Item No.3
THE HON'BLE THE CHIEF JUSTICE HIMA KOHLI
AND
THE HON'BLE SRI JUSTICE B. VIJAYSEN REDDY
WRIT APPEAL No.71 of 2021
JUDGMENT: (Per the Hon'ble the Chief Justice Hima Kohli)
1. The present appeal is directed against an order dated 11.02.2021
passed by the learned Single Judge in a writ petition filed by the
appellant/writ petitioner registered as W.P.No.24042 of 2020 wherein,
the prayer made was for declaring the action of the respondent
No.2/Telangana State Election Commission 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, as illegal and unconstitutional, on the claim that the same is contrary to the provisions of Act No.20 of 2020 dated 16.10.2020, in respect of the Greater Hyderabad Municipal Corporation (GHMC) during the elections held on 01.12.2020.
2. In the impugned order, observing that elections were conducted on 01.12.2020 in respect of the GHMC and the results have also been declared, the learned Single Judge opined that any challenge to the conduct of elections would not be maintainable in a writ petition and the remedy of the petitioner was to approach the Election Tribunal by filing an election petition to raise all objections. Holding that the writ petition as filed was not maintainable, the learned Single Judge declined to go W.A.No.71 of 2021 Page 1 of 5 into merits of the allegations levelled by the petitioner and dismissed the writ petition with liberty granted to her to file an election petition raising all the grounds as raised in the petition.
3. Assailing the impugned order, Mr. Prabhakar Sripada, learned counsel for the appellant/writ petitioner submits that the learned Single Judge has failed to appreciate that the grievance of the appellant/writ petitioner was primarily directed against the respondent No.2 regarding the illegal bifurcation of Begumpet Division, Ward No.149 by adding at least 217 votes of that Division to Ramgopalpet Division, Ward no.148 in Booth No.1. He contends that it was incumbent on the learned Single Judge to have called upon the respondents No.2 to 5 to file counter affidavits and deal with the averments made in the writ petition, which was not done in the instant case. It is his plea that the learned Single Judge failed to appreciate that in an election petition, the respondent No.2 cannot be made a party in the light of the law laid down by the Supreme Court in B. Sundara Rami Reddy v. Election Commission of India, reported as 1991 Supp (2) SCC 624.
4. The appeal is opposed by Mr. G. Vidya Sagar, learned Senior Counsel appearing for the respondent No.2 and Mr. G. Naresh Reddy, learned counsel appearing for the private respondent No.6, who happens to be the winning candidate in the subject election.
5. Mr. G. Vidya Sagar, learned Senior Counsel appearing for the respondent No.2 states that the respondent No.2 had declared the list of voters on 07.11.2020 and had invited objections thereto till 12.11.2020. The appellant/writ petitioner had filed her objections to the voters list W.A.No.71 of 2021 Page 2 of 5 vide letter dated 12.11.2020 stating inter alia that Booths No.11, 12 and 13 falling under the Ramgopalpet Division ought to be reallocated to the Begumpet Division. The said objections were duly considered along with the other objections received by the respondent No.2 and vide letter dated 12.11.2020, the objections raised by the appellant/writ petitioner were turned down stating inter alia that the polling station had been changed in terms of the orders of the Government to continue the existing Delimitation of Wards, that was finalised during the GHMC elections 2016.
6. It is stated on behalf of the respondent No.2 that if the appellant/writ petitioner had a grievance, she ought to have sought appropriate legal recourse immediately after the rejection of her objections, but she did not do so. In the meantime, the final voters list was published on 13.11.2020, the elections were conducted on 01.12.2020 and the results were declared on 04.12.2020, wherein the respondent No.6 was declared as the successful candidate with over 8000 votes were cast in his favour, whereas the appellant/writ petitioner had trailed by 317 votes and resultantly was defeated. After suffering a defeat at the hands of the respondent No.6 in the elections, the appellant/writ petitioner filed the subject writ petition in the last week of December, 2020, raising a grievance that at least 217 voters of the Begumpet Division had been wrongly added to the Ramgopalpet Division Ward No.148 in Booth No.1.
7. It is noteworthy that the averments made in the writ petition run contrary to the objections taken by the appellant/writ petitioner in the W.A.No.71 of 2021 Page 3 of 5 objections filed by her in response to the voters list circulated by the respondent No.2, as is apparent on a perusal of her letter dated 12.11.2020. The only objection raised by the appellant/writ petitioner was regarding reallocation of Booths No.11, 12 and 13 from the Ramgopalpet Division to the Begumpet Division. No reference was made in the said letter to Booth No.1 as sought to be taken in the writ petition.
8. Even today, we have enquired from learned counsel for the appellant/writ petitioner Mr. Prabhakar Sripada, as to whether the appellant/writ petitioner has filed an election petition contesting the results qua the respondent No.6, only to be informed that no steps have been taken in that direction. Pertinently, the statutory period of sixty days to challenge the election by filing an election petition has already expired by now. Further, on a perusal of the averments made in the writ petition questioning the results, it transpires that the appellant/writ petitioner has alleged that the respondents No.2 to 4 have "accepted their fault and shifted Booths No.11, 12 and 13 and have continued to support the respondent No.6 by illegally bifurcating Begumpet Division, Ward No.149 and including at least 217 votes of that division in the Ramgopalpet Division, Ward No.148, whereas the respondent No.2 has not accepted the said position at all as is apparent on going through the reply sent to the appellant/writ petitioner in response to her objections to the list of voters.
9. Further, the pleas taken by the appellant/writ petitioner that there are several other irregularities and faults in the conduct of the election, W.A.No.71 of 2021 Page 4 of 5 including invalidly rejecting 691 votes which were cast with thumb impression, allowing more than 2000 votes to be cast without any stamp containing the ward number and booth number on the reverse side of the ballot paper, failure to obtain signatures of the contesting candidates before declaring the result etc., are all grievances that could have been raised in the election petition, had the appellant/writ petitioner filed one. Instead, she sought to raise these pleas in the writ petition, which is impermissible.
10. For the aforesaid reasons, we are not inclined to entertain the present appeal. If the appellant/writ petitioner would have filed an election petition, levelling similar allegations against the respondent No.6, the said matter would have been taken to trial and both parties would have got an opportunity to prove their case in accordance with law. In the instant case, the appellant/writ petitioner has tried to find a nearby shortcut by filing a writ petition, which is impermissible.
11. The present appeal is accordingly dismissed along with the pending applications, if any, while upholding the impugned order.
______________________________ HIMA KOHLI, CJ ______________________________ B. VIJAYSEN REDDY, J 03.03.2021 Vs/pln W.A.No.71 of 2021 Page 5 of 5