Bombay High Court
Sau. Meena Dilip Aware vs The Additional Commissioner ... on 14 June, 2016
Bench: A.S. Chandurkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR
BENCH NAGPUR.
WRIT PETITION NO. 6568 OF 2015
Meena Dilip Aware,
aged 42 yrs. Occu. Household
Work, R/o Bhugaon Tq.
Achalpur, Distt. Amravati. PETITIONER.
ig VERSUS
1] The Additional Commissioner
Amravati Division, Amravati.
2] Additional Collector, Amravati.
3] Returning Officer and Extension
Officer, Panchayat Samiti Achalpur,
Dist. Amaravati.
4] Vaishali Kailas Kadu,
aged adult, Occ. Household
5] Swati Sanjay Parde,
aged adult, Occ. Household
6] Banubi Sheikh Majid,
aged adult, Occ. Household
7] Macchyagandha Vinayak Wankhade
aged adult, Occ. Household
8] Mangesh Shishupal Lath,
aged adult, Occ. Household
9] Pooja Yogesh Hood,
aged adult, Occ. Household
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10] Ganesh Mahadeorao Thakare
aged adult, Occ. Retired Medical Officer.
11] Babarao Rajaramji Madane,
aged adult, Occ. Agriculturist.
Respondent Nos.4 to 11 r/o Bhugaon,
Tq. Achalpur, Dist. Amravati. ...RESPONDENTS.
Shri J. B. Kasat, Advocate for the petitioner.
Ms. T. Khan, Assistant Government Pleader for respondent nos. 1 & 2.
Shri R. D. Wakode, Advocate for the respondent nos. 4 to 8.
CORAM: A. S. CHANDURKAR J.
Dated : JUNE 14, 2016.
ORAL JUDGMENT:
In view of notice for final disposal issued earlier the learned
counsel for the parties have been heard at length. The petitioner is
aggrieved by an order dated 29.10.2015 passed by the Additional
Commissioner Amravati Division, Amravati in the appeal that was filed
by the respondent nos. 4 to 8 and setting aside the order of Additional
Collector dated 28.05.2015 passed in proceedings under Section 33(5)
of the Maharashtra Village Panchayats Act, 1959 (for short the said
Act).
2] The facts in brief are that the petitioner and respondent nos.
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4 to 11 are members of Village Panchayat Bhugaon. On 09.05.2015
elections were held for the post of Sarpanch of the Grampanchayat. In
said election the petitioner and the respondent no.4 were the
candidates. A request was made for holding the elections by secret
ballot which was accepted. The Returning Officer held that both the
candidates had secured equal votes and therefore the Sarpanch was
required to be elected by drawing lots. The respondent nos. 4 to 8
therefore filed a dispute under Section 33(5) of the said Act. The
Additional Collector while considering the said dispute upheld the
decision of the Returning Officer and dismissed the dispute. The
respondent nos. 4 to 8 therefore filed an appeal before the Additional
Commissioner. The Additional Commissioner recorded a finding that
the respondent no.4 had received five votes while the petitioner had
received four votes. On that basis the appeal was allowed and the
order passed by the Additional Collector was set aside. Being aggrieved
the petitioner has challenged the said order.
3] Shri J. B. Kasat, the learned counsel for the petitioner made
twofold submissions. According to him the Additional Commissioner
was not justified in holding that the respondent no.4 had received five
votes. According to him the ballot paper pertaining to the fifth vote
had not been properly marked so as to indicate that the said vote was
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cast in favour of respondent no. 4. According to him the Returning
Officer before conducting the election by secret ballot had informed the
members about the manner in which the ballot paper should be
marked. If the mark put on the fifth ballot paper was not as per the
said instructions, the said vote ought to have been treated as invalid as
was done by the Returning Officer. He submitted that the Additional
Commissioner was not justified in relying upon the judgment of the
learned Single Judge in Pratiksha Pravin Raut Vs. Additional
Collector, District Raigad and others 2015(2) Maharashtra Law
Journal 655 for gathering the intention of the voter. He, therefore,
submitted that Returning Officer had rightly directed the election to be
held by drawing lots.
