Ratnamala W/O Ashokrao Shinde And ... vs Election Officer, Grampanchayat ...
2006 Latest Caselaw 960 Bom

JUDGMENT

V.R. Kingaonkar, J.

Page 3041

1. Rule. Rule made returnable forthwith. By consent of parties, Rule is finally heard.

2. By this Petition, Petitioners impugn order dated 29th July, 2006 passed by the Additional Commissioner, Aurangabad, confirming order of Additional Collector, Hingoli, whereby their election as Sarpanch and Upa-sarpanch, respectively, are set aside.

3. There are seven members of Village Panchayat Palodi (Dist. Hingoli). Admittedly, election was held on 24.8.2005 for post of Sarpanch and Upa-sarpanch. An election officer, who is Junior Engineer in Irrigation Department, was appointed to conduct the election. The election officer convened a meeting of the village panchayat members. The Panchayat members were informed about the purpose of the meeting and the election proceedings were started. At about 1:45 pm. three members of the village Panchayat submitted an application to the election officer and requested him to conduct the election by secret ballot. The election officer granted their request and decided to hold the election by secret ballot method. He distributed paper slips for use of the members/voters and called upon them to put tick mark against the names of those in favour of whom they wanted to cast the vote. There were two contesting candidates for the post of Sarpanch and two contesting candidates for the post of Upa-sarpanch. The votes were casted by putting ballot papers in the ballot box and after counting of votes, election officer declared the Petitioners No. 1 and 2 as elected Sarpanch and Upa-sarpanch, respectively.

4. There was objection raised by the defeated candidates and there was pandemonium. The election officer prepared proceedings of the meeting but some of the members refused to sign the proceedings. He hurriedly left the Page 3042 place since he apprehended some foul play. He thereafter reported to the Collector regarding the incident. In the meanwhile, Respondents Nos. 3 to 6 filed an Appeal before the Additional Collector, Hingoli and sought intervention. They submitted that the procedure adopted by the election officer was improper and illegal. The election was conducted without explaining the procedure to the voters i.e. the members of the Village Panchayat prior to casting of their votes. Some of the members of the Village panchayat are illiterate and hence could not have understood the procedure. The election officer further committed irregularity by casting a vote himself and thereby participated in election process. The proceeding book was not written at the place of the election. They contended that the election officer had flouted the relevant rules and regulations while conducting the election and as such declaration of results is illegal. The learned Additional Collector called remarks of the election officer. He conducted some enquiry, heard the parties and held that the election process was not conducted in accordance with the relevant rules. He held that the election of the Petitioners is vitiated due to improper process of election and particularly when the election officer had participated in the process of casting the votes. Hence he set aside the Petitioner's elections. It is this order which is subject of challenge in the instant Petition.

5. Heard learned Counsel for the parties and the learned Assistant Government Pleader. The material issue involved in the Petition is whether the election was conducted in accordance with Rule 10(2) of the Bombay Village Panchayat (Sarpanch and Upa-sarpanch) Election Rules, 1964.

6. Before I proceed to scan the material on record, let it be noted that the election officer was independent person being Junior Engineer of Irrigation Department. It appears from his reply to the queries made by the Collector, during the course of the enquiry of the election dispute, that election was conducted in Tahsil office and while he was preparing the proceeding book, the Respondents Nos. 3 to 6 alongwith some 50/60 persons gathered there and started showering various queries. They were asking him and the Tahsildar number of questions and hence there was pandemonium. His reply to query no. 7 in the letter dated 29.9.2005 would show that Tahsildar recorded written complaint of each applicant and also recorded statements, and, thereafter, the articles and the proceeding register were sealed. Thus, the report of the election officer disclosed the fact that the Tahsildar had knowledge about the process of election and he had made enquiry at the spot, immediately after the dispute was raised by the Respondents Nos. 3 to 6, and hence it was desirable to call for report from the Tahsildar. The Tahsildar is added as Respondent No. 7 in the present Petition but has not filed any separate affidavit in reply. In view of absence of affidavit of the Tahsildar i.e. Respondent No. 7, it will have to be said that the pleadings in the Petition are not controverted by him.

