JUDGMENT
G. Rohini, J.
1. These two Appeals which arise out of the order of the learned Single Judge dated 4-3-2004 in W.P. No. 2877 of 2004 are heard together and decided by this common judgment.
2. The first respondent in both the Appeals – Alla Anjaneya Reddy filed the Writ Petition seeking a Writ of Mandamus declaring the Notification No. 15/SEC-B1/ 2004-9, dated 12-2-2004 issued by the State Election Commission and the consequential notice dated 13-2-2004 issued by the Mandal Development Officer, Yerragondapalem Mandal, Prakasam District postponing the election to the ‘Office of President, Tripuranthakam Mandal Parishad until further orders as arbitrary, illegal and without jurisdiction. The said writ petition was allowed by the learned Single Judge, thereby setting aside the notification dated 12-2-2004 and directing the State Election Commission to notify the election to the Office of the President, Tripuranthakam Mandal Parishad, Prakasam District and proceed with the same forthwith. Aggrieved by the same, the 4th respondent in the writ petition Kanchupati Nageswara Rao preferred W.A.No.540 of 2004, whereas the other Appeal W.A. No. 578 of 2004 has been preferred by the Collector and District Election Authority, Prakasam District, Ongole and the Mandal Development Officer, Yerragondapalem Mandal who were the Respondents 2 and 3 in the writ petition.
3. For the sake of convenience, we shall refer the parties as they were arrayed in the writ petition.
4. The brief facts of the case are as under:
5. In July, 2001 elections were held to Tripuranthakam Mandal Parishad and one Sri M.Nasara Reddy was declared elected as
President. In January, 2004 some of the M.P.T.C. Members expressed No Confidence against the President and on the basis of the notice of intention to make the motion, the Revenue Divisional Officer, Markapur convened the meeting of the Mandal Parishad on 31-1-2004 to consider the motion of No Confidence against the President. However, even before the scheduled date of meeting, the President submitted his resignation on 29-1-2004 and the same was accepted by the Chief Executive Officer, Zilla Parishad, Prakasam District on the same day. Thus, a casual vacancy to the Office of the President, Tripuranthakam Mandal Parishad arose and the first respondent-State Election Commission, issued notification dated 9-2-2004 specifying the schedule of election to the said Office. As per the election schedule the notice in Form-V A to the M.P.T.C. Members of the Mandal Parishad shall be given on or before 12-2-2004 calling for a special meeting for conduct of election of President at 11.00 a.m., on 16-2-2004. In pursuance thereof, the 2nd respondent – District Collector, Prakasam District, who is the District Election Authority, vide Proceedings dated 11-2-2004, appointed the 3rd respondent – Mandal Parishad Development Officer, Yerragondapalem as Election Officer with a direction to issue Form-V A notice as prescribed under Rule 15(2) of A.P. Conduct of Election of Member (co-opted) and President/Vice-President of Mandal Parishad and Member (co-opted) and Chairman and Vice-Chairman of Zilla Parishad Rules (for short, ‘the Rules’). Accordingly, the 3rd respondent issued notice dated 11-2-2004 to all the M.P.T.C. Members that a meeting of the Mandal Parishad will be held on 16-2-2004 for the election of the President in the existing vacancy. On the same day i.e., on 11-2-2004 the second respondent -Collector and District Election Authority addressed a letter to the first respondent -State Election Commission stating that one A.Peddanna, made a representation
complaining that his wife by name Smt. Avula Ramalakshmamma, M.P.T.C, Member was kidnapped during January, 2004 by the opposite political party workers, in respect of which Crime No. 3/2004 was registered in Tripuranthakam P.S. and that even after two adjournments by the Judicial First Class Magistrate, Giddalur, his wife was not produced before the Court for recording statement under Section 164 of the Code of Criminal Procedure. The 2nd respondent further stated that he also received another representation from one Smt. T.Balaguravamma stating that her husband by name Sri T.Borraiah, M.P.T.C. Member was also kidnapped by the opposite political party and that she could not see her husband so far, though Cr.No.2/2004 is pending in Tripuranthakam P.S. In both the said representations, the complainants expressed shock and apprehension about the safety of their spouses and consequently the second respondent required the Superintendent of Police, Prakasam District to furnish a detailed report and also directed the Assistant Superintendent of Police, Markapur to make efforts to trace out the kidnapped M.P.T.C. Members. In the circumstances, the second respondent expressed that the situation was not peaceful, free and fair to go for Mandal Parishad President Election as it is creating the activities of the aggravating existing differences and creating mutual hatred and thereby attracting Clause-4 of the Code of Conduct and that the kidnapped members were not in a state of exercising their franchise freely. Accordingly, the first respondent – State Election Commission was requested to examine the possibilities of postponing the elections until the situation becomes normal. In pursuance thereof, the State Election Commission issued notification dated 12-2-2004 in exercise of the powers conferred under Article 243-K of the Constitution of India and Section 201 of the A.P. Panchayat Raj Act, 1994 postponing the election to the Office of the President, Tripuranthakam Mandal Parishad until further orders.