It was then submitted that the Additional Commissioner was
not justified in declaring that the respondent no.4 was elected as she
had received five votes. It was submitted that there was no such power
with the Additional Commissioner to grant any declaration and to hold
that the respondent no.4 was the successful candidate. According to
him in absence of any statutory power in the said Act such declaration
could not have been granted. In that regard the learned counsel placed
reliance upon the judgment of the learned Single Judge in
Chandrakalabai w/o Giridharrao Khangar and another Vs.
Additional Commissioner, Amravati Division, Amravati and others
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2008(6) Maharashtra Law Journal 376. Reference was also made to
the judgment in Gawaji alias Gawaja Sawleram Sarode Vs. State of
Maharashtra and others 1992 Maharashtra Law Journal 294 as
well as the judgment of the Division Bench in Meena Shriram Thakre
Vs. Election Officer through Tahsildar, Kalmeshwar and others
2001(4) Maharashtra Law Journal 691 in support of aforesaid
submission. It was therefore submitted that the order passed by the
Additional Commissioner was liable to be set aside and the order
passed by the Additional Collector ought to be restored.
4] Shri R. D. Wakode, the learned counsel for the respondent
nos. 4 to 8 supported the impugned order. According to him the
Additional Commissioner was justified in arriving at the conclusion that
the ballot paper in question indicated that the vote was cast in favour of
respondent no.4. He submitted that once the intention of the voter was
clear then there was no reason whatsoever to hold that the said vote
was intended to be cast in favour of respondent no.4. In that regard
learned counsel placed reliance on the decision in Pratiksha Pravin
Raut (supra). It was then submitted that the Additional Commissioner
did not act without jurisdiction when he held that the respondent no.4
had received five votes. According to him there was no question of
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absence of power with the Additional Commissioner to hold that the
respondent no.4 having received higher votes was entitled to be
declared as Sarpanch. He submitted that the judgment of learned
Single Judge in Chandrakalabai (supra) which was relied upon by the
learned counsel for the petitioner has been held to be inconsistent with
the view expressed by the Division Bench in Meena Shriram Thakre
(supra). In that regard the learned counsel also placed reliance on the
judgment in Mahadeo s/o Rambhau Athawale and others Vs.
Additional Divisional Commissioner Aurangabad and others
2010(5) Maharashtra Law Journal 513 and submitted that the order
passed by the Additional Commissioner was liable to be sustained.
Ms. T. Khan, the learned Assistant Government Pleader
appeared for the respondent nos. 1 and 2.
5] I have heard the respective counsel for the parties at length
and I have given due consideration to their respective submissions. As
per provisions of Section 33(5) of the said Act in the event of a dispute
as regards the validity of the election for the post of Sarpanch, the
same is to be referred to the Collector. After the decision of the
Collector an appeal can be filed before the Commissioner. It is first
necessary to consider the submission made on behalf of the petitioner
with regard to the ballot paper which has been held to have been cast
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in favour of the respondent no.4. The Additional Commissioner had
called for the record of the proceedings of the meetings and examined
the same in the presence of the counsel for the parties. As per the
instructions given by the Returning Officer, the votes that were
intended to be cast in favour of the petitioner were to be marked by a
symbol- circle and votes to be cast in favour of the respondent no.4
were to be marked by a symbol-triangle. A tick mark was required to
be made against the symbol as preferred. It has been observed by the
Additional Commissioner that there was no sufficient space for putting
the tick mark and the respondent no.4 had raised an objection before
the Presiding Officer at that point of time. The mark in question was
put inside the triangle and on that basis the Presiding officer and the
Additional Collector held said vote to be invalid.
