JUDGMENT :- Heard Shri Sandeep Chopde, Advocate, for the petitioner. Shri Jaiswal, A.G.P. for respondent Nos. 1 to 3 and Shri P. C. Madkholkar, Advocate, for respondent No.5. None for respondent No.4. Rule made returnable forthwith. Heard finally with the consent of the parties. 2. The petitioner, by way of this petition under Articles 226 and 227 of the Constitution of India seeks to challenge the order passed by Additional Commissioner, Amravati Division, Amravati, in Appeal No. 13/BVP Act 16(2)/2007-08 of Bhaurad, Tq. and Distt. Akola, by which he set aside the order of the Additional Collector, Akola, in the matter of Election Dispute No. Bhaurad/4/2007-08 under section 33(5) of the Bombay Village Panchayat Act. 3. The petitioner was elected as Sarpanch in the election held on 29-122007 of Gram Panchayat Bhaurad. He is an elected member of the said Gram Panchayat, Bhaurad. So also respondent No.5. Total strength of members of Gram Panchayat Bhaurad is 17. The petitioner and respondent No.5 contested the said election for the post of Sarpanch. The petitioner got elected. The petitioner had received 9 votes, whereas respondent No.5 received 8 votes. The voting as per the demand of the members was by secret ballot. The respondent No. 5 challenged the above election of petitioner as Sarpanch by filing dispute under section 33(5) of the Bombay Village Panchayat Act, 1958, before the respondent No.2 - Additional Collector, Akola. The main ground on which the election of the petitioner to the post of Sarpanch was challenged was that there were distinguishing marks on 3 ballot papers voted in favour of the petitioner and therefore, those ballot papers should have been rejected as invalid votes. 4. After hearing the parties, the learned Additional Collector rejected the complaint of respondent No.5. 5. Respondent No. 5 then preferred appeal before the Commissioner, Amravati Division, Amravati. The learned Additional Commissioner passed the impugned order on 6th September, 2008. He allowed the appeal of respondent No.5 and thereby set aside the order of respondent No.2 - Additional Collector, Akola, whereby the petitioner's election as Sarpanch was quashed. This order of the Additional Commissioner, Amravati Division, Amravati, is challenged in this petition. 6. This Court, by the order dated 15th September, 2008, directed to maintain status-quo and the notice before admission was issued. Later on, considering the circumstances, the matter was directed to be heard finally at the stage of admission itself. This order of the Additional Commissioner, Amravati Division, Amravati, is challenged in this petition. 6. This Court, by the order dated 15th September, 2008, directed to maintain status-quo and the notice before admission was issued. Later on, considering the circumstances, the matter was directed to be heard finally at the stage of admission itself. Accordingly, I have heard the learned counsel for the parties in extenso. 7. Learned counsel for the petitioner has submitted that the petitioner was elected to the post of Sarpanch on 29-12-2007. The present petitioner secured 9 votes, whereas the respondent No. 5 obtained 8 votes; in the total strength of members of 17. According to him, the election has to be held normally by show of hands, however, if there is demand of election by way of ballots, the same can be accepted and in view of Rule 10(2) of Bombay Village Panchayats (Sarpanch and Up-Sarpanch) Election Rules, 1964, the procedure for election can be evolved by the Presiding Officer. According to him, there is no specific procedure prescribed for such election and therefore, unless there is a clear cut and express provision in the rules to invalidate the ballot papers having some signs, such rejections of those ballot would not be proper and legal. According to him, this was not the issue raised by the respondent No.5 at the time of election or counting of votes. Further according to him, there was no prearrangement proved or alleged between the petitioner and any of the voters, particularly for those 3 votes. The names of those 3 voters could not be identified simply because of the marks noticed on the ballots. According to him, the affidavit of Election Officer shows that there was possibility of making these marks only after counting of votes, as there was no record of such marking on the ballot papers, when those were supplied to the voters/members or at the time of counting. According to him, normally, in such elections, the voting is by open ballots, unless specifically otherwise provided for. Therefore, even if the voting was by secret ballot, the ballot papers which had some marks could not be invalidated, unless this ~s specifically provided by the rules or declared so by the Presiding Officer. According to him, normally, in such elections, the voting is by open ballots, unless specifically otherwise provided for. Therefore, even if the voting was by secret ballot, the ballot papers