Andhra Pradesh High Court - Amravati
Chennuboina Chitti Babu vs The State Of Andhra Pradesh on 11 August, 2022
1
THE HONOURABLE SRI JUSTICE D.RAMESH
WRIT PETITION No.27232, 27533, 28903 and 28179 of 2021
Common Order:-
This common order will dispose of the preliminary objection,
as to the maintainability of the above writ petitions, raised by
Sri Sita Ram Chaparla, learned counsel appearing on behalf of the
respondents 7 and 8.
2. W.P.No.27232 of 2021 is filed assailing the action of the
respondents in not recognizing the petitioner herein as an Ex-
officio member of 3rd respondent-Kondapalli Municipality and
restricting him to participate in the election of Chairperson and
Vice- Chairpersons of the 3rd respondent -Municipality scheduled
to be held on 22.11.2021 at 11.00 a.m. and failing to issue the
Form-II in terms of Rule 4 of A.P. Municipalities (Conduct of
Election of Chair person and Vice-Chairperson) Rules, 2005
3. W.P.No.27533 of 2021, is filed by the elected Ward Members
of the different wards in Kondapalli Municipality and the
petitioner No.15 being serving Member of Parliament of
Vijayawada Lok Sabha Constituency, complaining that election of
the Chairperson and Vice-Chairpersons of Kondapalli Municipality
is being postponed and seeking to direct the respondents to
conduct the election on 23.11.2021 without any further
postponement/adjournment, under the supervision of
respondents 6 to 8.
4. W.P.No.28903 of 2021 is filed by the elected members of the
Wards in not providing Police Protection to them till the
declaration of result of the election conducted for the posts of
2
Chairperson and Vice-Chairperson, Kondapalli Municipality held
on 24.11.2021 inspite of their representation dated 03.12.2021
and consequently to direct the 2nd respondent-Commissioner of
Police, Vijayawada City, to provide Police protection to them till
the declaration of result of the election of Chairperson and Vice-
Chairperson, Kondapalli Municipality held on 24.11.2021.
5. Writ Petition No.28179 of 2021 is filed praying to declare the
action of the respondents in not recognizing the petitioner herein
as an Ex-officio member of 3rd respondent-Kondapalli Municipality
and restricting him to exercise his vote in the election of
Chairperson and Vice-Chairpersons of 3rd respondent-
Municipality as being illegal and arbitrary.
6. Since the issue in these writ petitions is connected, all these
matters are taken up together.
7. At the time of admission, considering the submissions made
by the counsel on both sides, in W.P.No.27232 of 2021, this court
has passed the following order on 19.11.2021:-
"Considering the submissions made by all the counsel, this
Court feels that there is some force in the arguments
advanced by the counsel for the petitioner. After perusal of
section 5(2)(iii) of Municipalities Act 1965 r/w sub-section
(1-A) of Section 5 of the Municipal Corporations Act, 1955
and also as stated by the learned counsel for the petitioner
that he has not participated in any meeting in the
Vijayawada Municipal Corporation, though he has
exercised his franchise vide letter dated 01.3.2021, there
shall be a direction to R3 and R4 to permit the petitioner to
participate and exercise his franchise in the election of
Chairperson & Vice-Chairperson of R3 Kondapalli
Municipality as an Ex-officio member scheduled to be held
on 22.11.2021 and the respondents are directed not to
announce the results."
3
8. After receipt of notice, the respondents have filed their
counter and the proposed respondents 7 and 8 have filed
I.A.No.03 of 2021 in W.P.No.27232 to implead them as party
respondents 7 and 8. Accordingly said I.A. is allowed and the
proposed respondents 7 and 8 have been impleaded as party
respondents 7 and 8 in the said writ petition.
9. When the batch of matters taken up for hearing, Sri Sita
Ram Chaparla, learned counsel appearing for the proposed
respondents 7 and 8 have raised preliminary objection with regard
to maintainability of the writ petitions.
