SUNIL KAILASHRAO KSHIRSAGAR Vs. ADDITIONAL COMMISSIONER

JUDGEMENT

(1.) Heard Mr. Dhatrak, learned counsel for the petitioners and learned Assistant Government Pleader.

(2.) The petition questions the order dtd. 20/07/2022, passed by the learned Commissioner, allowing the appeal filed by the respondent Nos.9 and 10 against the judgment of the Additional Collector dtd. 23/05/2022, whereby the same has been set aside. The facts leading to the present petition indicate that on 22/2/2021, election to the posts of Sarpanch and Upsarpancha of Grampanchayat Sawar was conducted in which the respondent No. 9 was elected as Sarpancha and respondent No. 10 was elected as Upsarpancha. An application under Sec. 33(5) of the Maharashtra Village Panchayat Act came to be filed by the petitioners before the Collector, Yavatmal, questioning the legality of the election. The basic ground raised was that there could not be a ballot paper on the same page as indicated by page 18 in which the balloting was required to be done for both the posts of Sarpancha and Upsarpancha. It was submitted that it was mandatory for the person conducting the elections, to have explained to the members present the manner in which the balloting was to be done as the secret ballot was requested for and granted, in support of which the learned counsel for the petitioners relied upon the judgment in the case of Jaenendrakumar Phoolchand Daftari Vs. Rajendra Ramsukh Mishra and others (1994) 1 SCC 352. The learned Collector by his order dtd. 23/5/2022 (page 38) accepted the contention and held that there could not be a single ballot paper for the purpose of election to the posts of Sarpancha and Upsarpancha and allowed the complaint. The learned Commissioner by the impugned order dtd. 20/07/2022 has held that there is no prohibition in law in this regard and therefore, the manner in which the elections were conducted were correct and has set aside the order of the Collector. Mr. Dhatrak, learned counsel for the petitioners by inviting my attention to Rules 6 and 10 of the Bombay Village Panchayat (Sarpancha and Upsrapanch) Election Rules, 1964, submits that there is necessity for conducing separate elections for the posts of Sarpanch and Upsarpancha in order to avoid any confusion. He also contends that in case the secret ballot is conducted there is a mandatory duty upon the Election Officer to explain the manner in which the voting is to be done.

(3.) The learned AGP supports the impugned order.