Judgment:
1. Heard learned counsel appearing for the respective parties. Admit. The Appeal is heard for final disposal with consent of the learned counsel.
2. The Appellants submit that Respondent Nos. 5 to 8 were elected as members of Grop Grampanchayat Kukkadgaon-Khundras-Chavanwadi. The Appellant No.1, namely, Mahadeo Rambhau Athawale lpa168.10 got elected as Sarpanch of Group Grampanchayat in the election meeting held on 11th October, 2008. The Respondent No.3 Tahsildar and Returning Officer called the meeting to elect Sarpanch and Up-Sarpanch of the Group Grampanchayat. The Appellant No.1, namely, Mahadeo Rambhau Athawale and Respondent No.5, namely, Ashok Sitaram Misal, had submitted their nominations for the post of Sarpanch. It is contended that Appellant No.1 secured five votes and Respondent No.5 secured 4 votes. Respondent No.3 Tahsildar, declared Appellant No.1 as elected Sarpanch of Group Grampanchayat. Appellant Nos. 4 and 5 sought permission to take assistance being illiterate, to cast votes. Their application was allowed and the Appellant Nos. 3 and 5 assisted Appellant Nos. 4 and 5 in casting their votes.
3. The Appellants contends that as per the minutes of the meeting, it reveals that no objection was raised by Respondent No.5 in the lpa168.10 meeting in respect of granting permission by Respondent No.3 allowing to take assistance in casting votes. Respondent Nos. 6 and 7 requested for voting by secret ballot and the same was allowed. Because Respondent No.5 had lost election by majority, therefore Respondent No.5 approached the Additional Collector, Beed by filing Dispute No.19 of 2008. It was alleged before the Additional Collector, Beed that there was breach of secrecy of votes. The Returning Officer had allowed to take assistance of Appellant Nos. 1 and 3 who were themselves members of Panchayat.
4. The Additional Collector, Beed heard the matter and by an order dated 17th February, 2009, allowed the Appeal partly observing that there was breach of secrecy in the election held on 11th October, 2008 and set aside the election and directed Tahsildar, Beed to hold fresh elections.
5. Being aggrieved by the said order in not lpa168.10 declaring Respondent No.5 as elected Sarpanch, Respondent No.5 filed Appeal before the Additional Divisional Commissioner, Aurangabad. By an order dated 8th April, 2009, the Additional Divisional Commissioner, Aurangabad, rejected the Appeal at the admission stage as not maintainable. Respondent No.5 preferred Writ Petition No.3781 of 2009 against the said order. By an order dated 23 rd June, 2009 the learned Single Judge of this Court rejected the Writ Petition. The Respondent No.5 filed Letters Patent Appeal No.22 of 2010. By an order dated 19th January, 2010, the Division Bench of this Court remanded back the matter to the Additional Divisional Commissioner, Aurangabad.
6. The Additional Divisional Commissioner, Aurangabad, by an order dated 26th March, 2010, allowed the Appeal filed by Respondent No.5 and declared him elected as Sarpanch. Said order was subject matter of challenge in Writ Petition No. 2993 of 2010, filed by the Appellants. The learned lpa168.10 Single Judge, rejected the Writ Petition filed by the Appellants, by an order dated 30th April, 2010, hence the present Letters Patent Appeal.
7. Shri. Thombre, learned counsel for the Appellants submitted that there was breach of secrecy of votes during the election, which vitiates the entire election process. In the light of the observations made by the Authority concerned, the Respondent No.1 herein, ought not to have declared Respondent No.5 as elected Sarpanch. The provisions of the Bombay Village Panchayats Act, 1958 (for short 'the Act of 1958) and Bombay Village Panchayat (Sarpanch and Upa- Sarpanch) Election Rules, 1964 (for short 'the Rules of 1964') were not properly considered by the Additional Divisional Commissioner, Aurangabad and the learned Single Judge of this Court. The learned counsel referred to the provisions of Rule 10(2) of the Rules of 1964 and the provisions of Section 33(5) of the Act of 1958. The counsel lpa168.10 submits that under the provisions of the Act of 1958 and the Rules of 1964, the Additional Divisional Commissioner was not empowered to declare Respondent No.5 as elected Sarpanch.
8. Shri. Thombre, learned counsel for the Appellants placed reliance on the following reported Judgments, in support of his submissions:
(A) Chandrakalabai Giridharrao Khangar and another vs. Additional Commissioner and others, 2009 (1) B.C.R. 243. Para 9, 10 and 11 of the Judgment reads as under:
"9. Coming to the second point involved in this Petition, it would be appropriate to quote Section 33(5) of the Bombay Village Panchayats Act, 1958, which reads as under:
"Section 33 (5):- In the event of a dispute arising as to the validity of the election of a lpa168.10 Sarpanch or Upa-Sarpanch under sub-section (1) the officer presiding over such meeting or any member may, within fifteen days from the date of the election, refer the dispute to the Collector for decision. An appeal against the decision of the Collector may, within fifteen days from the date of such decision, be filed before the Commissioner, whose decision shall be final. The Collector or Commissioner shall give his decision as far as possible within sixty days of the receipt of the reference, or as the case may be, appeal."