10. To support his contention, learned counsel mainly relied on
the Andhra Pradesh Municipalities (Decision of Election Disputes)
Rules, 1967. Relevant portion of the said rules are extracted
herein:-
"1. (1) Save as otherwise provided, no election held under the
Andhra Pradesh Municipalities Act, 1965 whether of a Councillor,
Chairman or Vice-Chairman, shall be called in question except by an
election petition presented in accordance with these rules to an
Election Tribunal as defined by sub-rule (2) by any candidate or
elector against the candidate who has been declared to have been
duly elected (hereinafter called the returned candidate) or if there
are two or more returned candidates against all to any of such
candidates.
10. ...(c) the result of the election has been materially affected by
any irregularity in respect of a nomination paper or by the improper
reception or refusal of a nomination paper or vote or by any non-
compliance with the provisions of the Act or the Rules made
thereunder. The election of such returned candidate shall be void;"
11. Further learned counsel also relied on the Article 243ZG of
the Constitution of India, which reads as follows:-
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;
4
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.
12. In view of the said provisions, learned counsel for the
respondents 7 and 8 argued that if any dispute with regard to the
election has been materially affected the result, by any irregularity
mentioned therein, the persons have to approach the Election
Tribunal. Therefore, when there is an alternative remedy is
available under the statute, the writ petitions are not
maintainable.
13. Learned counsel further submitted that in the identical
issue came up before this Court, in Varaganti Narayana Vs.
Election Officer-Municipal Commissioner, Alwal Municipality,
R.R., District and Anr.1, wherein it is held that -
"29. It is too well settled that an election to a Municipality shall
not be called in question in a writ petition under Article 226 of the
Constitution of India. That is what clause (b) of Article 243-ZG of
the Constitution says. The said proviso says that an election can
be questioned only by way of an election petition before a duly
constituted authority in the manner provided for by the law or
under any law made by the State Legislature. There cannot be any
doubt that a 'challenge to an election' means and includes a
challenge to any intermediary stage in the election. These
intermediary stages could be 'issue of election notification', filing of
nominations, scrutiny of nominations, rejection of nomination,
voting on the polling day, declaration of results, declaration of the
elected candidates and reconstitution of the municipality by duly
designated authorities and authorities specified under the A.P.
Municipalities Act, 1965 (the Act, for brevity) and various rules
made under Section 326 of the Act. Therefore, any challenge to
any order or any act at the intermediary stage of the election can
only be made before the duty constituted special Tribunal
constituted for the purpose. Clause (b) of sub-section (2) of Section
326 of the Act empowers the State Government to constitute an
Election Tribunal.
30. In exercise of those powers, Rules for Decision of Election
of Disputes, 1967 have been made. Rule 10(c) of the said Rules
and Section 79 of HMC Act provide that if the result of the election
is materially affected by any irregularity mentioned therein, the
Tribunal may declare the election as void. The matters are-
(a) Irregularities in respect of nomination papers;
(b) Improper acceptance/reception of nomination papers;
(c) Improper refusal of nomination papers;
(d) Improper reception or acceptance of vote; or/and
1
(2000) 4 ALD 450
5
(e) Non-compliance with the provisions of the Act or Rules made
thereunder;"
14. Also relied on the judgment passed by the Division Bench of
the Hon'ble High Court of Punjab and Haryana in Prem Chand
and Others vs. State of Punjab and Others2, wherein it is held
that -
"5. Prior to the enactment of the Corporation Act, the Punjab Municipal Act,
1911 (for short 'the Act') was the only Statue in respect of urban local
bodies. The Act as originally enacted contemplated constitution of a
Municipality in terms of Section 11 of the Act. The election to the post of
President and Vice President of such Municipality was regulated by Section
20 of the Act. The Punjab Municipal Election Rules, 1952 were framed in
respect of elections to the Municipalities including elections to the office
bearers of such Municipality in terms of Clauses (d), (e), (f), (g) and (h) of
sub-section (1) Section 240. Rule 2(i) of such Rules read as under:--
"2. Definitions - In these rules unless there is anything repugnant in the
subject or the context.
