Shaik Jamal Bee v. State of Telangana
Court: High Court for State of Telangana
Bench: A.ABHISHEK REDDY
Judgment date:
Case summary
High Court for State of Telangana judgment dated 2020-12-24. Shaik Jamal Bee v. State of Telangana. Read the judgment and case details on LawSphereX.
Judgment text
HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction) THURSDAY,THE TWENTY FOURTH DAY OF DECEMBER TWO THOUSAND AND TWENTY PRESENT THE HON'BLE SRI JUSTICE A. ABHISHEK REDDY WRIT PETITION NO: 23498 OF 2020 Betwee n: Shaik Jamal Bee, W/o Aged 46 years, _lmam _Saheb, Occ. House_wife, R/o H. No. 7-3-260, Riccob Bazar, Khammam urban, Khammam State of Telangana. AND 'l . state. of relang_ana, Rep by its prl secretary tvunicipal Administration and Development,Telangana Secretariat, Hydeiabad ^ 2 Telangana Stale Election Commission, Rep. by its Secretary, 1st Building Opp. PTI Building, A. O Guards, Hyderabad-500004'. - 3. Collector and District Election Authority, Khlmmam District, 4. The IVlunicipal_commissroner-cum-Reiurning officer, Khammam Corporation, Khammam District 5, Khammam l\/unicipal Corporation, Rep.
By its Commissioner, Khammam, Knammam utstnct Petition under Articte 226 of the Constitution of tndia ,;;ffi',3lit':T: circumstances stated in the affidavit filed therewith, the High court inay to issue writ, order or direction more in the nature of lr/andamus, impugned the order No. 3i 2/TSEC-Lr2016-(31) Dated. 08/08/20. 19 Respondent No . 2, disqualifying the petitioner from contesting any election held for any office under the provisions of GHIVC Act, '1955 foia plrioo from the date of the order as, arbrtrary illegal unjust and violation of Natural Justice and violation of Articles 14 16 and 21 of the constitution consequently set-aside the impugned order No. 3 i 2irsEC- Dated. 08/08/201 9 issued by Respondent No. 2 and declare that the entitled to contest in any elections to be held for any office under the the provisions of GHIVC Act, 1955 with all consequential benefits in justice.
lA NO: 1 OF 2020 Petition under Section 151 cpc praying that in the circumstances the affidavit filed in support of the petition, the High court may be suspend the operation of the impugned order No. 312lTsEC-rizot Dated. 0B/08/2019 issued by Respondent. No. 2, pending disposal of the without insisting in the interest of justice. Counsel for the Petitioner : SRI RAMESH BURA Counsel for the Respondent No,1: GP FoR MUNICIPAL ADMINISTRATIoN URBAN DEVELOPMENT Counsel for the Respondent Nos. 2 & 3: SRI p. SUDHEER RAO, SC FOR TSEC Counsel for the Respondent Nos. 4 & 5:Ms. M. BHAGYA SREE, SC FOR MUNICIPALIry The Court made the following: ORDER THE HON'BLE SRI JUSTICE A. ABHISHEK REDDY WRIT PETITION No.
2 349a of 2O2O ORDER: FleardthelearnedcounselforthepCtitlonel,thelearn<:d and Urbarl Government Plcader for Municipal Administration Standrng Counsel No 1, the learned Development ibr respondent and for re spondent No 2 Dlection Commission' lbr Teiangana Statc ' 1br rcsponclcn'L thc learnec-l Star-rcling Coltnsel N4s. M. Bhag1'a Srec, V/rit f)t':tition is cirsposeci of aL Nos. 3 to 5. Wilh lhcir ctlliserlt, thc rlrr sl. 'lg(t 61 211i6i55i61 i1se1[' br thc orclt rs 'l'hc prcscnt Writ Petilion ts l'iled aggrievcd '! 'SIi(l p:issecl bv rcspolldcnl No 2 r'idt procotrdillgs No. ll 1-2 , pe L it io rtt: r 1t'ottt 20l9, ciisqr-ralilr rng thc L/201{r 13 l), d:rtctl OE. OE '1'c tht Iit rl gli LltL to be hr:id rincltt' Corllcslillg thc elcction liro gll)Lll)(l 201(1, lot' :r pcrtocl o1 t]-rrcc \(iris oll \,liLnicilt:LIiL,, Acl.
nol sr-rbmittcd thc elccrron L:xpctrcl it tl t'c Lllrlt thc- petitioner harci When the matter is taken up for l-rcaring' the learned counsel for t1-re petitioner has surbmitted that thc li's in thc pr( sc1ll \\'ril pctition is squarrely covered by the orders passed t. his Courl in W. P. No. 17075 ol 20 1E & batch, date d 20 03 2019 T. hc :rboi. r:: said sttbrrrisslrln is rlt-lt disllurtcd }:r' tI. rt: IclLrni'cl St:rr-rding Counseis tl. 1lpt'aring for tllc rcsponclcnts ht:rcin' ir'' the t. rrtlcr' ln Vier'l o1 Lhe s:ln-ie ancl It't- tltt rt::ts|rr: 'tlil<c' 1 8 r! ' l)i'rlcll tll(' (lrrtLcL rn W t) No' 17075 ol 20. 0i1. 2019, passcrl '2() ilisrlrr. lLillr-iLLirltl tlrclt,t.. \Vl it i)r,Lit]r;rt is ll]]il. 'r,ci] lltltl t]lc ]]f(]Sl']]l rclrl sct ltsicl'- ' 1lt' t csllotlcle tlr \o''l rs Ile rlirLccl 06. 0E. -20 19, 1. ':Lssecl I Thc miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs. SD/-T.
