HON’BLE SHRI G.S. SINGHVI, THE CHIEF JUSTICE AND HON’BLE SHRI JUSTICE G.V. SEETHAPATHY Writ Appeal Nos.709, 710, 1047, 1048, 1049, 1052, 1053, 1054, 1055, 1056, 1057, 1058, 1059, 1060, 1061, 1080, 1089, 1090, 1142, 1143, 1151, 1152, 1153, 1154, 1155, 1156 of 2006 Writ Appeal (SR) Nos.68863 and 68866 of 2006 And Writ Petition (SR) No.72636 of 2006 Writ Appeal No.709 of 2006 Between: Government of Andhra Pradesh, Represented by its Prl. Secretary to Government, Panchayat Raj & Rural Development Department, Secretariat, Hyderabad and others …Appellants And N. Sekhar and others … Respondents Counsel for the appellants: Shri C.V. Mohan Reddy, Advocate General, and Government Pleader for Panchayat Raj Counsel for respondent Nos.1 and 2: Shri S. Ramachandra Rao, Senior Advocate assisted by Shri K.R. Prabhakar, Advocate Counsel for respondent No.3: Shri V.V. Prabhakar Rao Writ Petition (SR) No.72636 of 2006 Between: The Telugu Desam Party …..Petitioner And Government of Andhra Pradesh & others. …..Respondents Counsel for the petitioner: Shri S. Ramachandra Rao, Senior Advocate assisted by Shri K.R. Prabhakar, Advocate Counsel for respondent Nos.1 and 2: Shri C.V. Mohan Reddy, Advocate General, and Government Pleader for Panchayat Raj Counsel for respondent No.3: Shri V.V. Prabhakar Rao :: JUDGMENT :: December 18, 2006 Per G.S. Singhvi, C.J. By this order, we are disposing of the writ appeals filed by the State of Andhra Pradesh and its functionaries, Andhra Pradesh State Election Commission (for short, ‘the State Commission’) and some private individuals against order dated 20-6-2006 passed by the learned Single Judge in Writ Petition No.10965 of 2006 – N. Sekhar v. The Government of A.P. and others and batch whereby he quashed notification dated 10-6-2006 issued by the State Commission under Article 243K of the Constitution of India read with Section 201 of the Andhra Pradesh Panchayat Raj Act, 1994 (for short, ‘the 1994 Act’) and Rule 4 of the Andhra Pradesh Panchayat Raj (Conduct of Elections) Rules, 2006 for election of the members of Zilla Parishad Territorial Constituencies (ZPTCs) and Mandal Parishad Territorial Constituencies (MPTCs) except those specified in the notification, as also electoral lists prepared in furtherance of that notification. Simultaneously, we are disposing of the writ petition filed by Telugu Desam Party for restraining the State Commission from issuing notification for the purpose of holding elections to the Gram Panchayats in the State till the preparation of electoral rolls in accordance with the provisions of Article 243K read with Sections 11, 12 and 201 of the 1994 Act. Before adverting to the factual matrix and the points raised by the parties in support of their respective cases, we deem it proper to briefly notice the scheme of the constitutional and statutory provisions, which have bearing on the decision of questions arising in the appeals and the writ petition. On 26th January, 1950, the people of India solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity, and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation. By the Constitution (Forty-second Amendment) Act, 1976, the words “Sovereign, Socialist, Democratic Republic” were substituted for the words “Sovereign Democratic Republic” and the words “unity and integrity of the Nation” were substituted for the words “unity of the Nation”. The provisions contained in Part III of the Constitution represent basic rights guaranteed to the individuals and specified classes and groups. The provisions of Part IV, which have been described as Directive Principles of State Policy obligates the State to take legislative and executive measures to ameliorate the conditions of weaker sections and have-nots of the society and to create a climate in which people belonging to different hues, classes and categories can aspire to enjoy various freedoms and fundamental rights as is done by the haves of the society. One of the goals set out in Article 40 postulates organisation of Village Panchayats. This Article ordains the State to take steps to organise Village Panchayats and confer upon them with such powers and authority as may be necessary to enable them to function as units of self-government. Unfortunately, despite the enactment of various legislations by the State Legislatures with the object of making the Panchayats self-sufficient so that they could function for the benefit of larger segment of the society living in rural areas, the goal set out in Article 40 remained a distant reality. This was largely due to lack of political will and commitment and an executive apparatus, which did not want to share power with the people at the grass roots of the democracy. The unimaginative policies of the government and total lack of apathy towards people of rural India widened the gulf between the urbanites and the ruralites. With a view to bridge this gap and bring those living in rural areas in the national main stream so that they could avail the benefits of the material progress