THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
WRIT PETITION No. 24042 of 2020
ORDER:
This writ petition is filed challenging the action of the Telangana State Election Commission, respondent No. 2 in bifurcating Begumpet Division, Ward No. 149 by adding at least 217 votes of that division to Ramgopalpet Division, Ward No. 148 in Booth No. 1 in the GHMC Elections held on 01.12.2020 as contrary to the provisions of Act No. 20 of 2020, dated 16.10.2020, illegal and unconstitutional.
The case of the petitioner is that she was elected as Sitting Ward Member (Corporator) of Ramgopalpet Division, Ward No. 148, Secunderabad in the month of February, 2016 and her term ends in February, 2021. The respondent No. 2, vide reference No. 1294/TSEC-ULBs-GHMC/2020-1&2, dated 17.11.2020, announced the schedule of elections for the GHMC area. She had filed her nomination with B-Form certificate issued by the TRS Party and contested the elections held on 01.12.2020. For the purpose of conducting the elections, Act No. 20 of 2020, dated 16.10.2020 was enacted to amend the GHMC Act, 1955 whereby Section 5 of Act II of 1956 was amended. As the Act has given the effect of retrospective operation, it is deemed to have come into force from 06.01.2016. By virtue of the same, the GHMC elections in 2020 should be held exactly on the same lines as the GHMC elections of 2016. However, the respondent No. 2 had bifurcated the voters of Begumpet Division, Ward No. 149, pertaining to Booth Nos. 11, 12 and 13 of Sanathnagar Assembly Constituency - 62 to Ramgopalpet Division, Ward No. 148 with a mala fide 2 intention to help the respondent No. 6, who won the elections for Ward No. 148. Immediately, the petitioner made a representation to the Assistant Election Authority and Deputy Commissioner, respondent No. 4 with a request to shift Booth Nos. 11, 12 and 13 from Ramgopalpet Division, Ward No. 148 to Begumpet Division, Ward No. 149. However, the respondent Nos. 2 to 4 have bifurcated the Begumpet Division, Ward No. 149 by including 217 voters of that division in the Ramgopalpet Division, Ward No. 148. According to the petitioner, this was done contrary to the legislative mandate which requires that the Wards to remain exactly the same as they were in 2016 GHMC elections. But, the respondent No. 2 has flouted the provisions of Act 20 of 2020, dated 16.10.2020 with impunity. According to the petitioner, the margin between the elected candidate, namely respondent No. 6 and the petitioner is only 310 votes. Had the respondent No. 2 adhered to the provisions of Act 20 of 2020 and restrained his staff from meddling with the Electoral Rolls and shifting the votes from Ward No. 149 of Begumpet Division to Ward No. 148 of Ramgopalpet Division, the results would have been different. Although the petitioner has submitted a representation to the respondent No. 2 on 17.12.2020, pointing out the flaws in the conduct of elections and requested to cancel the elections in respect of Rampopalpet Division, Ward No. 148, no action has been taken. Therefore, the petitioner seeks to declare the elections to Ward No. 148, Ramgopalpet Division as null and void.
Mr. P. Sudheer Rao, learned Standing Counsel for Telangana State Election Commission for respondent No.2, on instructions, submitted that allegations which were levelled against the 3 respondent No.2 are absolutely false, frivolous and baseless. He has further submitted that the respondent No.2 has acted independently without anybody's interference, as per the rules and regulations and as per the provisions of the Act. He has further submitted that the present petition under Article 226 of the Constitution of India is not maintainable and an alternative efficacious remedy is provided under the Act, whereby the petitioner can challenge the election by way of filing election petition before the Election Tribunal.
Mr. C. Naresh Reddy, the learned counsel appearing for the respondent No. 6, on the other hand, submitted that the petitioner having participated and lost in the elections has approached this Court by way of filing the present writ petition. At no point of time, the petitioner has made any objections regarding the alleged delimitation/bifurcation of wards. The learned counsel while contending that no election to any municipality can be called in question in any Court except by way of election petition before the Election Tribunal, sought to dismiss the present writ petition as not maintainable.
Heard the learned counsel for the parties and perused the material available on record.
By way of filing the present writ petition, the petitioner challenges the conduct of elections held on 01.12.2020 in GHMC area. While dealing with the challenge made in respect of election process, the Hon'ble Supreme Court in Jaspal Singh Arora vs. State of M.P. and others1 has held as under:
"...In view of the mode of challenging the election by an election petition being prescribed by the M.P. Municipalities Act, it is clear that the election could not be called in question except by 1 (1998) 9 SCC 594 4 an election petition as provided under that Act. The bar to interference by courts in electoral matters contained in Article 243- ZG of the Constitution was apparently overlooked by the High Court in allowing the writ petition. Apart from the bar under Article 243-ZG, on settled principles interference under Article 226 of the Constitution for the purpose of setting aside the election to a municipality was not called for because of the statutory provision for election petition and also the fact that an earlier writ petition for the same purpose by a defeated candidate had been dismissed by the High Court."
Admittedly, in the present case, elections were held on 01.12.2020 in respect of Greater Hyderabad Municipal Corporation and the results have also been declared. As per the judgment of the Hon'ble Supreme Court, the present writ petition, challenging the conduct of elections in question, is not maintainable and the only remedy available to the petitioner is to approach the Election Tribunal and raise all objections by filing an Election Petition. In view of the bar contained under Article 243ZG of the Constitution of India and the law laid down by the Hon'ble Supreme Court, referred to supra, the writ petition under Article 226 of the Constitution of India is not maintainable. Since the writ petition itself is not maintainable, this Court is not inclined to go into the merits or demerits of the allegations raised by the petitioner in this writ petition.
Accordingly, the writ petition is dismissed. If the petitioner is so advised, she is always at liberty to file an Election Petition before the Election Tribunal raising all the grounds that were raised in this writ petition.
The miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
________________________ A.ABHISHEK REDDY, J Date:11-02-2021 Tsr