KRISHNA KU AR ASS ISTANT //TRUE COPY// RE RAR To, SECTI N OFFICER 1 The Prl Sec reta ry Municipal Admini stration Telangana, and Urban Development, Telangana se cretariat State 2, Hyderabad of The Secreta ry, Telanga na State E ection Opp. PTt Comm ission, Buildi ng, A. O 1st F loor, Guards, H yderabad-50 DTCp Building, 3. Collector 0004 and Dislrict Et ection Authority, 4. The Munici Kham pal Commi ssioner-Cu mam Distrrct m-Returning Corporatio Officer, n, Khamma Kha mmam m District Municipal 5. The Com mlssioner, K hammam tvlunicipal District Corporation, Khammam, Khammam 6 One CC to Sri Rames h B ura, Advocate 7 One CC to loPu cj S ri P. Sudheer Rao, SC 8. One CC for TSEC, Advocate to Ir/s. M. Bha gya Sree loPUCl 9. , SC for TWo cCS Munic ipality, Ad vocate to GP for A,4 uni cipal Adminis oPUCI tration High Cou rt and for the S tate Urban Deve lo pment, of Telangana 10. Two CD Copies at Hyd erabad. [OUT] (Along with a copy of order dt:20103/2019 in W. p. No.
1707 S of 2OlBand Batch) SM \ +-\ x\ i HIGH OURT I DATED:2411212020 , I ORDER WP. N o. 23498 ol 2020 THE 5 t4 ) $ o o 04 IAN 2021 Z. C) . ,',.. fO ALLOWING THE WP WITHOUT COSTS i THE HON'BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION Nos. 17075, 17080, 12196. 18350. 18401. 18504, 1910s. L9773,19821. 19824. L9957. 20078. 20280, 20309. 20 9,20s67. 2L273. 2t318, 22551. 22559. 707 4 7 4 48 4a07 1,48118. 48120 and 48t24 of 2018; 3 406. 4 07. 4LO. 4L4. 4L5. 4t6. 4 0. 422. 424. 430. 432. . 44L. 45 1 453. 455. 4 60 497. 596. 5I 7. 598. 50 0 603. 605. 61 . 612. 689. 6 90,69t. 692. 693. 694. 695,697. 69A. 699,702. 70 ,704. 7 08 7 71 3 7L4 7L7 721 7 724 6 727 72 731 7 73 7 74 46 747 74 7 7 2 55 7 7 7 1 7 2 764 7 6 7 77 2 77 6 77 77 7 7 2 784, 806. 860. 869. 870, 871, 885. 886, 887, 893, 167s, 174s, 3263, 334L. 359L. 36L7. 3645. 3649.
3650, 3653, 9775, 4730, 4881 51 73 and 5257 of 2019 coM MON O DER The issue for consideration in all these writ petitions being the same, they are amenable to disposal by way this common order. The petitioners in these cases contested ln the elections held in 2013 and 2014 to various posts falling within the purview of the Andhra Pradesh Panchayat Raj Act, 1994 (for brevity,'the Act of 1994,). Some of them contested for the posts of Sarpanches/Ward Members of Gram Panchayats in the elections held on 23. 07. 2013, 27. 01 . 2013 and 31. 07. 2013 while others were in the fray for the posts of members of Mandal Parishad Territorial Constituencies (MpTCs)/Zilla parishad Territorial Constituencies (ZPTCs) in the elections held in April, 2014. While so, the Telangana State Election Commission (for brevlty, 'the Commission') disqualified all the petitioners under Section 19-B of the Act of 1994, which was applicable to the State of Telangana after its i I i J formation on 02. 06'2014.
By way of these writ petitions' they assail the them' validity of the disqualification visited upon 1994 speaks of disqualification of Section 19-B of the Act of election expenses' The to lodge their accounts of candidates for failing provision reads thus: for failure to lodge 'section 19-B.
Disqualification the State Electlon Commission account of election expenses:- If l -is satisfied that a Person, i (a) has failed to lodge an account of election expenses within ihe time and in the manner required by or under this Act' and failure' (b) has no good justification for the reason or after following the procedure I the State Election commission shall, I in the Andhra Pradesh Gazette piescribed, by order published I I declare him, period of three years from the (i) to be ineligible for a for date of the- said order to contest any election held anY office under this Act; and (ii) to have ceased to hold office; in case he is elected" Chapter II-A in Part-V of the Act of 1994 deals with 'Election Expenses,. section 230 therein states that the said chapter would apply to candidates in any election held under the Act of 1994' Section 230-A speaks of how an account of election expenses is to be maintained by everycandidateinanyelectionheldundertheActoflgg4. Section230.