which had some marks could not be invalidated, unless this ~s specifically provided by the rules or declared so by the Presiding Officer. Further, according to him, as voters by such marks were not identified or nor could be identified, the election of the petitioner as Sarpanch could not be set aside. Therefore, according to him, the order of the Additional Collector was correct; whereas the impugned order passed by the Additional Commissioner is totally illegal, improper and unjust and not in accordance with well established principles of secret ballot election. Therefore, according to him, the petitioner is entitled to the relief as sought i.e. to continue as Sarpanch, duly elected, of Village Gram Panchayat Bhaurad. He has pressed into service some authorities which I would discuss later at the appropriate place. 8. Per contra, the learned A.G.P. has supported the order of the Additional Commissioner and contended that as the voting was by way of secret ballot, and there were marks found on 3 ballots, which were in favour of the petitioner, the election of the petitioner to the post of Sarpanch was rightly set aside by allowing the appeal by the learned Additional Commissioner, as because of these three invalidated votes, he would not have majority. Therefore, according to him, the petition is liable to be dismissed. 9. Learned counsel for respondent No.5 has contended that there is no fundamental right for being elected or to contest the election. Similarly, there is no fundamental right to vote and to file the election petition. All these are rights provided by the statute. According to him, when the voting was by way of secret ballot, the marks on the ballot papers would invalidate those ballots, consequently the petitioner as he would lose 3 votes out of 9, his election to the post of Sarpanch had to be declared as invalid and illegal. According to him, when there is a breach of secrecy and marks are seen on the ballot papers, the ballot papers will have to be invalidated even in absence of any such rules. He has also relied on some authorities, which I would discuss later. 10. According to him, when there is a breach of secrecy and marks are seen on the ballot papers, the ballot papers will have to be invalidated even in absence of any such rules. He has also relied on some authorities, which I would discuss later. 10. In reply, learned counsel for the petitioner submitted that in the case of Kuldip Nayar vs. Union of India and ors., AIR 2006 SC 3127 , the Apex Court has held that, the election by open ballots, if provided by rules, would be in accordance with law. According to him, the election by way of open ballot is permitted for election of Sarpanch and in the present case, in view of Rule 10(2) of the Bombay Village Panchayat (Sarpanch and Upa-Sarpanch) Election Rules, 1964, if there is no specific provision for secret ballot, the election by way of open ballot shall be permissible and therefore, merely because there are some markings on 3 ballot papers, the same could not be invalidated. Therefore, according to him, the petitioner's election should not have been set aside by the Additional Commissioner, Amravati. 11. Before proceeding further, it is necessary to mention that this Court has also seen the ballot papers, which were in sealed cover. 3 ballot papers were having the marks of "Star", "minus" and "Plus" ("*", "-" and "+"). 12. In order to appreciate the controversy in the matter, it is necessary to see the proceedings of the said election meeting dated 29-12-2007. It is thus :Proceedings of the Minutes of the meeting for the election to the post of Sarpanch and Upa Sarpanch of Gram Panchayat Bhaurad, held on 29-12-2007. As per the order bearing No. C.P.E./OD-2233/07, dated 10-12-2007 of the Tqhsildar Akola, first meeting of the newly elected members for the purpose of election to the post of Sarpanch and Upa-Sarpanch was held at the office of Gram Panchayat Bhaurad, this day, 29-12-2007 at 2.00 p.m. Prior to that i.e. from 11.00 a.m. to 12.00 noon, nomination forms for the election to the post of Sarpanch/Upa-Sarpanch were accepted as per the election programme. At 2.00 p.m., sharp, the secretary of the Gram Panchayat introduced all thOe newly elected members of Gram Panchayat, Bhaurad, and obtained their signatures on the register. Notices of the meeting were issued to all the members as per the rules. At 2.00 p.m., sharp, the secretary of the Gram Panchayat introduced all thOe newly elected members of Gram Panchayat, Bhaurad, and obtained their signatures on the register. Notices of the meeting were issued to all the members as per the rules. Out of the elected members of the Gram Panchayat, 17 members are present for the meeting. As the coram required for the meeting was full, the meeting was commenced. It was stated in the meeting that the post of Sarpanch of Gram Panchayat, Bhaurad was (reserved) for the persons of open category. First of all the nomination forms