- 1 - 907-wp-10895-2011 srj IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.10895 OF 2011 Sau. Kanta @ Kantabai A. Wadghule .. Petitioner. V/s. The Additional Collector & Others. .. Respondents. Mr. S. M. Sabrad, for the Petitioner. Mr. S. D. Rayrikar, AGP for Respondent Nos.1 and 2. Mr. P. N. Joshi, for Respondent No.3. CORAM: G.S.GODBOLE,J. DATE : 17th DECEMBER, 2011. P.C:- 1 Heard the learned Advocates for the parties. 2 Leave to amend and add party as also add the relevant pages of the Judgment of the Additional Collector and the missing page no.55. Amendment to be carried out forthwith in the Court. 3 It is not in dispute that apart from the Petitioner, Respondent No.3 and Nanda Mohan Wadghule were declared as validly nominated candidates for the post of Sarpanch. Thus, there were three candidates in - 2 - 907-wp-10895-2011 the field. It is an admitted position that the Petitioner withdrew her candidature but according to the Petitioner, she withdrew the nomination form at Serial No.5 and did not withdraw the nomination form at Serial No.4. The Collector hearing the complaint under Section 33(5) of the Bombay Village Panchayats Act, 1958, had directed the cancellation of the election and holding of a fresh election. This order was accepted by the Petitioner. However, the Respondent No.3 did not accept this order and filed Appeal before the Divisional Commissioner. The Divisional Commissioner has allowed the Appeal and directed that Respondent No.3 should be declared to be elected as Sarpanch on the said post. 4 Mr. Sabrad submits that only one nomination paper was withdrawn and the other nomination paper was very much in existence. The Collector has recorded a finding against the Petitioner in this regard in as much as the Collector has held that the same proposer namely – Sudhir V. Karade had submitted two nomination forms nominating the Petitioner and only one nomination form was, therefore, held valid according to Rule 7 of the Bombay Village Panchayats (Sarpanch and Upsarpanch) Election Rules, 1964. This finding of the Collector has not been challenged by the Petitioner and the Petitioner had accepted this finding. Once this finding is held to be correct, in my opinion, there were only three candidatures of validly nominated candidates, namely- the - 3 - 907-wp-10895-2011 Petitioner, Respondent No.3 and Nanda Mohan Wadghule. 5 Rule 9-A of the aforesaid Rules reads thus:- “Rule 9-A- Withdrawal of candidature:- (1)Any candidate may withdraw his candidature by a notice in writing subscribed by him and delivered to the Presiding Officer immediately after the scrutiny of nomination papers under Rule 9 is over. (2) The notice may be given either by the candidate in person or by his proposer who has been authorized in this behalf in writing by the candidate. (3) No person who has given a notice of withdrawal of his candidature under sub-rule (1) shall be allowed to cancel the notice. (4) The Presiding Officer shall, on being satisfied as to the genuineness of a notice of withdrawal and the identity of the person delivering it under sub-rule (1), read out to the members present at such meeting the names of the persons withdrawal their candidature.” 6 Thus, the Rule contemplates withdrawal of the candidature and does not really contemplate withdrawal of nomination paper. Nomination papers are already scrutinized and there is only one valid nomination by the time the same reaches the stage of Rule 9-A. Thus, the Petitioner has withdrawn her candidature and the third contestant Smt. Nanda Mohan Wadghule had also withdrawn her candidature. Rule 10 of the said Rules reads thus:- “Rule-10:- Procedure for election:- (1) If only one candidate has been duly nominated for the office of the Sarpancy or Upa-Sarpanch, he shall be declared to have been duly elected as Sarpanch or, as the case may be, Upa-Sarpanch. - 4 - 907-wp-10895-2011 (2) If more than one candidate have been so nominated, the Presiding Officer shall proceed to elect the Sarpanch or as the case may be, Upa-Sarpanch. The voting at such election shall be by show of hands. If, however, [any member present at the meeting so demands,] the voting shall be by ballot. The candidate who obtains the highest number of votes shall be declared to have been duly elected as Sarpanch or, as the case may be, Upa-Sarpanch. When any equality of valid votes is found to exist between any two or more candidates and the addition of one vote will entitle any of them to be declared as Sarpanch or, as the case may be, Upa-Sarpanch, the determination of the candidate to whom such additional vote shall be deemed to have been given shall be made by lot to be drawn by the Presiding Officer in such manner as he shall determine.” It is thus clear that there was only one candidate in the field for the election of post of Sarpanch and hence the Presiding Officer ought to have declared that candidate as elected unopposed. 7 Mr. Sabrad further submitted that considering the scope of Section 33 (5) of the said Act of 1958, the Commissioner could not have declared the Respondent No.3 as elected and unopposed. A perusal of the Dispute Application filed by Respondent No.3 indicates that apart from challenging the election of the Petitioner, Respondent No.3 has also prayed that she should have been declared as elected and unopposed. The legislature by enacting sub-section 5 of Section 33 has given a vide jurisdiction to the Collector to decide all the disputes. The Respondent No.3 had made a specific prayer that she should be declared as elected - 5 - 907-wp-10895-2011 unopposed for the post of Sarpach. The Collector is expected to decide all the disputes and the dispute relating to election of the Petitioner despite withdrawal of her candidature and prayer to declare the Respondent No.3 as a candidate being elected to the post were both prayed before the Collector. Since the Collector had failed to exercise that jurisdiction, the Commissioner was entitled to and justified in exercising that jurisdiction. There is no merit in the last submission of Mr. Sabrad. 8 Hence, there is no merit in the Writ Petition and the same is dismissed. (G.S.GODBOLE,J.)