B.P. Dharmadhikari, J.

1. Challenge is to order of respondent 3 Tahasildar, Badnapur cancelling the voting /poll scheduled on 24.10.2010 for division no. 3 of Gram Panchayat, Badnapur during its general elections in 2010 due to death of contestant Shri Chandramani Ramchandra Ragde on 23.10.2010. This has been done under Rule 14-A of the Bombay Gram Panchayat (Election) Rules,1959; hereinafter referred to as 1959 Rules framed under Bombay Village Panchayat Act, 1958, referred as 1958 Act. This Court issued notice on 2.11.2010 and on 6.11.2010, this Court stayed part of order countermanding the poll which affected other two seats in said division viz. open seat & OBC(woman) seat. The election of Sarpancha & Deputy Sarpancha was made subject to outcome of this writ petition & a connected writ petition. On 24.11.2010, the subsequent election programme was stayed. Petition was allowed to be amended on 9.12.2010 to assail proposed holding of elections from ward/division no. 2 from open & OBC (woman) category. On 24.4.2012, this Court opined that petition required expeditious final disposal. Question to be decided is whether respondent 3 Tahasildar was justified in countermanding the entire poll from ward no. 2 or then only poll from SC category needed cancellation thereby permitting the polling for open & OBC (woman) categories to proceed. The facts essential for resolving the controversy are stated by us above and the same are not in dispute.

2. We have heard finally advocate Shri Dhorde with Adv. Kute for petitioner & Senior Adv. Shri Dixit with Adv. Gavare for Respondents 6 to 10. Adv. S.T. Shelke for respondents 2 & 4 and AGP Adv. Chaudhary for respondents 1 & 3 with consent and by issuing Rule and making it returnable forthwith.

3. Learned Advocate Shri Dhorde submits that there were three independent elections in ward no. 2 with separate ballot papers and one had no bearing on the other. Hence, only election from SC category needed to be held again & respondent 3 has acted arbitrarily in countermanding the poll for open & OBC (woman) seats. Relying upon Rule 14-A of the 1959 Rules, he submits that said order of Tahasildar is without jurisdiction & unsustainable. As said order is liable to fall, the direction to hold poll for open & OBC (woman) categories in ward no. 2 must be issued.

4. Learned Senior Advocate Shri Dixit contends that entire election from ward no. 2 must be viewed as one and it can not be treated as separate fro each category. Rule 14-A itself mandates commencement of fresh process in such situation & this is already recognized by the respondent 2 State Election Commission in its communication dated 11.11.1997. He draws support from Rule 34 of the 1959 Rules to point out bearing of such death on entire election in ward no. 2. According to him on EVM (electronic voting machine) all three categories appear on one screen, voting is to be done simultaneously & a voter may or may not cast vote for all categories. Therefore instruction no. 15 issued by respondent 2 on 28.3.2007 is relevant and instruction no. 2(2) defining the constituency recognizes entire division or ward as one constituency. Thus, in case of death, entire poll from ward no. 2 has been rightly countermanded. Adv. Dixit points out that period of more than 2 years has already expired & hence, in such situation, even public interest warrants a democratic approach & holding of the entire process afresh. Respective other advocates attempt to elaborate this line of arguments only. They pray for dismissal of writ petition & for vacation of the interim relief.

5. Rule 2 (2) defines “Election” to mean an election held to elect a member to a panchayat. Form of nomination ie Form “A” under Rule 8 is common fro all and when in a ward, reserved seat is available, the person desirous of contesting against it has to state whether he is belonging to such reserved category. Most important provision is Rule 34 of 1959 Rules.

Relevant provision of Rule