Bombay High Court
Indubai Bhujanga Shinde And ... vs The Additional Commissioner ... on 16 June, 2016
Bench: S.P. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4538 OF 2016
1. Sau. Indubai Bhujanga Shinde,
Age 45 years, Occ. Household & Agri.
R/o Ladka, Tq. Kandhar,
Dist. Nanded.
2. Sau. Rajabhai Balaji Amanwad,
Age 50 years, Occ. Household & Agri.
R/o Ladka, Tq. Kandhar,
Dist. Nanded.
3.
Shankar Maruti Katemod
Age 35 years, Occ. Agriculture
R/o Ladka, Tq. Kandhar,
Dist. Nanded.
4. Sau. Daivshala Vitthal Boyewar
Age 37 years, Occ. Household & Agri.
R/o Ladka, Tq. Kandhar,
Dist. Nanded.
5. Bali Gnyanoba Gaikwad
Age 50 years, Occ. Agriculture,
R/o Ladka, Tq. Kandhar,
Dist. Nanded. ... Petitioners
Vs.
1. The Additional Commissioner,
Aurangabad Division, Aurangabad.
2. The Additional Collector, Nanded,
District Nanded.
3. The Presiding Officer
Sarpanch and Deputy Sarpanch
Elections of Village Gram Panchayat
Ladka, Tq. Kandhar, Dist. Nanded.
4. Sau. Bharatbai Ananda Shinde
Age 35 years, Occ. Household & Agri.
R/o Ladka, Tq. Kandhar,
Dist. Nanded.
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5. Pathan Chandkhan Sarwarkhan
Age 30 years, Occ. Agriculture
R/o Ladka, Tq. Kandhar,
Dist. Nanded.
6. Sau. Chhayabai Kishanrao Shinde
Age 40 years, Occ. Household & Agri.
R/o Ladka, Tq. Kandhar,
Dist. Nanded.
7. Digambar Tejrao Shinde
Age 29 years, Occ. Agriculture
R/o Ladka, Tq. Kandhar,
Dist. Nanded.
8.
The Gram Panchayat, Ladka
Tq. Kandhar, Dist. Nanded.
Through its Gram Sevak ... Respondents
----
Mr. V.D. Hon, Senior Advocate, h/f. Mr. A.V. Hon for the petitioners.
Mr. S.K. Tambe, AGP for respondent nos. 1 to 3.
Mr. F.R. Tandale, Advocate for respondent nos. 4 to 7.
----
CORAM : SUNIL P. DESHMUKH, J.
DATE : 16-06-2016.
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally
with consent of the parties. Gram Panchayat though served no
appearance has been caused.
2. Learned counsel for the petitioner Mr. V.D. Hon, Senior
Advocate submits that, it is not in dispute that, the petitioners have
been declared elected in the meeting held on 28/10/2015 as
Sarpanch and Up-Sarpanch respectively, and the results of the
meeting show that the petitioners have been elected by majority of
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4:2. He submits that in the face of such situation wherein the
result shows that democratic will, for procedural reasons the
elections may not be faulted with. Apart from aforesaid, he submits
that in the meeting scheduled for elections of Sarpanch and Up-
Sarpanch, the will of elected members of Gram Panchayat for voting
by show of hands or by ballot had also been sought by the
Returning Officer whereunder, majority of the members have opted
for voting by show of hands.
3.
On aforesaid background he submits that, since the
petitioners have got elected by majority of votes, decisions
rendered by the two authorities i.e. Additional Collector as well as
Additional Commissioner would not be sustainable which
overwhelmingly show that those have been decided hyper
technically for not taking voting by ballot pursuant to rule 10 (2) of
Maharashtra Village Panchayat Sarpanch and Up-Sarpanch Election
Rules 1964, when there had been demand in this respect.
4. Learned AGP and learned advocate Mr. Tandale counter
and oppose the submissions, submitting the contention that the
result shows will of majority is in the facts and circumstances of the
case is fallacious. They contend that it may not be that in the
absence of vote by ballot, the true will and true mind is disclosed by
the results. There are various circumstances by which the persons
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are inhibited from disclosing their true minds. It is for that purpose,
the rule mandates that when a person demands there is no other
alternative but for the Returning Officer to take vote by ballot and
not by show of hands. In the present matter, it is not disputed at all
that at least four members of the Gram Panchayat had opted for
voting by ballot.
5. It is contended that, having regard to the mandate
under rule 10(2) of the Maharashtra Village Panchayat Sarpanch
and Up-Sarpanch Election Rules 1964, taking of vote by show of
hands for election was not called for and it is untenable. They
support their submissions with a decision in the case of Maruti
Bandu Patil Vs. Village Panchayat Sidhnerli and Ors. 1981
MLJ 255 its head note which reads as under:
Bombay Village Panchayat (Sarpanch ad
Up-Sarpanch) Election Rules 1964, R. 10(2) and
Bombay Village Panchayats Act (3 of 1959),
S.33- Election of Sarpanch and Up-Sarpanch-Demand
by member that voting should be by ballot-Ballot
voting was therefore mandatory-Election not so held
of Sarpanch and Up-Sarpanch is illegal and liable to
be set aside.
Rule 10 of the Bombay Village Panchayat
(Sarpanch and Up-Sarpanch) Elections Rules 1964 in
the matter of election of Sarpanch and Up-Sarpanch
requiring voting to be by ballot if any member makes
a demand in that respect is mandatory. The
provisions of voting by ballot requiring the Presiding
Officer to hold election by ballot if any member
present at the meeting so demands is peremptory and
mandatory in nature. The purpose of voting by ballot
is to keep voting secret so that it may not be known
from the ballot paper itself as to who had voted for
whom. Rule 10 provides a regulatory procedure for
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achieving free and fair election. Therefore,
interpretative process must advance the basic
postulate of free and fair election. The election by
ballot is to be held when demand is made, which
provision has been made to help voters to vote free
from any inhibition, fear or apprehension of being
subjected to some sort of calamity. The word used
being "shall" clearly indicates that the provision is
mandatory and non-compliance with the said
provision must result in setting aside the election of
the person concerned.
6. And they particularly emphasise that, the Division
Bench has clearly held that non-compliance with the provision shall
result in setting aside of the election of the persons concerned.
7. Learned senior advocate along with Mr. Ajinkya
Deshmukh, make an attempt to support their submissions with a
decision of Hon'ble Single Judge of this Court in the case of
Ratnamala Ashokrao Shinde & Anr. Vs. Election officer, Gram
Panchayat, Palodi & Ors. reported in 2006 MLJ P.801 wherein
according to them, if the situation demands the election officer may
evolve his own procedure for ensuring fair elections. The
observations of the Hon'ble Single Judge however, have been
altogether in different context of facts. On perusal of that judgment
it emerges that it has been observed by Hon'ble Single Judge as
under:
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
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election shall be by secret ballot. In the present
case, it is undisputed that such a demand was made
by three members.
8. Observation in said judgment is about evolution of
procedure by returning officer to ensure fair election and not in
respect of allowing the voting by show of hands when the demand
had been made for voting by ballot.
9. In the face of facts, and situation emerging from the
aforesaid observations of the Division Bench as appearing in the
head note as well as the observations quoted herein-above of the
Hon'ble Single Judge, it is difficult to fall in the line of arguments as
sought to be advanced by learned senior advocate.
10. The writ petition thus is untenable and as such is
dismissed. Rule discharged.
(SUNIL P. DESHMUKH)
JUDGE