(a) xx xx xx
(i) "Election" means the election of a member, President, Vice President
of a committee and includes the co-option of a member."
6. The Act was amended by Punjab Act No. 11 of 1994 to give effect to the
Constitutional mandate as inserted by Part IXA of the Constitution. Apart
from other amendments, Clauses (d), (e), (f), (g) and (h) of sub-section (1)
Section 240 were omitted. The Punjab Municipal Election Rules, 1952
stands repealed consequent to enactment of the Punjab State Election
Commission Act, 1994 (for short 'Election Act').
7. On the other hand Section 2(14) of the Punjab Municipal Corporation
Act, 1976 (for short "the Corporation Act") as originally enacted defined
election to mean the election of a councillor, Mayor or a Deputy Mayor of a
Corporation and for the purposes of election disputes includes the co-option
of a councillor. The original Section 2(14) reads as under:--.
"2. Definitions. - In this Act, unless the context otherwise requires.
(1) xx xx xx
(14) "election" means the election of a councillor, Mayor or a Deputy
Mayor of a Corporation and for the purposes of election disputes - includes
the co-option of a councillor."
8. Such definition was also amended vide Punjab Act No. 12 of 1994
consequent to insertion of Part IXA of the Constitution. The amended
definition of 'election' under the Punjab Municipal Corporation Act, 1976
reads as under:--
"2. Definitions. - In this Act, unless the context otherwise requires.--
(1) xx xx xx
(14) "election" means and includes, the entire election process
commencing on and from the date of notification calling for election of
Councillors and ending with the date of declaration and notification of
results thereof."
9. The elections to the office bearers of the Municipal Corporations are
governed by The Punjab Municipal Corporations Mayor, Senior Deputy
2
(2015) 4 RCR (Civil) 1038
6
Mayor and Deputy Mayor Election Rules, 1991 (for short 'the Rules') as
notified on 09.09.1991 framed in exercise of the powers conferred on the
State Government in terms of sub-Section (1) of Section 38 of the
Corporation Act. Such Rules were framed prior to enactment of Punjab Act
No. 12 of 1994 substituting the meaning of election as contained in Section
2(14) of the Corporation Act.
......
18. The Punjab Municipal Act, 1911 and/or the Punjab Municipal
Corporation Act, 1976 as amended in the year 1994 does not provide for
any dispute settlement mechanism in any particular manner, though prior
to such amendments, an election petition was contemplated in both the Act
and the Corporation Act in respect of elections to their office bearers.
Therefore, in the absence of any dispute settlement procedure prescribed by
the State Legislature, the remedy of the election petition cannot be read into
the Statutes or the Rules framed.
19. The parties are not remedy less even if the remedy of an election
petition is not available as the jurisdiction of the High Court cannot be said
to be excluded and thus can be invoked for the re-dressal of the grievances.
The exercise of the jurisdiction without saying can be exercised only in the
manner in accordance with law. In fact, the learned State Counsel rightly
conceded the proposition that election to the office bearers of the
Municipalities cannot be resolved by way of an election petition in terms of
Section 74 of the Election Act. Therefore, we find that the decision in Shimla
Rani's case (supra), is the correct enunciation of law".
15. Further relied on another decision passed by the Division
Bench of this Court, in Syed Meiraj Vs. The Election Officer
and Commissioner, Municipal Council, Sherilingampally3,
wherein this court upheld that-
" According to R. 10(c) of the Decision of Election Disputes, 1967 the
election becomes void if in the opinion of the Election Tribunal the result of
the election has been materially affected by any irregularity in respect of a
nomination paper or by the improper reception or refusal of a nomination
paper or vote or by non-compliance with the provisions of the Act or the
Rules made there under. The said Rules have been framed in exercise of
the powers conferred under S. 326 of the A.P. Municipalities Act, 1965.