6. The said notification dated 12-2-2004 and the consequential notice issued by the 3rd respondent were challenged before the learned Single Judge by one of the M.P.T.C, Members who moved the No Confidence Motion against the President Nasara Reddy. Admittedly the writ petitioner contested for the Office of President representing an opposite political party and lost the election in June, 2001. It is also relevant to note that both Crime Nos. 2/2004 and 3/2004 were registered under Section 365 of the Indian Penal Code on an allegation that the writ petitioner abducted the two M.P.T.C. Members belonging to an opposite political party.
7. In the writ petition, it was contended inter alia that though Cr.Nos.2/ 2004 and 3/2004 were registered more than a month ago and even the alleged kidnapped M.P.T.C. Members appeared before the police and explained the circumstance under which they were supporting the other group, the second respondent at the instance of the political leaders belonging to the ruling party sent a fax message to the first respondent for postponing the election. It was also contended that the first respondent having issued notification for conducting the election, has no power to postpone the election on the basis of the report of the 2nd respondent and for the reasons assigned by the second respondent, and therefore the impugned notification is arbitrary, illegal and without jurisdiction.
8. The Collector and the District Election Authority filed a counter-affidavit stating that in the two representations filed by the spouses of the missing M.P.T.C. Members, it was complained that the police were not taking any action for producing the said two M.P.T.C. Members before the Judicial First Class Magistrate,
Giddalur and they also expressed apprehensions as to their safety and made a request to intervene in the matter. It is also stated that in pursuance thereof, the Superintendent of Police, Ongole and the Assistant Superintendent of Police, Markapur were directed to elicit facts of the cases. In the circumstances, a report was submitted to the State Election Commission recommending for postponing the election duly bringing all the facts to the notice of the State Election Commission, in pursuance of which the impugned notification was rightly issued by the State Election Commission.
9. We have heard the learned Counsel for the appellant in W.A. No. 540 of 2004 Sri N.Sridhar Reddy and the learned Additional Advocate General appearing for the appellants in W.A. No. 578 of 2004 as well as the learned Counsel for the first respondent – writ petitioner Sri D. Sudershan Reddy.
10. Sri N. Sridhar Reddy, the learned Counsel contended that under Rule 8 of the Rules, the Election Commission who is the Election Authority has got ample power to postpone the special meeting convened for election and therefore the impugned notification ought not to have been interfered with by the learned Single Judge without there being any justifiable reason. At any rate, according to the learned Counsel, the direction issued by the learned Single Judge to notify the election forthwith is not in conformity with the statutory provisions and cannot be sustained. He contended that since Section 153(6) of the A.P. Panchayat Raj Act, 1994 read with Rule 15(2) of the Rules prescribed six months time for filling up a casual vacancy, the learned Single Judge ought to have left it to the discretion of the Election Commission.
11. Sri Ramesh Ranganadhan, the learned Additional Advocate General appearing for the appellants in W.A. No. 578 of 2004 contended that under Article 243-K of the Constitution of India, plenary powers have been conferred on the State Election Commission to give any direction with regard to conduct of elections to the Panchayats and that the impugned notification issued in exercise of such power ought not to have been interfered with unless a clear case as to arbitrary exercise of power is made out or the impugned notification was found to be contrary to statutory provisions. It is further contended that there is absolutely no pleading or any evidence to substantiate the finding of the learned Single Judge that the District Collector and Election Authority was biased and influenced by the ruling party and particularly in the absence of the said Authority being made a party eo nomine, no finding of bias could have been arrived at by the learned Single Judge, The learned Additional Advocate General also points out that the report of the District Collector expressing that Clause-4 of the model Code of Conduct is attracted and therefore the situation warrants postponement of election contains adequate reasons which cannot be re-appreciated by this Court in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India and therefore on that ground also the impugned order of the learned Single Judge cannot be sustained. It is also contended that no Mandamus could have been issued directing the State Election Commission to notify the election and proceed with the same forthwith since a wide discretion is conferred under Section 153(6) on the State Election Commission to fill up the casual vacancy within six months.