received for the post of Sarpanch and Upa Sarpanch were read over to the members. Accordingly, nomination forms of (1) Subhas Manikrao Lavhale and (2) Ambadas Kisan Kogade were received for the post of Sarpanch. Similarly nomination forms of (1) Sachin Wasudeorao Thakare and (2) Sou. Mirabai Shreeram Shinde were received for the post of Upa-Sarpanch. Thereafter, all the nomination forms were scrutinized, during the course of which, valid nomination forms are found as under : For the post of Sarpanch - (1) Subhas Manikrao (the name of Ambadas Kisan Kogade is missing) and for the post ofUpa-Sarpanch (1) Sachin Wasudeorao Thakare and (2) Sou. Mirabai Shreeram Shinde. Thereafter, time was given to the candidates for withdrawal of their nominations. The following members did not withdraw their nominations. The two persons i.e. Subhas Manikrao Lavhale and Ambadas Kisan Kogade and another two persons i.e. Shri Sachin Wasudeo Thakare and Sou. Mirabai Shreeram Shinde did not withdraw their nominations for the post of Sarpanch and Upa Sarpanch respectively. Hence, (1) Subhas Manikrao Lavhale and (2) Ambadas Kisan Kogade remained as candidates for the post of Sarpanch, whereas (1) Sachin Wasudeo Thakare and (2) Sou. Mirabai Shreeram Shinde remained as candidates for the post of Upa Sarpanch. On receipt of the application of (1) Rajendra Bholaji Sardar (2) Motiram Ganpat Sonule (3) Sunil Damodar Gite and (4) Ambadas Kisan Kogade that voting should be taken by secret ballot, voting was taken by secret ballot. During voting by secret ballot (1) Ambadas Kisan Kogade secured 8 votes and (2) Subhas Manikarao Lavhale secured 9 votes for the post of Sarpancha. Hence, it was officially declared that Subhas Manikrao Lavhale was elected as Sarpanch of Gram Panchayat Bhaurad. During voting by secret ballot (1) Ambadas Kisan Kogade secured 8 votes and (2) Subhas Manikarao Lavhale secured 9 votes for the post of Sarpancha. Hence, it was officially declared that Subhas Manikrao Lavhale was elected as Sarpanch of Gram Panchayat Bhaurad. (1) Meerabai Shreeram Shinde secured 8 votes and (2) Sachin Wasudeorao Thakare Secured 9 votes for the post of Upa-Sarpanch and (2) Sachin Wasudeorao Thakare was officially declared as Upa Sarpanch. '(Thereafter, a vote of thanks was proposed to all the members who were present and the first meeting for election to the posts of Sarpanch/Upa Sarpanch was declared over. " It would be seen from these proceedings that there was a demand of voting by secret ballot and therefore, the voting was done by secret ballot and thereafter the petitioner secured 9 votes, whereas respondent No.5 secured 8 votes, and as such the petitioner was declared as elected to the post of Sarpanch. 13. Rule 10 of Bombay Village Panchayats (Sarpanch and Up-Sarpanch) Election Rules, 1964, hereinafter referred to as Election Ru1es, provided thus: 10. Procedure for election. - (1) If only one candidate has been duly nominated for the office of the Sarpanch or Upa Sarpanch, he shall be declared to have been duly elected as Sarpanch or, as the case may be, Upa-Smpanch. (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, UpaSarpanch. 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, 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. "(emphasis provided.) 14. "(emphasis provided.) 14. It is obvious that there is no specific procedure prescribed for such election and initially the voting at such election need to be by show of hands. However, if any member present in the meeting so demands. The voting has to be by ballot. Though it may appear that voting by secret ballot is not expressly provided. In view of 1994 Mh.L.J. 100, Jaenendrakumar vs. Rajendra. It has to be by secret ballot. In the present case, however, there is specific demand of voting by secret ballot, accordingly it was so held. 15. Learned counsel for respondent No. 5 has relied on the following authorities in support of his contention. (1) 2000(2) Mh.L.J. 249 , Sudhakar Gangaram Bahale vs. Madhukar Ramrao Bhuibhar and others wherein it has been observed in paras 19 and 20 thus "19. I have no hesitation to state that considering the nature of dispute, which was restricted to the examination of the two ballot paper Nos. 017 and 018, the earlier decision taken by the parties before the Election Tribunal that they do not propose to lead evidence, was not incorrect and did not cause any prejudice to the parties; if in the facts and circumstances of the case, the Election Tribunal thought that it was not necessary and proceeded to decide the matter on the basis of the record, to quote from Hulsbury's Law of England, " , it has been said that the Court should look at the paper and form its own opinion whether what is there has been put there by the voters for the purposes of indicating for whom he votes; if the voter has not voted in the proper way (if for example he has made two crosses, or some other such marks which might have been intended for the purposes of identification), ___". Therefore, in the present case also, it was for the Election Tribunal to look at the ballot papers and form its own opinion as to whether there has been any breach of Rule 55(2)(a) of the Election Rules, 1971, or not, and for that purposes, it was not necessary that any evidence was, required to led, though in a given case, it cannot be ruled out. 20. 