wp2509-11.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2509 OF 2011 Yogesh Rangnath Mali .. Petitioner versus The Returning Officer & Ors .. Respondents Mr.P.N.Joshi for the petitioner. Mr.B.P.Abale for respondent Nos.3,4,7,8,10 to 12. CORAM : S.C.DHARMADHIKARI, J. DATE : 20th JUNE 2011. P.C.: 1] Petitioner is aggrieved by the order passed by the Additional Commissioner, Nashik Division confirming the order of the Additional Collector, Nashik. 2] By the concurrent orders it has been held that the dispute filed by the petitioner who is an unsuccessful candidate at the election held to elect Sarpanch and Upasarpanch of Gram Panchayat Mouje Manegaon, Taluka Sinnar was liable to wp2509-11.doc 2 be dismissed. The submission of Mr.Joshi appearing for petitioner is that at the election which were held on the relevant date, an application was made on behalf of the petitioner that the voting should be held by secret ballot and not by show of hands. This application was given at 1.45 p.m. This application was made while the election process was going on and not when it had concluded. However, both authorities have without adverting to the relevant provisions and record have erroneously concluded that the application was given at 5.45 p.m., and offered to the Gram Vikas Adhikari. Therefore, in the submission of of Mr.Joshi the entire process is vitiated. He further submitted that there was over-writing in the minutes and merely to show that the demand was made that election should be held by show of hands, before the word “majority”, the word “All” (Sarva) has been inserted. This vital aspect has also been overlooked by both authorities. He places reliance on a decision of learned Single Judge of this Court, reported in 2006 (6) BCR 571 (Ratnamala Ashokrao Shinde & Anr. Vs. Election Officer & Anr). wp2509-11.doc 3 3] On the other hand, Mr.Abhale, learned Counsel for contesting respondents submitted that the petitioner was contesting for the post of Upa-sarpanch. A meeting was convened to hold the election to the post of Sarpanch and Upa- sarpanch. The minutes record that the majority of the people present have demanded that the voting be held by show of hands. There was no application given by the petitioner who was contesting to the post of Upa-sarpancha till 5.45 p.m. The application was given to the Gram Vikas Adhikari who was not the competent authority to take cognisance of such an application. The application should have been given to the election officer. Further, there was no question of over-writing because the Collector had summoned the original records and even called the concerned officers to give a statement. In such circumstances, on facts it has been found that the petitioner – applicant did not make any such attempt as now pressed. Therefore, the petition be dismissed. wp2509-11.doc 4 4] With the assistance of the Counsel appearing for parties, I have perused the petition and all the annexures thereto. The Additional Commissioner has after perusing the application and the minutes, recorded a finding of fact that even if the application was given to the Gram Vikas Adhikari at 1.45 p.m., as contended, that application is not handed over to the competent authority. That application should have been forwarded by the Gram Vikas Adhikari to the Election Officer. The election officer was the Tahsildar. That application was not given to the Tahsildar nor received by him. In these circumstances, voting held by show of hands cannot be said to be illegal. 5] As far as over-writing is concerned, the Additional Commissioner has concluded that the petitioner has failed to produce any proof of such over-writing. A copy of minutes which is enclosed to the petition paper-book shows that in the earlier part of the minutes, there is no over-writing. For the post of election of Sarpanch prior to the word “majority”, the minutes wp2509-11.doc 5 record “All” (Sarva). That election was held by show of hands in the very meeting and later on the election of Upa-sarpancha was also held. It is stated that all demanded that the voting be by shown of hands. In such circumstances, when others are not complaining and the petitioner has lost the election, then, such grievance could be in the present facts, termed as purely afterthought. Further, the record indicates that the application for election by secret ballot was given to the Gram Vikas Adhikari. The finding of fact recorded about the competency of that officer is justified as it is clear that the meeting was presided over by the Tahsildar. If he is the election officer and he has not received any such application or no such application was forwarded to him within the time the election was held and concluded, then, I do not find any error or illegality committed by the authorities. The mandate of the majority has been adhered to. In these circumstances, the reliance upon Single Judge's judgement is clearly misplaced. That judgement is applicable when the factual background is undisputed. Here when there is doubt about the handing over of the application wp2509-11.doc 6 or making of demand itself, then, that judgement and the principle laid down therein can be of no assistance. 6] In the result, finding that there is no substance in both contentions of Mr.Joshi, I have no alternative but to dismiss the petition. It is accordingly dismissed. No costs. (S.C.DHARMADHIKARI, J)