JAENENDRAKUMAR PHOOLCHAND DAFTARI Vs. RAJENDRA RAMSUKH MISHRA G G VAIDYA NAIB TAHSILDAR SELOO ADDITIONAL COLLECTOR WARDHA 4 COMMISSIONER NAGPUR DIVISION NAGPUR

JUDGEMENT

(1.) This appeal by Special Leave is directed against the judgment dated November 24, 1992 of the Bombay High Court, dismissing the appellant's writ petition in which he had impugned the orders of respondents 3 and 4 setting aside his election as Sarpanch of Seloo Gram Panchayat constituted under the Bombay Village Panchayat Act, 1958 (for short 'the Act').

(2.) The appellant and respondent 1 were among the fifteen elected members of Seloo Gram Panchayat in the District of Wardha. They were the only contesting candidates in the election to be held for Sarpanch of that Panchayat on August 10, 1990 in the special meeting of the members convened for the purpose under the Bombay Village Panchayats (Sarpanch and Upa-Sarpanch) Election Rules, 1964 (for short 'the Rules'). That special meeting was presided over by respondent 2, Naib Tahsildar, who made the members to cast their votes in favour of either of the contesting candidates, by secret ballot. Respondent 2 declared the appellant as successful candidate for the Office of Sarpanch, as he had secured eight votes while respondent 1, the other contesting candidate had secured one vote less, that is seven votes. Respondent 1 the, defeated candidate, however, challenged the election of the appellant as Sarpanch of Seloo, by raising an election dispute under S. 33(5) of the Act, before respondent 3, the Collector, Wardha. Two grounds of challenge raised by respondent 1 in that election dispute were - (i) that the holding of Sarpanch's election by the Presiding Officer, respondent 2, by resorting to secret ballot when none of the members had made a demand in that regard, was contrary to the requirement of R. 10 of the Rules, and-(ii) that one of the members, who was illiterate had since cast her vote by ballot which did not contain symbols allotted to the contesting candidates, it had materially affected the result of the election in that there was only one vote which had made the difference. The petitioner, who filed his written objection statement to the election petition before the Collector, did not specifically deny thereunder the allegation in the petition that there was no demand made by any member of the Panchayat to the Presiding Officer to hold the election by secret ballot. On the other hand, in the written objection statement, the denial related to the non-following of the procedure in R. 10 by the Presiding Officer, respondent 2, who held the special meeting. Respondent 2, although served with notice of election petition, did not appear before respondent 3 make any statement to the contrary. However, as to the ground of one illiterate member having cast her vote, although it was said in the written statement (reply) that there was no reason for the Presiding Officer, respondent 2, to know about her illiteracy, it was admitted that the members were asked to put a tick-mark against the candidate's name in the ballot according to that voter's choice. The Collector allowed the concerned Election Reference and set aside the election of the appellant upholding ground No. (i) of election being conducted by secret ballot without any member making a demand for election being conducted by secret ballot. The appellant questioned the Order made on the Election Reference made by the Collector by filing an appeal therefrom before the Commissioner under S. 33(5) of the Act. In dismissing that appeal, the Commissioner not only upheld the Order of the Collector made on the ground of the election having been held by secret ballot without a demand therefor from any member, but also on the ground that the election by secret ballot could not be held by showing the names of the candidates without alloting them any symbol when there was illiterate voter.

(3.) The appellant challenged the Orders of the Collector made in the election dispute and also that of the Commissioner in the appeal filed by him by invoking the writ jurisdiction of the Bombay High Court. The High Court took the view that conducting of election by secret ballot by the Presiding Officer, respondent 2, for electing the Sarpanch could not have been done under R. 10 of the Rules when there was no demand by any member for holding the election by secret ballot as required under R. 10(2) of the Rules, in that, the minutes of the meeting convened by the Presiding Officer, respondent 2, did not show that there was any demand made in that regard by any member. Consequently, the Division Bench, by its judgment dated November 24, 1992, dismissed the writ petition and issued directions in the matter of taking steps for holding fresh election to the office of the Sarpanch. It is that judgment which is now under appeal.