20. It is the contention of the learned counsel for the petitioner that in the impugned order, the Election Tribunal has not given any reasons as to how it came to the conclusion that in exercising its right of franchise, the votes have committed breach of Rule 55(2)(a), particularly in reference to the ballot papers in dispute. From the impugned order, what one finds is that though detailed reasons in the matter are not given, but the finding is based on the fact that the two votes, which were cast in favour of the petitioner, vide ballot paper Nos. 017 and 018, did contravene rule 55(2)(a) of the Election Rules, 1971, as they had additional marking than the authorised mark. With the assistance of the learned counsel for the parties, this Court has critical/y examined ballot papers Nos. 017 and 018. What has to be ascertained is as to whether the additional marks on the ballot paper Nos. 017 and 018 construe committing of breach of Rule 55(2)(a) i.e. whether they bear any mark or writing from which the voters can be identified. This is only possible by examining the nature and characteristic of the additional marks which will go a long way• in deciding whether it is in breach of the rule or not. Examination of ballot paper Nos. 017 and 018 reveals that the two voters, who had cast their votes in the election, have carried with them identical rubber-stamps for marking the ballot papers, in addition to the authorised instrument, which speaks of a pre-arrangement and not a coincidence. The two ballot papers in question reveals that the votes have been given in favour of the petitioner. The unauthorised marking on the said ballot papers are made in the column of the candidates in whose favour they did not cast their votes. To my mind, this unauthorised marks by a rubber-stamp which are identical in nature in the two ballot papers in question, are sufficient to reveal the identity of the voters and they are not merely innocuous markings on the ballot papers which could have been ignored, as held in the two cases viz. To my mind, this unauthorised marks by a rubber-stamp which are identical in nature in the two ballot papers in question, are sufficient to reveal the identity of the voters and they are not merely innocuous markings on the ballot papers which could have been ignored, as held in the two cases viz. Shradha Dev's case and Anup Singh's case (Cited supra)." It was held that if there are unauthorized marks on ballot papers which are sufficient to reveal the identity of the voters, invalidating of the votes in favour of the petitioner would be justified. He has taken me through the observations of this Court in 1981 Mh.L.J. 255, Maruti Bandu Patil vs. Village Panchayat Sindhnerli and others, to contend that if there is demand by members that voting should be by ballot, ballot voting would be mandatory. He has also referred to the judgment of this Court reported in 1996 Mh.L.J. 804, Dajiba and others vs. Sangappa and others; to contend that when the voting papers contain mark by an instrument other than official instrument, such distinguishing mark is likely to disclose the identity of voter, such voting paper shall be invalid. He has further relied on the judgment of the Supreme Court reported in AIR 1982 SC 983 , Jyoti Basu and others vs. Debi Ghosal and others; wherein it is observed : "A right to elect is fundamental though it is to democracy, is anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation ". He also referred to the judgment of this Court in 2006(6) MhLJ. 801 = 2007(1) ALL MR 741, Ratnamala Ashokrao Shinde and anr. vs. Election Officer, Gram Panchayat Paldi, Distt. Hingoli and ors.; particularly paras 15 and 16, which read thus - 15. There cannot be any two opinions about the proposition that findings of fact are not to be disturbed as a general rule in Petition under Article 227. Still, however, in the present matter there is patent error committed by the learned Additional Collector and the revisional authority while setting aside the election. There cannot be any two opinions about the proposition that findings of fact are not to be disturbed as a general rule in Petition under Article 227. Still, however, in the present matter there is patent error committed by the learned Additional Collector and the revisional authority while setting aside the election. Both the authorities failed to appreciate that Rule 10(2) does not contain any specific procedure to be followed for casting of votes. One of the limb of arguments advanced by Shri Chincholkar is that illiterate members were not made aware about