THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
WRIT PETITION No. 23064 of 2020
ORDER:
This writ petition is filed with the following prayer:-
"...declaring that the action of the 2nd respondent in horridly declaring the result of the election of Ward No. 14, B.N. Reddy Nagar, GHMC in terms of the final result sheet, dated 04.12.2020 without conducting the exercise of segregating the polled votes into two categories, namely the votes carrying the authorized mark (arrow cross mark) and the votes carrying any other distinguishing marks and then only proceed with finalization of counting and declaration of result when the margin between the petitioner and the 3rd respondent is only 32 votes as against the rejected votes of 346 from out of the total votes of 26,145 without abiding by the orders of the Honourable Court, dated 04.12.2020 in W.P. No. 22176 of 2020 and the letter of the 1st respondent vide letter No. 1501/TSEC-L/2020, dated 04.12.2020 and the final order passed by this Honourable Court dated 07.12.2020 in the said writ petition, as arbitrary, illegal and contemptuous and consequently, invalidate the declaration of result made by the 2nd respondent in favour of the 3rd respondent as per the final result sheet issued on 04.12.2020 at about 06.40 p.m. as null and void and consequently direct that the 3rd respondent shall not be treated as the elected Corporator from Ward No. 14, B.N. Reddy Nagar Division and direct the 2nd respondent to conduct the exercise as contained in the final order passed by the Honourable Court dated 07.12.2020 in W.P. No. 22176 of 2020 and also the order of the 1st respondent in Order No. 1294/TSEC-ULB/2020, dated 07.12.2020 and then only declare the result of the election in terms of Rule 51(2)(h) of the Rules and declare that the petitioner is the elected candidate of the said Ward as against the 3rd respondent ....." The petitioner contested the GHMC Elections, Hyderabad held on 01.12.2020 for Ward-14 of B.N. Reddy Nagar. The results were declared on 04.12.2020 and the respondent No. 3 was declared as successful candidate. According to the petitioner, the margin between the elected candidate, namely respondent No. 3 and the petitioner is only 32 votes. The main grievance of the petitioner is that with an intention to do favour to the respondent No. 3, the respondent No. 2 had deliberately and without assigning any reasons, kept 346 votes aside while counting and declared the same as invalid. Thus, according to the petitioner, without segregating the types of votes which are rejected for various 2 reasons, the respondent No. 2 ought not to have declared the result of the elections.
Mr. P. Sudheer Rao, learned Standing Counsel for Telangana State Election Commission for respondent No.5, filed a counter affidavit stating that this Court in W.P. No. 22176 of 2020, by order dated 04.12.2020 directed the Returning Officer to keep the ballot papers, which are not marked by "Arrow Cross Mark" separately and keep a count of those disputed Ballot papers till the writ petition is decided. And if the margin of difference in the votes polled in favour of the first and second candidates was more than the disputed Ballot papers, the Election Officer was given liberty to declare the results. If the margin was less than the disputed Ballot papers, the disputed Ballot papers were directed not to be taken into account and the results of that Ward should not be declared. The learned Standing Counsel, by way of additional counter, submits that, in the present case, there are no disputed polled Ballot papers and therefore, the respondent No. 2 of Ward No. 14, B.N. Reddy Nagar has declared the results on 04.12.2020 as per the relevant rules. The learned Standing Counsel has also produced the letter of the Returning Officer, respondent No. 2, dated 13.01.2021, addressed to the Deputy Commissioner and Assistant Election Authority, Hayathnagar Circle. In the said letter, she had categorically stated that "no polled Ballet papers are found with specified distinguish mark other than Arrow mark". With regarding to the other allegations raised by the petitioner, the learned Standing Counsel submits that the respondent No.2 has acted independently without anybody's interference, as per the rules and regulations and as per the 3 provisions of the Act. Lastly, the learned Standing Counsel has submitted that the present writ petition, filed 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.
The learned counsel appearing for the respondent No. 3, on the other hand, submitted that the petitioner having participated and lost in the elections has approached this Court by filing the present writ petition. 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 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 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."
1 (1998) 9 SCC 594 4 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 by filing an Election Petition and can raise all objections that were raised in the present writ 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.
At this stage, the learned counsel for the petitioner expresses his apprehension that in view of limitation prescribed under the Act, the Election Petition, likely to be filed by the petitioner, may not be entertained by the Election Tribunal on the ground of delay, and therefore, seeks a direction to the Election Tribunal in this regard. It is needless to mention that under Section 14 of the Limitation Act, if there is any delay on account of approaching the wrong forum, the party can always seek condonation of such delay before the appropriate forum. In view of the same, the petitioner can always avail the remedy under Section 14 of the Limitation Act by filing an appropriate petition before the appropriate Forum/Election Tribunal, if she so chooses. If any application under Section 14 of the Limitation Act is filed, the Election Tribunal shall pass orders in accordance with law. 5
With the above observations, the writ petition is dismissed. The miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
________________________ A.ABHISHEK REDDY, J Date:23-02-2021 Tsr