Section 79(2)(c) of the Hyderabad Municipal Corporation Act makes the
Rules for Decision of Election Disputes, 1967 framed by the State
Government in exercise of the powers conferred under S. 326 of the
Municipalities Act, 1965 applicable to elections being conducted under the
Hyderabad Municipal Corporation Act, 1955. It is obvious from the said
provision that the improper refusal of a nomination paper is one of the
grounds which vitiates the election.
6. In a recent judgment reported in Anugrah Narain
Singh v. State of Uttar Pradesh (1996) 8 JT 733 (SC) at page 741 in
para 12 while considering the new provisions of Art. 243-ZG held as
follows:
"The bar imposed by Art. 243-ZG is twofold. Validity of laws
relating to delimitation and allotment of seats made under Art. 243-ZA
cannot be questioned in any Court. No election to a Municipality can be
questioned except by an election petition. Moreover, it is well settled by now
that if the election is imminent or well underway, the Court should not
intervene to stop the election process. If this is allowed to be done, no
(2000) 3 ALD 127 (DB)
election will ever take place because someone or the other will always find
some excuse to move the Court and stall the elections."
7. Even otherwise also it is well established law and the first principle in
election law is that right to contest the election or right to vote is neither a
fundamental right nor an equitable right. It is a statutory right, which can
be exercised in accordance with the statutory procedure provided therefor.
The only remedy for violation of the statutory right is to avail of the relief
provided by the Statute. There is no substantial injustice involved to call for
interference in the election process during the progress of the election so as
to invoke the power of Art. 226 of the Constitution.
8. The learned single Judge after going through all the precedents
on the point has ultimately come to the conclusion that the writ petitions are
not maintainable including the one being impugned before us in view of the
specific provisions of Art. 243-ZG and the law laid down by the Apex Court.
The learned single Judge has observed that rejection of nomination, refusal
to accept the nomination papers and non-acceptance of nomination papers
are all grounds giving rise to an election petition, which is an efficacious
remedy and the election process cannot be interfered with at each and
every step of election process which commences from the moment the
constituency is called to elect till the declaration of the election results.
9. The only prayer made by the learned counsel for the appellant
is that it is an exceptional case and that of all the nominations that have
been pending before the Returning Officer only one nomination belonging to
the appellant has been rejected, consequently in exercise of the powers
under Art. 226 of the Constitution of India, the Court shall interfere and
direct the Returning Officer to accept the nomination of the appellant.
Reliance has been placed in this regard by the learned counsel upon the
judgment of this Court reported in A.Y.N. Pathekar v. Municipal Corporation
of Hyderabad (1986) 1 APLJ 138. A single Judge of this Court held that
when the nomination paper was delivered to the Returning Officer at 3.10
p.m. instead of 3.00 p.m. due to the heavy rush in the office of the
Returning Officer it was a technical defect not of substantial character and
would not justify the rejection of the same, and therefore, the writ petition
under Art. 226 of the Constitution was maintainable. The mandatory
provisions of the Constitution perhaps have not been brought to the notice of
the learned single Judge. The provisions of Arts. 243(O) and 243(ZG) have
been added to the Constitution far subsequent to the said judgment. For the
above reasons the said judgment is no more a good law having been
rendered per incuriam."
16. Relying on the observations made in the above cited
judgments, learned counsel for the respondents 7 and 8
vehemently argued that according to the Rule 10 (c) of the
Decision of Election Disputes, 1967, if there are any material
irregularities in the Election Procedure, they have to approach the
Election Tribunal as provided under the statute. Therefore,
contended that the writ petitions are not maintainable.