the method to be followed while casting of the votes. It appears from the proceeding book that seven members have signed the same except one. There was a single member, who could not sign and has put his thumb mark on the proceeding book. It need not be reiterated that the Election Officer declared that he would assist the illiterate member, if other members had no objection, in the process of casting the votes. Since nobody objected at the relevant time, the election officer did not assist the illiterate member in casting of the vote. That would not vitiate the election process. A feeble attempt was made to make capital of the fact that the names of the candidates who had filed their nomination first in time were written above those who filed them later on, I fail to see as to how such kind of sequence in writing of the names of the candidates on the ballot papers could have caused any prejudice in the process of casting the votes. 16. To conclude, I have no hesitation in holding that the findings of the learned Additional Collector and the Commissioner are improper and incorrect. The impugned orders are unsustainable and hence liable to be quashed. Consequently, the petition is allowed and both the orders impugned herein are quashed. The election of the petitioners is declared as valid. No costs. " He has mainly relied on the judgment of the Apex Court reported in 1994 Mh.L.J. 100, Jaenendrakumar Phoolchand Daftari vs. Rajendra Ramsukh Mishra and others, particularly on paras 7 and 8, to contend that in view of Rule 10(2), if there is demand of election by ballot, it would be only by secret ballot, which read thus - 7. " He has mainly relied on the judgment of the Apex Court reported in 1994 Mh.L.J. 100, Jaenendrakumar Phoolchand Daftari vs. Rajendra Ramsukh Mishra and others, particularly on paras 7 and 8, to contend that in view of Rule 10(2), if there is demand of election by ballot, it would be only by secret ballot, which read 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 member 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 Sarpanch or Upa Sarpanch, as the case may" be, elected. However, the question is, whether the subrule 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 regarded as superfluous unless such a construction is likely to lead to as 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 elected in a manner different from that indicated in the provision in sub-rule (2) of Rule 10. Hence, the provisions 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, 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. 8. While sub-rule (2) of Rule 10, require the Presiding Officer to 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 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 Rule 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 upon the members present in such meetings to vote by secret ballot in favour of one or the other candidates contesting the election or the Office of Sarpanch or Upa-Sarpanch unless a demand in that behalf is made by any member so present. Therefore, according to him, when, in the present case, the voting was required to be and in fact done by secret ballots, the marks on 3 ballot papers were disclosing the identity of the voters, the said ballots were rightly invalidated by the learned Additional Commissioner, to allow the appeal. 16. As against this, learned counsel for the petitioner has also relied on some authorities in this context. The brief reference to the same would be sufficient. ' (i) 1998(3) Mh.L.J. 622 , Hindurao Dnany Shirtode and another vs. State of Maharashtra and others, wherein it was held that when there are rules, the said rules would be applicable, to mean that when there are no specific rules, there cannot be any breach of rules. He has referred to 2003(3) Mh.L.J. 565 = 2003(3) ALL MR 19, Shital Sudhir Sonavle vs. Group Gram Panchayat, Vaghoshi and ors., also in this behalf. 17. I may mention that these two judgments are regarding the issue pertaining to "no confidence motion" rules. Learned counsel has further relied on the judgment of this Court reported in 2006(6) Mh.L.J. 801 = 2007(1) ALL MR 741, Ratnamala Ashokrao Shinde and anr. vs. Election Officer, Gram Panchayat, Palodi, Distt. 