7. Learned Counsel Shri H.V. Patil, appearing for the Petitioners, would submit that the findings of the Additional Collector and the Additional Commissioner are improper. He would submit that inferences drawn by both the authorities are irrational and improper. The learned Counsel would further submit that there was nothing wrong when the election officer assisted one of the illiterate Page 3043 member to cast his vote as per his wish. He pointed out that the election officer had fairly mentioned such fact in the proceeding book and such casting of vote by election officer was done since nobody had objected in the course of meeting. He would submit that the election has been set aside without substantial reasons and therefore the Petition may be allowed. On the other hand, learned Counsel Shri Chincholkar appearing for the Respondents Nos. 3 to 6, would submit that concurrent findings of both the authorities need not be disturbed. He argued that scope of interference under Article 227 is limited and as such the Petition deserves to be dismissed. He contended that the conduct of the election officer was improper and the elections were unfair and hence both the authorities have rightly quashed the election of the Petitioners. The learned Assistant Government Pleader would support the findings of the authorities.

8. So far as election of Sarpanch and Upa-sarpanch are concerned, Rule 10(2) of the Bombay Village Panchayat (Sarpanch and Upa-sarpanch) Election Rules, needs to be considered. The relevant rule reads as follows:- Rule 10(2):-

If more than one candidate have been so nominated, the Presiding Officer shall proceed to elect the Sarpanch or as the case may be, Upa-Sarpanch. The voting at such election shall be by show of hands. If, however, [any member present at the meeting so demands,] the voting shall be by ballot. The candidate who obtains the highest number of votes shall be declared to have been duly elected as Sarpanch or, as the case may be, Upa-Sarpanch. When any equality of valid votes is found to exist between any two or more candidates and the addition of one vote will entitle any of them to be declared as Sarpanch or as the case may be, Upa-Sarpanch the determination of the candidate to whom such additional vote shall be deemed to have been given shall be made by lot to be drawn by the Presiding Officer in such manner as he shall determine A plain reading of the aforesaid rule would make it manifest that normally the voting at such election shall be by show of hands. Still, however, when any member so demands then the election officer has no discretion in the matter and must direct that the election shall be by secret ballot. In the present case, it is undisputed that such a demand was made by three members. According to the election officer, they submitted a written application at 1:45 pm. He placed on record the original application submitted by the three members for holding the election by secret ballot. It is true, no doubt, that the application does not bear any endorsement to the effect that it was granted by the election officer. He only made an endorsement regarding time of receipt. The learned Additional Collector has observed that when such a request was made at 1:45 pm. then the process of casting the votes could not have been completed by 2:10 pm. as shown in the proceeding book. The learned Additional Collector has observed that this was "impossible" and hence he reached the conclusion that the election officer did not follow relevant rules. I find it difficult to countenance such inference of the learned Additional Collector. One cannot be oblivious of the fact that there were only seven voters and the process could not have consumed considerable time. Moreover, the preparation of ballot papers by using small pieces of papers was also Page 3044 possible within a short span of 10-20 minutes inasmuch as there were only two contesting candidates for each post. The learned Additional Collector un-necessarily cast aspersions on the credibility of the election officer without proper verification of the facts from the Tahsildar. As stated earlier, the Tahsildar had conducted the spot enquiry immediately after the election process was over and therefore his first hand knowledge was more relevant and significant.

9. The election officer has mentioned in the proceeding book that he assisted the illiterate voter, who had expressed difficulty in casting the vote, and there was no objection raised by the other members. There appears nothing wrong committed by the election officer while assisting the illiterate members in casting of the votes by him. Rule 10(2) does not stipulate any particular procedure of conducting the election by secret ballot method.

10. In Jaenendrakumar Phoolchand Daftari v. Rajendra Ramsukh Mishra and Ors. 1994 Mh.L.J. 100 (SC) the Apex Court has held that the election officer may evolve a procedure which would enable the illiterate member to vote. The relevant observations are thus:-

9. There is no provision in the Rules requiring allotment by the Presiding Officer of symbols to candidates, where the voting of the members of the Panchayat for the election of the Sarpanch or Upa-Sarpanch by means of secret ballot becomes necessary. Such provision is not envisaged since the Presiding Officer cannot be expected to get the ballot papers with symbols ready all of a sudden in the meeting wherein the election has to be completed. However, if a situation arises where an illiterate member is required to vote, that fact may be borne in mind of the Presiding Officer and he may evolve a procedure which would enable the illiterate members to vote, e.g. if there are two or more candidates, he may ask the member to put a cross mark for candidate A, a zero mark for candidate B and so on or the Presiding Officer may assist such a member to cast the vote for the candidate of his or her choice. In such situations, the Presiding Officer, could, as well, record in the minutes of the meeting, as to how, he has rendered the assistance to a member who could not cast his vote by ballot, in the usual course, for such recording may help in avoiding future controversies on the matter.

