ORAL JUDGMENT :- Rule. Rule made returnable forthwith. By sent of parties, Rule is finally heard. 2. By this petition, petitioners impugn order dated 29th July, 2006 by the Additional Commissioner, Aurangabad, confirming order of Ad Collector, Hingoli, whereby their election as Sarpanch and Upa-s respectively, are set aside. 3. There are seven members of Village Panchayat Palodi (Dist. Hi Admittedly, election was held on 24-8-2005 for post of Sarpanch an sarpanch. An election officer, who is Junior Engineer in Irrigation Department was appointed to conduct the election. The election officer convened a of the village panchayat members. The Panchayat members were informed the purpose of the meeting and the election proceedings were started. At 1:45 pm. three members of the village Panchayat submitted an application election officer and requested him to conduct the election by secret ball " election officer granted their request and decided to hold the election by ballot method. He distributed paper slips for use of the members/vote called Upon them to put tick mark against the names of those in favour of they wanted to cast the vote. There were two contesting candidates for the Sarpanch and two contesting candidates for the post of Upa-sarpanch. Th were casted by putting ballot papers in the ballot box and after counting of election officer declared the petitioners No.1 and 2 as elected Sarpanch an Up-sarpanch, respectively. 4. There was objection raised by the defeated candidates and there was pandemonium. The election officer prepared proceedings of the meeting but some of the members refused to sign the proceedings. He hurriedly left since he apprehended some foul play. He thereafter reported to the regarding the incident. In the meanwhile, respondents Nos. 3 to 6 filed before the Additional Collector, Hingoli and sought intervention. They submitted that the procedure adopted by the election officer was improper and illegal. The election was conducted without explaining the procedure to the voters members of the Village Panchayat prior to casting of their votes. Some of members of the Village Panchayat are illiterate and hence could not understood the procedure. The election officer further committed called irregularity casting a vote himself and thereby participated in election proc proceeding book was not written at the place of the election. They contended that the election officer had flouted the relevant rules and regulation conducting the election and as such declaration of results is illegal. The election officer further committed called irregularity casting a vote himself and thereby participated in election proc proceeding book was not written at the place of the election. They contended that the election officer had flouted the relevant rules and regulation conducting the election and as such declaration of results is illegal. The Additional Collector called remarks of the election officer. He conduct enquiry, heard the parties and held that the election process was not con accordance with the relevant rules. He held that the election of the petitioners vitiated due to improper process of election and particularly when the officer had participated in the process of casting the votes. Hence he set petitioners elections. It is this order which is subject of challenge in the instant petition. 5. Heard learned counsel for the parties and the learned Government Pleader. The material issue involved in the petition is whether election was conducted in accordance with Rule 10(2) of the Bombay Panchayat (Sarpanch and Upa-sarpanch) Election Rules, 1964. 6. Before I proceed to scan the material on record, let it be noted that the election officer was independent person being Junior Engineer of Irrigation Department. It appears from his reply to the queries made by the Collector, the course of the enquiry of the election dispute, that election was ducted in Tahsil office and while he was preparing the proceeding book, the respondents Nos. 3 to 6 along with some 50/60 persons gathered there and started showering various queries. They were asking him and the Tahsildar number of questions and hence there was pandemonium. His reply to query No.7 in the r dated 29-9-2005 would show that Tahsildar recorded written complaint of each applicant and also recorded statements, and, thereafter, the articles and the proceeding register were sealed. Thus, the report of the election officer disclosed fact that the Tahsildar had knowledge about the process of election and he made enquiry at the spot, immediately after the dispute was raised by the respondents Nos. 3 to 6, and hence it was desirable to call for report from the sildar. The Tahsildar is added as respondent No.7 in the present petition but not filed any separate affidavit in reply. In view of absence of affidavit of the Tahsildar i.e. respondent No.7, it will have to be said that the pleadings in the petition are not controverted by him. 7. The Tahsildar is added as respondent No.7 in the present petition but not filed any separate affidavit in reply. In view of absence of affidavit of the Tahsildar i.e. respondent No.7, it will have to be said that the pleadings in the petition are not controverted by him. 7. Learned counsel Shri H. V. Patil, appearing for the petitioners, would submitted that the findings of the Additional Collector and the Additional commissioner are improper. He would submit that inferences drawn by both the authorities are irrational and improper. The learned counsel would further submit that there was nothing wrong when the election officer assisted one of the illiterate member to cast his vote as per his wish. He pointed out that the election officer had fairly mentioned such fact in the proceeding book and such casting of vote by election officer was done since nobody had objected in the course of meeting. He would submit that the election has been set aside without substantial sons and therefore the petition may be allowed. On the other hand, learned counsel Shri Chincholkar appearing for the respondents Nos. 3 to 6, would submit that concurrent findings of both the authorities need not be disturbed. He argued that scope of interference under Article 227 is limited and as such the petition deserves to be dismissed. He contended that the conduct of the election officer was improper and the elections were unfair and hence both the authorities have rightly quashed the election of the petitioners. The learned Assistant Government Pleader would support the findings of the authorities. 