Kavita Prashant Kapse And Others APPELLANT @Hash Additional Commissioner, Amravati Division, Amravati And Other

Rohit B. Deo, J

Heard Shri A.S. Dhore, learned Counsel for the petitioners, Shri A.V. Palshikar, learned Assistant Government Pleader for respondents 1 and 2,

Shri C.J. Dhumane, learned Counsel for respondent 3 and Shri M.P. Kariya, learned Counsel for respondents 4 to 6.

2. Rule. Rule is made returnable forthwith by consent of the learned Counsel for the parties.

3. Since identical issue is involved in these petitions, they are heard together and decided by this common judgment.

4. The seminal issue which falls for consideration is whether the elections to the office of Sarpanch and UpaÂ​Sarpanch of Village Panchayat

Hiwra Darne is conducted in fair, transparent and confidence inspiring manner.

5. GramÂ​Panchayat Hiwra Darne comprises seven members and the elections to the office of Sarpanch and UpaÂ​Sarpanch were scheduled on

07Â​5Â​2015.

6. In view of the provisions of Rule 10 of the Maharashtra Village Panchayats (Sarpanch and UpÂ​Sarpanch) Election Rules, 1964 (“Rulesâ€​ for

short), the Election Officer directed voting by secret ballot since respondent 4 demanded voting by ballot.

7. Respondent 4 is declared elected as UpaÂ​Sarpanch and respondent 5 is declared elected as Sarpanch by 4Â​3 majority. However, four members

of the GramÂ​Panchayat are before this Court calling in question the election process, having failed in the challenge to the election process, before the

Collector and the Commissioner.

8Â . Section 33 of the Maharashtra Village Panchayats Act reads thus :

“33. Procedure for election of Sarpanch and UpaÂ​ Sarpanch.

(1)Â On the establishment of a Panchayats for the first time under this Act, or on its reconstitution or establishment under Sections 145 and 146, or

on the expiry of the term (Â​Â​Â​) of a Panchayat a meeting shall be called on the date fixed under subÂ​section (1) of Section 28 by the (Collector), for

the election of the Sarpanch and UpaÂ​Sarpanch. In the case where the offices of both the Sarpanch and UpaÂ​Sarpanch become vacant

simultaneously, a meeting shall be called on the date fixed by the (Collector), for the election of the Sarpanch and UpaÂ​ Sarpanch.

(2)Â The meeting called under subÂ​section (1) shall be presided over by such officer as the (Collector) may by order appoint in this behalf. The

officer aforesaid shall, when presiding over such meeting, have the powers and follow the procedure prescribed, but shall not have the right to vote.

(3)Â No business other than the election of the Sarpanch and UpaÂ​Sarpanch shall be transacted at such meeting.

(4)Â If in the election of the Sarpanch or UpaÂ​Sarpanch there is an equality of votes, the result of the election shall be decided by lot drawn in the

presence of the officer presiding in such manner as he may determine.

(5)Â In the event of a dispute arising as to the validity of the election of a Sarpanch or UpaÂ​Sarpanch under subÂ​section

(1)Â [(the officer presiding over such meeting or any member (Â​Â​Â​Â​Â​) 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]].â€​

Rule 10 of the Rules reads thus :

“10. Procedure for election â€" (1) If only one candidate has been duly nominated for the office of the Sarpanch or UpaÂ​ Sarpanch, he shall be

declared to have been duly elected as Sarpanch or, as the case may be, UpaÂ​Sarpanch.

(2)Â If more than one candidate have been so nominated, the Presiding Officer shall proceed to elect the Sarpanch or as the case may be, UpaÂ​‐

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, UpaÂ​‐

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, UpaÂ​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.â€​

9. Section 21 of the Act emphasizes that secrecy of voting be maintained where an election is held by ballot. It would be relevant to reproduce

Section 21 of the Act which reads thus :

“21. Maintenance of secrecy of voting.

(1)Â Where an election is held by ballot, every officer, clerk, agent or other person who performs any duty in connection with the recording or

counting of votes at an election shall maintain and aid in maintaining, the secrecy of the voting and shall not (except for some purpose authorised by or

under any law) communicate to any person any information calculate to violate such secrecy.

(2)Â Any person who contravenes the provisions of subÂ​section (1)Â shall, on conviction, be punished with imprisonment for a term which may

extend to three months or with fine or with both.â€​

Even de hors the letter and spirit of Section 21 of the Act, it need not be overemphasized that any election process held by ballot would stand vitiated

if the secrecy of voting is compromised. The legislative intentment underlying provision for voting by ballot would stand frustrated if secrecy is not

maintained in voting.

10. The material on record would irrefutably indicate that the voters were directed to deposit the ballot papers in an open glass. Indeed, this appears

to be a position which is not disputed. It is further uncontroverted that the premises in which the election process was conducted comprised two rooms

and the open glass in which the ballot papers were deposited was kept in the inner room. The submission of Shri M.P. Kariya, learned Counsel for the

elected Sarpanch and the UpaÂ​Sarpanch is that the Election Officer was present in the inner room when the voters deposited the ballot papers in the

open glass. However, the learned Counsel who appears on behalf of the Election Officer fairly states that the Election Officer was not present in the

inner room when the voters deposited the ballot papers in the open glass. The statement made by the learned Counsel for the Election Officer is

consistent with the reply filed by the Election Officer in response to the appeal preferred before the Collector. Shri M.P. Kariya would then submit

that one of the two police constables who were on duty was present in the voting room. This submission is not supported by the material on record,

and indeed, it is not even the stand of the Election Officer that one policeman was present inside the voting room and that the voters deposited the

ballot papers in the presence of the policeman.