made by the nation in the field of science, technology etcetera, the Parliament enacted the Constitution (Seventy- third Amendment) Act, 1992 and inserted Part IX [Articles 243 to 243- O] in the Constitution. By this amendment, the panchayats have been declared as units of self-government and co-equal partners in the governance of the nation. Clause (d) of Article 243 defines the term “Panchayat”, as an institution of self-government constituted under Article 243B for the rural areas. Article 243B provides for constitution of Panchayats. Article 243C relates to composition of Panchayats. Article 243D regulates reservation of seats for Scheduled Castes and Scheduled Tribes. Article 243E prescribes duration of Panchayats. Article 243G enumerates power, authority and responsibilities of Panchayats. Article 243H contemplates that the Legislature of the State may, by law, authorize a Panchayat to levy, collect and appropriate taxes, duties, tolls and fee. It also postulates making of a provision for grant- in-aid to the Panchayats and constitution of panchayat fund. Article 243-I provides for constitution of Finance Commission to review financial position of the Panchayats and to make recommendations to the government on various matters specified in that article. Article 243K regulates elections to the Panchayats. Article 243M declares that provisions of Part IX shall not apply to the Scheduled Areas. Clause (4) thereof empowers the Legislature of a State to enact law for extending the provisions of Part IX to the Scheduled Areas and Tribal Areas. Article 243N, which begins with a non-obstante clause provides for continuation of the existing laws for a period of one year or till the amendment or repeal thereof. Article 243-O, which too begins with a non-obstante clause, contains a bar to the Court’s interference in electoral matters. In order to bring the existing legislations in tune with the provisions contained in Part IX of the Constitution, the Andhra Pradesh State Legislature enacted the 1994 Act and simultaneously repealed the Andhra Pradesh Gram Panchayats Act, 1964, the Andhra Pradesh Mandal Praja Parishads, Zilla Praja Parishads and Zilla Pranalika and Abhivrudhi Sameeksha Mandals Act, 1986 and the Andhra Pradesh Local Bodies Electoral Reforms Act, 1989. Part II of the 1994 Act contains provisions relating to constitution, administration and control of Gram Panchayats. Section 8 lays down that all the members of Gram Panchayat shall be elected by the registered voters in the ward by the method of secret ballot. Section 9 provides for reservation of seats for Scheduled Castes, Scheduled Tribes, Backward Classes and Women. Section 11 contains the procedure for preparation and publication of electoral roll for a Gram Panchayat. Sections 13 and 14 regulate the term of office of members and Sarpanchas and Section 15 provides for reservation of office of Sarpanch. Part V of the 1994 Act contains provisions relating to constitution of State Election Commission, conduct of elections and election offences. Section 233 contains a prohibition against challenge to elections except by way of an election petition. Part VI-A which was added to the 1994 Act by Andhra Pradesh Act No.7 of 1998 contains special provisions relating to the Panchayats, Mandal Parishads and Zilla Parishads located in the Scheduled Areas. Section 268 empowers the government to make rules to carry out all or any of the purposes of the Act. The 1994 Act was amended by the Andhra Pradesh Panchayat Raj (Third Amendment) Act, 2000 and provisions relating to elections, including sub-sections (1), (2) and (3) of Section 11, were amended. This was done in the backdrop of the meeting held on 18-4-2000 at New Delhi which was attended by Chief Election Commissioner of India and State Election Commissioners and where the proposal of the Election Commission of India to have a common electoral roll for all elections was deliberated. In exercise of the power vested in it under Section 268 (2) (i) read with Section 11 and Sections 151 (2) and 179 (2) of the 1994 Act, the State Government issued the following Government Orders (G.Os.): 1) G.O.Ms.No.879, PR, RD & R (Elecs.I) Department, dated 3-12- 1994 whereby the rules framed for preparation and publication of electoral rolls for a Gram Panchayat or any portion thereof were notified; 2) G.O.Ms.No.898, PR, RD & R (Elecs.I) Department, dated 10- 12-1994 whereby various officers of the district were designated as Assistant Electoral Registration Officer, Electoral Registration Officer, Appellate Officer and District Election Officer. 3) G.O.Ms.No.913, PR, RD & R (Elecs.I) Department dated 21-12- 1994 whereby the period of limitation was prescribed for filing appeal against the order of the Electoral Registration Officer. 4) G.O.Ms.No.923, PR, RD & R (Elecs.I) Department, dated 28- 12-1994 whereby it was laid down that the provisions of Sections 11 and 12 shall apply mutatis mutandis for the purpose of preparation and publication of electoral roll for the election of the members of Mandal Parishads and Zilla Parishads. 