In the light of above observation it will have to be said that the election officer was not at fault. There was flexibility available to him in conducting the election.

11. The election procedure adopted by the nominated election officer cannot be invalidated for minor irregularities which are highlighted in the impugned orders of the Additional Collector and Additional Commissioner. The Additional Collector has observed that the time of issuing the ballot papers should have been mentioned by the election officer. Second reason given by the learned Additional Collector is that the election officer did not sign the ballot papers and had used the pieces of papers which were blank from one side. There is absolutely no iota of evidence on record to show that the election officer had manipulated the ballot papers. The record would show that he immediately took the ballot box and got it sealed in presence of Tahsildar after the ballot papers were counted in presence of the seven members/voters. He had no Page 3045 reason, whatsoever, to favour anybody and being an independent officer the learned Additional Collector should have given more weightage to the word of the election officer. The learned Additional Collector further found fault with the election process because the proceedings were not signed by the Respondents Nos. 3 to 6. It is obvious that they had refused to sign because they had raised objection to the process of election. On that count, the election could not have been invalidated. In fact, the election officer had made it clear that there was pandemonium after the results were announced. A large group of persons, including the Respondents Nos. 3 to 6, had started asking several questions to the Tahsildar and the election officer. Both of them were placed in difficult situation. His situational response could not be subsequently criticised and his action cannot be held as illegal because he left the place after sealing the ballot box and other articles without completing the proceedings book. One cannot be oblivious of the present day situation in the rural area. The instances are not unknown when the elections do take ugly turn and lead to untoward incidents. The learned Additional Collector should have visualised the plight of the election officer and should have tried to support his action instead of finding fault with him.

12. As stated before, there is no particular procedure provided by Rule 10(2) and the election officer is free to evolve his own procedure for ensuring fair elections, particularly when demand for secret ballot is made. The Respondents Nos. 3 to 6 never contended that the demand for secret ballot was not made by anybody. The election officer on his own had no business to direct the voting by secret ballot and he was bound by the law, when such demand was made by three of the members, to proceed with the election by secret ballot method.

13. This Court in Maruti Bandu Patil v. Village Panchayat Sindnerli and Ors. 1981 Mh.L.J. 255 has held that when the demand was made to conduct election by ballot voting then if the elections are held without secret ballot then it would be vitiated. It is held that secret ballot is the mandatory procedure in the event such demand is made by any of the member. Obviously, the election officer was required to follow the mandatory procedure at the relevant time.

14. Faced with this difficulty, learned Counsel Shri Chincholkar would submit that this Court should not interfere with the finding of fact as recorded by both the authorities in view of scope of article 227. He seeks to rely on Roshanlal (dead) by LRs. v. State of Rajasthan and Ors. (2004) 13 SCC 559 and Essen Deinki v. Rajiv Kumar (2002) 8 SCC 400. In the given case, the Apex Court has observed that only the errors of law, perverse finding and gross violations of natural justice, to name a few, are available grounds to interfere in writ jurisdiction under Article 227.

15. There cannot be any two opinion about the proposition that findings of fact are not to be disturbed as a general rule in Petition under Article 227. Still, however, in the present matter there is patent error committed by the learned Additional Collector and the revisional authority while setting aside Page 3046 the election. Both the authorities failed to appreciate that Rule 10(2) does not contain any specific procedure to be followed for casting of votes. One of the limb of arguments advanced by Shri Chincholkar is that illiterate members were not made aware about the method to be followed while casting of the votes. It appears from the proceeding book that seven members have signed the same except one. There was a single member, who could not sign and has put his thumb mark on the proceeding book. It need not be reiterated that the election officer declared that he would assist the illiterate member, if other members had no objection, in the process of casting the votes. Since nobody objected at the relevant time, the election officer did assist the illiterate member in casting of the vote. That would not vitiate the election process. A feeble attempt was made to make capital of the fact that the names of the candidates who had filed their nominations first in time were written above those who filed them later on. I fail to see as to how such kind of sequence in writing of the names of the candidates on the ballot papers could have caused any prejudice in the process of casting the votes.

16. To conclude, I have no hesitation in holding that the findings of the learned Additional Collector and the Commissioner are improper and incorrect. The impugned orders are unsustainable and hence liable to be quashed. Consequently, the Petition is allowed and both the orders impugned herein are quashed. The election of the Petitioners is declared as valid. No costs.