RUKHMINA RAJESH DANGE Vs. KAILASH NATTHUJI PAWAR

JUDGEMENT

(1.) The question that arises for consideration in this writ petition is whether a candidate after unsuccessfully contesting an election without raising any objection can thereafter challenge the said election on the ground that it was conducted by the Returning Officer who had no authority in law to conduct the meeting in which the said election was held.

(2.) Rule. Heard finally with consent of learned counsel for the parties.

(3.) Shri R.L. Khapre, learned counsel for the petitioner submitted that both the Authorities erred in accepting the challenge as sought to be raised by the respondent No.1 to the election of the petitioner as Sarpanch. He did not dispute the position that under provisions of Section 33(2) of the said Act the meeting to elect the Sarpanch was required to be presided over by the officer as appointed by the Collector and in the present case such officer was the Tahsildar. Further sub-delegation by the Tahsildar in favour of the Circle Officer was not permissible. However, the respondent No.1 was estopped from raising this objection in view of the fact that the respondent No.1 had willingly participated in the election that was held on 09/08/2018 and only after losing the same he had chosen to challenge the petitioner's election on that count. Having acquiesced to the conduct of the special meeting by the Circle Officer and thereafter having taken a chance to be elected as Sarpanch, it was not open for the respondent No.1 to raise the aforesaid dispute after losing the elections. In that regard the learned counsel placed reliance on the decision in Padmini Singha vs. State of Assam and ors., 2018 10 SCC 561 and submitted that the respondent No.1 had waived his rights in that regard. It was also his submission that the respondent No.1 did not point out any prejudice whatsoever that was caused by the conduct of meeting by the Circle Officer. In absence of any such prejudice being demonstrated, the respondent No.1 could not be heard in that regard. For said purpose learned counsel referred to the decision in Union of India vs. Alok Kumar, 2010 AIR(SC) 2735. It was thus submitted that both the Authorities erred in permitting the respondent No.1 to challenge the election of the petitioner on the aforesaid ground. According to him, the petitioner was entitled to function as a Sarpanch.