17. I may mention that these two judgments are regarding the issue pertaining to "no confidence motion" rules. Learned counsel has further relied on the judgment of this Court reported in 2006(6) Mh.L.J. 801 = 2007(1) ALL MR 741, Ratnamala Ashokrao Shinde and anr. vs. Election Officer, Gram Panchayat, Palodi, Distt. Hingoli and ors., to which I have made reference earlier, but has relied particularly on paras 3, 4, 11 and 12, which read thus- “3. There are seven members of Village Panchayat Palodi (Distt. Hingoli). Admittedly, election was held on 24-8-2005 for post of Sarpanch and Upa-Sarpanch. An election officer, who is Junior Engineer in Irrigation Department, was appointed to conduct the election. The election officer convened a meeting of the village Panchayat members. The Panchayat members were informed about the purpose of the meeting and the election proceedings were started. At about 1:45 p.m., three member of the village Panchayat submitted an application to the election officer and requested him to conduct the election by secret ballot. The election officer granted their request and decided to hold the election by secret ballot method. He distributed paper slips for use of the members/voters and called upon them to put thick mark against the names of those in favour of whom they wanted to cast the vote. There were two contesting candidates for the post of Sarpanch and two contesting candidates for the post of Upa Sarpanch. The votes were casted by putting ballot papers in the ballot box and after counting of votes, election officer declared the petitioners No. 1 and 2 as elected Sarpanch and Upa 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 the place since he apprehended some foul play. He thereafter reported to the Collector regarding the incident. In the meanwhile, respondent Nos. 3 to 6 filed an Appeal 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 i.e. the, members of the Village Panchayat prior to casting of their votes. Some of the members of the Village Panchayat are illiterate and hence could not have understood the procedure. 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 i.e. the, members of the Village Panchayat prior to casting of their votes. Some of the members of the Village Panchayat are illiterate and hence could not have understood the procedure. The election officer further committed irregularity by casting a vote himself and thereby participated in election, process. The proceeding book was not written at the place of the election. They contended that the election officer had flouted the relevant rules and regulations while conducting the election and as such declaration of results is illegal. The learned Additional Collector called remarks of the election officer. He conducted some inquiry, heard the parties and held that the election process was not conducted in accordance with the relevant rules. He held that the election of the petitioner is vitiated due to improper process of election and particularly when the election officer had participated in the process of casting the votes. Hence he set aside the petitioner's elections. It is this order which is subject of challenge in the instant petition. 11. 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. 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 is 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 the ballot box and got it sealed in presence of Tahsildar after the ballot papers were counted in presence of the seven members/voters. He had no reason, whatsoever, to favour anybody and being an independent officer, the learned Additional Collector should have given more weightage to the words of the election officer. The learned Additional Collector further found fault with the election process because the proceedings were not signed by the respondent Nos. 3 to 6. It is obvious that they had refused to sign because they had raised objection to the process of election. The learned Additional Collector further found fault with the election process because the proceedings were not signed by the respondent Nos. 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 been invalidated. In fact, the election officer had made it clear that there was pandemonium after the results were announced. A large group of persons, including the respondent Nos. 3 to 6 had started asking several questions to the Tahsildar and the election officer. Both of them were placed in difficult situation. His 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 proceeding book. One cannot be oblivious of the present day situation in the rural area. The instances are not unknown when the elections do take ugly turn and lead to untoward incidents. The learned Additional Collector should have considered 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 10(2) and the election officer is free to evolve his own procedure for ensuring fair elections, particularly when demand for secret ballot is made. The respondent Nos. 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 of the members, to proceed with the election by secret ballot method. " He has also referred to some other judgments including those reported in 2008(6) MhLJ. 376 , Chandrakalabai Giridharrao Khangar and another vs. Additional Commissioner, Amravati Division, Amravati and others, i.e. AIR 1993 HP 84 , Narain Chand Prashar vs. Prem Kumar Dhumal and others, AIR 1999 SC 3827 , Hareram Pandey vs. Ajit Chaudhary, and 1964 MhLJ. 382 = AIR 1964 Bombay 228, Sakharam Vithoba Salunke vs. Shankar Babaji Sawant and others, mainly to contend that there should be pleadings in the election petition as regards corrupt practice, sans which elections cannot be set aside. 