12. On the other hand, Sri D. Sudershan Reddy, the learned Counsel appearing for the first respondent – writ petitioner contended that on the basis of the material on record there is absolutely no reason for the District Collector – Election Authority to express any opinion that there is no conducive atmosphere to conduct free and
fair election. He contended that since the two M.P.T.C. Members who were alleged to have been kidnapped appeared before the police and confessed that they were neither abducted nor coerced and they on their own decided to support No Confidence Motion moved by the opposite party and particularly in view of the fact that the summons issued by the Judicial Magistrate of First Class were already served on them, the learned Single Judge has rightly concluded that the impugned notification postponing the election is not at all warranted. He vehemently contended that the facts and circumstances of the case and particularly the fact that the District Collector having called for a factual report from the Superintendent of Police, hastily recommended for postponement of election even before receiving the report of the Superintendent of Police clearly establish that the District Collector has acted at the instance of the ruling political party leaders to see that the election will not be held as notified and the same was followed by the State Election Commission blindly without application of mind. The learned Counsel submits that in the facts and circumstances of the case the learned Single Judge has rightly set aside the Notification dated 12-2-2004 and the said order being in accordance with the settled principles of law does not warrant any interference. It is also his contention that since this is a case where the State Election Commission has already notified the election schedule, once the impugned notification postponing the election was set aside, the learned Single Judge was justified in directing to notify the election forthwith and the same cannot be held to be encroaching upon the discretion conferred on the Election Commission under Section 153(6) of the Act.
13. We have carefully gone through the entire material on record as well as the relevant statutory provisions.
14. At the outset, it is to be noted that Part-IX, consisting of Articles 243 to 243-O,
has been inserted into the Constitution of India by the Constitution (73rd Amendment) Act, 1992 with effect from 24-4-1993. This part exclusively deals with the Panchayats and Article 243-K provides for elections to the Panchayats. Article 243-K to the extent it is relevant may be extracted hereunder:
"Article 243-K - Elections to the Panchayats :--(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor, (2) ............... (3) ................ (4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats"
15. As can be seen, by virtue of Article 243-K(1) the power of superintendence, direction and control of the preparation of electoral rolls for and the conduct of all elections to the Panchayats is vested in the State Election Commission. Under Article 243-K(4) the State Legislature has been given the power to make law with respect to all matters relating to, or in connection with elections to the Panchayats.
16. The State Legislature in exercise of its power under Article 243-K(4) while enacting A.P. Panchayat Raj Act, 1994, through Section 201 specified that all elections to the Panchayat Raj Institutions shall be held under the supervision and control of the State Election Commission and for the said purpose it shall have power to give such directions as it may deem necessary to the Commissioner, District Collector or any officer or servant of the Government and the Panchayat Raj
Institutions so as to ensure efficient conduct of the elections under the said Act.
17. Section 201 of the A.P. Panchayat Raj Act, 1994 runs as under:
“Section 201 – Powers and functions of the State Election Commissioner:–(1) All elections to the Panchayat Raj Institutions shall be held under the supervision and control of the State Election Commission and for this purpose it shall have power to give such directions as it may deem necessary to the Commissioner, District Collector or any officer or servant of the Government and the Panchayat Raj Institutions so as to ensure efficient conduct of the elections under this Act.
(2) ………………
(3)……………….
(4)…………….
(5)………………”
18. On a plain reading of the above provisions, it is clear that the State Election Commission is vested with all the powers in respect of all matters relating to conduct of elections to the Panchayats so as to ensure efficient conduct of elections.
19. It is relevant to note that Article 243-K(1) and Article 243-K(4) are analogous to Articles 324 and 327 of the Constitution of India. Under Article 324, the power of superintendence, direction and control of the preparation of electoral rolls for and the conduct of elections to the Parliament and to the Legislature of every State and the elections to the Offices of the President and Vice-President held under the Constitution is vested with the Election Commission of India. Similarly Article 327 subject to the provisions of the Constitution has empowered the Parliament to make law with respect to all matters relating to, or in connection with, elections to either House of Parliament or to either House of Legislature of a State.
