Limbaji Dashrath Mandave vs The State Of Maharashtra Through ...
2022 Latest Caselaw 7444 Bom

                                     {1}               WP 5883 OF 2022 & ANR


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     BENCH AT AURANGABAD

                    44 WRIT PETITION NO.5883 OF 2022

 .        Shahista Saddam Shaikh
          Age: 29 yrs., Occu.: Agri.
          Presently working as Sarpanch
          of Village Panchayat, Kukadgaon,
          Tq.Paranda, Dist.Osmanabad.                  ..Petitioner

                                    VERSUS

 1.       The State of Maharashtra
          Through the Additional Commissioner,
          At Aurangabad Division, Aurangabad.
 2.       The District Collector,
          Osmanabad.
 3.       The Tahsildar,
          Paranda, Tq.Paranda,
          Dist.Osmanabad.
 4.       Shri G.T.Gore
          Presiding Ofcer/Returning Ofcer
          appointed for the purpose of election of
          Sarpanch and Up-Sarpanch of
          Grampanchayat, Kukkadgaon, Tq.Paranda,
          Dist.Osmanabad.
 5.       Amrut Baban Wayase
          Age: 33 yrs., Occu.: Agri.,
          R/o. Kukadgaon,
          Tq.Paranda, Dist.Osmanabad.
 6.       Mr.B.S.Rathod
          The Then Gramsevak - presently working
          as Village Development Ofcer, Pathrud
          Tq.Bhoom, Dist.Osmanabad.             ..Respondents
                                  ...
                    45 WRIT PETITION NO.5884 OF 2022
 .        Limbaji Dashrath Mandave
          Age: 56 yrs., Occu.: Agri.,
          Presently working as Upsarpanch
          of Village Panchayat, Kukkadgaon,
          Tq.Paranda, Dist.Osmanabad.                  ..Petitioner




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                                      {2}              WP 5883 OF 2022 & ANR


                                    VERSUS
 1.       The State of Maharashtra
          Through the Additional Commissioner,
          At Aurangabad Division, Aurangabad.
 2.       The District Collector,
          Osmanabad.
 3.       The Tahsildar,
          Paranda, Tq.Paranda,
          Dist.Osmanabad.
 4.       Shri G.T.Gore
          Presiding Ofcer/Returning Ofcer
          appointed for the purpose of election of
          Sarpanch and Up-Sarpanch of
          Grampanchayat, Kukkadgaon, Tq.Paranda,
          Dist.Osmanabad.
 5.       Amrut Baban Wayase
          Age: 33 yrs., Occu.: Agri.,
          R/o. Kukadgaon,
          Tq.Paranda, Dist.Osmanabad.
 6.      Mr.B.S.Rathod
         The Then Gramsevak - presently working
         as Village Development Ofcer, Pathrud
         Tq.Bhoom, Dist.Osmanabad.                   ..Respondents
                                    ...
              Advocate for Petitioners : Shri Abhijit S. More
         AGP for Respondent Nos.1 to 3 : Shri S.N.Morampalle
         Advocate for Respondent No.4 : Shri Sudhir K. Chavan
       Advocate for Respondent No.5: Shri Ankush N. Nagargoje,
                                   ...
                                  CORAM : M.G.SEWLIKAR, J.

DATE : 1st August, 2022

ORAL JUDGMENT :-

1. Rule. Rule made returnable forthwith. With the consent of

the parties petitions are taken for hearing for fnal disposal at the

admission stage.

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2. Petitioners and respondent No.5 are the members of the

Gram Panchayat, Kukkadgaon, Tq.Paranda, Dist.Osmanabad.

The general elections of Gram Panchayat Kukkadgaon,

Tq.Paranda, Dist.Osmanabad took place in the month of January,

2021. The petitioners got elected as members of said Gram

Panchayat. It is further alleged that on 9 th February, 2021

respondent No.4, Returning Ofcer convened a meeting of the

ofce bearers for the purpose of elections of Sarpanch and

Upsarpancha. On the same day, the elections were held and the

Petitioner in Writ Petition No.5883 of 2022 was declared elected

as Sarpanch and the petitioner in Writ Petition No.5884 of 2022

was declared elected as Upsarpancha. Minutes of the meeting

were prepared. Respondent No.5 signed the minutes of the

meeting and accepted the procedure evolved by respondent

No.4.

3. On 18th February, 2021, respondent No.5 fled an appeal

before respondent No.2 - the District Collector, Osmanabad

under Section 33(5) of the Bombay Village Panchayats Act, 1958

and raised dispute regarding election proceedings conducted by

respondent No.4. On 1st February, 2022, respondent No.2 - the

District Collector, Osmanabad, was pleased to reject the said

appeal on the ground that there was no demand on the part of

respondent No.5 regarding voting by secret ballot. Being

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aggrieved and dissatisfed by the order passed by respondent

No.2, respondent No.5 preferred appeal before respondent No.1.

Respondent No.1 by his order dated 24 th May, 2005 allowed the

appeal on the ground that there was a demand of voting by

secret ballot and that was not adhered to. Therefore, the

procedure evolved by the Returning Ofcer is against the Rules.

Holding this, he set aside the elections of the petitioners.

