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The High Court of Andhra Pradesh dismissed Writ Petition No. 41689 of 2022 filed by Ravuri Murali Krishna, which sought a mandamus for the inaction of the respondents regarding a complaint about the eligibility of Bathina Vijaya Kumar, a Corporator. The court ruled that the petitioner should have pursued an election petition as per the Andhra Pradesh Municipal Corporation Act, 1955, rather than a complaint, as the statutory remedy was not followed. Consequently, the court found no grounds to issue a mandamus and dismissed the petition.

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8 views11 pages

206300416892022_4

The High Court of Andhra Pradesh dismissed Writ Petition No. 41689 of 2022 filed by Ravuri Murali Krishna, which sought a mandamus for the inaction of the respondents regarding a complaint about the eligibility of Bathina Vijaya Kumar, a Corporator. The court ruled that the petitioner should have pursued an election petition as per the Andhra Pradesh Municipal Corporation Act, 1955, rather than a complaint, as the statutory remedy was not followed. Consequently, the court found no grounds to issue a mandamus and dismissed the petition.

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samraththakur333
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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2023:APHC:11510

HIGH COURT OF ANDHRA PRADESH


TUESDAY ,THE ELEVENTH DAY OF APRIL
TWO THOUSAND AND TWENTY THREE
PRSENT
THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
WRIT PETITION NO: 41689 OF 2022
Between:
1. RAVURI MURALI KRISHNA S/o.(Iate) Venkata Reddy,
Hindu, Male, Age-46 years, Occ- Advocate,
R/o. H.No.2/126, Near Ramalayam,
27th Ward, Chodimella,
Eluru Municipal Corporation, ELURU.
...PETITIONER(S)
AND:
1. THE UNION OF INDIA Represented by its Secretary,
Department of Legal Affairs,
4th Floor, A-Wing, Shastri Bhavan,New Delhi.
2. The A.P.State Election Commission, 1st Floor, New HODs Building,
M.G.Road, Vijayawada-520010. Rep by its Secretary.
3. The District Collector/ The District Election Authority, West Godavarai
District, Now Eluru District office at Eluru.
4. The Eluru Municipal Corporation, Office at Near Badeti Chowk, Eluru. Rep
by its Commissioner,
5. The Station House Officer, Eluru Rural Police Station, Eluru. West
Godavari District.
6. Bathina Vijaya Kumar, S/o.Nageswara Rao,
Hindu, Male, Age- 53 years,
Occ- Corporator of Division No.27,
R/o. H.No.4-1, Near Bypass Road,
Chodimella, 27th Division, Eluru.
...RESPONDENTS
Counsel for the Petitioner(s): SOMA RAJU YELISETTI
Counsel for the Respondents: N HARINATH
The Court made the following: ORDER
2023:APHC:11510

THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

WRIT PETITION NO. 41689 OF 2022

JUDGMENT:-

1) Heard Sri. Y. Soma Raju, learned Counsel for the

Petitioner, Sri. Viswanath Challa, Advocate appearing for

Sri. S. Vivek Chandra Sekhar, learned Standing Counsel

for Respondent Nos. 2 and 3 and Ms. Shilpa, Advocate,

appearing for Respondent No.6.

2) This petition under Article 226 of the Constitution of

India is filed for Writ of Mandamus with respect to the

inaction of the Respondents in not considering the

Petitioner’s complaint, dated 18.07.2022, as also for a

direction to the Respondent Nos. 2 to 4 to take appropriate

action on the Petitioner’s complaint.

3) The prayer in the Writ Petition, is as follows:

“…….pleased to issue a writ, order or direction more


particularly one in the nature of writ of mandamus to
declare the inaction of the Respondents in not
considering the Petitioner Complaint dt. 18/07/2022 as
illegal, arbitrary, contrary to law, violation of principles
of natural justice, violation of Articles 14, 19(g) and
consequently direct to the Respondents to consider the
2 2023:APHC:11510

Petitioner Complaint dt. 18/07/2022 and take


appropriate action against the Respondent No 6 in
accordance with law and to pass……..”

4) The Petitioner’s complaint related to the election of

the 6th Respondent for the post of Corporator of Ward

No.27 in Eluru Municipal Corporation, Eluru, in the

elections conducted in the year 2020.

5) The Petitioner’s case is that, the 6th Respondent was

not eligible to contest the election, as criminal cases were

pending against him, but without disclosing those cases he

filed false affidavit and contested the election and was

elected as Corporator.

6) Learned Counsel for the 6th Respondent submits that

the 6th Respondent had no knowledge of the registration of

those criminal which have already been closed. As such,

there was no suppression of facts.

7) Learned Counsel for the 6th Respondent further

submits that the complaint given by the Petitioner is not a

statutory complaint for which direction cannot be given in


3 2023:APHC:11510

the exercise of power under Article 226 of the Constitution

of India.

8) I have considered the submissions advanced and

perused the material on record.

9) The Petitioner is a voter and in affect is challenging

the election of the 6th Respondent by filing the complaint

before the Respondent Nos. 2 to 4 and the writ petition is

filed for direction to those respondents to decide such

complaint.

10) Section 71 of the Andhra Pradesh Municipal

Corporation Act, 1955, [‘Act’] provides as under:

“Presentation and Trial of Election Petition

71. (1) Election Petition: - [x x x] No election held


under this Act shall be called in question except by
an election petition which shall be presented in such
manner as may be prescribed.