20. The scope of powers and functions of the Election Commission under Article 324 read with Article 327 of the Constitution of India was considered by the Supreme Court in a number of cases and suffice it to note the following legal position as summed up in the decision of A.C.Jose v. Sivan Pillai and Ors., .
“To sum up, therefore, the legal and constitutional position is as follows :
(a) when there is no Parliamentary legislation or rule made under the said legislation, the Commission is free to pass any orders in respect of the conduct of elections,
(b) where there is an Act and express Rules made thereunder, it is not open to the Commission to override the Act or the Rules and pass orders in direct disobedience to the mandate contained in the Act or the Rules. In other words, the powers of the Commission are meant to supplement rather than supplant the law ‘ (both statute and Rules) in the matter of superintendence, direction and control as provided by Article 324,
(c) where the Act or the Rules are silent the Commission has no doubt plenary powers under Article 324 to give any direction in respect of the conduct of election, and
(d) where a particular direction by the Commission is submitted to the Government for approval, as required by the Rules, it is not open to the Commission to go ahead with implementation of it as its own sweet will even if the approval of the Government is not given.”
21. A Division Bench of this Court in P. Ravindra Reddy v. Election Commission, , while dealing with a question relating to the power of Election Commission to recommend recession of the notification issued under Section 15(2) of the Representation of Peoples Act, placed reliance upon the above ratio laid down by the Supreme Court in A. C. Jose’s case (supra)
and also the observations made by the Supreme Court in Mohinder Singh Gill and Anr. v. Chief Election Commissioner and Ors., , held that the Election Commission retains its jurisdiction as also all its plenary powers under Article 324, except in respect of matters for which specific provisions have been made in the Act made either by Parliament under Article 327, or by a State Legislature under Article 328. It was further held that the Election Commission is entitled to exercise its plenary power under Article 324 in an area not covered by the Act or the Rules made thereunder. When there is no Parliamentary or State Legislation, or where there does exist a Parliamentary or State Legislation or the Rules made thereunder but they are silent with regard to a particular situation, the Election Commission will have plenary power to give appropriate directions in respect of the conduct of election. The Commission cannot override the express provisions in the Act, or to pass orders in direct disobedience to their mandate. The Commission’s powers are meant to supplement, and not supplant the law.
22. As observed above under Section 201 of the A.P. Panchayat Raj Act, 1994 which was enacted based on Article 243-K(4), the State Election Commission is vested with all the powers to issue such orders as it may deem necessary so as to ensure efficient conduct of elections under the said Act. There is no other State Legislation which makes any law with respect to matters relating to or in connection with the elections to the Panchayats.
23. It is also relevant to note that Rule 8 of A.P. Conduct of Election of Member (Co-opted) and President/Vice-President of Mandal Parishad and Member (Co-opted) and Chair Per son/Vice-Chairperson of Zilla Parishad Rules, 1994 made in exercise of rule making power conferred under Section 268(1) of the A.P. Panchayat Raj Act, 1994 specifically provides that the State Election Commissioner may direct from time to time the postponement or alteration of the date of special meeting convened under Rule 3(1) for election of a Co-opted Member of Mandal Parishad. So far as election to the Office of President/ Vice-President of Mandal Parishad is concerned, though there is no such express provision, in our considered opinion the plenary power with which the Election Commission is vested with under Article 243-K. of the Constitution of India and Section 201 of A.P. Panchayat Raj Act undoubtedly includes the power to postpone the election to the Office of the President/ Vice-President wherever the situation so warrants.
24. As a matter of fact even the learned Counsel for the first respondent/writ petitioner did not seriously dispute the plenary power conferred on the Election Commission, but strenuously contended that however wide the power may be, the same cannot be exercised in an unfair and arbitrary manner. His contention is that the power conferred on the Election Commission was exercised without application of mind to the facts and circumstances of the case and solely on the basis of the report of the District Collector which was not only biased but also motivated to support the ruling political party members. He contends that it is nothing but an abuse of discretion exercised with a dishonest intention and therefore it is a fit case that warrants interference of this Court in exercise of jurisdiction under Article 226 of the Constitution of India.
25. For proper appreciation of the contentions raised by the learned Counsel, at the cost of repetition, certain undisputed facts leading to the issuance of the notification postponing the election, may be referred to.
