Sau. Kamla Ramrao Rathod vs Additional Commissioner on 22 January, 2009

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY:




                                                                          
                   NAGPUR BENCH : NAGPUR




                                                  
                WRIT PETITION NO. 4759 OF 2008
    PETITIONER:
              Sau. Kamla Ramrao Rathod, Aged 40 years,
              occupation :        House Wife, resident of




                                                 
              Deurwadi, tahsil Manora,       District: Washim.
                                  VERSUS
    RESPONDENTS:
    1]        Additional Commissioner, Amravati, Division at




                                        
              Amravati.
    2]        Sau. Sadhana Dadarao Patil (Karsade), aged 40
                           
              years,     occupation : House Wife
    3]        Shri L.M. Ingle Deurwadi Presiding Officer,
              Grampanchayat
                          
    4]        Shri Vivek Vishnudas Ade, aged 23 years,
              occupation :        agriculturist
    5]        Sau. Vandana Arjuna Ade, aged 23 years,
              occupation :        House Wife
          


    6]        Uttam Pandurang Natkar, Aged 52 years,
              occupation :        Agriculturist,
       



              Both respondent no. 2 to 6 are resident of
              Deurwadi ,          Tahsil Manora, District :
              Washim.





    ================================
    Shri M.D. Modak, Advocate for petitioner
    Shri Sonare A.G.P. for respondent no.1
    Shri R.D. Bhuibhar, Advocate for respondents no.2,4 to 6.
    None present for Respondent no.3 though served





    ================================
    CORAM: S.R. DONGAONKAR, J.

DATE:22.1.2009

ORAL JUDGMENT

Rule. Made returnable forthwith. Heard finally

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with the consent of the parties.

2] The petitioner was elected as Sarpanch during the

election held on 28.12.2007 of Gram Panchayat Deurwadi.
Respondents no. 2,4,5 and 6 challenged that election before
the Additional Collector, Washim. Said petition was

dismissed. The ground that was raised to challenge the
election was that the Returning Officer had followed wrong

procedure of election which was not in accordance with Rule
10(2) of the Bombay Village Panchayats (Sarpanch & Upa-

Sarpanch) Election Rules. It appears to be a contention that

though the symbols to the candidates are not required to be
allotted, still they were allotted and the election was held by
secret ballot. As stated, the said petition was dismissed.

3] The matter was taken in appeal before the
Additional Commissioner, Amravati Division, Amravati by
respondents. Said appeal No.15/BVP Act 33(5)/2007-2008

of Deurwadi, Tq. Manora, District Washim, was allowed by
the order dated 17.10.2008. Learned Additional
Commissioner relied on the judgment of the Apex Court

reported in 1994 Mh.L.J. 100 [Jaenendrakumar Phoolchand
Daftari ..vs.. Rajendra Ramkush Mishra & others. According
to the Additional Commissioner, there is no provision under
the Bombay Village Panchayats (Sarpanch & Up-sarpanch)
Elections Rules to allot symbols to the contesting candidates.

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Even there are illiterate members who can cast their votes by

ballots. Taking this view of the matter, the learned
Commissioner allowed the appeal and set aside the election.

4] This order is challenged by the petitioner in this
petition.

5] Learned counsel for the petitioner has submitted

that merely because symbols were allotted to the contesting
candidates, there is no breach of the rules and particularly

rule 10(2). According to him, the decision of the Apex court

in 1994 Mh.L.J. 100 Jaenendrakumar Phoolchand Daftari
..vs.. Rajendra Ramsukh Mishra & others, is not attracted at
all, whereas the decision of this court reported in

2006(6)Mh.L.J. 801 Ratnamala w/o Ashokrao Shinde and

another ..vs.. Election Officer, Gram Panchayat, Palodi, is
squarely applicable.

6] According to him, the Returning Officer can evolve
his own procedure to ensure proper and fair election
progress. Rule 10(2) does not stipulate any procedure.

According to him, merely because symbols were allotted that
does not mean that there is any breach of rule or rule 10(2)
calling for setting aside the election. He has further
submitted that the decision of the Apex Court referred above
has been considered by this court in the aforesaid Ratnmala’s

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case and therefore, the reliance placed by the Additional

Commissioner, on that decision was not called for to allow
the appeal. It is therefore, submitted by him that the said

order should be set aside.