In Pratiksha Pravin (supra) the learned Single Judge while
considering very same provisions of the said Act has observed in para
11 of said judgment that there were no statutory rules as regards the
manner in which a vote has to be recorded or a ballot paper has to be
rejected. It was then observed that in this background if the intention
of the voter appears to be clear then such ballot paper should not be
rejected on the ground that the mark was indistinct. This view has
been taken after considering the judgment of the Division Bench in
Dajiba Gurunath Gavane vs. Sangappa Sharanappa Patil 1966
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Maharashtra Law Journal 804. In the present case, a finding has
been recorded by the Additional Commissioner after perusing the ballot
paper in question that the intention of the voter was clear and there
was no ambiguity. Considering aforesaid legal position, I do not find
that the Additional Commissioner misdirected himself when he
proceeded to consider the intention of the voter on the ballot paper and
thereafter held that the said vote was intended to be cast in favour of
the respondent no.4. Hence said submission made on behalf of the
petitioner cannot be accepted.
6] As regards the second submission made on behalf of the
petitioner, support for the same is derived from the judgment of the
learned Single Judge in Chandrakalabai (supra). The facts of said
case indicate that an objection was raised to the acceptance of
nomination papers of the Sarpanch and Upsarpanch on the ground that
the same were filed beyond the prescribed time. The defect was found
to be substantial and the rejection of the nomination papers was
upheld. Thereafter by referring to the observations in paragraph 9 of
the judgment in Gawaji Sarode (supra) it was held that provisions of
Section 33(5) of the said Act did not empower the Additional Collector
to grant any declaration in favour of a successful candidate.
This judgment of learned Single Judge has been considered
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in Mahadeo Athawale (supra) by another learned Single Judge. In
paragraph 9 thereof it was held that the view taken in Chandrakalabai
(supra) was inconsistent with the view expressed by the Division Bench
in Meena Shriram Thakre (supra). It was then held that such
declaration could be granted by the Additional Collector or by the
Commissioner as the case may be.
7]
At this stage it would be necessary to refer to the judgment
of the Division Bench in Meena Shriram Thakre (supra). The facts of
said case indicate that after elections for the post of Sarpanch were
held, the Returning Officer held that as the petitioner therein had not
secured 2/3rd votes of the total votes, a fresh election was liable to be
held. This order was set aside by the Additional Collector and the
petitioner therein was declared elected having received higher number
of votes. When the proceedings were challenged before this Court, it
was submitted that the Additional Collector had no power to declare
the petitioner therein to be the successful candidate under Section
33(5) of the said Act. The Division Bench did not accept said
contention and held in clear terms that as the petitioner therein had
polled higher number of votes, she was entitled to be declared elected.
It was held that the Additional Collector in the exercise of jurisdiction
under Section 33(5) of the said Act was justified in granting such
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declaration. From said decision, it is clear that a similar contention as
raised by the petitioner herein regarding lack of jurisdiction to declare
the candidate elected on the post of Sarpanch has been negatived and it
has been held that said jurisdiction was available with the Additional
Collector. The judgment of the Division Bench is binding on this
Court.
8]
It may also be noted that the learned Single Judge in
Gawaji Sarode (supra) while observing that under Section 15 of the
said Act there was no power conferred to grant a declaration in favour
of a successful candidate further observed in paragraph 11 as under :
"11. ... Eventuality of declaring some other candidate other than the
returned one elected under the Bombay Village Panchayats Act is
only limited to the change in the result because of the recounting... "
These observations therefore clearly indicate the
consequence that would follow when the votes are counted in
accordance with law.
10] It is also to be noted that there is a material difference
between an election being set aside on account of some disqualification
of a candidate and a candidate being declared elected on account of
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receiving higher votes after the same are counted properly. If the
decision of the Returning Officer of counting the votes is found to have
been done not in accordance with law, it is always open for the superior
Authority to correct such error and declare the correct result. As
observed in Mahadeo Athawale (supra) this power has to be read
within the scheme of Section 33(5) of the said Act. Hence the second
submission made on behalf of the petitioner cannot be accepted.
11]
In view of aforesaid conclusions, I do not find that any case
is made out to interfere with the order passed by the Additional
Commissioner. The writ petition is therefore dismissed with no order
as to costs.
12] At this stage the learned counsel for the petitioner seeks
continuation of the ad-interim relief which was granted earlier. This
request is opposed by the learned counsel for the respondents. As ad-
interim relief was granted on 05/12/2015, same shall continue to
operate for a period of six weeks from today. It shall cease to operate
automatically after the said period is over.
JUDGE
s vk
