A.S. CHANDURKAR, J.

1. The question that arises for consideration in this writ petition is whether a candidate after unsuccessfully contesting an election without raising any objection can thereafter challenge the said election on the ground that it was conducted by the Returning Officer who had no authority in law to conduct the meeting in which the said election was held.

2. Rule. Heard finally with consent of learned counsel for the parties.

The facts lie in a narrow compass. Elections were held to the post of Sarpanch of Gram Panchayat Vyad, Taluka Risod, District Washim. The Deputy Collector issued a notice on 31/07/2018 convening a meeting for electing the Sarpanch to the said Gram Panchayat on 09/08/2018 and deputed the Tahsildar to conduct the said meeting. The Tahsildar thereafter on 01/08/2018 directed the Circle Officer to preside over the meeting that was to be held on 09/08/2018. In the elections that were so held on 09/08/2018 the petitioner secured seven votes while the respondent No.1 secured four votes. The petitioner was accordingly declared elected to the post of Sarpanch. The respondent No.1 thereafter filed a dispute under Section 33(5) of the Maharashtra Village Panchayats Act, 1959 (for short, the said Act) challenging the election of the petitioner. According to the respondent No.1, the Circle Officer was not authorised to act as the Presiding Officer in the said meeting. Referring to the provisions of Section 33(2) of the said Act, it was the case of the respondent No.1 that the meeting could be presided over only by an officer who the Collector may appoint in that behalf. The Collector having appointed the Tahsildar to preside over the said meeting, it was not permissible for the Tahsildar in turn to delegate those powers to the Circle Officer. On this count the conduct of the meeting itself was illegal and contrary to the statutory provisions. Other challenges raised were that the petitioner had three issues and was therefore disqualified under provisions of Section 14(1)(j-i) of the said Act.

Reply was filed on behalf of the petitioner opposing the aforesaid dispute. The Collector by the order dated 22/10/2018 recorded a finding that the Tahsildar was not empowered to delegate his authority to the Circle Officer to conduct the meeting and the same was in violation of the provisions of Section 33(2) of the said Act. On that count the election of the petitioner was held to be illegal and the same was accordingly set aside. The petitioner then filed an appeal before the Divisional Commissioner under provisions of Section 33(5) of the said Act. The Divisional Commissioner confirmed the order passed by the Collector and held the petitioner not entitled to hold the post of Sarpanch. Being aggrieved the said orders are challenged in the present writ petition.

3. Shri R.L. Khapre, learned counsel for the petitioner submitted that both the Authorities erred in accepting the challenge as sought to be raised by the respondent No.1 to the election of the petitioner as Sarpanch. He did not dispute the position that under provisions of Section 33(2) of the said Act the meeting to elect the Sarpanch was required to be presided over by the officer as appointed by the Collector and in the present case such officer was the Tahsildar. Further sub-delegation by the Tahsildar in favour of the Circle Officer was not permissible. However, the respondent No.1 was estopped from raising this objection in view of the fact that the respondent No.1 had willingly participated in the election that was held on 09/08/2018 and only after losing the same he had chosen to challenge the petitioner’s election on that count. Having acquiesced to the conduct of the special meeting by the Circle Officer and thereafter having taken a chance to be elected as Sarpanch, it was not open for the respondent No.1 to raise the aforesaid dispute after losing the elections. In that regard the learned counsel placed reliance on the decision in Pa