LexJAENENDRA KUMAR PHOOLCHAND DAFTARI versus RAJENDRA RAMSUKH MISHRA
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JAENENDRA KUMAR PHOOLCHAND DAFTARI v. RAJENDRA RAMSUKH MISHRA DECEMBER 7, 1993 [AM. AHMADI AND N. VENKATACHALA, JJ.) Election Law-Bombay Village Pant.hayat Act, 1958--Bombay Village Panchayais (Sarpanch and Upa-Sarpanch) Election Rules, 1964-R.ules 10(2), 13-Election of Sarpanch of Panchayat--Mode of conduc~Voting by secret ballot-Pennissible when. Election of appellant as Sarpanch of a Gram Panchayat was set aside A B c on the ground of the election having been held by secret ballot without a demand therefor from any member. On appeal, the Commissioner not only upheld the order of the Collector, but also on the ground that the election D by secret ballot could not be held by showing the names of the candidates without alloting them any symbol when there was an illiterate voter. Writ Petition filed in the High Court against the order of the Collector and also that of the Commissioner was also dismissed. Hence this appeal. The following questions were raised. (i) Whether an express demand by .. member present in the meeting convened for holding election of the Sarpanch or Upa-Sarpanch under Rule 10, was necessary for the Presiding Officer to the hold the election by secret ballot? (ii) If a demand is made to the Presiding Officer to hold the election of the Sarpanch or Upa-Sarpanch by means of secret ballot, is the Presid~ ing officer required to allot symbols to the contesting candidates and get the ballot papers to be used in such election printed with such symbols? (iii) Was the High Court justified in. refusing to interfere with the finding recorded by the Collector • the election disputes resolving authority, and affirmed by the appellant authority· the Commissioner, as to the manner in which the election was held? Dismissing the Appeal, this Court 891 E F G H 892 SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R. A HELD : 1.1. The provision in Rule 10(2) of the Bombay Village Panchayat (Sarpanch and Upa-Sarpanch) Election Rules, 1964 makes it incumbent on the Presiding Gfficer to proceed to select the Sarpanch or Upa-Sarpanch, by show of hands unless there is a demand any member present at the meeting to proceed with the election of the Sarpanch or B Upa-Sarpanch, as the case may be, by having recourse to voting by secret ballot. Hence, Voting by show of hands is a general method contemplated in the Ru~es while the voting by secret ballot is contemplated as an exception .m\ a special situation. Rule 13 supports the view that the Presid- ing Officer of the meeting cannot call upon the members present in such C meeting to vote by secret ballot, unless a demand in that behalf is made by any member so present. [897-E, H, 898-A] 1.2. If a situation arises where an illiterate member is required to vote, that fact may be home in mind by the Presiding Officer and he may evolve a procedure which would enable the illiterate member to vote. It is D not necessary for the Presiding Officer, presiding over the election meeting convened for electing Sarpanch or Upa-Sarpanch to allot election symbols to contesting candidates, even where there are illiterates among members who have to cast their votes by ballot. [898-D, E) E 1.3. In the instant case, when the recorded minutes of the meeting did not show that there was any demand made for voting by ballot, it cannot be inferred that there was such a demand merely because the election conducted by the Presiding Officer by resorting to secret ballot was done in the courst of discharge of his official duty under the Rules. F When such a finding is affirmed by the appellate authority, the High Court was justified in refusing to interfere with the findings recorded by the· presiding officer; particularly when the proceeding instituted before it was a writ proceeding. [899-A-B] G CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1303 of 1993. . From the Judgment and Order dated 24.11.92 of the Bombay High Court in W.P. No. 2036 of 1991. H B.A. Masodkar, R.B. Masodkar and K.L. Taneja for the Appellant. - J.P. DAFfARI v. R.R. MISHRA [VENKATACHALA, J.) 893 Awadh Behari, Z.A. Ahmad, A.K. Sanghi and S.M. Jadhav for the A Respondents. The Judgment of the Court was delivered by VENK.ATACHALA, J. This appeal by Special Leave is directed p against the Judgment dated November 24, I992 of the Bombay High Court, dismissing the appellant's Writ Petition in which he had impugned the orders of respondents 3 & 4 setting asid
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