A. Aruna vs The State Of Telangana And 5 Others
2021 Latest Caselaw 657 Tel

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

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

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

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,

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