8. So far as election of Sarpanch and Up-sarpanch are concerned, Rule (2) of the Bombay Village Panchayat (Sarpanch and Upa-sarpanch) Election les, needs to be considered. The relevant rule reads as follows ;_ Rule 10(2) :- If more than one candidate have been so nominated, the Presiding Officer shall proceed to elect the Sarpanch or as the case may be, Up-sarpanch. The voting at such election shall be by show of hands. If, however, [any member present at the meeting so demands,] the voting shall be by ballot. The candidate who obtains the highest number of votes shall be declared to have been duly elected as Sarpanch or, as the case may be, Up-Sarpanch. The voting at such election shall be by show of hands. If, however, [any member present at the meeting so demands,] the voting shall be by ballot. The candidate who obtains the highest number of votes shall be declared to have been duly elected as Sarpanch or, as the case may be, Up-Sarpanch. When any equality of valid votes is found to exist between any two or more candidates and the addition of one vote will entitled any of them to be declared as Sarpanch or as the be, Up-Sarpanch the determination of the candidate to which additional vote shall be deemed to have been given shall be to be drawn by the Presiding Officer in such manner as determine. A plain reading of the aforesaid rule would make it manifest that no voting at such election shall be by show of hands. Still, however, member so demands then the election officer has no discretion in the must direct that the election shall be by secret ballot. In the present undisputed that such a demand was made by three members. According election officer, they submitted a written application at 1:45 pm. He p record the original application submitted by the three members for ho election by secret ballot. It is true, no doubt, that the application does any endorsement to the effect that it was granted by the election officer made an endorsement regarding time of receipt. The learned Additional has observed that when such a request was made at 1:45 pm. then the casting the votes could not have been completed by 2: 10 pm. as she proceeding book. The learned Additional Collector has observed that "Impossible" and hence he reached the conclusion that the election of not follow relevant rules. I find it difficult to countenance such infer learned Additional Collector. One cannot be oblivious of the fact that only seven voters and the process could not have consumed consider Moreover, the preparation of ballot papers by using small pieces of also possible within a short span of 10-20 minutes inasmuch as there two contesting candidates for each post. The learned Additional Co necessarily cast aspersions on the credibility of the election officer proper verification of the facts from the Tahsildar. As stated earlier, the had conducted the spot enquiry immediately after the election process; and therefore his first hand knowledge was more relevant and signification. 9. The learned Additional Co necessarily cast aspersions on the credibility of the election officer proper verification of the facts from the Tahsildar. As stated earlier, the had conducted the spot enquiry immediately after the election process; and therefore his first hand knowledge was more relevant and signification. 9. The election officer has mentioned in the processing book assisted the illiterate voter, who had expressed difficulty in casting the: there was no objection raised by the other members. There appears wrong Committed by the election officer while assisting the illiterate casting of the votes by him. Rule 10(2) does not stipulate any procedure of conducting the election by secret ballot method. 10. In Jaenendrakumar Phoolchand Daftari vs. Rajendra Rams and others, 1994 Mh.L.J. 100 (SC) the Apex Court has held that election officer may evolve a procedure which would enable the illiterate member The relevant observations are thus :- "9. There is no provision in the Rules requiring allot me Presiding Officer of symbols to candidates, where the vote members of the Panchayat for the election of the Sarpanch by means of secret ballot becomes necessary. Such provisions not envisaged since the Presiding Officer cannot be expected to get the ballot papers with symbols ready all of a sudden in the meeting the election has to be completed. However, if a situation arises illiterate member is required to vote, that fact may be the Presiding Officer and he may evolve a procedure which would enable the illiterate members to vote, e.g. if there are two or more candidates, he may ask the member to put a cross 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." , in the light of above observation it will have to be said that the election officer was not at fault. There was flexibility available to him in conducting the election. 11. There was flexibility available to him in conducting the election. 