Muddagouni Laxmi Prasanna vs The State Of Telangana
2021 Latest Caselaw 506 Tel

       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

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

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

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.

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