The absence of specific rules for conducting secret ballot elections and the need for evidence of prearrangement or prejudice to the losing candidate to invalidate the election.

Heard Shri Sandeep Chopde, Advocate, for the petitioner. Shri Jaiswal, A.G.P. for respondent Nos. 1 to 3 and Shri P. C. Madkholkar, Advocate, for respondent No.5. None for respondent No.4. Rule made returnable forthwith. Heard finally with the consent of the parties.

2. The petitioner, by way of this petition under Articles 226 and 227 of the Constitution of India seeks to challenge the order passed by Additional Commissioner, Amravati Division, Amravati, in Appeal No. 13/BVP Act 16(2)/2007-08 of Bhaurad, Tq. and Distt. Akola, by which he set aside the order of the Additional Collector, Akola, in the matter of Election Dispute No. Bhaurad/4/2007-08 under section 33(5) of the Bombay Village Panchayat Act.

3. The petitioner was elected as Sarpanch in the election held on 29-122007 of Gram Panchayat Bhaurad. He is an elected member of the said Gram Panchayat, Bhaurad. So also respondent No.5. Total strength of members of Gram Panchayat Bhaurad is 17. The petitioner and respondent No.5 contested the said election for the post of Sarpanch. The petitioner got elected. The petitioner had received 9 votes, whereas respondent No.5 received 8 votes. The voting as per the demand of the members was by secret ballot. The respondent No. 5 challenged the above election of petitioner as Sarpanch by filing dispute under section 33(5) of the Bombay Village Panchayat Act, 1958, before the respondent No.2 - Additional Collector, Akola. The main ground on which the election of the petitioner to the post of Sarpanch was challenged was that there were distinguishing marks on 3 ballot papers voted in favour of the petitioner and therefore, those ballot papers should have been rejected as invalid votes.

4. After hearing the parties, the learned Additional Collector rejected the complaint of respondent No.5.

5. Respondent No. 5 then preferred appeal before the Commissioner, Amravati Division, Amravati. The learned Additional Commissioner passed the impugned order on 6th September, 2008. He allowed the appeal of respondent No.5 and thereby set aside the order of respondent No.2 - Additional Collector, Akola, whereby the petitioner's election as Sarpanch was quashed. This order of the Additional Commissioner, Amravati Division, Amravati, is challenged in this petition.

6. This Court, by the order dated 15th September, 2008, directed to maintain status-quo and the notice before admission was issued. Later on, considering the circumstances, the matter was directed to be heard finally at the stage of admission itself. Accordingly, I have heard the learned counsel for the parties in extenso.

7. Learned counsel for the petitioner has submitted that the petitioner was elected to the post of Sarpanch on 29-12-2007. The present petitioner secured 9 votes, whereas the respondent No. 5 obtained 8 votes; in the total strength of members of 17. According to him, the election has to be held normally by show of hands, however, if there is demand of election by way of ballots, the same can be accepted and in view of Rule 10(2) of Bombay Village Panchayats (Sarpanch and Up-Sarpanch) Election Rules, 1964, the procedure for election can be evolved by the Presiding Officer. According to him, there is no specific procedure prescribed for such election and therefore, unless there is a clear cut and express provision in the rules to invalidate the ballot papers having some signs, such rejections of those ballot would not be proper and legal. According to him, this was not the issue raised by the respondent No.5 at the time of election or counting of votes. Further according to him, there was no prearrangement proved or alleged between the petitioner and any of the voters, particularly for those 3 votes. The names of those 3 voters could not be identified simply because of the marks noticed on the ballots. According to him, the affidavit of Election Officer shows that there was possibility of making these marks only after counting of votes, as there was no record of such