5) G.O.Ms.No.254, PR, RD & R (Elecs.) Department, dated 4-8-2000 vide which the Andhra Pradesh Panchayat Raj (Preparation and Publication of Electoral Rolls) Rules, 2000 (for short, ‘the 2000 Rules’) were notified and G.O.Ms.Nos.879, 898, 913 and 923 were superceded. The background facts: On 27-9-2005, the State Commission issued Press Note No.1424/SEC-F1/2005 and notified the order passed by the Election Commission of India for summary revision of assembly electoral rolls with reference to 1-1-2006 as the qualifying date and called upon the political parties and general public to check the assembly electoral rolls and make necessary claims/objections for inclusion and deletion. In the press note, it was clearly mentioned that the same will be used as mother rolls for preparation of electoral rolls for panchayat elections to be held in 2006. For the sake of convenient reference, the relevant extracts of the press note are reproduced below: “The Election Commission of India ordered special summary revision of assembly electoral rolls with reference to 1-1-2006 as qualifying date. The following schedule was given for the revision process. 1. Draft publications of rolls on - 20-10- 2005 (Thursday) 2. Period for filing claims and objections and reading of relevant part/section of electoral roll in gram sabha/urban local bodies and resident welfare association meetings etc. - 20-10- 2005 (Thursday) to 19-11- 2005 (Saturday) 3. Special campaign dates for receiving claims and objections at all designated locations - 29-10- 2005 (Saturday) 30-10- 2005 (Sunday) 12-11- 2005 (Saturday) 13-11- 2005 (Sunday) 4. Disposal of claims and objections by - 22-12- 2005 (Thursday) 5. Preparation and printing of supplements and additions, deletions and corrections by - 20-1-2006 (Friday) 6. Final publication of electoral rolls on - 24-1-2006 (Tuesday) As per the provisions of the Acts governing local bodies, the wardwise electoral rolls thereof are prepared before each ordinary and casual election duly adopting the latest assembly electoral rolls as mother rolls. There is no provision in Acts governing local bodies for suo motu inclusion or deletion of names in the electoral roll of local bodies. However, any inclusion or deletion ordered by the Electoral Registration Officer of the Assembly Constituency concerned under Sections 22 and 23 of the R.P. Act, 1950 up to the date of election notification of any local body shall only be carried out in the electoral roll of the local body concerned. The ordinary elections to mandal parishads, zilla parishads and gram panchayats are scheduled to be held during the middle of the year 2006 as the term of the existing bodies will be completed in July/August, 2006. The Assembly electoral rolls now prepared and published by the ECI with reference to 1-1-2006 as qualifying date are to be adopted as mother rolls for preparation of electoral rolls for election to panchayat raj bodies. During the recent elections to municipal bodies, some of the political parties complained that there were discrepancies in the wardwise electoral rolls of the municipal bodies and that sufficient time was not given for eligible persons to enroll themselves in the assembly electoral roll and consequently the same deficiencies also got reflected in the local body electoral roll. Therefore, the State Election Commission hereby appeals to all the political parties and general public to check the Assembly electoral rolls that are undergoing special revision as per the above schedule issued by the Election Commission of India with reference to 1-1-2006 as qualifying date and make necessary claims and objections for inclusion and deletion wherever necessary as these latest rolls will be used as mother rolls for preparation of electoral rolls for pancyahat raj elections due to be held in the year 2006.” The aforementioned press note was followed by letter dated 24- 10-2005, which was sent by the Secretary of the State Commission to the State Presidents and General Secretaries of all recognized and registered political parties to motivate the public to file necessary claims and objections for inclusion and deletion of names. After about seven months, the State Commission issued Notification No.194/SEC-B2/2006 whereby the District Panchayat Officers were directed to prepare and publish on 8-5-2006 the electoral rolls. The relevant portion of that notification is reproduced below: “STATE ELECTION COMMISSION 3rd Floor, Buddha Bhavan, M G Road, Secunderabad – 500 003. NOTIFICATION No.194/SEC-B2/2006 Dated: 01.5.2006 In exercise of the powers conferred under Article 243K of the Constitution of India read with Section 11 of Andhra Pradesh Panchayat Raj Act, 1994 and the Andhra Pradesh Panchayat Raj (Preparation and Publication of Electoral Rolls) Rules, 2000, issued thereunder, the State Election Commission, hereby, directs all the District Panchayat Officers in the State to prepare and publish on 8.5.2006, the