JUDGMENT :- 1. By this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner a Candidate for the post of election of Chairman of two other Committees of respondent No.7 conducted by respondent nos. 2 and 3 has prayed for quashing and setting aside of election of respondent nos. 4 and 5 held on 02.12.2009. This Court has on 10.12.2009 issued notice for final disposal. Accordingly, the petition is heard finally by consent of parties by issuing Rule making it returnable forthwith. 2. The elections have been conducted on 02.12.2009 by respondent No.3 and the proceeding recorded by him are not in dispute. After holding election for the post of Chairman, Social Welfare Committee, Chairman, Women and Child Welfare Committee the elections of Chairmen in dispute have been conducted. Only these elections of two Chairmen of two remaining Subject Committees are in dispute before this Court. There were total 50 voters and 4 candidates. Rules require names of candidates to be listed in alphabetical manner and election by show of hands is to be conducted. Accordingly, the same have been conducted and out of total 50 voters, 25 voters cast their vote in favour of respondent No.4 whose name was first called out. Thereafter name of respondent No.5 has been called and 25 other voters have voted in his favour. Respondent No.3 has recorded that 50 votes were exhausted and these two persons i.e., respondent nos. 4 and 5 were therefore declared as elected in those elections. As all votes were exhausted and no voters were left for casting votes in favour of remaining two candidates, the Returning Officer did not call out their names and declared respondent nos. 4 and 5 as elected. In alphabetical list arranged by respondent No.3 name of petitioner appeared at sr. No.3, while name of respondent No.6 appeared at sr. No.4. There were only 4 candidates for these two posts. 3. I have heard Mr. M.M. Agnihotri, with Mr. P.S. Tidke, learned counsel for the Petitioner, Mrs. B. Dangre, learned Additional Government Pleader for Respondent Nos.1 to 3, Mr. A.S. Kilor, learned counsel for Respondent No.4, Mr. M.N. Ingle with Mr. N.N. Thengre, learned counsel for Respondent No.5, Mr. S.M. Ghodeswar, learned Counsel for Respondent No.6 and Shri J.S. Mokadam, learned Counsel for Respondent No.7. 4. P.S. Tidke, learned counsel for the Petitioner, Mrs. B. Dangre, learned Additional Government Pleader for Respondent Nos.1 to 3, Mr. A.S. Kilor, learned counsel for Respondent No.4, Mr. M.N. Ingle with Mr. N.N. Thengre, learned counsel for Respondent No.5, Mr. S.M. Ghodeswar, learned Counsel for Respondent No.6 and Shri J.S. Mokadam, learned Counsel for Respondent No.7. 4. After pointing out the relevant provisions of law and facts as mentioned above, Shri Agnihotri, learned counsel for petitioner has contended that finding that there were no voters left, is erroneous and names of petitioner as also respondent No.6 also needed to be called out to ascertain the votes which they could have received. He points out that candidates securing more votes are required to be declared elected and in case of equality of votes there is a provision for drawing of lots or Ishwar Chitti. 5. In order to show that provisions of filing election petition is not available, the learned Counsel has drawn attention to relevant provisions to urge that there is no such remedy for challenging the election of Chairman. He has further stated that the provisions of Chapter XVII Rule 18 of the Bombay High Court Appellate Side Rules confer jurisdiction upon the learned Single Judge only, as entire exercise undertaken by respondent No.3 in the matter is quasi judicial and in any case ultimately it gives right to “lis” between the parties. In support of his contentions, he has relied upon the judgment reported at [2002] 5 SCC 685 (Indian National Congress (I) .vrs. Institute of Social Welfare and others), [1999] 2 SCC 489 (Rakesh Kumar .vrs. Sunil Kumar ) and the judgment delivered by me and reported at 2007 [1] Mh.L.J. 771 (Jagannath Pandharinath Rewaskar and others .vrs. Minister of Staff for Cooperation). 6. Learned Additional Government Pleader for respondent nos. 1 to 3 has stated that respondent nos. 1 to 3 were not urging that order is not quasi judicial and were therefore submitting to the jurisdiction of Single Judge. She further clarified that these respondents are also not raising objection about availability of alternate remedy. She has invited attention to the provisions of relevant rules to urge that the procedure prescribed therein has been strictly followed and implemented by respondent No.3. She further clarified that these respondents are also not raising objection about availability of alternate remedy. She has invited attention to the provisions of relevant rules to urge that the procedure prescribed therein has been strictly followed and implemented by respondent No.3. She has further stated that the inconsistencies sought to be worked out in scheme of these rules by Shri Agnihotri, learned counsel is on account of his interpretation that voters were still available. She further states that the proceedings are not in dispute and names of 25 voters who voted in favour of respondent No.4 and respondent No.5 are separately recorded. Apart from these 50 voters, there were no other voters and hence the Returning Officer was justified in holding that petitioner as also respondent No.6 have secured zero votes each. Hence, this Court should not interfere in writ jurisdiction, as it would amount to exercise in futility. She points out that there is no question of any invalid votes being recorded, as it is by show of hands and vote once cast is final and it is not allowed to be changed. 