382 = AIR 1964 Bombay 228, Sakharam Vithoba Salunke vs. Shankar Babaji Sawant and others, mainly to contend that there should be pleadings in the election petition as regards corrupt practice, sans which elections cannot be set aside. He has also referred to 1994 Mh.L.J. 100, Jaenendrakumar Phoolchand Deftari vs. Rajendra Ramsukh Mishra and others, referred above, to contend that, as the secret ballot is an exception in a special situation, even if there is some irregularity therein, it would not invalidate the election of the petitioner as Sarpanch. He has also relied on the judgment of the Apex Court reported in AIR 2006 SC 3127 , Kuldip Nayar vs. Union of India, particularly to contend that the secrecy of the voting has to be specifically provided and if there is voting by open ballot, it would not be a ground to invalidate the election. 18. Now turning to the present election. I have already pointed out that there were 3 ballots which had some marks like "*", "+" and "-" (Star, plus and minus) in favour of petitioner. I have also pointed out that Rule 10(2) referred above, does not expressly provide for invalidation of such ballots. As such question would be whether these ballots could identify the voters and therefore, whether it is necessary to strike down the election of the petitioner. 19. On perusal of the minutes of the meeting (quoted above), it would be seen. that there is no reference to such ballots or any objection raised by respondents No.5 at the time of counting or declaration of result regarding such marks and about the possibility of disclosure of the identity of those voters because of such marks. There appears nothing in the said marks or on record to show that the said marks were or could be because of the any prearrangement between the candidate and voters. 20. It is necessary to see the statement of the Presiding Officer, which was filed by him as a reply to the election dispute filed by respondent No.5 in this regard. He has specifically stated that each of the ballot papers was examined in presence of all. The ballot papers were shown to all the members of Gram Panchayat prior to the election. He denied that there were any marks on the ballot papers or signatures of the voters on those ballot papers. He has specifically stated that each of the ballot papers was examined in presence of all. The ballot papers were shown to all the members of Gram Panchayat prior to the election. He denied that there were any marks on the ballot papers or signatures of the voters on those ballot papers. It is specifically mentioned that, at the time of counting, none of the members had taken any objection, in writing or oral, or challenged the validity of the ballot papers. There is nothing on record suggesting any reason for him to depose false in favour of petitioner. Therefore, it clearly appears that respondent No. 5 did not raise any grievance at the relevant and proper time. All such grievances raised later would be afterthought. 21. The election petition of respondent No.5 before the Collector has a reference to the tampering of atleast 5 ballot papers. As already stated above, this Court had verified these ballot papers in presence of the counsel of the parities and only 3 ballot papers were found to have the marks. 22. The learned Commissioner while allowing the appeal of respondent No.5 has observed thus "It appears that on 29-12-2007 election for the post of Sarpanch and Upa Sarpanch were held. The basic issue in this case is that ballot papers for the post of Sarpanch for hand written marks like '+' and '*' against the name of one or other candidate. Said ballot papers were called to this office on 22-7-2008. These envelopes were opened in the presence of both the parties as well as their counsels. Total 17 ballot papers were examined. It was seen that on ballot paper No. 9 there was one 'X' mark against the name of Subhas Manikrao Lavhale, on ballot paper No.5 there is '*' mark and ballot paper no. 16m there is 'i/'right mark. These ballot papers were shown to both the parties and their counsels. Somehow, it is seen that election to the post of Sarpanch was held by secret ballot and once a procedure is adopted it has to be followed scrupulously. The contention of the appellant that marks should be put with instrument provided by election officer appears to be correct and in process of all elections ballots found with mark with any other instrument are declared invalid. The contention of the appellant that marks should be put with instrument provided by election officer appears to be correct and in process of all elections ballots found with mark with any other instrument are declared invalid. Since there are marks on ballot papers No.9, 5 and 16 with distinct sign like; 'X', '*', the respondents contention that possibility of then signed existing on ballot papers before preparing them into ballot papers cannot be accepted. It is clear that the principle of secrecy has been