Rule 10 of the Sarpanch Election Rules, which mandates voting by secret ballot upon demand by any member, is mandatory and its non-compliance vitiates the entire election.

DHARMADHIKARI J.-In this writ petition the petitioner who is an elected candidate of Sidhnerli village Panchayat in Taluka Kagal of Kolhapur district has challenged the election of respondents Nos. 3 and 4 as Sarpanch and Upsarpanch respectively of the said Village Panchayat. After the election to the Village Panchayat was held, the Presiding Officer for the elections of Sarpanch and Deputy or Up-Sarpanch fixed the election for the said posts on 29th of May 1978. At the time of this election of the Sarpanch and Upsarpanch the petitioner Maruti Bandu Patil, who was also one of the candidates, filed a written application before the Presiding Officer requesting him that voting for the said election should be by a secret ballot. This request was opposed by 7 members of the Village Panchayat and the said members contended that voting should take place by show of hands. The Presiding Officer took a decision that voting should take place by show of hands and for this decision he gave the reason that four members of the said Village Panchayat are illiterate and they would not be in a position to understand and follow the procedure of voting by secret ballot. Thereafter the elections to the posts of Sarpanch and UpaSarpanch were carried out by show of hands and the petitioner lost the election by a margin of one vote. Respondent No.3 secured 7 votes and the petitioner got 6 votes. Voting for election of Upasarpanch was also by show of hands. Being aggrieved by this result of elections the petitioner filed a dispute under section 33 (5) of the Bombay Village Panchayat Act, 1958 before the Collector of Kolhapur. The Collector of Kolhapur came to the conclusion that the refusal to allow the voting by secret ballot does not vitiate the election of Sarpanch or Upasarpanch and therefore the Collector dismissed the said election dispute vide his order dated 22nd July 1978.

2. Being aggrieved by this order of the Collector, Kolhapur the petitioner filed an appeal under section 33(5) of the Bombay Village Panchayat Act, 1958 before the Commissioner, Pune Division, Pune. The Additional Commissioner, Pune vide his Order dated 4-11-1978 confirmed the finding recorded by the Collector, Kolhapur and came to the conclusion that the appellant has not been able to prove that the so called irregularity or illegality has materially affected the result of the election and in this view of the matter he dismissed the appeal.

3. Being aggrieved by these orders the, present writ petition is filed by the petitioner. Shri Bhimrao Naik, learned counsel appearing for the petitioner contended before us that the procedure laid down by Rule 10 of the Sarpanch Election Rules framed under the Bombay Village Panchayat Act, 1958 is mandatory in nature. According to him, the illegality of not holding the election by a secret ballot goes to the very root of the election and, therefore, in such a case further question as to whether result of the election has been materially affected or not is wholly irrelevant.

4. On the other hand it is contended by Shri Jahagirdar, learned counsel appearing for the respondents that the authorities below were right in coming to the conclusion that the discretion has been rightly exercised by the Presiding Officer in not holding the election by a secret ballot as four members of the Village Panchayat were illiterate. He further contended that the provisions of Rule 10 are directory and not mandatory. He also contended that assuming that the said provision is mandatory, it is impossible to comply with the said provision as no procedure has been laid down in the said Rules as to how the election should be held by a secret ballot if a voter member is illiterate. The learned counsel further contended that assuming that the said provision is mandatory, the election of the respondent cannot be set aside until it is established by adducing cogent evidence that because of the non-compliance of the said Rules the result of the election has