G. Krishna Mohan Reddy

1. This appeal is preferred challenging order dated 14-03-2012 passed in Election O.P.No.508 of 2010 (O.P.) on the file of the Court of Chief Judge-cum-Election Tribunal, City Civil Court, Hyderabad (for short ‘Tribunal).

2. Whereas the petitioner herein is the first respondent, the first respondent herein is the petitioner and the remaining respondents herein are also are the respondents in the O.P. For the sake of convenience, we refer the parties as they are arrayed in the O.P.

3. The petitioner filed the O.P. under Section 71(2) r/w Section 79(2) (d) of Greater Hyderabad Municipal Corporation Act, 1955 as amended by Act No.14 of 2008 (for short ‘GHMC Act’) requesting to declare election of the first respondent (returned candidate) to the office of the Greater Hyderabad Municipal Corporation as Corporator from Ward No.108 of Boarabanda Division as void on the ground of disqualification under Section 21-B of the GHMC Act and consequently to declare him (petitioner) as the elected candidate for the that post, being the first runner up in the said election, from Ward No.108 of Borabanda Division, Hyderabad (for short ‘the Ward’) and to direct the first respondent to pay the costs of the petition.

4. Basing on the averments, the Tribunal framed two points for determination as follows:

1) Whether the petitioner is entitled to seek a declaration that the election of the 1st respondent to the post of Croporator/Member of Ward Number 108, Borabanda, Greater Hyderabad Municipal Corporation is invalid? And, if so, whether the petitioner is also entitled to further declaration that the said respondent is not entitled to continue as Corporator of the said Ward?

2) If the answer to the Point Number 1 is in the positive, whether the petitioner being the candidate, who had secured second highest number of votes, next to the 1st respondent is entitled to be declared as elected to the post of the Corporator of the Ward?

5. The Tribunal held both the points in favour of the petitioner declaring the election of the first respondent as void and further declaring the petitioner as elected for the post consequently. In fact the question of legality of the second point with regards to the declaration of the petitioner as candidate elected for the post was not considered with reference to the relevant provisions of law. As a matter of fact, learned counsel for the first respondent here has conceded the first point held in favour of the petitioner, but questioned the legality of upholding the claim of the petitioner under the second point by the Tribunal. As the first point is conceded, the same point need not be examined while disposing of the present appeal.

6. Thereby it is only to be examined whether the petitioner, being the candidate who secured second highest number of votes, is entitled to be declared as elected to the post of Corporator for the Ward. Here it is to be very much reckoned with that admittedly the respondents 2 to 11 also contested for the same post and were defeated.

7. Learned counsel for the first respondent would contend that none of the provisions of GHMC Act or the Representation of the People Act, 1950 (for short ‘RP Act’) provide for declaring the second candidate as the elected candidate for the post following the declaration of the election of the first candidate as void. Section 80 of GHMC Act and Section 101 of RP Act which may be referred only speak of declaration of such candidate, who secured second highest number of votes in an election, as elected candidate when the returned candidate was proved to have obtained highest number of votes by corrupt or illegal practices which is not the case to adopt the analogy incorporated in the said provision. Even otherwise when there are more than two candidates who contested for the post, it is just impossible to come to a conclusion that the votes polled for the first respondent/returned candidate would have been polled to the petitioner,