8 Statesthateverycontestingcandidateatanelectionshall,withinforty-five daysfromthedateofdeclarationoftheresultoftheelection,lodgewith the District Election Authority, an account of his election expenses' TheAndhraPradeshPanchayatRaj(ConductofElections)Ru|es, 2006 (for brevity, lhe Rules of 2006'), were framed by the erstwhile Government of Andhra Pradesh in exercise of power under the provisions of the Act of 1994. Rule 100 of the Rules of 2006 deals with particulars of . theaccountofelectionexpensesandsub. rule(2)thereofprovidesthat theaccountofelectionexpensesshallbesubmittedtotheDistrictElection ( Authority through the Mandal Parishad Development Officer (MpDO) within foty-five days of the declaration of the election result.
The date of submitting the return in the office of the MPDO shall be deemed to be the date of filing of the return under Section 230-8 of the Act of 1994 and the MPDO is required to forward all the returns received by him to the District Election Authority immediately on the expiry of foty-five days from the date of declaration of the election result. Sub-rule (3) provides that the MPDO shall send a list of contesting candidates who failed to submit their accounts of election expenses within the time specified in sub-rule (2) and he shall also forward any account of election expenses submitted after the due date, with his repot.
Rule 101 prescribes that the District Election Authority shall, within two days from the date on which the account of election expenses is received by him under Rule 100, cause a notice to be affixed on the notice board specifying the date on which the account has been lodged before the MPDO, the name of the candidate and the time and place at which such account can be inspected by any intending person. Rule 102 states that any person shall, on payment of a fee of one rupee, be entitled to inspect any such account and obtain attested copies thereof on payment of costs. Rule 103 is of particular relevance for the purposes of this adjudication and is extracted hereunder: '103.
Report by District Election Authority as to the lodging of the account of election expenses and the decision of the State Election Commission thereon :-(1) As soon as may be, after the expiration of the time specified in Section 2308 for the lodging of the accounts of election expenses at any election, the District Election Authority shall, report to the State Election Commission,-- (a) the name of each contesting candidate; (b) whether such candidate has lodged his account of election expenses, and if so, the date on which such account has been lodged; and l (c) whether in his opinion such account has been lodged within the time and in the manner required by the Act anO tnZie rules.
(2) Where the District Election Authority is of the opinion that the account oF election expenses of any candidate has not been rodged within the due date or toogea but not in the manner required by the Act and these rures, heihail make a report to the State Election Commissjon and with every such report, fbr*aiO inu account of erection expenses of that candidate and the voucheri lodged along with it, if any. (3) Immediately after the submission of the repot referred to in sub-rule (1) the District Election Authority shall publish i copy thereof affixing the same on his notice board. (4) As soon as may be, after the recerpt of the reporl referred to in sub-rure (1); the state Ereition commission shail, consider the same and decide whether any contesting candjdate has failed to lodge the account of election eipenses within the time and in the manner required by the Act and thlse rutes.
(5) Where the State Election commission decides that a contesting candidate has faired to rodge his account of erection expenses within the time and/or in the manner required by the Act and these rules, it shall by notice in writint cait upon the candidate to show cause why he-should not be Oisq-uatified, and Oecfa[O-to have ceased to hold. office unOer Section't9 B of the Act for the failure in case he is elected. (6) Any contesting candidate who has been cared upon to show cause under sub-iule (5) may, within twenty days of the receipt oF such notice, submit in respect of the matter a representation in writing to the State Electron Commission, anJ shall at the same trme send to Oistrict election Authority a copy of his representation together with a complele account of his election expenses if he had not already furnished such an account.
(7) The District Election Authority shall, within five days of the receipt thereof, forward to the State fteition Commission, the copy of the representatlon and the accouni, if any, witfr sucn comments as he wishes to make thereon. (B) If, after considering the representation submitted by the candidate and the comments made by the District Electron Authority, and after such inquiry as it thinls iit, tnu stut. Erection Commission is satisfied that the canOiOate tras'no good reason or justification for the fairure to Iodge rris aicount, it sha, decrare him by an order made under section i9B of in" n. lio be ineligible for a period of three years, from the date of tn" iit order, to contest any erection herd for any office under the nct ino if he is an erected candidate decrare him to have ceased to noia ornce with immediate effect and publish the order in tne OfficLt CazJtte.