violated thus, ballot papers have become identifiable and hence I find it proper to declare ballot paper No.5, 9 and 6 cast in this election is invalid. He has said that normally election to the post of Sarpanch and Upa-Sarpanch is held by show of hands and the secrecy is not germane issue in this case. In the instant case, only two candidates were seeking election for the post of Sarpanch they are, Mr. Ambadas Kisan Kokade and Subhas Manikrao Lavhale were contesting candidates. In all, there are 17 members in the Gram Panchayat, Bhaurad. Ambadas Kisan Kokade had received eight votes and Subhas Manikrao Lavhale has 9 votes and therefore, he has declared elected by margin of one vote. Only contention in the case is that out of nine votes received by Mr. Lavhale who is winning candidate. Some ballot papers are found which have marks with ink pen. All the 17 ballot papers have been examined in the presence of learned counsel and parties. It was seen that ballot papers No.5, 9 and 16 have distinct marks like 'X', '+' and '*'. These marks are made against the winning candidate Mr. Lavhale. These marks have not been made by the Presiding Officer and it is the contention of the appellant that since these ballots have marks made with the instrument other than provided by the Presiding Officer, these ballot papers becomes invalid and the contention of the appellant to be just, correct and it cannot be the mere co-incidents and these marks have been put on the ballot papers against particular candidate, these ballot papers have become identifiable. " Therefore, according to him, when there was voting by secret ballot, principle of secrecy was violated because some ballot papers had become unidentifiable and therefore, he declared the election of the petitioner invalid by allowing the appeal. 23. " Therefore, according to him, when there was voting by secret ballot, principle of secrecy was violated because some ballot papers had become unidentifiable and therefore, he declared the election of the petitioner invalid by allowing the appeal. 23. In my opinion, when there was no objection or any grievance raised by respondent No. 5 at the time of counting and declaration of result; merely because some marks were there on three ballot papers, that would not invalidate the said ballot papers. It is observed by this Court in 2006(6) Mh.L.J. 801 = 2007(1) ALL MR 741, Ratnamala Ashokrao Shinde and anr. VS. Election Officer, Gram Panchayat Palodi; that there is no specific procedure prescribed for such election. The Election Officer can evolve his own procedure. He is quite free in conducting such election. However, he has to ensure fair election, particularly when demand of secret ballot is made. 24. Here is the case, where there is no mention of these marks at the time of showing those ballot papers to the voters, nor any such grievance raised at the time of counting thereof. The marks, if any, may identify the voters, if there is allegation of some prearrangement between the voters and the candidate. No such specific allegation is made, nor it is proved. Further in the circumstances of the case, the possibility of those marks being made after the counting of votes also cannot be ruled out. Therefore, in my opinion, when there are no specific rules for conduct of such election by secret ballot and manner thereof, any irregularity in the procedure of elections to be conducted by secret ballot would not invalidate the election, unless there is specific evidence to show the possibility of prearrangement or any prejudice caused to loser candidate. Had it been so, respondent No.5 would have noticed the same at the time of counting and he would have definitely raised the grievance about that; as there was difference of only one vote between the votes polled by the petitioner and respondent No.5. It would reflect against the case of respondent No.5. In my view, therefore, the learned Additional Commissioner should not have set aside the order of the Additional Collector and allowed the appeal. 25. In sequel, therefore, the impugned order of the Additional Commissioner, Amravati, deserves to be set aside. It would reflect against the case of respondent No.5. In my view, therefore, the learned Additional Commissioner should not have set aside the order of the Additional Collector and allowed the appeal. 25. In sequel, therefore, the impugned order of the Additional Commissioner, Amravati, deserves to be set aside. Accordingly the same is set aside and the order of the Additional Collector is restored. Consequently, the petitioner shall be deemed to be validly elected to the post of Sarpanch of Gram Panchayat Bhaurad. All interim orders shall stand vacated. 26. The petition is allowed. The impugned order of Additional Commissioner dated 6th September, 2008, is hereby quashed and set aside and that of the Additional Collector dated 28-2-2008 is restored. Rule made absolute in above terms. No order as to costs. Petition allowed.