7] Learned A.G.P. for respondent no.1 has supported

the order of the Additional Commissioner for the reasons
recorded by him.

8] Learned counsel for the respondent no.2 has

however, by taking me through decision of the Apex Court

reported in 1994 Mh.L.J. 100 Jaenendrakumar Phoolchand
Daftari ..vs.. Rajendra Ramsukh Mishra and others submitted
that it was not necessary for Returning Officer to allot

symbols to the contesting candidates even when the the

voters are ill-literate who are to cast votes by ballot.
Therefore, procedure of the election as followed by the
Presiding Officer should not have been evolved. As such the

order passed by the Additional Collector, in pursuance to the
aforesaid decision of the Apex Court was correct, therefore,
it is not liable to be set aside. He has further submitted that

it is a finding of fact and therefore is not liable to be
interfered in this petition.

9] In order to appreciate the controversy in the
matter, it is necessary to have close look on the proceedings

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of the instant election which is thus

” This day 28.12.2007 i.e. Friday
election for the post of Sarpanch/ Upa
Sarpanch was held at Gram Panchayat Office

Deurwadi, under the chairmanship of Shri
L.M. Ingale (V.P.) Uttam Pandurang Natkar is
a proposer thereof. Another nomination form
for the post of Upa Sarpancha was received

from Shri Vivek Vishnudas Ade at 11.30 O’
clock in the morning Proposer thereof is Sau
Vandana Arjun Ade. Thereafter a nomination
form of Sau. Kamla Ramrao Rathod for the

post of Sarpancha was received at 11.50 O’
Clock in the morning. Proposer thereof is

Usha Ruprao. Similarly, second nomination
form for the post of Upa Sarpancha was

received from Deshmukh Usha Ruprao at
11.55 O’ clock in the morning. Proposer
thereof is Kamalsingh Mangalsingh.

Gram Panchayat members Sau.

Kamala Ramrao Rathod, Usha Ruprao

Deshmukh and Shri Komalsingh Mangusingh
Rathod by submitting an application, made a
demand for voting by secret ballot for both
the posts of residential Sarpancha and Upa

Sarpancha.

Similarly Grampanchayat members
Vivek Vishnudas Ade, Sau. Sadhanatai
Dadarao Patil, Uttam Pandurang Natkar and

Sau Vandana Arjun Ade, submitted an
application with their signatures for taking
voting openly by show of hands.

On receipt of the application for
voting by secret ballot, a resolution was
passed to take voting by secret ballot for the
both the posts i.e. of Sarpancha and Upa

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Sarpancha, as per the rules.

The meeting commenced at 2.00
O’clock sharp. All the seven out of total seven

members were present. As the quorum was
full, the meeting was commenced. At first, the
Presiding Officer made the members aware of
the secret ballot and informed them about it.

All the members gave their consent to it.
Accordingly ballot papers were prepared for
the post of Sarpancha.

Name of 1] Sau. Sadhana Dadarao
Patil who was the candidate for the post of

Sarpanch was written against which she was
allotted a symbol of ‘Chendu’ (ball) as
demanded by her. Name of Sau. Kamala

Ramrao Rathod who was another candidate fo
the post of Sarpancha was written on the
ballot paper, against which she was allotted a
symbol of ‘Bird’ as demanded by her. Total

seven ballot papers were prepared for the post
of Sarpancha and one dummy ballot paper

was prepared for showing it to the candidates.
Name of Vivek Vishnudas Ade who was the
candidate for the post of Upa Sarpancha was

written and as demanded by him, he was
allotted a symbol of ‘Pencil’. Name of Usha
Ruprao Deshmukh who was another
candidate for the post of Upa Sarpancha was
written and a symbol of ‘Flower’ was allotted

to her as demanded by her. Total 7 ballot
papers were prepared for the post of Upa
Sarpancha and 1 dummy ballot paper was
prepared for showing it to the candidates.
Thereafter ballot papers and dummy ballot
papers were shown and instructions were
given for secret voting.