, Rule 104 stipulates that the total oF the election expenses incurred or authorised to be incurred by each contesting candidate in connection B with an election shall not exceed the amount speciFied for each office in the order made by the Commission in that behalf. The erstwhile Andhra Pradesh State Election Commission prescribed the procedure and the format in which accounts of election expenditure had to be maintained and filed by candidates, vide its orders dated 18. 05. 2011 and 12. 07. 20t3. This being the statutory milieu, it would be appropriate at this stage to note factual aspects petinent to this batch of cases. The results of the three-phase elections held on 23. 07. 2013, 27. 07. 2013 and 31. 07. 2013 to the posts of Sarpanches/Ward Members of Gram Panchayats were declared on the date of each such poll. Therefore, the stipulated forty-five days for submission of accounts of election expenses by candidates who participated in these elections expired on 05. 09. 2013, 09.
09. 2013 and 13. 09. 2013 respectively. As regards elections to the posts of members of MPTCs and ZpTCs, they were held in two phases in April,2014 - on 06. 04. 2014 and 11. 04. 2014. The results of both elections were however declared on the same day, viz. , 13. 05. 2014. In consequence/ the stipulated forty-five days for submission of accounts of election expenses by such candidates expired on 26. 06. 2014. Be it noted that some of the petitioners in these cases claim that they submitted their accounts of election expenses while others admittedly failed to do so. However, the Commission uniformly claims that none of the petitioners in these cases submitted their accounts of election expenses within time and as per procedure. This question of fact may however not be of any significance for the reasons stated hereinafter.
It is on the basis of the alleged failure of the petitioners to submit their accounts of election expenses as per due procedure withln the stipulated time that the f6p6;55;6n passed the impugned orders of disq ua rification in the rater part of 2017 in most cases and in earry 2018 in the others, exercising power under Sectjon 19_B of the Act of 1994 read with Rure 103(8) of the Rures of 2006, decraring each of the petitioners in these cases as inerigibre to contest in any erection for any office under the Act of 1994 for three years from the date of issuance of the order. Interim orders oF suspension were however passed by this Court : in all these cases' As ; a'the orders run on the same rines, it wourd suffice to reFer to one such order. In W. p. No. 22551 of 2018, the following interim order was passed on 04. 01. 2019: I I 'perusal l of the. statutory scheme under panchayat the Act and the Raj Rutes r"r. J lh. i. r-no.
r",olilonrtrates election authorities that rhe were required to taf<e iimefV retation to measures in the candidates *ft- i;i[ii""il;r]i their election expenses accounts of l within the ,tiprlui. o'iir. oil. o, ourr. so much ji;. 1ii? ,T"3#frfi'er courd o" oriq'iriiiejrir. ruirins to-rodse an #;. 'i T,"? Tffi :JJ,o i:. ::o ,iIJ,;a,,[,. J H["#:"" "::#f Though a counter_affidlvit filed by the Secretary State Election Commission, )/as of the there is no . rpfulujiin forthcoming to wh1, steps as were not. taken or uru itutJii. liiin comrirrion foltow up with to the oistrict eteclon-irln. *Vttn regard candidates to the who had raireo tolle't;;';. ;L# or their election ti me .. J,. t. i"'i,,ery,"a,,,ei :Yrili:d lo fl :flijiff:i"lated That beinq t! " impugned order refrects authorities were --ro,, that the somnotent in ,n! ,iuttlr" i"liit. tnu stipulated expiry of the 45 days as^lolg backai l, ,n. r.. ,rio13 and onry in the year 2018. took steps ri," o. r. riti.
, ;i;;,, on the par of the wourd thereforu ortr. igh tt ]ijl,,on, if :jjr? J:,[: any, of the There shall accordingly be interim suspension as prayed for. , counter,-affidavits were fired by the commission in some of the cases' As its stand is common in a, of them, it wourd be sufficient for the purposes of this order to refer to the contents of one such counter. In W. p. No. 22551 of 2018, the Secretary of the Commission filed a counter in August, 2018, wherein, after referring to the statutory provrsions set oul supra, he adverted to the contents of the earlier orders issued on 18. 05. 2011 and L2,07. 2013 with regard to the procedure and format to be followed while submitting accounts of election expenses. He pointed out that by way of para 12 of the order dated 18. 05.
2011, it was directed that final returns of election expenses should be submitted by contesting candidates to the District Election Authority through the MPDO within forty-five days from the date of declaration of the result and that the District Election Authority should get the said returns published in the manner as prescribed in the order. Para 13 of the said order provided that the District Election Authority should furnish the names of contesting candidates who failed to lodge election expenses within the time stipulated and in the manner specifled. Referring to the later order dated 12. 07. 20L3, he stated that the Collector-cum-District Election Authority was authorized thereby to deslgnate any officer to conduct inspection and scrutiny of accounts of the election expenses maintained by candidates, On facts, he stated that the District Election Authority, Karimnagar District, submitted report dated 30. 05.
2017 to the Commission, furnishing the list of 1618 candidates who had failed to lodge their election expenses withln the stipulated forty-five days from the date of declaration of the election results. The petitioner in W. P. No. 22551 of 2018 was stated to be amongst those named in this list. In exercise of power under Rule 103(5) of the Rules of 2006, the Commission issued show-cause notice dated 06. 06. 2017 to the petitioner calling for an explanation within twenty days as to why he should not be disqualified under Section 19-B of the Act of 1994. The said notice was served upon the petitioner on 19. 06. 2017 but he failed to give his reply in response thereto. The Commission accordingly passed the impugned order dated 12. 01. 2018, declaring him ineligible for a period of three years to contest in any election under the Act of 1994. The Secretary therefore assefted that the due procedure had been followed.