11. The election procedure adopted by the nominated election officer to be invalidated for minor irregularities which are highlighted in the impugned orders of the Additional Collector and Additional Commissioner. The additional Collector has observed that the time of issuing the ballot papers should have been mentioned by the election officer. Second reason given by the learned Additional Collector is that the election officer did not sign the ballot papers and had used the pieces of papers which were blank from one side. There absolutely no iota of evidence on record to show that the election officer had manipulated the ballot papers. The record would show that he immediately took ballot box and got it sealed in presence of Tahsildar after the ballot papers counted in presence of the seven members/voters. He had no reason, However, to favour anybody and being an independent officer the learned additional Collector should have given more weightage to the word of the ion officer. The learned Additional Collector further found fault with the ion process because the proceedings were not signed by the respondents . 3 to 6. It is obvious that they had refused to sign because they had raised objection to the process of election. On that count, the election could not have invalidated. In fact, the election officer had made it clear that there was pandemonium after the results were announced A large group of persons, ding the respondents Nos. 3 to 6, had started asking several questions to the i1dar and the election officer. Both of them were placed in difficult situation. situational response could not be subsequently criticised and his action cannot be held as illegal because he left the place after sealing the ballot box and other articles without completing the proceedings book. One cannot be oblivious of the present day situation in the rural area. The instances are not unknown the elections do take ugly turn and lead to untoward incidents. The learned additional Collector should have visualized the plight of the election officer and should have tried to support his action instead of finding fault with him. 12. As stated before, there is no particular procedure provided by Rule ) and the election officer is free to evolve his own procedure for ensuring fair elections, particularly when demand for secret ballot is made. 12. As stated before, there is no particular procedure provided by Rule ) and the election officer is free to evolve his own procedure for ensuring fair elections, particularly when demand for secret ballot is made. The respondents 3 to 6 never contended that the demand for secret ballot was not made by anybody. The election officer on his own had no business to direct the voting by secret ballot and he was bound by the law, when such demand was made by three e members, to proceed with the election by secret ballot method. 13. This Court in Maruti Bandu Patil vs. Village Panchayat Sind others, 1981 Mh.L.J. 255 has held that when the demand was made to election by ballot voting then if the elections are held without secret ball would be vitiated. It is held that secret ballot is the mandatory procedure event such demand is made by any of the member. Obviously, the officer was required to follow the mandatory procedure at the relevant time. 14. Faced with this difficulty, learned counsel, Shri Chinchol submit that this Court should not interfere with the finding of fact as recorded both the authorities in view of scope of Article 227. He seeks to Roshanlal (dead) by LRs. vs. State of Rajasthan and others, (2004)13 and Essen Deinki vs. Rajiv Kumar, (2002)8 see 400. In the given case, Court has observed that only the errors of law, perverse finding violations of natural justice, to name a few, are available grounds to in writ jurisdiction under Article 227. 15. There cannot be any two opinion about the proposition that findings fact are not to be disturbed as a general rule in petition under Article" however, in the present matter there is patent error committed by the Additional Collector and the revisional authority while setting aside the Both the authorities failed to appreciate that Rule 10(2) does not co specific procedure to be followed for casting of votes. One of the arguments advanced by Shri Chincholkar is that illiterate members made aware about the method to be followed while casting of the appears from the proceeding book that seven members have signed except one. There was a single member, who could not sign and has thumb mark on the proceeding book. One of the arguments advanced by Shri Chincholkar is that illiterate members made aware about the method to be followed while casting of the appears from the proceeding book that seven members have signed except one. There was a single member, who could not sign and has thumb mark on the proceeding book. It need not be reiterated that the officer declared that he would assist the illiterate member, if other me no objection, in the process of casting the votes. Since nobody object relevant time, the election officer did assist the illiterate member in case vote. That would not vitiate the election process. A feeble attempt w make capital of the fact that the names of the candidates who had nominations first in time were written above those who filed them lat to see as to how such kind of sequence in writing of the names of the on the ballot papers could have caused any prejudice in the process of votes. 16. To conclude, I have no hesitation in holding that the finding learned Additional Collector and the Commissioner are improper an The impugned orders are unsustainable and hence liable to be Consequently, the petition is allowed and both the orders impugned quashed. The election of the petitioners is declared as valid. No costs. Petition allowed