17. In reply to the preliminary objection, Sri N.Aswani Kumar,
learned counsel appearing for the petitioners urged that in the
instant case, the petitioners are not asking for any stalling of
election process, specifically the plea in the writ petitions is that
as per Section 5(2) (iii) of A.P. Municipalities Act, 1965 ("the Act"
for brevity), the petitioner can exercise his option of being an ex-
officio member in any Municipality of his elected constituency
within 30 days from the date of conduct of ordinary election to the
Municipality. Accordingly, in terms of the said provision he has
made an election petition to act as an Ex-officio member to the 3rd
respondent Municipality and without considering the petitioner's
case as per the above said provision, the 6th respondent has
issued a notice in Form-II calling for a Special Meeting, for
conducting of election of Chair person and two chair persons, in
terms of Rule 4 of A.P. Municipalities (Conduct of Election of
Chairperson and Vice-Chairperson) Rules, 2005. Therefore, when
the issue raised with regard to the interpretation of Section 5(2)
(iii) of the Act, the Writ Petition is maintainable under Section 226
of the constitution of India.
18. In support of his contention, learned counsel for the
petitioners has placed following rulings:-
1. Election Commission of India through Secretary Vs.
Ashok Kumar And Others4 .
2. State of Goa and Another Vs. Fouziya imtiaz Shaikh
And Another5
3. Dravida Munnetra Kazhagam (DMK) Vs. Secretary,
Governor's Secretariat and Others6
4. Sudesh Kumar Aggarwal Vs. State of Punjab7
5. S.Fakruddin and Ors. Vs. The Govt. Of A.P. and Ors8."
19. In the case of the Election Commission of India v. Ashok
Kumar, the Hon'ble Supreme court held that -
(2000) 8 SCC 216
(2021) 8 SCC 401
(2020) 6 SCC 548
2001 (3) RCR (Civil) 454
AIR 1996 AP 37
"32. For convenience sake we would now generally sum up our
conclusions by partly restating what the two Constitution Benches have
already said and then adding by clarifying what follows therefrom in view of
the analysis made by us hereinabove:
(1) If an election, (the term election being widely interpreted so as to
include all steps and entire proceedings commencing from the date of
notification of election till the date of declaration of result) is to be called
in question and which questioning may have the effect of interrupting,
obstructing or protracting the election proceedings in any manner, the
invoking of judicial remedy has to be postponed till after the completing of
proceedings in elections.
(2) Any decision sought and rendered will not amount to "calling in
question an election" if it subserves the progress of the election and
facilitates the completion of the election. Anything done towards
completing or in furtherance of the election proceedings cannot be
described as questioning the election.
(3) Subject to the above, the action taken or orders issued by Election
Commission are open to judicial review on the well-settled parameters
which enable judicial review of decisions of statutory bodies such as on a
case of mala fide or arbitrary exercise of power being made out or the
statutory body being shown to have acted in breach of law.
(4) Without interrupting, obstructing or delaying the progress of the
election proceedings, judicial intervention is available if assistance of the
court has been sought for merely to correct or smoothen the progress of
the election proceedings, to remove the obstacles therein, or to preserve a
vital piece of evidence if the same would be lost or destroyed or rendered
irretrievable by the time the results are declared and stage is set for
invoking the jurisdiction of the court.
(5) The court must be very circumspect and act with caution while
entertaining any election dispute though not hit by the bar of Article
329(b) but brought to it during the pendency of election proceedings. The
court must guard against any attempt at retarding, interrupting,
protracting or stalling of the election proceedings. Care has to be taken to
see that there is no attempt to utilise the court's indulgence by filing a
petition outwardly innocuous but essentially a subterfuge or pretext for
achieving an ulterior or hidden end. Needless to say that in the very
nature of the things the court would act with reluctance and shall not act,
except on a clear and strong case for its intervention having been made
out by raising the pleas with particulars and precision and supporting the
same by necessary material."
20. In Dravida Munnetra Kazhagam (DMK) Vs. Secretary,
Governor's Secretariat and Others9 it is held that -
"14. The contention of the respondents that the present proceedings
amount to "calling in question an election" and hence not being maintainable
in view of the express constitutional embargos of Articles 243O and 243ZG
does not impress us for the present proceedings are only to further the
expeditious completion of prerequisites of a fair election. Hence, the following
ratio of a coordinate Bench in Election Commission of India v. Ashok Kumar
and Others [2000 (8) SCC 216] squarely applies to the present case:
"(2) Any decision sought and rendered will not amount to "calling in question
an election" if it subserves the progress of the election and facilitates the
completion of the election. Anything done towards completing or in
furtherance of the election proceedings cannot be described as questioning
the election.