As regards the time frame mentioned in the statutory scheme, the Secretary stated that the District Election Authority, Karimnagar, submitted his repot only on 30. 05. 2017 and the Commlssion immediately took action thereupon. The delay prior thereto was explained as being merely administrative and procedural in nature. On the strength i I of these averments, the Secretary asserted that the writ petition was I devoid of merit and liable to be dismissed. For good measure, written submissions were also filed by the I Commission. Therein, while again adveding to the statutory provisions, it i was pointed out that the responsibility of the District Election Authority under Rule 103 of the Rules of 2006 to compile and submit a further report started only upon receipt of a repoft from the MPDO.
it was asserted that the language of sub-rules (1), (2) and (4) of Rule 103 of the Rules of 2006 did not specify or use the word 'immediately', which found mention in sub-rule (2) and sub-rule (3) of Rule 103. According to the Commission, sub-rule (3) of Rule 100 permitted the MPDO to receive an account of election expenses even after expiry of the due date and therefore, a conjoint reading of the sub-rules of Rule 103 showed that the District Election Authority was not required to fonvard a report to the Commission immediately upon expiry of forty-five days. It was also pointed out that sub-rules (6) and (B) of Rule 103 did not use the word 'immediately' and merely said'as soon as may be'. The Commission stated that it was for the entire State while District Election Authorities functioned in each of the districts and therefore, as the role of the Commission was different from that of District Election Authorities, no time frame was prescribed for it.
According to the commission, the Act oF 1994 and the Rures of 2006 did not prescribe any time frame within which a decision was to be taken by the Commission and in the absence of such limitation, the orders of the Commission, invoking Section 19_8, could not be found faurt with on the sore premise that the commission did not adhere to the tlme frame. The Commission further stated that disqualification under Section 19-B was consequential upon the lapse on the paft of the contesting candidate concerned and did not amount to penal action. It was pointed out that after the formation of the state of Terangana with eFfect from 02,06. 2U. 4, the Government of Telangana adopted the Act of 1994 and the Rures made thereunder, by exercising power under section 101 0f the Andhra pradesh Reorganization Act, 20L4, rziCe G. O. Ms. No. 9, panchayat Raj and Rurar Deveropment Department, dated 12. 09. 2014.
The Commission was stated to have been constituted in Septembe r, 2014, under Articre 243K read with Articre 2432A of the constitution and it was onry thereafter that the commission addressed retters to the District Election Authorities to submit accounts of election expenses filed by contesting candidates. Some of the District Election Authorities obeyed this directive but in so far as Karimnagar, Nalgonda, Ranga Reddy and warangar Drstricts are concerned, no detals were furnished. The commission again addressed retters dated 24. 08. 2015 to the District Election Authorities of these districts calling upon them to furnish the details, but to no avail. Similar letters were also addressed by the Commission to the Zilla praja parishads (Zpps). Again, the Commission issued reminders to the District Election Authorities and the Chief Executive officers of Zpps on 08. 10. 2015.
Upon receipt or the accounts of election expenses submitted by candidates and the reports of the District ElectionAuthorities,thecommissionWaSstatedtohaveexercisedpowers under Rule 103(5) of the Rules of 2006 and issued notices to candidates who had failed to submit their election expenses as per procedure The Commission therefore claimed that it had followed the due procedure beforedisqualifyingsuchcandidates,viz. ,thepetitionersbeforethis Court. Reference was made to case law in suppoft of the Commission's contention that such disqualification does not partake the nature of a punishmentorastigma. TheactiontakenbytheCommissionineachof these cases was therefore sought to be justified' The letters dated 24. 08.
2015 and 08'10 2015 addressed by the Commission to the lower authorities are placed on record The commission also produced the letters received from the District Election that such repofts were submitted Authorities, which clearly demonstrate by these authorities only in May, 2017, and thereafter' Sri G. Vidya Sagar, learned senior counsel appearing for forcefully for the Commission, would Sri P. Sudheer Rao, learned counsel part in abiding by the argue that the inaction on the of candidates Statutorymandateofsubmittingtheiraccountsofelectionexpensesought nottobeviewedlightlybythisCourt. HewouldStatethattheobjective scheme has to be kept in mind by sought to be achieved by the statutory this court while dealing with the cases on hand.
He would point out that given the realities of electioneering in our country and the corrupt practicesresortedtobycandidates,itisessentialtocurbexcessive expenditurebycandidatesforachievingtheirpurposeandthatisthe reasonwhyeachcandidatepafticipatinginanelectionismandatorily required to submit his account of election expenses. Failure on the paft of t4 ; the candidate, perthe learned senior counsel, would essentially be a lapse on his/her own part and law must take its course as a result thereof. He would contend that mere delay in the implementation of the law in this regard would not absolve the errant candidate of the lapse in not abiding by the statutory mandate. He would assert that the delay in this regard has to be viewed liberally, given the fact that the State of Telangana was formed on 02. 06.