26. The elections to the Tripuranthakam Mandal Parishad were held on political party basis and out of 14 Territorial Constituencies, the Telugu Desam Party and the Congress-I Party won seven Territorial Constituencies each. Since the two contesting candidates belonging to different political parties secured equal votes it appears that the election to the Office of the President was held by drawing lots in which M. Nasara Reddy of Telugu Desam Party was declared elected as President. The writ petitioner who was a M.P.T.C. Member belonging to the Congress-I Party contested to the Office of the President and lost. It is also not in dispute that during January, 2004, Crime Nos. 2/2004 and 3/2004 were registered in the Tripuranthakam Police Station for the offence under Section 365 of the Indian Penal Code on a complaint lodged by the spouses of Telukutla Borraiah, M.P.T.C. Member of Rajupalem Territorial Constituency and also Avula Ramalakshmamma, M.P.T.C. Member of Ramasamudram Territorial Constituency of Tripuranthakam Mandal. In the complaints, it was alleged that the said two M.P.T.C. Members belonging to Telugu Desam political party were kidnapped by the writ petitioner – A.Anjaneya Reddy along with his supporters. While so, seven M.P.T.C. Members of Congress-I Party gave a notice to the Revenue Divisional Officer, Markapur moving No Confidence Motion against the President. The Revenue Divisional Officer issued notice to all the M.P.T.C. Members convening a meeting for No Confidence Motion on 31-1-2004. On 8-1-2004, two M.P.T.C. Members who were alleged to have been kidnapped by the writ petitioner are alleged to have appeared before the Sub-Inspector of Police, Tripuranthakam P.S. and stated that they have voluntarily left their homes and joined the camp of the writ petitioner. They also stated that they have decided to withdraw their support to M.Nasara Reddy, the President. Their statements were recorded by the Sub-Inspector of Police, Tripuranthakam P.S. who subsequently made a requisition before the Judicial Magistrate of First Class, Giddalur to record the statements of the said two Members under Section 164 of the Code of Criminal Procedure. Summons issued by the Magistrate calling upon the said two Members to appear before him on 24-1-2004, were served on them. However they did not appear before the Court and a request was made through their Counsel for adjournment to 7-2-2004. On 7-2-2004 further adjournment was sought and the Assistant Sub-Inspector of Police, Tripuranthakam P.S. orally submitted that the whereabouts of the witnesses were not known. Having regard to the facts and circumstances of the case, the Judicial Magistrate of First Class, Giddalur while observing that “the rival groups were making efforts to take the lives of both the witnesses and therefore it appears that the witnesses could not attend before the Court” and further observing that the Station House Officer, Tripuranthakam P.S. had no interest to produce the witnesses, dropped further action. The record also shows that two writ petitions seeking writ of habeas corpus were filed by the spouses of the said two alleged abducted M.P.T.C. Members in this Court.
27. It appears that two separate representations were made before the District Collector by the spouses of the said two M.P.T.C. Members stating that even after two adjournments, the Members who were kidnapped by the writ petitioner were not produced before the Court and that they apprehend danger to their lives. On the basis of the said representations, the District Collector sent a report dated 11-2-2004 requesting to examine the possibilities of postponing the elections since the situation is not peaceful, free and fair to go for election as it is creating activities of the aggravating existing differences and create mutual hatred, thereby attract Clause-4 of
the Code of Conduct. It is also stated that the kidnapped members were not in a state of exercising their franchise freely. Admittedly before sending such report, the District Collector had called for a factual report from the Superintendent of Police, Prakasam District, Ongole and such a report was received the next day on 12-2-2004. It is also on record that the Election Commission received a message from the 4th respondent also who is one of the M.P.T.C. Members bringing to the notice of the Election Commission about the alleged kidnapping of two M.P.T.C. Members, with regard to which Cr.Nos.2/2004 and 3/2004 were registered and requesting not to issue the Notification for conduct of election till the kidnapped Members are returned. On the basis of the said representation, the Election Commission also called for a report from the District Collector on 11-2-2004. Thereafter, on receipt of the report of the District Collector dated 11-2-2004, the Election Commission decided to postpone the election until further orders and accordingly the impugned notification dated 12-2-2004 was issued.