11. Shri M.P. Kariya would strenuously urge, that since the Election Officer who recorded the proceedings has stated in the reply filed before the

Collector that the voters did not object to the voting process, the challenge to the elections deserves to be dismissed unceremoniously as an after

thought. Shri M.P. Kariya would rely on a decision of a learned Single Judge of this Court in Subhas Manikrao Lavhale vs. Additional Commissioner,

Amravati and others reported in 2009(5) Mh.L.J. 511 and in particular on paragraphs 23 and 26 which read thus :

“23. In my opinion, when there was no objection or any grievance raised by respondent No.5 at the time of counting and declaration of result;

merely because some marks were there on three ballot papers, that would not invalidate the said ballot papers. It is observed by this Court in 2006(6)

Mh.L.J. 801 = 2007(1) ALL MR 741, Ratnamala Ashokrao Shinde and anr. vs. Election Officer, Gram Panchayat Palodi; that there is no specific

procedure prescribed for such election. The Election Officer can evolve his own procedure. He is quite free in conducting such election. However, he

has to ensure fair election, particularly when demand of secret ballot is made.

26. The petition is allowed. The impugned order of Additional Commissioner dated 6th September, 2008, is hereby quashed and set aside and that of

the Additional Collector dated 28Â​2Â​2008 is restored. Rule made absolute in above terms. No order as to costs.â€​

The decision which is pressed into service does not take the case of the Sarpanch and UpaÂ​Sarpanch any further. The learned Single Judge was

considering a contention that the presence of some marks on three ballot papers would compromise the secrecy of ballot voting. The learned Single

Judge observes that an irregularity in the procedure of election would not invalidate the election unless there is specific evidence to show the possibility

of prearrangement between the voters and the candidate or any prejudice caused to loser candidate. In the facts at hand, the material would

irrefutably show that the secrecy of voting, which is the very edifice of the sanctity of voting by ballot, stood compromised. The votes were cast in

an open glass which was left unattended in the voting room. The voters including the candidates had a free rein since neither the Election Officer nor

the policeman on duty was in attendance when the voters cast their votes in the inner room in which the open glass was kept. In a democracy, if the

elections are held by ballot, even a strong possibility that the secrecy of the voting stood compromised, would vitiate the election process.

12. The petitioners have specifically averred, inter alia in paragraph 8 of the petition that immediately after counting of votes, a written protest was

lodged with the Election Officer who refused to accept the written protest and directed the petitioners to approach the Tahsildar. Be it noted, that the

Election Officer has not controverted the averments in the petition by filing an affidavitÂ​inÂ​reply in the writ proceedings. The Election Officer is

relying on the reply filed before the Collector. A perusal of the reply filed by the Election Officer before the Collector would reveal that while the

Election Officer does aver that during the process there was no objection received from any voter, there is no denial of the protest lodged after the

conclusion of the voting and the election result coming into public domain. It must be held, that the Election Officer has failed to rebut the averments in

paragraph 8 of the petition. That apart, since the conscious of the Court is satisfied that the procedure adopted is fundamentally flawed and the

ultimate casualty is the secrecy of voting, that there was no objection raised during the process of voting, is rendered insignificant.

13. The petitions are allowed in terms of prayer clause (i) which reads thus :

In Writ Petition 306/2017 :

“(i) Quash and set aside the order dated 30Â​08Â​2016 (AnnexureÂ​A) passed by the respondent no.1Â​Additional Commissioner, Amravati

Division, Amravati in Appeal No.39/BVP/16(2)/33/Hiwra Darne/2015Â​16 and the order dated 09Â​12Â​2015 (AnnexureÂ​B) passed by the respondent

no.2Â​Additional Collector, Yavatmal in GP. Dispute Case No.34/69/33(5)/2015 Mouza Hiwra Darne, and thereby allow the application/GP. Dispute

Case No.34/69/33(5)/2015 (AnnexureÂ​E) MouzaÂ​Hiwra Darne filed by the petitioners;

In Writ Petition 307/2017 :

“(i) Quash and set aside the order dated 30Â​08Â​2016 (AnnexureÂ​A) passed by the respondent no.1Â​Additional Commissioner, Amravati

Division, Amravati in Appeal No.40/BVP/16(2)/33/Hiwra Darne/2015Â​16 and the order dated 09Â​12Â​2015 (AnnexureÂ​B) passed by the respondent

no.2Â​Additional Collector, Yavatmal in GP. Dispute Case No.33/69/33(5)/2015 Mouza Hiwra Darne, and thereby allow the application/GP. Dispute

Case No.33/69/33(5)/2015 (AnnexureÂ​E) MouzaÂ​Hiwra Darne filed by the petitioners;

14. The Collector, Yavatmal is directed to conduct fresh elections to the office of Sarpanch and UpaÂ​Sarpanch of Hiwra Darne

GramÂ​Panchayat within four weeks.

15. Rule is made absolute in the afore stated terms.