2014, by which date the stipulated forty-five day period had already expired in so far as candidates who participated in the elections to the posts of Sarpanches/Ward Members of Gram Panchayats were concerned and as regards candidates in the elections to the posts of I4PTC/ZPTC members, the stipulated forty-flve day period expired on 26. 06. 2014, even before the constitution of the Commission in September, 2014. He would further point out that districts in the State of Telangana were reconstituted and new districts were formed in October, 2016. These factors, per the learned senior counsel, would have to be taken into consideration while testing the delay in taking action against the petitioners. He would assert that setting aside the disqualification visited upon the petitioners would result in rewarding them with a premium, despite their lapse in abiding by the statutory mandate, and such benefit ought not to be conferred by this Court upon law breakers.
Though, ordinarily, this Court would not entertain writ petitions in relation to election matters, this self-imposed restraint is not intractable. In MANDA JAGANNATH V/s. K. S. RATHNAM1, the Supreme Court pointed out that there may be special situations wherein writ jurisdiction can be exercised even in matters relating to elections - a special situation would mean one where errors have the effect of interfering in the free AIR 2oo4 sc 3600 ' flow of the scheduled election or hinder the progress of the election, which is the paramount consideration. As this Cout is of the considered opinion that the cases on hand would squarely fall within the exception adumbrated by the Supreme Couft in MANDA JAGANNATHI, for the reasons set out hereinafter, these writ petitions are maintainable.
It is no doubt true that a laudable objective is sought to be achieved by the statutory scheme/ which obligates candidates to come clean with regard to the amount of money spent by them in the course oF elections, be it to the posts of Sarpanches/Ward Members of Gram Panchayats or to the posts of members of tvlPTCs/ZPTCs. However, timely implementation of the sanctions prescribed by law, in case of deviation by a candidate, is a must to achieve such an objective. Be it noted that a candidate who fails to abide by this statutory mandate would cease to hold office even if he ls elected to the post, once the due procedure is followed and he is disqualified on the ground that he did not submit his account of election expenses.
This being the severity of the consequences contemplated by law for those who fall short oF their statutory obligation, delay on the part of the authorities in giving timely effect to such rigorous provisions would run contra to the very purpose of this statutory scheme. Hypothetically speaking, a candidate who ran afoul of the mandate to submit his account of election expenses, but was elected to the post in the 2013 elections/2014 elections, was allowed to merrily continue in office till 201712018, when the Commission passed the d isq ua lification orders en /rasse against all the erring candidates in the districts of Karimnagar, Nalgonda, Ranga Reddy, Warangal and Medak. At this stage, it may also be noted that the Commission has an explanation to offer for the delay only in respect of four out of these five districts. There is no mention as to why steps were not taken within time in the cases of erring candidates hailing from Medak District. Be that as it may.
This being the situation, the issue boils down to whether the inaction on the paft of the election authorities would outweigh the inaction/lapses on the part of the petitioners. The answer to this question, in the considered opinion of this Court, squarely turns upon how the statutory scheme is to be understood and implemented. Further, it would not be necessary to go into the disputed question of fact as to whether some of the petitioners did actually submit their accounts of expenses as per procedure/ thereby fulfilling their mandatory obligation. Section 230-4 of the Act of 1994 mandates that every candidate in an election held under the Act of 1994 shall keep a separate and correct account of all expenses incurred in connection with the election. Section 230-8 requires him to lodge with the District Election Authority an account of his election expenses within foty-five days from the date of declaration of the election result.
The temporal mandate in Section 230-8 is explicit and the duty cast upon a contesting candidate to do the needful within the stipulated forty-five days is spelt out in clear terms. Section 19-B postulates that a candidate who fails to lodge his account of election expenses, within time and in the manner required by or under the Act of 1994, and who has no good reason or justification for such failure, is liable to be proceeded against by the Commission. After adhering to the prescribed procedure the Commission is empowered, by an order published in the Gazette, to declare such a candidate to be ineligible to contest in any election for any office under the Act of 1994 for a period of ). 7 three years from the date of such order and that he ceases to hold office, in case he has been elected.
Rule 100(2) of the Rules of 2006 reiterates that the account of election expenses should be submitted by a candidate through the MPDO to the District Election Authority within foty-five days of the declaration of the result of the election.
Fudher, the Rule demonstrates that the MPDO, in turn, is required to forward all returns received by him to the District Election Authority 'immediately' on the expiry of forty-five days from the date of declaration of the result, Rule 100(3) also requires the MPDO to send a list of contesting candidates who failed to submit their accounts of election expenses withln time and also the accounts of election expenses submitted by candidates after the due date, along with his repofts The discretion vesting in the MPDO to receive accounts of election expenses beyond the stipulated forty-five day period is brought out in this rule' However, the MPDO is required to submit his report in that regard' The duty cast upon the Distrlct Election Authority is dealt with in Rules 101, 102 and 103 (1), (2) & (3) of the Rules of 2006 Rule 101 stipulates that within two days from the date on which the accounts of election expenses are received by the District Election Authority from the MPDO under Rule 100, the District Election Authority shall cause notice to be affixed on its notice board specifying the name of the candidate, the date on which his account was lodged before the lvlPDo and indicate the 103 (1) time and place at which such an account could be inspected.
