woman, de facto functioning as Mayor for more than one year, defeating the very object of the scheme of the Act.
7. Sri Vinayaka Swamy, learned counsel for petitioner in W.P. No. 35675 of 2016 would submit that, petitioner is aspirant to the post of 33rd Ward Member, which is reserved for Backward Class (Woman). All Ward Members are entitled to contest to the election of Mayor. As per Section 7 vacancy of Ward Member has to be filled up within three months whereas for more than one year it is not filled up. If only election to two vacant Ward Members was held as per said provision, this Ward Member would also become eligible. Thus, for the lapses of State Election Commission, aspirant like this petitioner, cannot be deprived such opportunity and petitioners in W.P. Nos. 33408 and 33607 of 2016 cannot take advantage of lapses of State Election Commission.
7.1. Learned counsel opposes the prayer of petitioners in W.P. Nos. 33408 and 33607 of 2016. According to learned counsel only after all vacancies of Ward Members are filled up, election to Mayor should be held. He supports the State Election Commission decision to schedule election of Mayor after the election of Ward Members. He would further submit that, since there was delay in conducting election of Ward Members and Mayor and now election schedule is drawn up for the posts of two vacant Ward Members, in all fairness the said process should not be interfered.
8. By referring to various provisions of the Act and Rules 2005, Sri Prabhakar Rao submitted that though Act and Rules mandate filling up of vacancy of a Ward Member, post of Mayor or Deputy Mayor, the Act and Rules are silent as to which vacancy should be filled first. Insofar as Ward member is concerned, ordinarily within four months elections should be conducted, whereas in case of Mayor, ordinarily elections to be conducted within six months. Since the Act and the Rules made there under are silent on various aspects, Election Commission has earlier notified guidelines for smooth conducting of elections. After establishment of separate State Election Commission to the State of Andhra Pradesh, these guidelines are further reviewed and circular instructions were notified on 14.09.2016. Election Commission decided that if there are two or more vacancies of Ward members in a Corporation, in addition to vacancy of Mayor, the Election Commission would first fill up the vacancies of Ward members before filling up of the vacancy of Mayor or Deputy Mayor, as the case may be. However, if there is only one vacancy of Ward member, the Commission would proceed to conduct election to the post of Mayor or Deputy Mayor immediately without first conducting elections to Ward member. These circular instructions are only intended to guide the Election Commission to conduct elections properly and are made since the Act and the Rules do not cover these issues.
8.1 By placing reliance on para-12 of A.C. JOSE v. SIVEN PILLAI (1984) 2 SCC 656, where Supreme Court summed up its conclusions, particularly (a) and (b), learned standing counsel would submit that the State Election Commission is competent to lay down guidelines as has been made. Those two sub-paras read...
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