Judgment : Oral Judgment: Rule. Made returnable forthwith. Heard finally with the consent of the parties. 2] The petitioner was elected as Sarpanch during the election held on 212.2007 of Gram Panchayat Deurwadi. Respondents no. 2, 4, 5 and 6 challenged that election before the Additional Collector, Washim. Said petition was dismissed. The ground that was raised to challenge the election was that the Returning Officer had followed wrong procedure of election, which was not in accordance with Rule 10(2) of the Bombay Village Panchayats (Sarpanch & Upa- Sarpanch) Election Rules. It appears to be a contention that though the symbols to the candidates are not required to be allotted, still they were allotted and the election was held by secret ballot. As stated, the said petition was dismissed. 3] The matter was taken in appeal before the Additional Commissioner, Amravati Division, Amravati by respondents. Said appeal No.15/BVP Act 33(5)/2007-2008 of Deurwadi, Tq. Manora, District Washim, was allowed by the order dated 110.2008. Learned Additional Commissioner relied on the judgment of the Apex Court reported in 1994 Mh.L.J. 100 [Jaenendrakumar Phoolchand Daftari –vs- Rajendra Ramkush Mishra & others. According to the Additional Commissioner, there is no provision under the Bombay Village Panchayats (Sarpanch & Up-sarpanch) Elections Rules to allot symbols to the contesting candidates. Even there are illiterate members who can cast their votes by ballots. Taking this view of the matter, the learned Commissioner allowed the appeal and set aside the election. 4] This order is challenged by the petitioner in this petition. 5] Learned counsel for the petitioner has submitted that merely because symbols were allotted to the contesting candidates, there is no breach of the rules and particularly rule 10(2). According to him, the decision of the Apex court in 1994 Mh.L.J. 100 Jaenendrakumar Phoolchand Daftari –vs-Rajendra Ramsukh Mishra & others, is not attracted at all, whereas the decision of this court reported in 2006(6)Mh.L.J. 801 Ratnamala w/o Ashokrao Shinde and another –vs- Election Officer, Gram Panchayat, Palodi, is squarely applicable. 6] According to him, the Returning Officer can evolve his own procedure to ensure proper and fair election progress. Rule 10(2) does not stipulate any procedure. According to him, merely because symbols were allotted that does not mean that there is any breach of rule or rule 10(2) calling for setting aside the election. 6] According to him, the Returning Officer can evolve his own procedure to ensure proper and fair election progress. Rule 10(2) does not stipulate any procedure. According to him, merely because symbols were allotted that does not mean that there is any breach of rule or rule 10(2) calling for setting aside the election. He has further submitted that the decision of the Apex Court referred above has been considered by this court in the aforesaid Ratnmalas case and therefore, the reliance placed by the Additional Commissioner, on that decision was not called for to allow the appeal. It is therefore, submitted by him that the said order should be set aside. 7] Learned A.G.P. for respondent no.1 has supported the order of the Additional Commissioner for the reasons recorded by him. 8] Learned counsel for the respondent no.2 has however, by taking me through decision of the Apex Court reported in 1994 Mh.L.J. 100 Jaenendrakumar Phoolchand Daftari –vs- Rajendra Ramsukh Mishra and others submitted that it was not necessary for Returning Officer to allot symbols to the contesting candidates even when the voters are ill-literate who are to cast votes by ballot. Therefore, procedure of the election as followed by the Presiding Officer should not have been evolved. As such the order passed by the Additional Collector, in pursuance to the aforesaid decision of the Apex Court was correct, therefore, it is not liable to be set aside. He has further submitted that it is a finding of fact and therefore is not liable to be interfered in this petition. 9] In order to appreciate the controversy in the matter, it is necessary to have close look on the proceedings of the instant election which is thus “This day 212.2007 i.e. Friday election for the post of Sarpanch/ Upa Sarpanch was held at Gram Panchayat Office Deurwadi, under the chairmanship of Shri L.M. Ingale (V.P.) Uttam Pandurang Natkar is a proposer thereof. Another nomination form for the post of Upa Sarpancha was received from Shri Vivek Vishnudas Ade at 11.30 O clock in the morning Proposer thereof is Sau Vandana Arjun Ade. Thereafter a nomination form of Sau. Kamla Ramrao Rathod for the post of Sarpancha was received at 11.50 O Clock in the morning. Proposer thereof is Usha Ruprao. Another nomination form for the post of Upa Sarpancha was received from Shri Vivek Vishnudas Ade at 11.30 O clock in the morning Proposer thereof is Sau Vandana Arjun Ade. Thereafter a nomination form of Sau. Kamla Ramrao Rathod for the post of Sarpancha was received at 11.50 O Clock in the morning. Proposer thereof is Usha Ruprao. Similarly, second nomination form for the post of Upa Sarpancha was received from Deshmukh Usha Ruprao at 11.55 O clock in the morning. Proposer thereof is Kamalsingh Mangalsingh. Gram Panchayat members Sau. Kamala Ramrao Rathod, Usha Ruprao Deshmukh and Shri Komalsingh Mangusingh Rathod by submitting an application, made a demand for voting by secret ballot for both the posts of residential Sarpancha and Upa Sarpancha. Similarly Grampanchayat members Vivek