4. This order is being impugned in these petitions.

5. I have heard Shri A.S.More, learned counsel for the

petitioners, Shri S.N.Morampalle, learned AGP for respondent

Nos.1 to 3, Shri S.K.Kadam, learned counsel for respondent No.4

and Shri A.N.Nagargoje, learned counsel for respondent No.5.

6. Learned counsel for the petitioners submits that on 9 th

February, 2021 at 02:00 p.m. the elections of Sarpanch and

Upsarpanch were held. Initially election of Sarpanch was held.

Out of nine members, six members voted in favour of the

petitioner in Writ Petition No.5883 of 2022 and three members

voted against the said petitioner. Therefore, the petitioner in

Writ Petition No.5883 of 2022 was declared elected as Sarpanch.

Thereafter, election of Upsarpanch was held in which six

members voted in favour of the petitioner in petition No.5884 of

{5} WP 5883 OF 2022 & ANR

2022. For the other candidate nobody raised his hand.

Therefore, petitioner in petition No.5884 of 2022 was declared

elected as Upsarpanch. The voting was held by raising of hands.

7. Shri More, learned counsel for the petitioners further

submits that at no point of time there was any demand for

secret ballot. He submits that the proceedings book show that

there was no demand from any of the members about secret

ballot. However, the proceedings book produced by respondent

No.5 show that respondent No.5 had demanded voting by secret

ballot. He submits that below the name of respondent No.5, a

line is added in Devnagari script "xqIr ernku ?ks.;kr ;kos-". He

submits that this is clear evidence of interpolation. He submits

that an application came to be fled before the Returning Ofcer.

The Returning Ofcer in the dispute raised by respondent No.5,

has not testifed that he was threatened and stones were pelted

at him and because of which he accepted the application. He

submits that on this basis, the learned Collector dismissed the

dispute. Against this decision, appeal was preferred. The

learned Additional Divisional Commissioner allowed the appeal

holding that there was a demand of secret ballot. This demand

was not adhered to and therefore, the entire election is set aside.

8. He further submits that there are two documents indicating

{6} WP 5883 OF 2022 & ANR

that in one document there is no remark of demand of secret

ballot and in another document there is a remark of demand of

secret ballot. He submits that in such a situation, it will be

appropriate to remand the dispute to the Collector.

9. Learned counsel for respondent No.5 submits that there

was demand of secret ballot by respondent No.5. An application

was made on 9th February, 2021. In terms of Rule 10(2) of the

Bombay Village Panchayat (Sarpanch and Up-Sarpanch) Election

Rules, 1964, the voting has to be held in terms of secret ballot if

the demand in that behalf is made. He further submits that the

Returning Ofcer has not made any remark on the application

that he had received it after the elections were over. He further

submits that in terms of Rule 4 of the Bombay Village Panchayat

(Sarpanch and Up-Sarpanch) Election Rules, 1964, "the Presiding

Ofcer shall cause a notice of such meeting to be given to every

member of the Panchayat at least three clear days before the

date of such meeting". He submits that notice was issued on 9 th

February, 2021 and elections were held on the same day. He,

therefore, prayed for dismissal of the petition. He placed

reliance on the case of Maruti Bandu Patil Vs. Village Panchayat

Sidhnerli and Others [1981 Mh.L.J. 255] and Murlidhar Bhaiyaji

Kapgate and Others Vs. Krishna Jairamji Meshram [1991 (2)

Mh.L.J. 897].

{7} WP 5883 OF 2022 & ANR

10. Learned counsel for the petitioners placed reliance on the

case of Subhas Manikrao Lavhale vs. Additional Commissioner,

Amravati Division, Amravati and Ors. [2009 (5) Mh.L.J. 511] for

the proposition that Election Ofcer can evolve his own

procedure. He has also placed reliance on the case of Kalpana

Laxman Bhujbal vs. Additional Commissioner, Amravati and Ors.

(Writ Petition No.490 of 2012 decided on 13th April, 2015].

11. I have given anxious consideration to the submissions

made by the learned counsel for the petitioners and learned

counsel for respondent No.5 in both the petitions.

12. In the case of Maruti Bandu Patil (supra), the Division

Bench of this Court has held that "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 "shall" clearly indicates that the provision is

mandatory and non-compliance with the said provision must

result in setting aside the election of person concerned."

13. At page No.63 the alleged notice is annexed. The learned

counsel for the petitioners submits that that is not a notice but

that is a programme. Alleged election programme is styled as

{8} WP 5883 OF 2022 & ANR

notice. It mentions that the meeting will be held on 9 th February,

2021. It appears that this ground was not raised in the dispute

before the Collector nor it was raised in the proceedings in the

appeal before the Additional Divisional Commissioner.

Therefore, this ground cannot be raised at this stage.

14. So far as demand by secret ballot is concerned, application

was made before the Returning Ofcer. He did not make any

endorsement on application that it was received after elections

were over. In terms of the Judgment of the Division Bench in the

case of Maruti Bandu Patil (supra), when there is a demand for

secret ballot it is mandatory for the Returning Ofcer to hold the

elections by secret ballot. Despite there being a demand for

secret ballot, the Returning Ofcer has not adhered to it.

Therefore, elections of Sarpanch and Upsarpanch need to be set

aside.

15. In this view of the matter, both the petitions are dismissed.

No order as to costs. Rule is discharged.

( M.G.SEWLIKAR ) JUDGE SPT