electoral rolls of all the Gram Panchayats in their respective districts with reference to 1.1.2006 as the qualifying date duly indicating the Ward division as required under Rule 5 of the said rules in Form I thereof.” The Secretary of the State Commission then issued press note dated 12-5-2006 incorporating therein the substance of notification dated 1-5-2006. He also clarified that Section 11 of the 1994 Act and the 2000 Rules do not provide for direct inclusion or deletion of any name from the panchayat electoral roll and any person desirous of inclusion or exclusion must lodge his claim or objection under the Representation of People Act, 1950 and the Registration of Electors Rules, 1960. For the sake of convenient reference, the relevant extracts of press note dated 12-5-2006 are reproduced below: “The electoral rolls of all gram panchayats in the State have been prepared in accordance with the provisions of Section 11 of Andhra Pradesh Panchayat Raj Act, 1994 and Andhra Pradesh Panchayat Raj (Preparation and publication of electoral rolls) Rules, 2000 issued thereunder by adopting the existing entries in the relevant part of latest Assembly Electoral Rolls (with reference to 1-1-2006 as qualifying date) and were published by the District Panchayat Officers concerned in the respective gram panchayats on 08-5-2006. These electoral rolls will be utilized in the forthcoming elections to Panchayat Raj Bodies. The above said provisions do not provide for direct inclusion or deletion of any name from the panchayat electoral rolls. Any person who wishes to lodge any claim for inclusion of his/her name or any objection to the inclusion of a name or any objection to the particulars in any entry in the gram panchayat electoral roll, shall first get such claim or objection settled with reference to corresponding entry in the electoral roll of the Assembly Constituency concerned by lodging suitable claim or objection under the provisions of Representation of People Act, 1950, and the Registration of Electors Rules, 1960, made thereunder before the Electoral Registration Officer of the Assembly Constituency concerned. Such claims and objections can be lodged with either Electoral Registration Officer (Revenue Divisional Officer) or Assistant Electoral Registration Officer (Mandal Revenue Officer concerned). All orders of inclusions, deletions or corrections in the electoral rolls of the Assembly Constituency issued on the basis of such claims and objections by the Electoral Registration Officer till the date of issue of election notification for the Panchayat Raj Body concerned will be duly carried out in the electoral roll of the gram panchayat concerned. The general public and political parties are requested to avail this opportunity to verify the electoral rolls of the gram panchayats and take remedial action as explained above.” It appears that after publication of electoral rolls, a number of complaints were made by the political parties and general public about errors and deviations in the electoral rolls. After taking cognizance of those complaints, the State Commission issued Circular dated 16-5- 2006 whereby the District Collectors were directed to ensure that the entries in the electoral roll of the Assembly Constituency are truly and correctly reflected in the electoral rolls published for the gram panchayats. This was reiterated in letter No.194/SEC-B2/2006 dated 22-5-2006 vide which Secretary of the State Commission again requested the District Collectors, Chief Executive Officers of Zilla Parishads and District Panchayat Officers to thoroughly check the electoral rolls of the gram panchayats and ensure that the entries contained in the Assembly electoral rolls are truly and correctly reflected in the gram panchayat electoral rolls. After four days, the State Commission issued press note dated 26- 5-2006 reiterating its earlier stand that without amendment of the entries contained in the Assembly rolls, exercise for inclusion or exclusion in the gram panchayat electoral rolls cannot be undertaken. Paragraphs 2 and 3 of press note dated 26-5-2006 read as under: “From the very beginning the State Election Commission has been pro-active to see that electoral rolls are correct and advised the general public and the political parties to file claims and objections for inclusion and deletions wherever necessary as long back as on 27th September, 2005 in a press note. On 24th October, 2005 a separate letter was addressed to all the political parties appealing to them for filing claims and objections as per the guidelines issued by the Election Commission of India. It was only thereafter the State Election Commission issued notification on 01-05-2006 for publication of electoral rolls on 08-05-2006. As a follow up action, the State Election Commission advised the Collectors to see that the entries in the electoral roll of Gram Panchayat truly and correctly represent the entries in the Assembly electoral rolls. A press note also was given appealing to the