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At first election was held for the
post of Sarpanch and thereafter election was

held for the post of Upa Sarpancha and the
ballot papers – were deposited in (a card-

board) box.

On counting of the ballot papers,
Sau Sadhana Dadarao Patil was found to have

secured 3 (three) votes for the post of
Sarpancha whereas Sau. Kamala Ramrao
Rathod was found to have secured 3 votes for
the post of Sarpancha. One ballot paper for

the post of Sarpanch was found without a
vote being cast. (blank). As both the

candidates for the post of Sarpancha secured
equal No. of votes, discussion was held and
Ishwar Chitthi [draw by lot] was carried

through Roshan Ramesh Ade, aged 5 years,
resident of Chitwali. The Ishwar Chitthi (draw
by lot) was found to be in favour of Sau.
Kamala Ramrao Rathod. Hence I L.M. Ingale

Chairman, Gram Panchayat Deurwadi hereby
declare Sau. Kamala Ramrao Rathod elected

for the post of Sarpancha of Gram Panchayat
Deurwadi.

Similarly on counting the ballot
papers for the post of Upa Sarpancha, it was
found that Shri Vivek Vishnudas Ade had
secured 4 (four) votes and Deshmukh Usha
Ruprao, another candidate for the said post

had secured 3(three) votes. Hence I hereby
declare Vivek Vishnudas Ade elected for the
post of Upa Sarpancha.

                    At the    end, the   meeting     was
          declared over."

    10]    Only allotment of symbols was something which




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was not provided in the rules. Rest of the procedure followed

is not at all challenged.

11] In order to consider as to whether such allotment
of symbol could vitiate the election, one has to examine the

relevant rule. Rule 10(2) reads thus:

“10(2):(2) If more than one candidate have
been so nominated, the Presiding Officer shall

proceed to elect the Sarpanch 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 voters
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 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.”

12] It cannot be disputed that there is no particular
procedure provided by Rule 10(2) and Presiding Officer is
free to evolve his own procedure for ensuring fair procedure,
particularly; if demand of secret ballot is made. It is
necessary to note that granting symbols to the contesting

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candidates is not specifically prohibited under that rule.

However contention for implied prohibition has been raised
on the basis of observations of the Apex Court in paragraph

9 of the Janendrakumar’s case. Paragraph 9 reads thus:

“9. There is no provision in the Rules
requiring allotment by the Presiding Officer of

symbols to candidates, where the voting of the
members of the Panchayat for the election of
the Sarpanch or Upa Sarpanch by means of
secret Ballot becomes necessary. Such

provision is not envisaged since the Presiding
Officer cannot be expected to get the ballot

papers with symbols ready all of a sudden in
the meeting wherein the election has to be
completed. However, if a situation arises

where an illiterate member is required to vote,
that fact may be borne in mind of the
Presiding Officer and he may evolve a
procedure which would enable the illiterate

members to vote, e.g. if there are two or mor
more candidates, he may ask the member to

put a cross mark for candidate A, a zeros mark
for candidate B and so on or the Presiding
Officer may assist such a member to cast the

vote for the candidate of his or her choice. In
such situations, the Presiding Officer, could, as
well, record in the minutes of the meeting, as
to how, he has rendered the assistance to a
member who could not caste his vote by

ballot, in the usual course, for such recording
may help in avoiding future controversies on
the matter. Hence, it is not necessary for the
Presiding Officer, presiding over the election
meeting convened for electing Sarpanch or
Upa Sarpanch to allot symbols to contesting
candidates even where there are illiterates
among members who have to cast their votes

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by ballot. This is our answer to Point-2.”