7. Shri Kilor, learned counsel appearing for respondent No. 4 has adopted the arguments of Mrs. Dangre, learned Additional Government Pleader and pointed out that the recording of proceeding is not in dispute and hence, there is no question of prejudice being caused to the petitioner in the matter. 8. Shri Ingle, learned counsel appearing for respondent No.5 has urged that the matter cannot be entertained by Single Judge of this Court and in view of the provisions of Section 81[3] of the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961 (hereinafter referred to as the Zilla Parishad Act for short), petitioner has got remedy of filing election petition. He further states that the election is required to be conducted by following process of single transferable vote and hence quota of 25 was fixed by the Returning Officer. As respondent nos. 4 and 5 have secured 25 votes each of first preference, they are rightly declared elected and there is no question of transfer of their second preference to any body. He further adopts the arguments of Mrs. Dangre, learned Additional Government Pleader on merits and prays for dismissal of Writ Petition. 9. As respondent nos. 4 and 5 have secured 25 votes each of first preference, they are rightly declared elected and there is no question of transfer of their second preference to any body. He further adopts the arguments of Mrs. Dangre, learned Additional Government Pleader on merits and prays for dismissal of Writ Petition. 9. The issue of jurisdiction of Single Judge or than the availability of alternative remedy has been raised by Shri Ingle, learned counsel only in one line and he has chosen not to substantiate it. The statement therefore appears to have been made only for the purpose of record without seriously pressing those contentions. 10. Judgment of Hon'ble Apex Court in the case of Indian National Congress (supra) as relied upon by Shri Agnihotri, learned counsel, in para nos. 19 to 24 considers the circumstances in which apparently there is no lis between the parties. Conclusions reached by Hon'ble Apex Court in paragraph No.24 show the legal principles that where a statutory authority is empowered by the statute to do any act, which prejudicially affects the subject although there is no lis or two contending parties at that stage, and the contest is between the Authority and the subject, and the statutory Authority is required to act judicially under the statute, the decision of said authority is quasi judicial. The other judgment relied upon by him in the case of Rakesh Kumar (supra), considers the nature of duties performed by the Returning Officer while scrutinizing the nomination paper, and notes that same is regulated by the instructions issued by the Election Commission. It therefore, found that the said function was quasi judicial in character. In case of Jagannath Pandharinath Rewaskar (supra), I have found that the election officer appointed under Maharashtra Cooperative Societies Act, has to be regarded as Public Authority against whom writ can be issued and his orders can be challenged before High Court. The order passed by him have bearing and effect on election program and those orders are therefore required to be treated as orders under the provisions of Maharashtra Co-operative Societies Act. The contention at that time was, orders of election officer cannot be viewed as orders under Maharashtra Cooperative Societies Act. The order passed by him have bearing and effect on election program and those orders are therefore required to be treated as orders under the provisions of Maharashtra Co-operative Societies Act. The contention at that time was, orders of election officer cannot be viewed as orders under Maharashtra Cooperative Societies Act. All these judgments therefore show that when a authority whose function are regulated by statute can do such things in exercise of its powers which prejudically affects the subject and can give rise to lis/dispute between two parties, such orders or proceeding of that authority can be regarded as quasi judicial proceedings and challenge thereto before the Single Judge in view of provisions of Chapter XVII Rule 18 [3] is maintainable. 11. Perusal of provisions in relation to election petition pointed out by Shri Ingle, learned counsel for respondent No.5 as contained in Section 81 of the Zilla Parishad Act, reveals that subsection [4] thereof deals with election of Councillor to committee and provide the Commissioner as a forum therefor. Elections of Chairman of subject committees are regulated by Section 83 of the Zilla Parishad Act and said section does not provide for any remedy of Election Petition. 