Rule provides that'as soon as may be', after expiration of the stipulated period of forty-five days, the District Election Authority should repoft to the State Election Commission the name of each contesting candidate; whether such candidate has lodged the account of election expenses and if so, the date; and whether in the opinion of the District Election Authority, such an account has been lodged within time and in the manner required. Sub-rule (2) provides that in the event the District Election Authority is of the opinion that the account of election expenses has not been lodged either within the due date or in the manner required, he should make a report to the Commission and forward the account of election expenses of that candidate along with the vouchers lodged with it, if any.
Sub-rule (3) states that immediately after submission of the report referred to in sub-rule(l) of Rule 103, the District Election Authority should publish a copy thereot affixing the same on his notice board, Though Sri G. Vidya Sagar, learned senior counsel, would contend that the statutory scheme allows the election authorities to discharge their functions under the aforestated rules without a temporal restriction, this Court is not persuaded to agree. The aforestated rules clearly bring out that the District Election Authority is required to be on his toes while dealing with the matter. Ivlerely because the words'as soon as may be, have been used in Rule 103(1), it does not deviate from the fact that the District Election Authority is time-bound in the discharge of his functions. The words 'as soon as may be' in Rule 103(1) is attributable to the discretion given to the MPDO under Rule 100(3) to receive accounts of election expenditure even after the due date.
Be it noted that Rule 101 of the Rules of 2006 makes it clear that the District Election Authority is required to cause notice to be affixed on his notice board in relation to each candidate and therefore, his reports to the Commission would not be limited to just one. As and when he causes publication of notices under Rule 101 upon receipt of accounts of election expenses from the MpDO under Rule 100, he would be required to forward his repots to the t9 Commission under Rule 103(1). The use of the words 'name of each contesting candidate'under Rule 103(1Xa) clearly shows that the District Election Authority may send a report covering more than one candidate and in that regard, he may have some amount of discretion to club details of several candidates while submitting a repot to the Commission under Rule 103(1). It is only to this extent that he may have some dlscretion as regards the time factor and that is the reason why Rule 103(1) is prefaced with the words'as soon as may be'.
The use of the very same words in Rule 103(4) in relation to the next step to be taken by the Commission would indicate that there is a temporal stipulation even in that regard. This sub-rule makes it clear that after receipt of the repoft from the District Election Authority under Rule 103(1), the Commission shall, 'as soon as may be', consider the same and decide whether any candidate failed to lodge the account of election expenses within time and in the manner required. Rule 103(5) provides that if the Commission decides that a candidate failed to do so, it shall by notice in writing call upon such candidate to show cause why he should not be disqualifled, and declared to have ceased to hold office under Sectlon 19-B of the Act of 1994 for his failure, in case he is elected. Sub-rule (6) of Rule 103 demonstrates that twenty days time ls given to such a candidate to submit his response to the show-cause notice.
At the same time, the candidate is required to send to the District Election Authority a copy of his representation along with a complete account of his election expenses, if he has not furnished such an account already. Rule 103(7) demonstrates that the District Election Authority has to forward the representation and the account, lf any, received from such candidate along with its comments to the Commission within flve days from the date of receipt of the representation d 20 and account, if any, from the candidate.
Rule 103(B) postulates that after considering the representation of the candidate and the comments made by the District Erection Authority and after hording such rnquiry as it thinks fit, the commission, if it satisfied that the candidate had no good reason or justification for his fairure, shail decrare him by an order made under section 1g-B of the Act of 1g94 to be inerigibre ror a period of three years from the date of the said order to contest any erection herd for any office under the Act of 1994 and in the event he is an elected candidate, to declare that he would no longer hold office with immediate effect.
In the light of the aforestated statutory scheme, which clearly exemplifies the timery steps that have to be taken, be it by the candidate or by the authorities, this court is of the opinion that it is not open to the commission to brush aside the deray in disquarifying the petitioners on the ground that they themserves faired to submit their accounts of erection expenses within the stipurated forty-five days. Be it noted that this berated exercise was not restrjcted to an isolated case or two but was applied across the board to several candidates hailing from five districts. Reliance placed by Sri G. Vidya Sagar, learned senior counsel, on the Division Bench judgment of the Chhattjsgarh High Coud in THE COMMISSIONER, STATE ELECTION COMMISSION/ CHHATTISGARH V/s. SMT. FOHARA BAI MIRI2 is therefore of no avail, as that was a case where the disqualification was restricted to a single person.