28. Thus, there is no dispute about the fact that two of the elected M.P.T.C. Members were alleged to have been kidnapped by the opposite political party and as on 7-2-2004 as recorded by the Judicial Magistrate of First Class, Giddalur, their whereabouts were not known. It is alleged that they appeared before the Sub-Inspector of Police, Tripuranthakam P.S. on 8-1-2004 and gave a statement that they had voluntarily left their homes and denied the alleged kidnapping by the writ petitioner. However as they failed to appear before the Judicial Magistrate of First Class on 7-2-2004 in spite of service of summons, nothing could be conclusively expressed about the veracity of their statements made before the police on 8-1-2004, The fact remains that as on 12-2-2004 on which date the Superintendent of Police, Prakasam District, Ongole, submitted a factual report to the District Collector no specific information could be furnished about the whereabouts of the said two Members and particularly whether they are in a position to exercise their franchise freely.
29. The learned Single Judge appears to have concluded that the report of the Collector is biased and made with an intention to see that the elections cannot be proceeded with as notified in view of the fact that he submitted his report to the Election Commission without waiting for the factual report from the Superintendent of Police dated 12-2-2004 in which it was stated that the two Members were served with summons by the police. Thus, the learned Single Judge while observing that the District Collector has fallen in trap of a few politicians which resulted in submission of report without any discernable reasons for postponing the election and the same was blindly followed by the State Election Commission, allowed the writ petition and set aside the notification impugned in the writ petition.
30. We have gone through the report dated 11-2-2004 submitted by the 2nd respondent – District Collector. In the light of the sequence of events narrated above, we are unable to hold that the report of the District Collector dated 11-2-2004 was without any discernable reasons. The said report reflects the undisputed fact that two of the M.P.T.C. Members were alleged to have been kidnapped, in respect of which Crime Nos. 2/2004 and 3/2004 were pending investigation. May be the said two Members had appeared before the Sub-Inspector of Police, Tripuranthakam P.S. on 8-1-2004 and denied the allegation of kidnapping by the opposite party, which fact was not referred to by the District Collector in his report dated 11-2-2004, and he recommended for postponement of election without waiting for the said factual report of the Superintendent of Police, but in our opinion no motives could be attributed to the District Collector merely on the ground that he did not wait till he received the factual report from the Superintendent of Police. It is relevant to note that even in the report dated 12-2-2004, the Superintendent of Police except referring to the statements of the said two Members recorded by the Sub-Inspector of Police, Tripuranthakam P.S. on 8-1-2004 and the subsequent events that in spite of service of summons, the two Members did not appear before the Judicial Magistrate of First Class on 7-2-2004, could not furnish any further details about the whereabouts of the said two members or whether they are in a position to exercise their franchise freely. As rightly submitted by the learned Additional Advocate-General, Clause 4 of the Model Code of Conduct issued by the State Election Commission in exercise of its plenary power which states that no party or candidate shall indulge in any activity which may aggravate existing differences or create mutual hatred is attracted to the case on hand and it cannot be said there was no justifiable reason for the 2nd respondent to recommend postponement of election.
31. We also find force in the contention of the learned Additional Advocate-General that in the absence of any specific plea and particularly without making the Collector -District Election Authority, a party eo nomine, no finding of bias could have been arrived at by the learned Single Judge. Except a vague statement in the affidavit filed in support of the writ petition that “the second respondent herein at the instance of the political leaders belonging to the ruling party sent a fax message to the first respondent for postponement of elections ……”, there is no other allegation on the basis of which it could be concluded that the District Collector submitted his report succumbing to the pressure and had mortgaged his discretion, volition and decision making authority to sub-serve the interests of few politicians. In the absence of any pleading much less any material to substantiate the said allegations, we are of the view that such findings cannot be maintained apart from being unwarranted. The law is well settled that the person against whom mala fides or bias was imputed should be impleaded eo nomine as a party respondent to the proceedings and given an opportunity to meet those allegations. In his/her absence, no enquiry into those allegations would be made. Otherwise, that itself is violative of the principles of natural justice as it amounts to condemning a person without an opportunity (vide State of Bihar v. P.P.Sharma, ). Though the learned Counsel for the 1st respondent/writ petitioner while placing reliance upon the decision in Tarlochan Dev Sharma v. State of Punjab, , reiterated his submission that the report of the District Collector requesting postponement of election amounts to arbitrary exercise of power and vitiated by bias and mala fides, we are unable to agree. The observations made by the Supreme Court in the peculiar facts and circumstances of the said case cannot be pressed into service in the case on hand in the absence of any material to substantiate the allegations of bias and abuse of power.