"10. Perusal of the above provision clearly shows that Collector has been given a power by the legislature to decide the validity of election of Sarpanch or Up-Sarpanch. Thus, sub-section 5 of Section 33 of the Bombay Village lpa168.10 Panchayats Act does not go ahead and empower the Collector to declare any other person as elected for any reason whatsoever. In the case of Gawaji Alias Gawaja Sawleram Sarode (supra) while comparing the provisions of the Maharashtra Municipalities Act and Section 15 of the Bombay Village Panchayats Act, this Court made the following observations.
"9...... Therefore, there was a power entrusted with the District Court wherein the Petitioner challenged election under the Maharashtra Municipalities Act to declare Petitioner or any other candidate elected in case it is found that he has received sufficient number of valid votes. I do not find such a provision in the Bombay Village Panchayats Act, 1958. If an election is set aside, lpa168.10 two courses are open. Either the seat can be filled in by fresh election or the other candidate left in the field who has secured second highest vote can be declared to be elected. Which of the course is to be provided, is the arena of the legislature and legislature which has made specific provision opting for second course in the Representation of the People Act by way of Section 84 and in sub-section 10 of Section 21 of the Maharashtra Municipalities Act, has not made an identical provision in the Bombay Village Panchayats Act. It appears that it has favoured a fresh election when the election of a candidate is set aside."
"11. In my opinion, similar is the provision of Section 33(5) of the Act, which does not provide for such declaration lpa168.10 being made by the Additional Collector. Thus, in the face of the pari materia provision, I have no hesitation in accepting the statement of law made by this Court in the aforesaid case. Consequently, I hold that the provisions of Section 33 (5) of the Bombay Village Panchayats Act do not empower the Additional Collector to declare Respondent Nos. 4 and 5 as elected Sarpanch of village Shingori. As a sequel to his finding that the election of the Petitioners was illegal and though respondent Nos. 4 and 5 were the only remaining candidates in the said election as held by him, the only course left open for the Additional Collector therefore was to order holding of fresh election to the posts of Sarpanch and Up-Sarpanch. In the result, I make the following order."
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(B) Gawaji Alias Gawaja Sawleram Sarode vs. State of Maharashtra and others, 1991 (3) B.C.R. 585. Relevant portion of Para 11 of the Judgment, reads as under:
"11........ In the instant case, Bombay Village Panchayat Act does not make a specific provision to give the petitioner a right to pray that he or any other candidate should be declared elected in place of a returned candidate. It will have to be presumed that the legislature wanted in all such cases that electorate should have fresh chance to elect their representative which is always a surer away to assess the opinion of votes."
(C) Tarvindarsingh Mahendrasingh vs. State of Maharashtra and others, 2000 (1) Mh. L.J. 264. Para 131 of the Judgment reads as under: lpa168.10
"131. Hence, to conclude, we hold that Respondent No.6- the then Mayor and Presiding Officer of the Meeting held on 20-4-1999 for the election of Mayor and Deputy Mayor of Aurangabad Municipal Corporation - caused breach of secrecy of voting and breach of secrecy of ballot, by giving assistance to the Corporators, who had not asked for such assistance and when there was no reason for giving assistance. This has resulted in not holding the election in free and fair manner. The circumstances do indicate that, undue influence was brought on the Corporators at the time of voting. The manner in which the voting has taken place is not expected either under the Act or under the Rules, or, even, under the principles of democracy and secrecy of ballot and voting. So, the entire lpa168.10 proceedings with respect to the election of Mayor and Deputy Mayor has to be set aside and quashed. The Corporation must hold fresh election for the post of Mayor and Deputy Mayor. Hence, the election of Respondent No.4 as Mayor of the Corporation; are set aside; and the Corporation is directed to hold fresh election for the post of Mayor and Deputy Mayor, as per the provisions of the Act and the relevant Rules."
9. Shri. Salunke, learned counsel appearing for Respondent No.5, submits that in the light of the provisions of the Act of 1958 and the Rules of 1964 the fact that two votes, which were held to be invalid were not counted and thereafter it was declared that Respondent No.5 had polled more votes and therefore he was rightly declared elected as Sarpanch. Learned counsel submits that there is no glaring error or perversity in the lpa168.10 impugned Judgments and orders.
10. Shri. Salunke, learned counsel, in support of his submissions placed reliance on the Judgment in the case of Meena Shriram Thakre vs. Election Officer appointed for conducting election of Sarpanch and Up-Sarpanch of Gram Panchayat and others, 2001 (Supp.2) B.C.R. 24. Para 4 and 8 of the Judgment reads as under:
"4. Learned Advocate for the petitioner urged before us that the petitioner had polled three valid votes whereas respondent No.7 had polled only two valid votes and the other two votes being invalid, the petitioner should have been declared elected as a Sarpanch, but the Election Officer on the premise that no one had obtained 2/3rd majority, which does not have support of any provision in law, ordered re-voting which is lpa168.10 not contemplated in the Act and the Rules. In the circumstances, it was urged that the Additional Collector had rightly declared the petitioner elected to the post of Sarpanch whereas the Additional Commissioner though disbelieved the theory of Election Officer and Gram Sevak about equality of votes and request for drawing of lots, yet ordered that the entire election process is vitiated, resulting in order of fresh election. It was pointed out that the petitioner took over as Sarpanch and continues to be Sarpanch."
