1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR, NAGPUR. WRIT PETITION NO. 4744 /2010 1) Suresh Kisanrao Gaydhani Aged about Major occu: Agriculturist R/o Wadhona (Ramnath) Tq. Nandgaopn (Khadeshwar) Dist. Amravati. 2) Krushna Daulat Banarase Aged about major occu: Agriculturist R/o Wadhona (Ramnath) Tq. Nandgaopn (Khadeshwar) Dist. Amravati.. .. ...PETITIONERS v e r s u s 1) The Additional Commissioner Amravati Division, Amravati Tq. & Dist. Amravati. 2) The Additional Colector Amravati Tq. & Dist. Amravati. 3) The Presiding Officer, Sarpancha and Upsarpancha Elections, Gram Panchayat, Wathona (Ramnath) Tq.Nandgaon (Khandeshwar ) Dist. Amravati. 4) The Secretary, Gram panchayat Wathoda (Ramnath) Tq.Nandgaon (Khandeshwar ) Dist. Amravati. 5) Sau.Vandana Vinod Chaudhari Aged about – major 2 occu: Agriculturist R/o Wadhoda (Ramnath) Tq.Nandgaon (Khandeshwar ) Dist. Amravati. 6) Sitaram Bajirao Kantale Aged about major occu: Agriculturist R/o Wadhona (Ramnath) Tq.Nandgaon (Khandeshwar ) Dist. Amravati. 7) Ramdas Motiramji Matode Aged about major occu: Agriculturist R/o Wadhona (Ramnath) Tq. Nandgaon (Khandeshwar ) Dist. Amravati. ...RESPONDENTS ............................................................................................................................ Mr. P S Patil, Advocate for the petitioners Mr.A.S.Sonare, Asst. Govt. Pleader for R.1 & 2 Mr.V M Deshpande Adv. for Respondents 5 & 6 Ms Mahashabde, Adv.h/for Mr M A Vaishnav, Adv.for R-7 Respondents 3 and 4 served ….................................................................................................................... CORAM: B.P.DHARMADHIKARI, J. DATED : 10 th December, 2010. ORAL JUDGMENT : This Court has issued notice for final disposal. The petitioners before this Court are the candidates who contested election for post of 3 Sarpanch and Upsarpanch respectively. The elections have been held on 10th May, 2010 by draw of lots i.e. by drawing a chit. In those elections, the petitioner no.1 was elected as Sarpanch and petitioner no.2 was elected as Upsarpanch. Respective respondent nos. 6 and 7 questioned that elections by filing petition before the respondent no.2 - Additional Collector contending that when there was equality of votes between two candidates for those posts two chits each bearing name of such candidates who had received same number of votes, ought to have been put and one out of one it could have been then taken out by a neutral person. Here, as along with such two chits four additional blank chits were put, the process is materially affected. Additional Collector has accepted that contention and in appeal filed by present petitioners, the Addl. Commissioner has further endorsed that view. These concurrent views are questioned in the present Writ Petition. I have heard respective counsel finally by making Rule returnable forthwith. 2. Advocate P S Patil for petitioners has urged that six chits for post of Sarpanch and six chits for post of Upsarpanch were put with consent of all and then a neutral person (a child) has taken out the chit. The chit bearing name of petitioner no.1 for the post of Sarpanch and of petitioner no. 2 for the post of Upsarpanch was taken out and, therefore, they were declared 4 elected. He has relied upon the provisions of Rule 10 sub-rule (2) of Bombay Village Panchayats (Sarpanch & Upsarpanch) Election Rules, 1964, { In short” the Rules of 1954”} to urge that rules give total discretion to Presiding Officer (respondent no.3 ) to evolve proper procedure in this respect and, accordingly, the procedure was evolved and the election has been completed. The reason given by the Addl. Collector of pressure being brought upon respondent no.3 to insert blank chits or then its acceptance even by Appellate Authority is incorrect and, in any case, totally irrelevant insofar as merits of the election are concerned. He has also placed reliance upon the judgment reported in 2010 (5) Mh.L.J. 513 in the case of Mahadeo Rambhau Athawale and others vs. Addl. Divisional Commissioner, Aurangabad and others, to substantiate the argument of absolute discretion available to respondent no.3 in the matter. 3. Advocate Gawande for respondent No.7; Advocate V. M. Deshpande for respondents 5 and 6 have supported the impugned order. They contend that findings reached are concurrent and hence this Court should not interfere in the said application of mind by respondent nos. 2 and respondent no. 1. It is further urged that though Rule 10 sub-rule (2) of Rules of 1954 5 gives absolute discretion to respondent no.3 however, the discretion needs to be exercised reasonably and fairly. The contention is, here the discretion has been used under pressure of present petitioners and though there was no need to insert four blank chits, the four blank chits came to be inserted. Because of this insertion, the result of the election is adversely affected. Learned counsel, therefore, urged that as inference of the election process being unfair has been reached after considering the stand and material available on record, the outcome of election Petition should not be disturbed by this Court. 