32. For the aforesaid reasons, we are unable to agree with the conclusion of the learned Single Judge that the report of the District Collector is biased and vitiated by mala fides. We are also unable to find fault with the Election Commission in having accepted the report of the 2nd respondent – Collector and District Election Authority and issuing the notification dated 12-2-2004 postponing the election. It is to be noted that the satisfaction of the State Election Commission while exercising the plenary power under Article 243-K(1) read
with Section 201 of the A.P. Panchayat Raj Act, 1994 is a subjective decision so as to ensure efficient conduct of elections under the Act. The facts leading to the issuance of the notification dated 12-2-2004 and the contents of the said notification would clearly show that there was sufficient material before the Election Commissioner to record his satisfaction that the situation was not conducive for holding election in a free, fair and peaceful manner. In the absence of any allegation of mala fides, the reasonableness of such satisfaction cannot be tested by this Court while exercising the power of judicial review.
33. We are also of the view that the direction in the order under challenge to notify the election and to proceed with the same forthwith would amount to interference with the exercise of discretionary power conferred on the State Election Commissioner under the law.
34. There is no dispute that under the provisions of A.P. Panchayat Raj Act, 1994 and the Rules made thereunder the State Election Commissioner is the competent authority to conduct election to the Office of the President of the Mandal Parishad and also to fill up the casual vacancy to the said office.
35. Section 153(6) of the A.P. Panchayat Raj Act, 1994 specifies that any casual vacancy in the Office of the President or Vice-President shall be filled within a period of six months from the date of occurrence of the vacancy by fresh election under Sub-section (3). Rule 15 of the Rules which prescribed the procedure for filling up of casual vacancies in the Office of the President/Vice-President of the Mandal Parishad also specified a period of six months for filling up a casual vacancy. Sub-section (6) of Section 153 of the Act and Rule 15(1) of the Rules run as under :
“Section 153. Election, reservation and term of office of President and Vice-President:–
(1) …………..
(2) ……………….
(3) ……………….
(4) ………………
(5) ……………….
(6) Any casual vacancy in the office of the President or Vice-President shall be filed within a period of six months from the date of occurrence of the vacancy by fresh election under Sub-section (3) and a person elected as President or Vice-President in any such vacancy shall hold office only so long as the person in whose place he is elected would have been entitled to hold office if the vacancy had not occurred.”
“Rule 15 – Fitting up of Casual Vacancies in the Office of the President/Vice-President, Mandal Parishad:–(1) Subject to the provision of Sub-section (6) of Section 153 of the Rules in Part IV shall apply for filling up a casual vacancy in the office of the President/Vice-President of a Mandal Parishad :
Provided that every casual vacancy shall be filled up within a period of six months from the date of occurrence of such vacancy.
(2) …………….
(3)…………….”
36. A reading of the aforesaid statutory provisions under which the maximum time limit has been specified makes it clear that the Legislature as well as the rule making authority in their wisdom thought it fit to leave it to the discretion of the State Election Commissioner to decide the period within which a casual vacancy to the office of the President can be filled taking into consideration the facts and circumstances of the particular case, of course such period shall not exceed six months from the date of occurrence of vacancy. In the light of the aforesaid provisions, the question that arises for consideration is whether a writ could have been issued directing the Election Commissioner to notify the election and proceed with the same forthwith.
37. The law is well settled that this Court in a proceeding for mandamus will never sit as a Court of appeal so as to substitute its own wisdom or decision for the discretion vested by the law in an authority. Even where the Court comes to a conclusion that the decision of the authority in exercise of its discretionary power is arbitrary or illegal, the appropriate course would be to set aside the same and send the case back to the authority to take a decision afresh in accordance with law. It is impermissible for the Court to direct such authority to make an order in a particular method and manner since the same would amount to encroaching upon the discretion vested in the authority under the law.
38. Hence, in our considered opinion the learned Single Judge ought not to have issued a mandamus to notify the election and to proceed with the same forthwith. Having set aside the notification dated 12-2-2004, the matter should have been left to the discretion of the Election Commission to take further steps according to law. On that ground also we hold that the impugned order is vitiated and cannot be sustained.
39. Accordingly, the impugned order is set aside and both the writ appeals are allowed. The writ petition shall stand dismissed. No costs.