Sunil Kailashrao Kshirsagar And ... vs Additional Commissioner, ...
2023 Latest Caselaw 5468 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH AT NAGPUR

                                  WRIT PETITION NO. 3151/2023

                     Sunil Kailashrao Kshirsagar and others
                                       Vs.
              Additional Commissioner, Amravati Division & Others

Office Notes, Office Memoranda                          Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders

                                  Mr. M.I. Dhatrak, Advocate for petitioners
                                  Mrs.M.A. Barabde, AGP for Respondent / State
                                  Mr. P.S. Wathore, Advocate for Respondent Nos.9 and 10


                                  CORAM:        AVINASH G. GHAROTE, J.

DATED : 12th JUNE, 2023

Heard Mr. Dhatrak, learned counsel for the petitioners and learned Assistant Government Pleader.

2. The petition questions the order dated 20/07/2022, passed by the learned Commissioner, allowing the appeal filed by the respondent Nos.9 and 10 against the judgment of the Additional Collector dated 23/05/2022, whereby the same has been set aside. The facts leading to the present petition indicate that on 22/2/2021, election to the posts of Sarpanch and Upsarpancha of Grampanchayat Sawar was conducted in which the respondent No. 9 was elected as Sarpancha and respondent No. 10 was elected as Upsarpancha. An

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application under Section 33(5) of the Maharashtra Village Panchayat Act came to be filed by the petitioners before the Collector, Yavatmal, questioning the legality of the election. The basic ground raised was that there could not be a ballot paper on the same page as indicated by page 18 in which the balloting was required to be done for both the posts of Sarpancha and Upsarpancha. It was submitted that it was mandatory for the person conducting the elections, to have explained to the members present the manner in which the balloting was to be done as the secret ballot was requested for and granted, in support of which the learned counsel for the petitioners relied upon the judgment in the case of Jaenendrakumar Phoolchand Daftari Vs. Rajendra Ramsukh Mishra and others (1994) 1 SCC

352. The learned Collector by his order dated 23/5/2022 (page 38) accepted the contention and held that there could not be a single ballot paper for the purpose of election to the posts of Sarpancha and Upsarpancha and allowed the complaint. The learned Commissioner by the impugned order dated 20/07/2022 has held that there is no prohibition in law in this regard and therefore, the manner in which the elections were conducted were correct and has set aside the order of the Collector. Mr. Dhatrak, learned counsel for the petitioners by

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inviting my attention to Rules 6 and 10 of the Bombay Village Panchayat (Sarpancha and Upsrapanch) Election Rules, 1964, submits that there is necessity for conducing separate elections for the posts of Sarpanch and Upsarpancha in order to avoid any confusion. He also contends that in case the secret ballot is conducted there is a mandatory duty upon the Election Officer to explain the manner in which the voting is to be done.

3. The learned AGP supports the impugned order.

4. Perusal of Rule 6 of the aforesaid Rules of 1964 merely indicates the manner in which the nominations are to be filled in for the posts of Sarpanch and Upsarpancha. Rule 10 of the said Rules, which prescribes the procedure for the election also does not indicate any such prohibition of there being a single ballot paper for the posts of Sarpanch and Upsarpancha. Jaenendrakumar Phoolchand Daftari Vs. Rajendra Ramsukh Mishra relied upon by Mr. Dhatrak, learned counsel for the petitioners contemplates the Presiding Officer to evolve a procedure to explain the manner of voting to the persons present, as indicated in para 8 of the said judgment only in case where a situation arises where an illiterate member is required to vote. In

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the instant matter there is no such statement that any of the petitioner was illiterate and therefore, unaware of the manner in which he would be required to cast his ballot on secret voting being permitted.

5. In view of the above, I do not see any reason to interfere in the impugned order of the Commissioner. The petition is dismissed. No costs.

JUDGE

MP Deshpande