JAENENDRA KUMAR PHOOLCHAND DAFTARIversusRAJENDRA RAMSUKH MISHRA

         JAENENDRA KUMAR PHOOLCHAND DAFTARI                                     A
                                     v.
                   RAJENDRA RAMSUKH MISHRA

                          DECEMBER 7, 1993

          [AM. AHMADI AND N. VENKATACHALA, JJ.)                                 B

       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.                                                 c
      Election of appellant as Sarpanch of a Gram Panchayat was set aside
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.                                      E
      (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?
                                                                                F
       (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
                                                                                G
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                                         H
                                     891
    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
             .m\
    exception 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]

          CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1303 of
G 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.)

         Awadh Behari, Z.A. Ahmad, A.K. Sanghi and S.M. Jadhav for the
                                                                           893

                                                                                  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 aside his election as Sarpanch of Seloo
    Gram Panchayat constituted under the Bombay Village Panchayat Act,
    I958 (for short 'the Act').
                                                                                  c
           2. The appellant and respondent-I were among the fifteen elected
    members of Seloo Gram Panchayat in the District of Wardhna. They were
    the only contesting candidates in the election to be held for Sarpanch of
    that Panchayat on August 10, I990 in the special meeting of the members
    convened for the purpose under the Bombay Village Panchayats (Sarpanch D
    and Upa-Sarpanch) Election Rules, I964 (for short 'the Rules'). That
    special meeting was presided over by respondent-2, Naib Tahsildar, who
    made the members to cast their votes in favour of either of the contesting
    candidates, by secret ballot. Respondent-2 declared the appellant as suc-
    cessful candidate for the Office of Sarpanch, as he had secured eight votes
    while respondent-I, the other contesting candidate had secured one vote E
    less, that is, seven votes. Respondent-I, the defeated candidate, however,
    challenged the election of the appellant as Sarpanch of Seloo, by raising
    an election dispute under section 33(5) of the Act, before respondent-3,
    the Collector, Wardha. Two grounds of chaDP-nge raised by respondent-I
    in that election dispute were - (i) that the holding of Sarpanch's election F
    by the Presiding Officer, respondent-2, by resorting to secret ballot when
    none of the members had made a demand in that regard, was contrary to
    the requirement of Rule 10 of the Rules, and (ii) that one of the members,
    who illiterate had since cast her vote by ballot which did not contain
    symbols allotted to the contesting candidates, it had materially affected the
    result of the election in that there was only one vote which had made the G
    difference. The petitioner, who filed his written objection statement to the
    election petition before the Collector, did not specifically deny thereunder
    the allegation in the petition that there was no demand made by any
    member of the Panchayat to the presiding officer to hold the election by
    secret ballot. On the other hand, in the written objection statement, the H
    894                   SUPREME COURT REPORTS (1993] SUPP. 3 S.C.R.

A denial related to the non-following of the procedure in Rule 10 by the
  Presiding Officer, respondent-2, who held the special meeting. Respon-
  dent-2, although served with notice of election petition, did not appear
  before respondent-3 and make any statemen.t to the contrary. However, as
  to the g~ound of one illiterate member having cast her vote, although it was
B said in· the written Statement (reply) that there was no reason for the
  Presiding Officer, respondent-2, to know about her illiteracy, it was ad-
  mitted that the members were asked to put a tick-mark against the
  candidate's name in the ballot according to that voter's choice. The Col-
  lector allowed the concerned Election Reference and set aside the election
  of the appellant upholding ground No. (i) of election being conducted by
C secret ballot without any member making a demand for election being
  conducted by secret ballot. The appellant questioned the Order made on
  the Election Reference made by the Collector by filing an appeal therefrom
  the Commissioner under section 33(5) of the Act. In dismissing that appeal,
  the Commissioner not only upheld the Order of the Collector made on the
D ground of the election having been held by secret ballot without a demand
  therefor from any member1 but also on the ground that the election by
  secret ballot could not be held by showing the names of the candidates
  without allotting them any symbol when there was illiterate voter.

          3. The appellant challenged the Orders of the Collector made in the
E election dispute and also that of the Commissioner in the appeal filed by
  him by invoking the writ jurisdiction of the Bombay High Court. The High
  Court took the view that conducting cif election by secret ballot by the
  Presiding Officer, respondent-2, for electing the Sarpanch could not have
  been done under Rule 10 of the Rules when there was no demand by any
F member for holding the election by secret ballot as required under Rule
  10(2) of the Rules, in that, the minutes of the meeting convened by the
  Presiding Officer, respondent-2, did not show that there was any demand
  made in that regard by any member. Consequently, the Division Bench, by
  its Judgment dated November 24, 1992, dismissed the Writ Petition and
  issued directions in the matter of taking steps for holding fresh election to
G the Office of the Sarpanch. It is that Judgment which is now under appeal.

