MEENA SHRIRAM THAKRE Vs. ELECTION OFFICER APPOINTED FOR CONDUCTING ELECTION OF SARPANCH AND UP SARPANCH OF GRAM PANCHAYAT

JUDGEMENT

(1.) RULE. Learned Advocate for the petitioner seeks to delete respondents Nos. 2 to 6. Leave granted. With the consent of learned Advocates appearing on behalf of the parties, rule was made returnable forthwith. Heard learned Advocates for the parties.

(2.) ELECTION to Gram Panchayat (respondent No. 8) was held on 31-8-2000. The Gram Panchayat consists of seven members including petitioner, respondent No. 7, as also the deleted respondents No. 2 to 6. Petitioner and respondent No. 7 were the only candidates for the post of Sarpanch for which election was held. Polling by secret ballot was resorted to in which petitioner polled three valid votes and respondent No. 7 polled two valid votes. One vote is stated to be clearly invalid since the voter had written her name in the ballot paper. According to respondent No. 1, he could not decide about the validity of the seventh vote in which the voter had made a tick mark above and below the line which was drawn to indicate space between the two contestants. According to the Election Officer (respondent No. 1), since the petitioner had not polled 2/3rd of the votes, he ordered fresh voting and in this fresh voting, respondent No. 7 polled four votes and the petitioner polled three votes. Respondent No. 1, Election Officer, therefore, declared that respondent No. 7 was elected to the post of Sarpanch. Aggrieved by this decision, the petitioner sought reference under section 33 (5) of the Bombay Village Panchayat Act, 1958 (hereinafter called, the "said Act") to the Collector. The Additional Collector vide order dated 4th Oct. , 2000 found that in the first round of voting, the petitioner had polled three valid votes whereas respondent No. 7 had polled only two valid votes and the other two votes were invalid. However, it was urged by the Election Officer before the Additional Collector that since the petitioner and respondent No. 7 had polled equal votes and draw of lots was demanded, he got confused on account of dispute regarding the invalid vote and he ordered re-election. The Additional Collector found that the minutes of the said meeting disclosed that the Election Officer had ordered repoll on the ground that no candidate got 2/3rd votes which was not the requirement of law and as such, the Election Officer had miserably failed in the discharge of his duties for ordering revoting which is not provided in law. The Additional Collector, therefore, quashed second round of voting being contrary to the Act and the Rules, and declared petitioner as elected to the post of Sarpanch. This order of the Additional Collector was challenged before the Commissioner, Nagpur Division, Nagpur. The Additional Commissioner vide order dated 24th October, 2000 held that the Election Officer had put up completely new story before the Additional Collector that there were equal votes and draw of lot was demanded, but he got confused and as all the members requested re-voting, he ordered re-voting. The Additional Commissioner has held that the process of election once started, cannot be re-started as per the Rules; the proceedings do not mention how many votes were in favour of petitioner and how many in favour of the respondent No. 7 in the first round of voting; the theory of Election Officer and Gram Sevak that there was equality of votes and, therefore, there was request for drawing lots, cannot be believed as the proceedings as recorded on page 3 of Register do not make mention of such request and in view of the same, the entire election process was vitiated. He, therefore, directed Additional Collector to hold fresh election to the post of Sarpanch of the Gram Panchayat.

(3.) THE petition was filed on 7-11-2000 and it came up for hearing on 14-11-2000 when it was adjourned on the request of learned Advocate for petitioner, to 16-11-2000. On that day, learned Advocate for respondent No. 7 stated that the election process had started in terms of the order dated 24-10-2000 of the Additional Commissioner. The matter was heard on merits on 18-11-2000 and was fixed for judgment on 21-11-2000. On 21-11-2000, learned Advocate for respondent No. 7 filed pursis stating that in the fresh election held pursuant to order dated 24-10-2000 of the Additional Commissioner, respondent No. 7 had been declared to be elected as Sarpanch of the Gram Panchayat as a result of which petition has become infructuous. After hearing learned Advocates for the parties, it was ordered that the said result of election shall be subject to the judgment passed in the writ petition. The pursis that the petition had become infructuous, was dismissed.