1 FARAD CONTINUATION SHEET. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. WRIT PETITION NO.2014 OF 2008. Sau.Alka Dadarao Kale and ors. ..vs.. The Addl.Commissioner, Amravati and ors. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, office Memoranda of Coram Court's or Judge's appearances, Court's orders or directions order and Registrar's order. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Mr.S.A.Gordey, Adv.for the petitioners. Mr.Nitin Sambre,G.P. for resps.1 to 3. CORAM: C.L.PANGARKAR,J. DATE : 14th May, 2008. (P.C.) 1. This writ petition has been filed by a Sarpanch of village Sategaon, challenging the orders passed by the Collector as well as the Additional Commissioner, Amravati. The members of the Gram-panchayat at village Sategaon decided to move no-confidence-motion against the present petitioner, who was elected as a Sarpanch. The notice was served on Tahsildar. In pursuance to the notice given by the members of the Gram- panchayat, the Tahsildar had issued notices to the members of the Gram-panchayat and had fixed a 2 special meeting in the office of the Grampanchayat at Sategaon. Accordingly, a meeting was held on 4/2/2008. Before such meeting was held, it is alleged that three members of the Gram-panchayat including the Sarpanch had given an intimation to Tahsildar that they desire that the members should be allowed to vote by a secrete ballot instead of by raising hands. The Tahsildar held the meeting. In all 13 members of the Gram-panchayat including the present petitioner attended the meeting. Tahsildar thereafter asked the members of the Gram-panchayat to raise their hands in support of the motion moved by the members and also to raise the hands who were against such motion. Tahsildar found that 10 out of 13 had raised their hands in favour of the motion moved for no- confidence. Accordingly, he found that more than 3/4th of the members had voted in favour of the motion of no confidence. He accordingly sent such a report to the Collector. 2. Being aggrieved by this, the petitioner moved an appeal before the Collector. One of the grounds that was raised before the Collector was that Tahsildar instead of taking the votes by a secrete ballot had asked the members to raise their hands and counted the votes. It was contended 3 before the Collector that the secrete ballot was demanded because of the fact that there was political pressure on the members. The Collector did not find favour with the present petitioner/ appellant and accordingly he dismissed the appeal. Against that order of the Collector, an appeal was preferred before the Commissioner, Amravati Division. The Commissioner of the Amravati Division also concurred with the findings recorded by the Collector. He observed that no confidence was passed by thumping majority and no fault can be found with such a procedure adopted and for such minor technical grounds, the election cannot be set aside. Holding so, the learned Commissioner also dismissed the appeal. 3. Being aggrieved by that order, this writ petition has been preferred. 4. I have heard Mr.S.A.Gordey, learned counsel for the petitioners and Mr.Sambre, Government Pleader for the State. Mr.P.S.Patil, Advocate, who had put in appearance, however, is absent. 5. Shri Gordey, learned counsel for the petitioner, contended before me that the three 4 members of the Gram-panchayat including the petitioner have made a special request to the Tahsildar to hold the election by a secrete ballot. He submitted that such a request was made because of the fact that the petitioner was apprehending that the members of the Gram- panchayat were under political pressure and may not exercise their rights freely. He contended that in a democratic set up what is necessary is that there should be free exercise of the franchise and for that it is necessary that such a request should have been acceded to by the Tahsildar. It is also contended before me that the Tahsildar should have taken into consideration the fact that Rule 10 of the Election of Sarpanch and Upasarpanch of Gram-panchayat Rules mandates that whenever an election of a Sarpanch and Upasarpanch of Gram- panchayat is held and one of the members makes a request that the voting should be taken by a secrete ballot, the officer is bound to hold such election by a secrete ballot. He submits that this is a provision which is in para materia and therefore, this could have been applied by the Tahsildar and the Collector and the Commissioner should have considered this provision and should have therefore allowed the appeal and given a direction that no confidence motion should be by a secrete 5 ballot only. There is no doubt that Rule 10 of the Election of Sarpanch and Upasarpanch Rules does contemplate that whenever a demand is made for holding the election by a secrete ballot, the officer is bound to accede to such a request. The question, however, is whether that Rule would mandate the Tahsildar that the vote for or against the no confidence motion should be taken by a secrete ballot. In this regard, it is to be borne in mind that the Legislature had amended Rule 10 and introduced in the said Rule the mandate that whenever a demand is made by the members, the election should be held by a secrete ballot. If at all Legislature intended that such a method should also be adopted when the no confidence motion is before the house of the Gram-panchayat, it would have certainly amended and would be introduced such a Rule in the Rules framed for the purpose of moving of no confidence motion. The fact that the Legislature did not introduce such a Rule in the special rules framed for the no confidence motion, itself suggests that the Legislature never intended that such a request for secrete ballot must be accepted by the Tahsildar. In view of the fact that there is no special provision in those special Rules which are in respect of no confidence motion itself suggests that Tahsildar was not bound to accede to 6 the request. Particularly, in this case there was no need to do so because of the fact that notice of no confidence was issued by 10 members out of 13 and in fact those 10 members have voted in favour of no confidence. Had the notice of no confidence been issued by less than 10 members and 10 members would have voted in favour of the no confidence perhaps that argument could have find favour. But the fact that 10 persons had already given notice of no confidence and those persons stuck to their stand of having no confidence in the Sarpanch clearly suggests that even the secrete ballot would not have made much difference. Learned counsel for the petitioner had relied on a decision of this court reported in 2006(6) Mh.L.J.682 (Vaijanath Shinde ..vs.. Secretary, Marathwada Shikshan Prasarak Mandal, Devgiri College Campus, Aurangabad and ors.) in support of his argument that the Rule 10(2) in the Election of Sarpanch and Upasarpanch Rules, could be read into rules framed for no confidence motion. 6. After having gone through the decision cited by Shri Gordey, learned counsel for the petitioners, I find that the said ruling has no bearing on the case at hand. In the instant case, there are separate rules for no confidence motion 7 and there are separate rules for election and since there are separate sets of Rules of election and no confidence and such rule is not added in the no confidence rules, the present ruling has no bearing on the case at hand. In the circumstances, I do not find any substance in the writ petition. It is dismissed. JUDGE chute