1 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Writ Petition No. 858/2011 (Archana D. Zamare & others VERSUS State of Mah. & others) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri P.R. Pudke, counsel for the petitioner. Mrs. I.L. Bodade, Assistant Government Pleader for the R-1 to 4 & 6. CORAM : SMT. VASANTI A. NAIK, J. DATE : FEBRUARY 18 , 2011 . By this petition, the petitioners seek a challenge to the order passed by the Additional Collector, Wardha on 18.12.2009 as also the order passed by the Additional Commissioner, Nagpur Division, Nagpur dated 24.01.2011 upholding the order of the Additional Collector setting aside the election of the petitioner as Sarpanch. The petitioner was elected as Sarpanch of Gram Panchayat Wela on 25.05.2009. The voting was done by Show of Hands and seven members including the petitioners had applied before the Election Officer for holding the elections by Show of Hands. However, the respondent no.8 applied in writing seeking permission to cast the vote by secret ballot. The Tahsildar rejected the request of the respondent no.8 on the ground that majority of the members had desired that the election should be conducted by Show of Hands. Being aggrieved by the election of the petitioner on the post of Sarpanch, the respondent nos.7 and 8 filed an appeal before the Additional Collector, Wardha seeking the 2 removal of the Sarpanch by setting aside the election dated 25.05.2009. According to the respondent nos.7 and 8, the Election Officer ought to have conducted the election only by secret ballot. Both the authorities, on a proper appreciation of the evidence and record, held that it was mandatory for the Tahsildar/Presiding Officer to hold the election by secret ballot. The learned Assistant Government Pleader has rightly relied on the decision of the Division Bench of this Court, reported in 1981 Mh.L.J. 255 (Maroti Bandu Patil Versus Village Panchayat Sidhnerli & others) to substantiate the submission that when a demand is made by a member that the voting should be done by secret ballot, voting by secret ballot is mandatory and if the election is not so held, the election is liable to be set aside. It is necessary to note that even before the election meeting commenced, the respondent no.8 sought for voting by secret ballot and in spite of the knowledge about the said request in writing, the Tahsildar rejected the request made on behalf of the respondent no.8 solely on the ground that majority of the members desired voting by Show of Hands. The only submission made on behalf of the petitioners that the demand for voting by secret ballot should be made only after the meeting is commenced is ill-founded and is liable to be rejected as the same cannot be read in the provisions of Rule 10(2) of the Bombay Village Panchayats (Sarpanch and Up-Sarpanch) Election Rules, 1964. The Rule merely contemplates that a member present in the meeting should demand for voting by secret ballot and in this case, the respondent no.8 was present in the meeting and he had 3 demanded the voting by secret ballot just before the meeting had commenced. This fact was also recorded in the Proceeding Book of the Presiding Officer. There is nothing in Sub-Rule 2 of Rule 10 of the Rules of 1964 to show that the demand has to be made only while the meeting is in progress. There is no error in the orders passed by both the Authorities, much less, a jurisdictional error so as to interfere with the same in exercise of the writ jurisdiction. In the result, the writ petition fails and is dismissed with no order as to costs. JUDGE APTE