(3) Subject to the above, the action taken or orders issued by Election
Commission are open to judicial review on the well settled parameters which
enable judicial review of decisions of statutory bodies such as on a case of
(2020) 6 SCC 548
mala fide or arbitrary exercise of power being made out or the statutory
body been shown to have acted in breach of law.
(4) Without interrupting, obstructing or delaying the progress of the election
proceedings, judicial intervention is available if assistance of the court has
been sought for merely to correct or smoothen the progress of the election
proceedings, to remove the obstacles therein, or to preserve a vital piece of
evidence if the same would be lost or destroyed or rendered Page | 11
irretrievable by the time the results are declared and stage is set for
invoking the jurisdiction of the court."
21. Finally learned counsel for the petitioners heavily relied on
the observations made in the latest judgment of the Hon'ble
Supreme Court in State of Goa and Another Vs. Fouziya
imtiaz Shaikh And Another10, wherein it is observed that -
"68. A conspectus of the aforesaid judgments in the context of
municipal elections would yield the following results.
68.1. Under Article 243 ZG(b), no election to any municipality can be
called in question except by an election petition presented to a Tribunal
as is provided by or under any law made by the Legislature of a State.
This would mean that from the date of notification of the election till the
date of the declaration of result a judicial hands-off is mandated by the
non-obstante clause contained in Article 243ZG debarring the writ court
under Articles 226 and 227 from interfering once the election process has
begun until it is over. The constitutional bar operates only during this
period. It is therefore a matter of discretion exercisable by a writ court as
to whether an interference is called for when the electoral process is
"imminent" i.e, the notification for elections is yet to be announced.
68.2. If, however, the assistance of a writ court is required in
subserving the progress of the election and facilitating its completion, the
writ court may issue orders provided that the election process, once
begun, cannot be postponed or protracted in any manner.
68.3. The non-obstante clause contained in Article 243ZG does not
operate as a bar after the election tribunal decides an election dispute
before it. Thus, the jurisdiction of the High Courts under Articles 226 and
227 and that of the Supreme Court under Article 136 of the Constitution
of India is not affected as the non-obstante clause in Article 243ZG
operates only during the process of election.
68.4. Under Article 243ZA(1), the SEC is in overall charge of the
superintendence, direction and control of the preparation of electoral
rolls, and the conduct of all municipal elections. If there is a
constitutional or statutory infraction by any authority including the State
Government either before or during the election process, the SEC by
virtue of its power under Article 243ZA(1) can set right such infraction.
For this purpose, it can direct the State Government or other authority to
follow the Constitution or legislative enactment or direct such authority to
correct an order which infracts the constitutional or statutory mandate.
For this purpose, it can also approach a writ court to issue necessary
directions in this behalf. It is entirely upto the SEC to set the election
process in motion or, in cases where a constitutional or statutory
provision is not followed or infracted, to postpone the election process
until such illegal action is remedied. This the SEC will do taking into
account the constitutional mandate of holding elections before the term of
(2021) 8 SCC 401
a municipality or municipal council is over. In extraordinary cases, the
SEC may conduct elections after such term is over, only for good reason.
68.5 Judicial review of a State Election Commission's order is
available on grounds of review of administrative orders. Here again, the
writ court must adopt a hands-off policy while the election process is on
and interfere either before the process commences or after such process
is completed unless interfering with such order subserves and facilitates
the progress of the election.
68.6. Article 243ZA(2) makes it clear that the law made by the
legislature of a State, making provision with respect to matters relating
to or in connection with elections to municipalities, is subject to the
provisions of the Constitution, and in particular Article 243T, which deals
with reservation of seats.
68.7. The bar contained in Article 243ZG(a) mandates that there be a
judicial hands-off of the writ court or any court in questioning the validity
of any law relating to delimitation of constituency or allotment of seats to
such constituency made or purporting to be made under Article 243ZA.