(2) An Election petition calling in question any


election may be presented on one or more of the
grounds specified in clauses (i) and (ii) of section 79
and section 80 to the Election Tribunal by any
candidate at such election or any voter, within two
4 2023:APHC:11510

months from, but not earlier than the date of


election of the returned candidate or if there are
more than one returned candidate at the election
and the dates of the election are different is the
later of those two dates.

[Provided that the period from the date on which an


election petition can be filed under this sub-section
to the date of the constitution of an Election Tribunal
under Section 75, shall be excluded for purpose of
computing the period of two months under this sub-
section.]”

11) Thus, Section 71 of the A.P. Municipal Corporation

Act, 1955, provides for challenge to the election by an

election petition to be presented in the manner prescribed.

As per Sub-Section (2), the election can be challenged by

any candidate at such election or even by a voter. The

period of limitation and its computation is also prescribed

for filing election petition by Sub-Section (2) read with the

proviso.

12) It would be apt to refer the following judgments on

the point of maintainability of a writ petition with respect

to the challenge made to an election.


5 2023:APHC:11510

13) In K.K. Shrivastava And Others Vs. Bhupendra

Kumar Jain And Others1, the Hon’ble Supreme Court

held as under:

“3. It is well settled law that while Article 226 of the


Constitution confers a wide power on the High Court
there are equally well settled limitation which this
Court has repeatedly pointed out on the exercise of
such power. One of them which is relevant for the
present case is that where there is an appropriate or
equally efficacious remedy the Court should keep its
hands off. This is more particularly so where the
dispute relates to an election. Still more so where
there is a statutorily prescribed remedy which
almost reads in mandatory terms. While we need
not in this case go to the extent of stating that if
there are exceptional or extraordinary circumstances
the Court should still refuse to entertain a writ
petition it is perfectly clear that merely because the
challenge is to a plurality of returns of elections,
therefore a writ petition will lie, is a fallacious
argument. It is important to notice what the High
Court has overlooked that the period of limitation
prescribed by the rules is 15 days and if writ
petitions are to be entertained long afterwards it will
stultify the statutory provision…………”

1
(1977) 2 Supreme Court Cases 494
6 2023:APHC:11510

14) In Gujarat University Vs. N.U. Rajguru and

Others2, the Hon’ble Apex Court held as under in para 6:

“It is well settled that where a statute provides


for election to an office, or an authority or
institution and if it further provides a machinery
or forum for determination of dispute arising out
of election, the aggrieved person should pursue
his remedy before the forum provided by the
statute. While considering an election dispute it
must be kept in mind that the right to vote,
contest or dispute election is neither a
fundamental or common law right instead it is a
statutory right regulated by the statutory
provisions. It is not permissible to invoke the
jurisdiction of the High Court under Article 226 of
the Constitution by-passing the machinery
designated by the Act for determination of the
election dispute. Ordinarily the remedy provided
by the statute must be followed before the
authority designated therein. But there may be
cases where exceptional or extraordinary
circumstances may exist to justify bypassing the
alternative remedies………..”

2
1987 (Supp) Supreme Court Cases 512
7 2023:APHC:11510

15) In Umesh Shivappa Ambi And Others Vs. Angadi

Shekara Basappa And Others3, also the Hon’ble Apex

Court held that “it is now well settled that, once an election

is over, the aggrieved candidate will have to pursue his

remedy in accordance with the provisions of law and the

High Court will not ordinarily interfere with the elections

under Article 226 of the Constitution.”

16) Thus, the law is well settled that though the remedy

by way of election petition to challenge the election is only

an alternative remedy and is not an absolute bar to the

entertainability of the writ petition, but ordinarily this

Court will not entertain the writ petition and would keep its

hands off, except in exceptional or extraordinary

circumstances, leaving it to the Petitioner to avail the

equally efficacious alternative statutory remedy by way of

election petition.

17) The Petitioner had the remedy, to challenge the

election of the 6th Respondent, by an election petition

3
(1998) 4 Supreme Court Cass 529
8 2023:APHC:11510

under the Act, in the manner prescribed and within the

period of limitation prescribed by the Act.

18) The challenge to the election by way of a complaint, is

not the remedy nor the procedure prescribed by the

Statute, which can be only by an election petition. The

Petitioner’s complaint is also dated 18.07.2022, whereas

the election was conducted in March 2020.

19) Though, in the Writ Petition there is no challenge to

the election of the 6th Respondent, but indirectly a direction

is being sought to decide the Petitioner’s complaint relating

to the challenge of election of the 6th Respondent.

20) Any direction to the Respondents to consider the

Petitioner’s complaint, would be contrary to the statutory

provisions, as the Petitioner has not filed any election

petition but the complaint is filed which is not statutory in

nature. Mandamus cannot be issued to the Respondents

who have no authority to consider the complaint to

challenge the election.

21) In the result, the Writ Petition is dismissed.


9 2023:APHC:11510

No order as to costs.

As a sequel thereto, miscellaneous petitions, if any

pending, shall also stand closed.

________________________
RAVI NATH TILHARI, J

Date: 11.04.2023

Note:
LR copy to be marked
B/o.
SM/KBN…
10 2023:APHC:11510

THE HON’BLE SRI JUSTICE RAVI NATH TILHARI

WRIT PETITION NO. 41689 OF 2022

Date: 11.04.2023

SM/KBN

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