IMPORTANT POINT
The mandatory requirement for conducting elections by secret ballot when requested by any member, as stipulated in Rule 10(2) of the Bombay Village Panchyats (Election to Sarpanch and Upa-Sarpanch) Rules, 1964, is essential to uphold the integrity of the electoral process.

JUDGMENT/ORDER

KISHORE C.SANT, J. - The present petition is by Upa-Sarpanch of the Grampanchyat, Pangri, Tq. Mantha, District Jalna, challenging the proceedings and subsequent orders in respect of an election to the post of Upa-Sarpanch. The petitioner is challenging the judgment and order dtd. 16/11/2021 passed by the learned Additional Divisional Commissioner-1, Aurangabad in an appeal filed by the petitioner, whereby an order is passed by the learned Collector in a dispute filed by respondent No. 4. The learned Collector by the judgment and order allowed the dispute holding that election of the petitioner to the post of Upa-Sarpanch is illegal and set aside the election.

2. The facts in short are as follows : An election to the post of 11 members to the Grampanchyat was held in the month of January, 2021. The post of Sarpanch was reserved for persons belonging to Scheduled Caste. After the election to the post of members was over, a meeting was convened to hold an election to the post of Sarpanch and Upa-Sarpanch on 10/2/2021. In the said meeting respondent No. 4/disputant requested the Presiding Officer to hold voting by way of secret ballot. The said request was turned down and election was taken by raising of hands. A dispute, therefore, came to be filed alleging that since an election was held by raising hands. Though there was a specific demand of vote by secret ballot, the said was turned down illegally. It is prayed to cancel the proceedings of the special meeting.

3. The petitioner and the Sarpanch namely Parmeshwar Mankar filed their say. It is the case of the petitioner that for the post of Sarpanch there was only one nomination and there was no question of voting for the post of Sarpanch. An application filed to hold an election by secret ballot was for the post of Sarpanch and not for the post of Upa-Sarpanch. Since there was no need of voting for the post of Sarpanch, an application for voting by the secret ballot was rejected. Though an election of Sarpanch and Upa-Sarpanch is taken in the same meeting, however, technically there are two different proceedings for election of these two posts. An application for secret ballot was thus for the post of Sarpanch and not for Upa-Sarpanch. Rejection and refusal of secret ballot was thus, for the post of Sarpanch. No election process is in any way was affected so far as an election to the post of Upa-Sarpanch is concerned.

4. The learned Collector after considering the provisions of Sec. 33 (4) of the Bombay Village Panchyats Act, held that since an application was received demanding voting by secret ballot, it was mandatory to hold voting by secret ballot and set aside an election to the post of Upa-Sarpanch. So far as the post of Sarpanch is concerned, it is held that since an election itself was not required for the post of Sarpanch, there is no question of violation of Sec. 33 (4) of the Act. The Collector held that the secret ballot was demanded for the post of Upa-Sarpanch.

5. The petitioner being aggrieved by the judgment and order passed by the learned Collector, filed an appeal before the learned Additional Divisional Commissioner-1, Aurangabad. The Additional Divisional Commissioner also held that the learned Collector has rightly passed an order. The learned Additional Divisional Commissioner further held that the order of the Collector is proper and rejected the appeal, the petitioner is thus, before this Court.

6. The learned Advocate Mr. Thombre for the petitioner submits that the application of the disputant was turned down by the learned Collector. The application demanding voting by secret ballot was for the post of Sarpanch and not for the post of Upa-Sarpanch. The proceedings of the election of Sarpanch was over and thereafter the proceedings of the election of Upa-Sarpanch was taken. In that proceedings there was no application filed demanding voting by secret ballot. The disputant had not raised any objection immediately. The Presiding Officer has