1. The Petitioner is aggrieved by the order dated 13.12.2016 passed by the Additional Collector, Nanded by which, the election of the Petitioner as an UpaSarpanch of village Kothari, has been set aside on account of breach of Rule 10(2) of the Bombay Village Panchayats (Sarpanch and UpaSarpanch) Election Rules, 1964 (herein after referred to as "the said Rules, 1964").

2. The Petitioner is also aggrieved by the order dated 20.11.2017 passed by the Additional Commissioner, Aurangabad by which, the appeal filed by the Petitioner against the order dated 13.12.2016, has been dismissed.

3. I have considered the strenuous submissions of the learned Advocate for the Petitioner and the learned AGP on behalf of Respondent Nos. 1, 2 and 4.

4. The entire dispute turns upon Rule 10 of the said Rules, 1964.

5. A special meeting was convened by the Tahasildar on 29.07.2016 for conducting the elections to the positions of Sarpanch and UpaSarpanch of the said village. Before the meeting could commence, five members, out of the nine elected members to the Village Panchayat, approached the Chairperson with a memorandum signed by each of them praying for conducting the elections by "show of hands". The said Village Panchayat actually has a membership of eleven members. For some reasons, two seats have been kept vacant and only nine persons were elected. On the date of the special meeting, a maximum of nine elected members were available, who were eligible to sit in the meeting and vote.

6. However, one elected member by name Prabhakar Ghanshyam Meshram also made an application to the Chairperson at the same moment praying that the voting for the elections should be conducted by "secret ballot". As five persons have requested for elections to be conducted by show of hands, the Chairperson ignored the application filed by Prabhakar Meshram and conducted the elections by show of hands. The Petitioner and Respondent No. 6 were elected as UpaSarpanch and Sarpanch, respectively, in such a special meeting. Both are a part of the said group of five members.

7. Prabhakar Meshram raised a Dispute before the District Collector under Section 33(5) of the Maharashtra Village Panchayats Act, 1958. By the impugned judgment dated 13.12.2016, the District Collector concluded that when one person had prayed for voting to be conducted by secret ballot, the Chairperson could not have ignored his request. The Dispute was allowed and the elections were set aside.

8. For similar reasons, the appeal of the Petitioner was dismissed by the Additional Commissioner by the impugned judgment dated 20.11.2017.

9. The learned Advocate for the Petitioner has strenuously criticized the impugned orders and contends that the normal rule is to conduct the elections by show of hands. It is only by way of an exception that the elections can be conducted by secret ballot. He further submits that five members, who formed the majority view on the basis of which, the Petitioner has been elected, have always been together. They have voted in favour of the Petitioner in the elections and have also stood by him before the Authorities below in the proceedings. Even if the voting was to be conducted by secret ballot, the Petitioner would have been elected. The mandate of the majority cannot be ignored by the Authorities below.

10. The learned AGP submits that Rule 10(2) of the said Rules, 1964 is very clear and requires no interpretation. Even if one person prayed for voting by secret ballot, the rule prescribes that his request has to be respected keeping in view that the voting normally is to be conducted by show of hands. He, therefore, submits that the impugned orders cannot be termed as being perverse or erroneous.

11. For clarity, it would be apposite to reproduce Rule 10(1) and (2) of the said Rules, 1964 as under:

"10. Procedure for election :

(1) If only one candidate has been duly nominated for the office of the Sarpanch or UpaSarpanch, he shall be declared to have been duly elected a