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2021 DIGILAW 628 (AP)

B. Jamal Basha v. State Election Commission

2021-09-28

AKULA VENKATA SESHA SAI

body2021
ORDER : Akula Venkata Sesha Sai, J. 1. Heard Smt. Marella Radha, learned counsel for the petitioner, and Sri S. Vivek Chandrasekhar, learned Standing Counsel for the State Election Commission, apart from perusing the entire material available on record. 2. This Writ Petition is filed, under Article 226 of the Constitution of India, for the following relief : "to issue an appropriate writ order or direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondent authorities in not considering the representation dated 9.4.2021 seeking recounting of election of the 5th ward in Mydukur Municipality YSR Kadapa District which its illegal arbitrary violation of principals of natural justice and also violation of Article 14 of the Constitution of India and also contrary to the Andhra Pradesh Municipalities Conduct of Election of Members Rules 2005 and Consequently direct the respondent authorities to consider the representation of the petitioner dated 18.3.2021 and pass such other orders…" 3. Election to the 5th Ward of Mydukur Municipality, YSR Kadapa District took place on 13.03.2021 and the petitioner herein was one of the contestants in the said election. The process of counting of votes was taken up by the respondents on 14.03.2021 and, pursuant to the same, the authorities declared one Sri Sk. Khader Basha as successful candidate. 4. According to the petitioner, he made a representation to the District Election Authority/District Collector, YSR Kadapa-second respondent herein, on 09.04.2021, pointing out certain irregularities in the process of election. It is further stated that, despite receipt of the said representation, dated 09.04.2021, the second respondent herein did not take any action. 5. In the above background, petitioner herein has come up before this Court, by way of the present Writ Petition, with a grievance that the District Election Authority/District Collector is not considering his representation and, eventually, petitioner herein is asking for a direction to the respondent authorities to consider the representation, dated 09.04.2021. 6. According to the learned counsel for the petitioner, the action impugned in the present Writ Petition is highly illegal, arbitrary, unreasonable and violative of Article 14 of the Constitution of India besides being opposed to the very spirit and object of the provisions of the A.P. Municipalities (Conduct of Election of Members) Rules, 2005. 7. 6. According to the learned counsel for the petitioner, the action impugned in the present Writ Petition is highly illegal, arbitrary, unreasonable and violative of Article 14 of the Constitution of India besides being opposed to the very spirit and object of the provisions of the A.P. Municipalities (Conduct of Election of Members) Rules, 2005. 7. Strenuously, resisting the very maintainability of the Writ Petition, it is contended by the learned Standing Counsel that the present Writ Petition, filed by the petitioner herein, is liable to be rejected in limine and having regard to the provisions of Article 243 ZG of the Constitution of India and Section 343ZA of the A.P. Municipalities Act, 1965 and the A.P. Municipalities (Decision of Election Disputes) Rules, 1967. 8. As per the pleadings available on record, the only grievance of the petitioner in the present Writ Petition is the alleged inaction on the part of the District Election Authority/District Collector-second respondent herein in responding to his representation, dated 09.04.2021. For the purpose of considering and resolving the issue in the present Writ Petition, it would be highly essential to refer to the above mentioned provisions of law. Article 243ZG of the Constitution of India deals with the bar to interference by Courts in electoral matters and the said provision of the Constitution of India reads as under : Article-243ZG. Bar to interference by Courts in electoral matters.- Notwithstanding anything in this Constitution,-- (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243ZA shall not be called in question in any court; (b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. 9. Another important provision of law, which is germane for the purpose of consideration of the issue in the present Writ Petition is Section 343 ZA of the A.P. Municipalities Act, 1965. The said provision of law stipulates that no election held under the A.P. Municipalities Act shall be called in question except by an Election Petition presented in accordance with such Rules as may be made in this behalf and to such authority as may be specified in such Rules. The said provision of law stipulates that no election held under the A.P. Municipalities Act shall be called in question except by an Election Petition presented in accordance with such Rules as may be made in this behalf and to such authority as may be specified in such Rules. The State Government, in exercise of the powers conferred by Clause (b) of sub-Section (1) of Section 326 of the A.P. Municipalities Act framed the Rules called "the A.P. Municipalities (Decision of Election Disputes) Rules" and the said Rules came to be notified by the Government vide G.O. Ms. No. 1118 Municipal Administration, dated 17.08.1967. 10. According to Rule 1 (1) of the A.P. Municipalities (Decision of Election Disputes) Rules no election conducted under the A.P. Municipalities Act, whether of a Councillor, Chairman or a Vice-Chairman shall be called in question except by an Election Petition presented in accordance with the Rules to Election Tribunal as defined under sub-Rule (2) of Rule 1 by any candidate or elector against the candidates who have been declared to be duly elected or if there are two or three returned candidates against all. 11. Sub-Rule (2) of Rule 1 of the Rules stipulates that the Election Tribunal shall be the Subordinate Judge having territorial jurisdiction over the municipal area and if there is more than one Subordinate Judge, the Principal Subordinate Judge and Clause (b) of Sub-Rule (2) of Rule 1 stipulates that, if there is no such Subordinate Judge, the District Judge, has such jurisdiction. It is also significant to note that, according to Rule 2 of the said Rules, the petition shall be presented within fifteen days from the date of declaration of the results of the said elections. 12. In the instant case, except submitting a representation, as referred to supra, there is no evidence on record made available by the petitioner to demonstrate that he did approach the authority as mentioned in the above provisions of law. As rightly pointed out by the learned Standing Counsel, once the election is held and result is declared, the aggrieved party has to necessarily avail the remedies as provided by law and, this Court, by directing the District Collector-second respondent herein, cannot confer the jurisdiction on the District Collector to look into the matter and to exercise the jurisdiction which is admittedly conferred in the Tribunal. Therefore, this Court does not find any merits in the present Writ Petition. 13. Accordingly, Writ Petition is dismissed. There shall be no order as to costs. As a sequel thereto, miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.