4. Learned Assistant Government Pleader has supported the arguments of Respondent Nos. 5,6 and 7. 5. Advocate Ms. Mahashabde h/for Mr M A Vaishnav, appearing for respondent no.3 has urged that there was no pressure on respondent no.3 and he has followed the procedure impartially in accordance with law. She has relied upon the proceedings as recorded to show that during election no objection was raised by anybody. 6. The view taken by learned single Judge of this Court 6 reported in Mahadeo Rambhau Athawale vs. Additional Divisional Commissioner (supra) shows the absolute discretion available to respondent no.3 in the matter of drawing of lots. The said discretion which flows from rule 10 sub-rule (2) of Rules of 1954 is not disputed before this Court. The only question is whether by insertion of four blank chits the result of the election has been materially affected. 7. During arguments, effort was made to show that Respondent No.3 /Presiding Officer used the discretion in a arbitrary manner inasmuch as he was not aware that the boy who picked up chits turned out to be a relative of some Gram Panchayat member. However, it is to be noted that no objection in this respect was taken when the boy actually had drawn the chit or then, when one chit each bearing name of two candidates for the post of Sarpanch along with four blank chits were inserted and same course was adopted for election to the post of Upsarpanch. 8. The facts, therefore, show that in the box from which chits were drawn there were total six chits at a time. Two out of these six chits were carrying the name of contesting persons for the post 7 of Sarpanch or Upsarpnach. Chances of taking out a chit having any name were, therefore, equal. How by putting in four blank chits those were chances were adversely affected or then how chance of petitioners before this Court got an upward push has not been demonstrated. I have specially asked the learned counsel to put point out what prejudice is caused to them because of adoption of this process. Learned counsel appearing for respondents { except Advocate (Ms) Mahashabde} have urged that unfair election process is itself sufficient indication of such prejudice and that prejudice is further substantiated because of adverse result. I do not find any substance in these arguments because had the chits of other candidate been taken out on that day, the present petitioners also could have advanced very same arguments with equal panache. In short, the respondents are not in position to point out how the petitioners got any undue advantage because of insertion of four blank chits. 9. The alleged pressure brought upon by respondent no.3 either by petitioners before lower authorities or then by anybody is totally irrelevant because that pressure was prior to insertion of chits into the box. After the chits were inserted into the box, chances of getting elected by each candidate were equal and a neutral or 8 impartial person i.e. a boy by name Ravindra Dhanraj Thakkar has taken out a chit in presence of all. Taking out of chit by him and that chit having name of petitioners is not in challenge. It is, therefore, apparent that the process insofar as drawal of lots is concerned, has been without any manipulation and fair to all. The respondents 1 and 2 have overlooked this material and has arrived at a wrong finding because of alleged pressure put upon respondent no.3. That pressure even if presumed to be exerted has not vitiated the election process in any way. 10. In these circumstances, I find that the orders passed by respondents 1 and 2 unsustainable. The challenge to election as filed itself is without any merit. 11. In the result, the impugned order passed by respondent no.2 on 26.7.2010 and the subsequent order passed in Appeal by respondent no.1 on 20.9. 2010 are quashed and set aside. The petitions filed by respondents 6 and 7 before Addl. Collector are quashed and set aside. The elections of petitioners as the declared by respondent no.3 on 10.5.2010 is restored. 12. The petitioners have challenged two separate orders 9 passed by Addl. Collector and Addl. Commissioner. Challenging the two elections in common petition they have paid court fees of Rs. 250/- only. The petitioners are, therefore, directed to pay deficit court fee of Rs. 250/- more by 20.12.2010 with cost of Rs. 1000/- payable to High Court Legal Services sub Committee, Nagpur by the same date. If the costs as also the deficit court frees are paid, the certified copy of this judgment can be given to petitioners. 13. At this stage, Advocates Gawande and Deshpande requested for continuing the status quo as on today for a period of six weeks, so as to enable them to have recourse to further appropriate steps. Prayer is strongly opposed by Advocate Patil. However, looking to the nature of controversy, I am inclined to direct continuation of status quo as on today for a period of six weeks more. After expiry of said period, the interim orders shall cease to operate automatically. JUDGE sahare