Oral Judgment:

Rule. Made returnable forthwith. Heard finally with the consent of the parties.

2] The petitioner was elected as Sarpanch during the election held on 212.2007 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 110.2008. 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. 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 Ratnmalas 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 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 of the instant election which is thus

“This day 212.2007 i.e. Friday election for the post of Sarpanch/ Upa Sarpanch was held at Gram Panchayat Off