Vishnudas Ade, Sau. Sadhanatai Dadarao Patil, Uttam Pandurang Natkar and Sau Vandana Arjun Ade, submitted an application with their signatures for taking voting openly by show of hands. On receipt of the application for voting by secret ballot, a resolution was passed to take voting by secret ballot for the both the posts i.e. of Sarpancha and Upa Sarpancha, as per the rules. The meeting commenced at 2.00 Oclock sharp. All the seven out of total seven members were present. As the quorum was full, the meeting was commenced. At first, the Presiding Officer made the members aware of the secret ballot and informed them about it. All the members gave their consent to it. Accordingly ballot papers were prepared for the post of Sarpancha. Name of 1] Sau. Sadhana Dadarao Patil who was the candidate for the post of Sarpanch was written against which she was allotted a symbol of Chendu (ball) as demanded by her. Name of Sau. Kamala Ramrao Rathod who was another candidate of the post of Sarpancha was written on the ballot paper, against which she was allotted a symbol of Bird as demanded by her. Total seven ballot papers were prepared for the post of Sarpancha and one dummy ballot paper was prepared for showing it to the candidates. Name of Vivek Vishnudas Ade who was the candidate for the post of Upa Sarpancha was written and as demanded by him, he was allotted a symbol of Pencil. Total seven ballot papers were prepared for the post of Sarpancha and one dummy ballot paper was prepared for showing it to the candidates. Name of Vivek Vishnudas Ade who was the candidate for the post of Upa Sarpancha was written and as demanded by him, he was allotted a symbol of Pencil. Name of Usha Ruprao Deshmukh who was another candidate for the post of Upa Sarpancha was written and a symbol of Flower was allotted to her as demanded by her. Total 7 ballot papers were prepared for the post of Upa Sarpancha and 1 dummy ballot paper was prepared for showing it to the candidates. Thereafter ballot papers and dummy ballot papers were shown and instructions were given for secret voting. At first election was held for the post of Sarpanch and thereafter election was held for the post of Upa Sarpancha and the ballot papers - were deposited in (a cardboard) box. On counting of the ballot papers, Sau Sadhana Dadarao Patil was found to have secured 3 (three) votes for the post of Sarpancha whereas Sau. Kamala Ramrao Rathod was found to have secured 3 votes for the post of Sarpancha. One ballot paper for the post of Sarpanch was found without a vote being cast. (blank). As both the candidates for the post of Sarpancha secured equal No. of votes, discussion was held and Ishwar Chitthi [draw by lot] was carried through Roshan Ramesh Ade, aged 5 years, resident of Chitwali. The Ishwar Chitthi (draw by lot) was found to be in favour of Sau. Kamala Ramrao Rathod. Hence I L.M. Ingale Chairman, Gram Panchayat Deurwadi hereby declare Sau. Kamala Ramrao Rathod elected for the post of Sarpancha of Gram Panchayat Deurwadi. Similarly on counting the ballot papers for the post of Upa Sarpancha, it was found that Shri Vivek Vishnudas Ade had secured 4 (four) votes and Deshmukh Usha Ruprao, another candidate for the said post had secured 3(three) votes. Hence I hereby declare Vivek Vishnudas Ade elected for the post of Upa Sarpancha. At the end, the meeting was declared over.” 10] Only allotment of symbols was something, which was not provided in the rules. Rest of the procedure followed is not at all challenged. 11] In order to consider as to whether such allotment of symbol could vitiate the election, one has to examine the relevant rule. At the end, the meeting was declared over.” 10] Only allotment of symbols was something, which was not provided in the rules. Rest of the procedure followed is not at all challenged. 11] In order to consider as to whether such allotment of symbol could vitiate the election, one has to examine the relevant rule. Rule 10(2) reads thus: “10(2):(2) If more than one candidate have been so nominated, the Presiding Officer shall proceed to elect the Sarpanch as the case may be, Upa 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 voters shall be declared to have been duly elected as Sarpanch, or as the case may be, Upa Sarpanch. When 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 as Sarpanch or, as the case may be, Upa Sarpanch, the determination of the candidate to whom such additional vote shall be deemed to have been given shall be made by lot to be drawn by the Presiding Officer in such manner as he shall determine.” 12] It cannot be disputed that there is no particular procedure provided by Rule 10(2) and Presiding Officer is free to evolve his own procedure for ensuring fair procedure, particularly; if demand of secret ballot is made. It is necessary to note that granting symbols to the contesting candidates is not specifically prohibited under that rule. However contention for implied prohibition has been raised on the basis of observations of the Apex Court in paragraph 9 of the Janendrakumars case. Paragraph 9 reads thus: “9. There is no provision in the Rules requiring allotment by the Presiding Officer of symbols to candidates, where the voting of the members of the Panchayat for the election of the Sarpanch or Upa Sarpanch by means of secret Ballot becomes necessary. Such provision is not envisaged 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. Such provision is not envisaged 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 of 