"8. In the light of rival contentions, we have examined the record including seven ballot papers. We have already pointed out that on the two envelopes containing votes, there are in the hand -writing lpa168.10 of the Election Officer (respondent No.1) notings to the effect - "Valid Votes - 5" on one envelope and "Invalid Votes 2" on the other envelope. The minutes of the meeting recorded b y the Election Officer (respondent No.1) does not surprisingly indicate as to how many valid votes were polled by each of the candidates, but it only speaks of two invalid votes - on one, the voter had written her own name and this vote obviously was invalid. On the other ballot paper, tick - mark had been recorded by the voter on the line dividing the two names of the contestants. In respect of this vote, the Election Officer in the minutes has written that it could not be made out from the vote of one voter clearly as to in whose favour the voter had given the vote which means that the Election Officer had treated lpa168.10 both the votes as invalid. However, without support from any provision of law, the Election Officer declared re- voting on the ground that no candidate had obtained 2/3rd votes. There is no requirement of law that the candidate should get 2/3rd votes for the purpose of being declared as Sarpanch. The result is that the petitioner had polled three valid votes and respondent No.7 had polled two valid votes whereas two votes were invalid."
11. There is no dispute that the Appellant No.4 Shobhabai Nana Khandagale and Appellant No.5 Ashabai Sopan Bhate sought assistance while casting their confidential votes in the process of election. They submitted that they were illiterate and were unable to read and identify the names of candidates and accordingly assistance was given by the Returning Officer. After the votes were lpa168.10 counted, it was found that the Appellant No.1 Mahadeo Rambhau Athawale secured five votes whereas Respondent No.5 Ashok Sitaram Misal secured four votes. Consequently Appellant No.1 was declared elected as Sarpanch. The argument of learned counsel appearing for Respondent No.5 is that the facts disclosed that the Appellant Nos. 4 and 5 were not given assistance by independent persons but were given assistance by the contesting candidate himself and as such the election process was found to be vitiated seriously. The Additional Collector, therefore, by an order dated 17th February, 2009, set aside the election of the Appellant No.1 and ordered holding of fresh election for the post of Sarpanch.
12. The issue involved here is, as to whether the Returning Officer was justified in declaring result inspite of two votes being considered as invalid and the secrecy of ballot being breached. The provisions of Section 33(5) of lpa168.10 the Act of 1958 reads thus:
"33. Procedure for election of Sarpanch and Upa-Sarpanch, (5) In the event of a dispute arising as to the validity of the election of a Sarpanch or Upa-Sarpanch under sub-section (1) the officer presiding over such meeting or any member may, within fifteen days from the date of the election, refer the dispute to the Collector for decision. An appeal against the decision of the Collector may, within fifteen days from the date of such decision, be filed before the Commissioner, whose decision shall be final. The Collector or Commissioner shall give his decision as far as possible within sixty days of the receipt of the reference, or as the case may be, appeal."
13. The provisions of Rule 10 of the Rules of lpa168.10 1964 reads as under:
"10. Procedure for election.
(1) If only one candidate has been duly nominated for the office of the Sarpanch or Upa- Sarpanch, he shall be declared to have been duly elected as Sarpanch or, as the case may be, Upa-Sarpanch.
(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 lpa168.10 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."
14. Perusal of provisions of the other local Enactments governing elections to Municipal Council, election under the Representation of the People Act, 1951 shows that they cannot be compared with the provisions of the Act of 1958 in respect of the reliefs which could be sought and granted in such situations. We do find that once the secrecy of two votes was violated and the contesting candidates themselves were allowed to assist the voters, then the election process itself gets vitiated. The conduction of election lpa168.10 is affected due to unfair means and methods. The very confidence in the election process is eroded. Under the provisions of the Act of 1958 and the Rules of 1964, the Authorities are not empowered to declare candidate as elected in case the objections raised are upheld in the Proceedings initiated under Section 33(5) of the Act of 1958.
15. We are, convinced with the submissions advanced on behalf of the Appellants that the view adopted by the Additional Divisional Commissioner and the learned Single Judge is erroneous. For the reasons stated above, we quash and set aside the order dated 26th March, 2010 passed by the Additional Divisional Commissioner, Aurangabad and the Judgment and Order dated 30th April, 2010 passed by the learned Single Judge of this Court in Writ Petition No.2933 of 2010.
16. We hold that the proceeding of meeting held to elect Sarpanch, on 11th October, 2008, is lpa168.10 quashed and set aside. Consequently, the election of Sarpanch is quashed and set aside. We direct the Tahsildar, Beed to take further steps to call for meeting to hold fresh election to the post of Sarpanch, at the earliest.
17. The Letters Patent Appeal is allowed on the terms as indicated above. No order as to the costs.