It would appear on perusal of these observations along with
observations in paragraph 7 of the said judgment which

reads thus:

“7. According to sub rule (2), the
Presiding Officer conducting the election of

the Sarpanch or the Upa Sarpanch among the
contents in a meeting of the members of the
Panchayat concerned convened for the
purpose, is required to call upon such

members to vote by show of hands. But, it
requires the Presiding Officer to carry out

such election by secret ballot if any members
present at the meeting, makes a demand in
that regard. Thus, the sub rule clearly specifies

the method by which the Presiding Officer
shall proceed to have the Sarpannch or Upa
Sarpanch, as the case may be, elected.
However, the question is, whether the sub rule

permits the Presiding Officer of the election
meeting to have the Sarpanch or Upa

Sarpanch, as the case may be elected, by
calling the voter to elect the Sarpanch, by
show of hands or by voting by ballot,

according to his choice. If it is to be so held,
the requirement of holding of election by
ballot on demand by any member present at
the meeting convened under the sub-rule,
becomes superfluous. No requirement in a rule

can be unwarranted anomaly. Having regard
to the requirement of the provision which
specifically provides as to how the Presiding
Officer has to proceed to elect the Sarpanch or
Upa Sarpanch, as the case may be, we find it
difficult to think that the Presiding Officer is
given the choice or liberty of proceeding to
have the Sarpanch or Upa Sarpanch elected in

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a manner different from that indicated in the
provisions in sub rule (2) of Rule 10: hence,

the provision in Rule 10(2) of the Rules, in our
view, makes it incumbent on the Presiding

Officer to proceed to elect the Sarpanch or
Upa Sarpanch, as the case may be, in a
meeting to elect the Sarpanch or Upa
Sarpanch, as the case may be by show of

hands unless there is a demand by any
member present at the meeting to proceed
with the election of the Sarpanch or Upa
Sarpanch, as the case may be, by having

recourse to voting by secret ballot.”

that recourse to the secret ballot has to be taken when there
is such demand.

13] Here is the case where such demand was made.
There was objection to this also because some of the

members of the Gram Panchayat had asked for voting by

raise of hands. Thereafter, it was decided that there should
be voting by secret ballot, later on respondent no.2 asked
for symbol of “ball”. Petitioner at her choice was granted

symbol of “bird”. Thus it appears that contesting candidates
had asked for symbols and they did not object at any time for
allotment of symbols nor claimed that there should be an

election, by secret ballots as indicated by the Hon. Apex
Court in paragraph 9 of the aforesaid judgment. In my
opinion, therefore, once the respondent no.2 had acceded to
the procedure evolved by the Presiding Officer, she should be
estopped from claiming it to be illegal and to challenge the

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election of the petitioner on that ground particularly when

no prejudice is seen to be caused to her.

14] On careful perusal of the observations of the Apex
Court in paragraph 9 of the judgment referred above, it would
be difficult to hold that allotment of symbols was totally

prohibited, though it was observed that it was not necessary.
Particularly, in the facts of the instant case and the proceeding,
which I have extracted above, challenge of the respondent no.2

to the Election on this ground cannot be upheld.

15] In this context, it is necessary to see the

observations of the learned Single Judge in 2006(6) Mh.l.J.
801 Ratnamala w/o Ashokrao Shinde & another ..vs..
Election Officer, Gram Panchayat, Palodi :

“The election procedure adopted by the

nominated election officer cannot be
invalidated for minor irregularities which are
highlighted in the impugned orders of the

Additional Collector and Additional
Commissioner
and the facts therein and in particular the observations in
paragraph 14 which reads thus:

“14-Faced with this difficulty, learned

counsel, Shri Chincholkar would submit that
this Court should not interfere with the
finding of fact as recorded by both the
authorities in view of scope of Article 227.
He seeks to rely on Roshanlal (dead) by Lrs.
..vs.. State of Rajasthan and others, (2004)
13 SCC 559 and Essen Deinki ..vs.. Rajiv
Kumar, (2002) 8 SCC 400. In the given case,

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the Apex Court has observed that only the
errors of law, perverse finding and gross

violations of natural justice, to name a few,
are available grounds to interfere in writ

jurisdiction under Article 227.”

16] It would be seen that when there is patent error

committed by the Additional Commissioner in deciding the
matter and allowing the appeal, same has to be interfered
with; in the writ jurisdiction of this court, under article 227

as there appears totally incorrect application of law to the
facts of the case.

17] In this view of the matter, the petition succeeds.
The order passed by the Additional Commissioner, Amravati,
impugned in this petition is hereby quashed and set aside

and the order of Additional District Collector, Washim, is

hereby restored.

18] Rule made absolute in the aforesaid terms. No

order as to costs.

JUDGE
smp.

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