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 zeros 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 caste 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 candidates even where there are illiterates among members who have to cast their votes by ballot. This is our answer to Point-2.” It would appear on perusal of these observations along with observations in paragraph 7 of the said judgment which reads thus: “7. According to sub rule (2), the Presiding Officer conducting the election of the Sarpanch or the Upa Sarpanch among the contents in a meeting of the members of the Panchayat concerned convened for the purpose, is required to call upon such members to vote by show of hands. But, it requires the Presiding Officer to carry out such election by secret ballot if any members present at the meeting, makes a demand in that regard. Thus, the sub rule clearly specifies the method by which the Presiding Officer shall proceed to have the Sarpannch or Upa Sarpanch, as the case may be, elected. However, the question is, whether the sub rule permits the Presiding Officer of the election meeting to have the Sarpanch or Upa Sarpanch, as the case may be elected, by calling the voter to elect the Sarpanch, by show of hands or by voting by ballot, according to his choice. However, the question is, whether the sub rule permits the Presiding Officer of the election meeting to have the Sarpanch or Upa Sarpanch, as the case may be elected, by calling the voter 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 unwarranted anomaly. Having regard to the requirement of the provision which specifically 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 have the Sarpanch or Upa Sarpanch elected in a manner different from that indicated in the provisions 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 to elect the Sarpanch or Upa Sarpanch, as the case may be 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.” that recourse to the secret ballot has to be taken when there is such demand. 13] Here is the case where such demand was made. There was objection to this also because some of the members of the Gram Panchayat had asked for voting by raise of hands. Thereafter, it was decided that there should be voting by secret ballot, later on respondent no.2 asked for symbol of “ball”. Petitioner at her choice was granted symbol of “bird”. Thus it appears that contesting candidates had asked for symbols and they did not object at any time for allotment of symbols nor claimed that there should be an election, by secret ballots as indicated by the Hon. Apex Court in paragraph 9 of the aforesaid judgment. Petitioner at her choice was granted symbol of “bird”. Thus it appears that contesting candidates had asked for symbols and they did not object at any time for allotment of symbols nor claimed that there should be an election, by secret ballots as indicated by the Hon. Apex Court in paragraph 9 of the aforesaid judgment. In my opinion, therefore, once the respondent no.2 had acceded to the procedure evolved by the Presiding Officer, she should be estopped from claiming it to be illegal and to challenge the election of the petitioner on that ground particularly when no prejudice is seen to be caused to her. 14] On careful perusal of the observations of the Apex Court in paragraph 9 of the judgment referred above, it would be difficult to hold that allotment of symbols was totally prohibited, though it was observed that it was not necessary. Particularly, in the facts of the instant case and the proceeding, which I have extracted above, challenge of the respondent no.2 to the Election on this ground cannot be upheld. 15] In this context, it is necessary to see the observations of the learned Single Judge in 2006(6) Mh.l.J. 801 Ratnamala w/o Ashokrao Shinde & another –vs- Election Officer, Gram Panchayat, Palodi: “The election procedure adopted by the nominated election officer cannot be invalidated for minor irregularities which are highlighted in the impugned orders of the Additional Collector and Additional Commissioner and the facts therein and in particular the observations in paragraph 14 which reads thus: “14-Faced with this difficulty, learned counsel, Shri Chincholkar would submit that this Court should not interfere with the finding of fact as recorded by both the authorities in view of scope of Article 227. He seeks to rely on Roshanlal (dead) by Lrs. –vs- State of Rajasthan and others, (2004) 13 SCC 559 ) and Essen Deinki –vs- Rajiv Kumar, (2002) 8 SCC 400 ). He seeks to rely on Roshanlal (dead) by Lrs. –vs- State of Rajasthan and others, (2004) 13 SCC 559 ) and Essen Deinki –vs- Rajiv Kumar, (2002) 8 SCC 400 ). In the given case, the Apex Court has observed that only the errors of law, perverse finding and gross violations of natural justice, to name a few, are available grounds to interfere in writ jurisdiction under Article 227.” 16] It would be seen that when there is patent error committed by the Additional Commissioner in deciding the matter and allowing the appeal, same has to be interfered with; in the writ jurisdiction of this court, under article 227 as there appears totally incorrect application of law to the facts of the case. 17] In this view of the matter, the petition succeeds. The order passed by the Additional Commissioner, Amravati, impugned in this petition is hereby quashed and set aside and the order of Additional District Collector, Washim, is hereby restored. 18] Rule made absolute in the aforesaid terms. No order as to costs.