1 lpa-387-11.sxw dgm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO. 387 OF 2011 IN WRIT PETITION NO. 10895 OF 2011 Sau. Kanta @ Kantabai Ashok Wadghule, Sarpanch Grampanchayat, Jalgaon .... Appellant vs The Additional Collector, Nashik Division, Nashik & ors ..... Respondents Mr. R.V. Govilkar i/by Mr.S.M. Sabrad for the Appellant. Mr. V.S. Gokhale, AGP for respondents 1 and 2. Mr. Haridas for respondent no.3. Mr. G.H. Keluskar for respondent no.4 CORAM: D. K. DESHMUKH & ANOOP V. MOHTA, JJ. DATE : December 21, 2011 P.C.: The relevant facts are that at the election of Sarpanch, there were only two candidates, namely, the Petitioner-Kanta and Respondent no.3-Jaya. The Petitioner withdrew her nomination paper. However, somehow she continued to be a candidate. The 2 lpa-387-11.sxw election was held. The Appellant was declared elected as Sarpanch. Respondent no.3 who was unsuccessful candidate challenged the election on the ground that as the Appellant had withdrawn her nomination paper, Respondent no.3 under the Bombay Village Panchayats (Sarpanch and Upa-Sarpanch) Election Rules, 1964, had a statutory right to be declared elected as Sarpanch. The Collector upheld the contention of Respondent no.3 that the Appellant had withdrawn her nomination paper, but instead of declaring Respondent no.3 as elected unopposed as Sarpanch, directed a fresh election. Only Respondent no.3 felt aggrieved by that order. In other words, the Appellant did not feel aggrieved by the finding that all her nomination papers stood withdrawn and she could not be a candidate at the election. In the Appeal filed by Respondent no.3, the only question to be considered was whether the Collector was justified in ordering fresh election or he should have, in view of the provisions of sub-rule (1) of Rule 10 of the aforesaid Rules, in the absence of there being any candidate in the field to oppose her declared Respondent no.3 as elected unopposed. The Commissioner upheld the contention of Respondent no.3 and directed that in view of the withdrawal of the nomination of the Appellant, there was only one candidate in the field, namely, Respondent no.3 and, therefore, she was entitled to be 3 lpa-387-11.sxw declared as elected. The learned Single Judge in a Petition filed by the present Appellant held that the Appellant cannot challenge the finding recorded by the Collector that her candidature stood withdrawn. Therefore, the only question to be debated was whether the Commissioner was justified in declaring Respondent no.3 as elected as Sarpanch. The learned Single Judge upheld the order of the Commissioner. 2 We have heard the learned counsel for the Appellant. He relied on two judgments both of the learned Single Judges of this Court in the case of Gawji alias Gawaja Sawleram Sarode v. State of Maharashtra, 1991(3) Bom. C.R. 585 and Chandrakalabai Giridharrao Khangar v. Additional Commissioner, 2000(1) Bom. C.R. 243, to contend that even after finding that the Appellant’s nomination stood withdrawn, the Commissioner could not have declared Respondent no.3 as elected unopposed. Looking to the scheme of the Rules, it is clear that if there is only one validly nominated candidate in the field, the candidate who remains in the field has a statutory right to get himself or herself declared elected as Sarpanch or Up-Sarpanch. 4 lpa-387-11.sxw 3 So far as the aforesaid two judgments are concerned, they consider a case where there has been an election and the question arose of the power of the Collector to declare another candidate elected where it was found that the other candidate was not qualified to be nominated. In the present case, there was no necessity of holding election because there was only one candidate in the field and there is a provision made in sub-rule (1) of Rule 10 of the Rules dealing with such a case. The view taken by the learned Single Judge is perfectly right. No interference is called for. The Petition is rejected. There shall be no order as to costs. (ANOOP V. MOHTA, J.) (D. K. DESHMUKH,J.)