This is by virtue of the non-obstante clause contained in Article 243ZG.
The statutory provisions dealing with delimitation and allotment of seats
cannot therefore be questioned in any court. However, orders made
under such statutory provisions can be questioned in courts provided the
concerned statute does not give such orders the status of a statutory
provision."
22. Learned counsel for the petitioners further contended
that even on perusal of the observations made by the full
bench of Hon'ble High Court of Punjab and Haryana in Prem
Chand and Others's case referred supra, wherein their
lordships have considered the relevant Rules and held that
the amendment was brought in 1994, thus, before the
enactment of the Punjab Municipal Act 1911, the act does not
provide for any dispute settlement mechanism in any
particular manner, therefore, in the absence of any dispute
settlement procedure prescribed by the State Legislature, the
writ petitions are maintainable. Thereby learned counsel for
the petitioners urged that when there is no statutory remedy
available, as observed in the above judgment, the court held
that the writ petition is maintainable.
23. After hearing both the counsel and on perusal of the Rule
10(c) of the said Rules, on perusal of the observations made by
this court on the identical issue in Varaganti Narayana's case
cited supra, that the writ petitions are not maintainable with
regard to the irregularities in respect of nomination papers;
Improper acceptance/reception of nomination papers; Improper
refusal of nomination papers; Improper reception or acceptance of
vote; or/and Non-compliance with the provisions of the Act or Rules
made thereunder;
24. In the instant case, as per the Rule 10 (c), the state has
provided alternative mechanism for election disputes. Hence, the
writ petitions are not maintainable as held by this Court held in
Varaganti Nrayana's case.
25. Whereas on perusal of the ratio decided by the Hon'ble Apex
Court in case of Election Commission of India Vs. Asok Kumar,
wherein the Court held that any decision sought and rendered will
amount to "calling in question an election" and without
interrupting, obstructing or delaying the progress of said election
proceedings, the judicial intervention is available if assistance of
the court has been sought for merely to correct or smoothen the
progress of the election proceedings.
26. Even in the instant case, the petitioners herein requested to
consider their case under Section 5(2) (iii) of the Act, 1965, so
when the question in the writ petitions is interpretation of the
provisions of the Act, hence, undoubtedly the Writ Petitions are
maintainable under Section 226 of the Constitution of India, as
held by the Hon'ble Apex Court in the above cited judgments.
27. Learned counsel for the petitioners stated that as observed
by the Apex Court in Dravida Munnetra Khazaham's case and
also recent judgment in the case of State of Goa Vs. Fouziya
Imtiaz Shaikh, wherein the Hon'ble Apex court clearly held that
if, however, the assistance of a writ court is required in subserving
the progress of the election and facilitating its completion, the writ
court may issue orders provided that the election process, once
begun, cannot be postponed or protracted in any manner. Further
it is also held that judicial review of a State Election Commission's
order is available on grounds of review of administrative orders.
28. Considering the observations made by the Hon'ble Apex
Court in the above referred latest Judgment in State of Goa's
case, in the present case also the writ petitioners sought for
interpretation of Section 5 2 (iii) of the Act, 1965 and not asked for
stall the process of the elections. Moreover, what has to be
decided in these writ petitions is whether the petitioner is entitled
as ex-officio member to the 3rd respondent Municipality or not.
29. Hence, in view of the observations of the Hon'ble Supreme
Court in the case of State of Goa Vs. Fouziya Imtiaz Shaikh,
cited supra, this court held that the writ petitions are
maintainable. Therefore, the preliminary objection raised by the
learned counsel for the respondents 7 and 8 is over ruled.
_____________________
JUSTICE D.RAMESH
Date : 11.08.2022
Pnr
THE HONOURABLE SRI JUSTICE D.RAMESH
WRIT PETITION No.27232, 27533, 28903 and 28179 of 2021
Dated 11-08-2022
Pnr