          4. Mr. K.L. Taneja, learned counsel for the appellant in assailing the
  Orders of the Collector, the Com.missioner and the High Court, contended
  firstly, that the official act of conducting the election by secret ballot by
H respondent-2 in the meeting presided over by him must be taken to ha'Ve
         J.P. DAFfARI v. R.R. MISHRA[VENKATACHALA,J.]                    895

been done regularly i.e. after a demand had. been made in that regard by A
one of the members as required under Rule 10 (2) of the Rule.;, secondly,
when there was nothing to indicate in the recorded minutes of the meeting
that there was any opposition for election Sarpanch being held by secret
ballot, it was not open to respondent-1 to challenge the result of the
election on that ground, and, thirdly, it cannot be said that there was any B
need for the Presiding officer, respondent-2 to allot symbols for can-
didates in the election as it was not made known to the Presiding Officer
about the illiteracy of any of the voters. On the hand, the learned counsel
for respondent-1 sought to counter the contentions raised on behalf of the
appellant by obtaining support therefor from the Judgment of the High
Court. In the facts of the case and rival contentions urged before us, the C
points which need our consideration and decision in his appeal would be
these:

        1.      Is an express demand by a member present in the meeting
                convened for holding election of the Sarpanch or Upa-Sar-
                panch under Rule 10, necessary for making the Presiding D
                                                                          ·f
                Offi~r to hold the election by secret ballot?


        2.      If a demand is made to the Presiding Officer to hold the
                election of the Sarpanch or Upa-Sarpanch by means ofsecret
                ballot, is the Presiding Officer required to allot symbols to E
                the contesting candidates and get the ballot papers to be used
                in such election printed with such symbols?

        3.      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 appellate authority - · F
                the Commissioner, as to the manner in which the election was
                held?
                                                                        •
     5. We shall, now proceed to consider the said points, seriatim.

     Point-I:                                                                  G

      6. Sub-rule (2) of Rule 10 which provides for the mode of conduct
of election for the Office of Sarpanch or the Office of Upa- Sarpanch by
the Presiding Officer at the meeting and Rule 13 which provides for the
recording of minutes of the election meeting, being material, are              H
         896                   SUPREME COURT REPORTS [1993) SUPP. 3 S.C.R.

 A reproduced:
                 Rule 10(2):

                  "(2). If more than one ~andidate have been so nominated, the
                  presiding Officer shall proceed to elect the Sar~anch as the case
 B                may be, Upa-Sarpanch. The voting at such ele,ction shall be by
                 show of hands. If, however, any member present ,at the meeting so
                 demands, t_he voting shall be by ballot. The candidate who obtains
                                                                  1



                 the highest number of votes shall be declared to have been duly
                 elected as Sarpanch, or as the case may be, Upa-Sarpanch. When
 c               any equality of valid votes is found to exist between any two or
                 more candidates and the addition of one vote will entitle any of
                 them to be declared a5 Sarpanch or, as the case may be Upa-
                 Sarpanch, the determination of the candidate to whom such addi-
                 tional vote ~hall be deemed to have been given shcln be made by
                 lot to be drawn by the Presiding Officer in such manner as he shall
 D               determine."

                 Rule 13:

                 "13. Minutes : The proceedings of the meeting shall be recorded
                 iii the minute book maintained by the Panchayat under rule .40 of
·E               the Bombay Village Panchayats Meetings Rules, 1959. The names
                 of the members present at the meeting and when the voting is by
                 show of hands, the names of members voting for or against any
                 candidate for election and the names of members who remain
                 neutral shall be entered therein. At the conclusion of the meeting,
 F               the proceedings shall be read out and signed by the Presiding
                 Officer and thereupon they shall be dee~ed to be confirmed. A
                 copy of the proceeding shall be submitted to the chairman of the
                 Panchayat Samiti, the Chief Executive Officer of the Zilla Parishad
                 and also to the Collector through the Mamlatdar, Tahsildar,
                 Mahalkari, Naib Tahsildar concerned within seven days of the
 G               meeting. The proceedings shall be open to inspection, at all
                 reasonable times, by any member of the Panchayat."

                 7. According to sub-rule (2), the Presiding Officer conducting the
         ele,ction of the Sarpanch or the Upa-Sarpanch among the contestants in a
 H       J.lleeting
         /   .      of the members of the Panchayat concerned convened for the
     /
          J.P. DAFfARlv. R.R. MISHRA[VENKATACHALA,J.)                     897