It was in the light of the facts obtaining in that case, relating to that one person, that the Division Bench observed that a duty was cast upon every contesting candidate to lodge election expenses with the state Election commission within the time stipurated and fairure to \\'... \. NO 717 Otr t0 lli t)t:c. tDI:D ON -. 1 L t0. 10 I 8 ! r 2l further The Division Bench comply would have its consequential rigors' provision indicated that the of the statutory observed that a readlng lodge the part of the candidate to primary ingredient was failure on if the Election Commission was not election expenses within time and for non-compliance' there was a satisfied with the reasons offered period of five years from the such a candidate for a mandate to disqualify date of the order. This being the thrust of the statutory scheme even in the cases on hand, there can be no doubting the proposition laid down by the Division Bench.
However, unlike the case before the chhattisgarh High in Coutt, there is a huge delay on the paft of the election authorities is the of candidates' That a vast multitude taking action against that case and these cases' distinguishing factor betvveen of the made by a Division Bench Similarly, the observations erstwhile High Court of Andhra Pradesh in KESHAV IADHAV V/s' the INDIA, DELHI3 are of no avail to ELECTION COMMISSION OF for of Commission. That was also a case one candidate being disqualified amount of Though there was some failure to submit his election expenses' paft in taking steps' the Bench did not delay on the of the Commission ln part of the election authorities address the issue of delay on the in and no argument was advanced that effecting such disqualification regard.
The Division Bench fudher opined that such disqualiflcation would not amount to imposition of any punishment or stigma' Be it noted however that the case before the Division Bench did not pertain to the Act of 1994 or the Rules of 2006. In any event, irrespective of the character that attaches to the in the orders impugned disqualification effected by the Commission under r . tlR 200t eI'538 / these cases, the inevitable consequence that flows therefrom is that each of the petitioners stood disquarifled from contesting in erections for any office under the Act oF L994 for a period of three years from the date of each such individuar order of disquarification.
As arready noted supra, the elections in question were held in July,2013 and April,2014 and the stipulated forty-five days expired in September,2013 and in 1une,2014, as the case may be, It is an admitted fact that reports were submitted by the District Election Authorities of four out of the five districts in question, leaving Medak aside, only in May, 2077 and thereafter. The Commission, no doubt, was quick to act upon the same and orders of disqua rification were issued either in 2017 itserf or in earry 20rg. However, there is no getting over the fact that the District Election Authorities failed to take steps as per the statutory temporal mandate of the Act of 1gg4 and the Rules framed thereunder. The consequence of the inaction on the part of the authorities in this regard is now sought to be beratedry visited upon the petitioners.
The eFfect of the impugned orders which were issued, wittingly or otherwise, just prior to the expiry of the five year term of office of those elected in the 2013/2014 elections, was that none of the petitioners were eligible to participate in the regular elections to the panchayat bodies, to be held upon such expiry. It may be noted that the Commission issued an Election Notification in January, 2019, for holding such ordinary elections to the posts of Sarpanches/Ward Members of Gram Panchayats and it was onry by virtue of the interim orders granted by this Court that the petitioners could participate in such elections.
Pitted against the fairure on the part of the candidates who did not submit their accounts of election expenses in time or as per procedure, the failure on the paft of the election authorities in taking timely steps to disqualify them adversely impacted the free electoral process of the ordinary elections scheduled to be held upon expiry of the terms of those who emerged successful in the elections of 2013/2014. A higher Constitutional objective underlies Article 243C of the Constitution, which provides for persons being chosen freely by direct electlon to occupy posts in a Gram Panchayat. The thrust of such an election would be to secure maximum pafticipation so that the best candidate would emerge successful. This free and fair election process cannot be thwarted by shutting out candidates at the threshold by visiting upon them a disqualification which ought to have been visited upon them as long back as in the years 2013i2014.
The delay on the part of the election authorities in taking timely measures therefore has the effect of negating the free democratic process underlying elections to these bodies. Viewed thus, the failure of the District Election Authorities in taking steps within time cannot be said to be beyond reproach. Though Sri G. Vidya Sagar, learned senior counsel, would contend that the peculiar factors existing in 2016 should be taken into account to condone the delay on the pat of the election authorities, this Court is of the opinion that the statutory scheme does not permit such justification being offered. Once the statute required the authorities to take steps 'immediately' or'as soon as may be', they cannot sleep over such matters for years together and I thereafter seek to justiFy the delay on their part.
It may also be noted that in so far as the elections held in 2013 were concerned, the stipulated period of forty-five days expired in September, 2013 itself, long before formation of the new State of Telangana and the issues that cropped up thereafter. Be it viewed from any angle, this Court finds that the balance would tilt in favour of the petitioners, given the lapses on the part of the election authorities in giving effect to their statutory obligations. The orders of disquallfication visited upon the petitioners by the Commission are accordingly set aside. The writ petitions are allowed. Pending miscellaneous in this batch of cases, if any, shall stand closed in the light of this final order. No order as to costs. SAN]AY KUMAR,J 2oth MARCH, 2019. L/R copy to be marked - Yes B/o PGS ;
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