general public and political parties to verify the gram Panchayat electoral roll and take remedial action wherever necessary. The State Election Commission wants to reiterate that by itself under the law it cannot either include or exclude names from the electoral roll. It is for the concerned public to file applications in accordance with the law under the R.P. Act, 1950 and have their names included/excluded in the Assembly electoral rolls in the first instance and thereafter alone the names can be included/excluded in panchayat electoral rolls. To enable this, the State Election ordered publication of the electoral roll on 08-05-2006 itself leaving ample time to the general public and political parties to see that applications are filed within time for inclusions and exclusions. The State Election Commission has therefore done everything necessary, alerted the political parties, general public and issued strict instructions to the Collectors in this regard. Any inclusions and exclusions effected in the Assembly electoral roll till the date of election notification for Panchayat Raj bodies will be carried out in the Panchayat electoral rolls.” (Emphasis added) The process initiated by the State Commission for preparation and publication of the electoral rolls generated a lot of litigation. Between 23rd May and 29th May, 2006, a large number of writ petitions were filed questioning the electoral rolls and determination of the MPTCs. In the writ petition filed by him, which was registered as Writ Petition No.10965 of 2006, Sri N. Sekhar prayed for grant of a declaration that the action of the respondents to delete the names of eligible voters while refusing to exclude the names of ineligible voters from the voters list of Nadendla Mandal, Nadendla Gram Panchayat is illegal. He also sought a declaration that failure of the authorities to pass orders on the appeals preferred by the affected parties is illegal, unjust, discriminatory and violative of Article 14 of the Constitution and the provisions of the 1994 Act and the Rules. He further prayed for issue of a mandamus to the respondents to include the names of eligible voters and exclude those of ineligible voters from the electoral rolls of Nadendla Gram Panchayat before issuing election notification. He also filed an application for issue of a direction to the respondents to undertake revision of electoral roll and not to notify the election till completion of that exercise. In other petitions, the legality of the exercise undertaken for determination of MPTCs was questioned. It was pleaded that the entire exercise is contrary to Section 150 of the Panchayat Act and Andhra Pradesh Panchayat Raj (Division of Mandal into Constituencies) Rules, 1994 (hereinafter described as ‘Mandal Constituencies Rules’). It was further pleaded that the boundaries of the existing MPTCs have been changed in a most arbitrary manner ignoring the criteria specified in Rule 3 of the Mandal Constituencies Rules and in complete disregard of the ‘rule of contiguity’. In some cases, panchayats situated at a distance of 10 to 12 kms. have been made part of the particular Mandal Constituencies and area of the adjacent panchayats have been excluded. In some petitions, it was alleged that MPTCs. have been changed/reconstituted/re-organised at the instance of the members of the Legislative Assembly and other politically influential people belonging to the ruling party. In the miscellaneous petitions field by the petitioners for grant of interim relief, the vacation Judge passed order dated 1-6-2006 whereby he directed the Commissioner of Panchayat Raj to undertake an exhaustive review of the reorganization of MPTCs in various Mandals in the State. He also directed the State Election Commissioner (for short ‘the SEC’) to ensure that sanctity of the voters list published in February 2006 is maintained and examine whether deletions or additions of names subsequent to the publication of list in February 2006 has been made after following the procedure prescribed under Sections 21 and 22 of the Representation of People Act, 1950 (for short ‘the 1950 Act’). The abovementioned order of the learned Single Judge was set aside by the Division Bench in W.A. (SR) No.57201 of 2006 and batch, which were, later on, assigned regular numbers. While disposing of the appeals, the Division Bench gave the following directions: 1) the respondents in the writ petition should file counter- affidavits latest by 13-6-2006 after supplying advanced copies to the counsel for the petitioners. 2) the petitioners shall be free to file rejoinder affidavits, if any, on or before 15-6-2006. 3) All the writ petitions be listed before the Single Bench on 16-6- 2006. 4) The Single Bench shall be free to hear the arguments on the main petitions and decide the same. 5) The petitioners shall also be at liberty to make a request for adjudication of their prayer for stay. 6) By way of abundant caution, it is clarified that the order passed in these appeals shall not operate