purpose, is required to call upon such members to vote by show of hands. A
But, it requires the Presiding Officer to carry out such election by secret
ballot if any member present at the meeting, makes a demand in that
regard. Thus, the sub-rule clearly specified the method by which the
Presiding Officer shall proceed to have the Sarpanch or Upa-Sarpanch, as
the case may be, elected. However, the question is, whether the sub-rule B
permits the Presiding Officer of the election meeting to have the Sarpanch
or Upa-Sarpanch, as the case may be, elected by calling the voters to elect
the Sarpanch, by show of hands or by voting by ·ballot, according to his
choice. If it is to be so held, the requirement of holding of election by ballot
on demand by any member present at the meeting convened under the
sub-rule, becomes superfluous. No requirement in a Rule can be regarded C
as superfluous unless such a construction is likely to lead to an unwarranted
anomaly. Having regard to the requirement of the provision which specifi-
cally provides as to how the Presiding Officer has to proceed to elect the
Sarpanch or Upa-Sarpanch, as the case may be, we find it difficult to think
that the Presiding Officer is given the choice or liberty of proceeding to D
have the Sarpanch or Upa-Sarpanch elected in a manner different from .
that indicated in the provision in sub-rule (2) of Rule 10. Hence, the
provision in Rule 10(2) of the Rules, in our view, makes it incumbent on
the Presiding Officer to proceed to elect the Sarpanch or Upa-Sarpanch,
as the case may be, in a meeting held by him by calling upon the voters in
the meeting to elect the Sarpanch or Upa-Sarpanch, as the case may be, E
by show of hands unless there is a demand by any member present at the
meeting to proceed with the election of the Sarpanch or Upa-Sarpanch, as
the case may be, by having recourse to voting by secret ballot.

       8. While sub-rule (2) of Rule 10, requires the Presiding Officer to       F
proceed to elect the Sarpanch or Upa-Sarpanch, as the case may be, by
show of hands unless there is a demand for permitting the members to vote
by secret ballot, rule 13 requires that the Presiding Officer shall record the
names of members voting for or against a candidate or being neutral in the
minutes of the meeting and on the conclusion of the meeting to read out
the same to the members before signing the same resulting in their deemed        G
confirmation and becoming available for inspection by any member of the
Panchayat. Hence, it becomes obvious that voting by show of hands is a
general method contemplated in the said Rules while the voting by secret
ballot is contemplated as an exception in a special situation. Thus, Rule 13
supports our view that the Presiding Officer of the Meeting cannot call          H
    898                   SUPREME COURT REPORTS [1993] SUPP. 3 S.C.R.

A upon the members present in such meeting to vote by secret ballot in favour
    of one or the other candidates contesting the election for the Office of
    Sarpanch or Upa-Sarpanch unless d demand in that behalf is made by any
    member so present.

          Point-2:
B
          9. There is no provision in the Rules requiring allotment by the
   Presiding Officer of symbols to candidates, where the voting of the mem-
   bers of the Panchayat for the election of the Sarpanch or Upa-Sarpanch
   by means of secret ballot becomes necessary. Such provision is not en-
C visaged since the Presiding Officer cannot be expected to get the ballot
   papers with symbols ready all of a ·sudden in the meeting wherein the
   election has to be completed. However, if a situation arises where an
   illiterate member is required to vote, that fact may be borne in mind by
  ·the Presiding Officer and he may evolve a procedure which would enable
   the illiterate member to vote, e.g., if there are two or more candidates, he
D may ask the member to put a t:ross mark for candidate A, a zero mark for
   candidate B and so on or the Presiding Officer may assist such a member
   to cast, the vote for the candidate of his or her choice. In such situations,
   the Presiding Officer, could, as well, record in the minutes of the meeting,
   as to how, he has rendered the assistance to a member who could not cast
   his vote by ballot, in the usual course, for such recording may help in
   avoiding future controversies on the matter. Hence, it is not necessary for
   the Presiding Officer, presiding over the election meeting convened for
   electing Sarpanch or Upa-Sarpanch to allot symbols to contesting can-
   didates, even where there are illiterates among members who have to cast
   their votes by ballot. This is our answer to Point- 2.

          Point-3:

           10. Here, in the Reference Petition containing election dispute, there
    was a specific allegation made by respondent-1 to the effect that there was
    no demand made to the Presiding Officer by any member of the Panchayat
    present in the meeting for holding the election by having recourse to secret
    ballot. The appellant did not deny this allegation specifically. In a situation
    as the one on hand, when the minutes of the meeting did not record that
    there was any demand made for voting by ballot, it cannot be said that the
    election disputes resolving Authority, namely, the Collector was unjustified
    in drawing an inference that there was no such demand and that the
          J.P. DAFTARI v. R.R. MISHRA [VENKATACHALA, J.)                   899

Presiding Officer resorted to the method of conducting th:: election by A
secret ballot despite the absence of such demand. In the instant case, when
the recorded minutes of the meeting did not show that there was any such
demand, 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 course of discharge of his official duty under the B
Rules. Such a finding when is affirmed by the appellate authority, the High
Court has very rightly, in our view, refused to interfere with such finding
of fact, particularly, when the proceeding instituted before it was a Writ
proceeding where its extra-ordinary jurisdiction was invoked.

       11. For the foregoing reasons, we do not find any valid reason to          C
interfere with the Orders of the Collector, the Commissioner and the High
Court, impugned in this appeal.

       12. The appeal, therefore, fails and is dismissed with costs. Thi; costs
in this appeal shall be Rs. 5,000 and same shall be payable by the appellant
to respondent-!.                                                                  D
A.G.                                                       Appeal dismissed.