12. In view of this position, it is apparent that halfhearted objection raised by Shri Ingle, learned counsel on the ground of jurisdiction and on the ground of availability of alternative remedy has not been substantiated at all. Learned Additional Government Pleader as also Shri Kilor, learned counsel for respondent No.4 and Shri Ghodewar, learned counsel for respondent No.6 and Shri Mokadam, learned counsel for respondent No.7 have not raised any such objection. 13. Coming to the merits of the controversy, contention of Shri Agnihotri, learned counsel in short is, only the provisions of Maharashtra Zilla Parishad (President, Vice President and Chairmen of Subjects Committees) and Panchayat Samitis (Chairman and Deputy Chairman) (Reservation of Offices and Election) Rules, 1962 are relevant for the present purposes. The procedure till withdrawal of candidature as contained in Rule 5A is not in dispute before this Court. Only procedure of election is contained in Rule 6 which becomes relevant because of provisions of Rule 8. The procedure till withdrawal of candidature as contained in Rule 5A is not in dispute before this Court. Only procedure of election is contained in Rule 6 which becomes relevant because of provisions of Rule 8. Subrule [10] of Rule 8 of this 1962 Rules, provides that if, number of candidates duly nominated for the office of remaining two Chairmen of Subject Committees is equal to number of Chairmen to be elected, then they can be declared as elected as remaining two Chairmen of the Subject Committees. Here for this two post of Chairman, there are 4 candidates i.e. petitioner, respondent No.4, respondent No.5 and respondent No.6. Subrule [11] of Rule 8 takes care of this situation and stipulates that if more than two Councillors are nominated for such elections, than the candidates securing highest number of votes in decending order are to be declared elected. Petitioner contends that this subrule has not been followed. Adherence to procedure prescribed in Rule 6 is not in dispute. According to respondent nos. 1 to 5, total number of votes available for election of two Chairmen is 50 and as 25 out of then voted in favour of respondent No.4 and remaining 25 voted in favour of respondent No.5, there were no voters left for casting vote in favour of petitioner and respondent No.6. This argument therefore proceeds on the basis that each one out of 50 voters has got only one vote and he can therefore vote to elect only one Chairmen out of the two post of Chairman contemplated in Rule 8[10] and [11]. Shri Ingle, learned counsel has only argued that the election is to be conducted by following system of single transferable vote. 14. The proceeding recorded do not reveal that such process of recording votes by mentioning preference and following the procedure of single transferable vote has been followed. Rules no where stipulate that said procedure is required to be followed. The other learned counsel for other respondents have not taken any such stand. The provisions of Section 83 read with Section 45 of the Zilla Parishad Act, do not contemplate the procedure suggested by Shri Ingle. The fixing of quota at 25 is also not recorded by the Returning Officer. Entire proceeding does not mention any such procedure. On that date total 4 Chairman have been elected. The provisions of Section 83 read with Section 45 of the Zilla Parishad Act, do not contemplate the procedure suggested by Shri Ingle. The fixing of quota at 25 is also not recorded by the Returning Officer. Entire proceeding does not mention any such procedure. On that date total 4 Chairman have been elected. For election to the post of Chairman of Social Welfare Committee there were only two candidates and for election to the post of Chairman of Women and Child Welfare Committee there were also two candidates only. First election for the post of Chairman of Social Welfare Committee has been conducted. Successful candidate secured 26 votes, while the unsuccessful candidate secured 24 votes. The two candidates for post of Chairman of Women and Child Welfare Committee received 25 votes each and hence the successful candidate was determined by drawing of lots. 15. For electing two Chairmen on remaining two subject committees the election was conducted together as name of respondent No.4 was called out first, 25 votes cast in her favour have been recorded. No votes of any other preference thereafter have been recorded by respondent No.3 Returning Officer. Hence, if those 25 voters had any other preference to express in favour of other three candidates, that has not been recorded. Other 25 voters have cast their votes in favour of respondent No.5 and there again no preference, if any expressed by these voters has been recorded. It has also not been mentioned that these 50 voters refused to express their preferences. The provision of Rule 6 [3] to [5] mandates Returning Officer to record name of each Councillor who has voted in favour of candidate, whose name is called out and even name of voter who has abstained from voting is also required to be recorded. Subrule [4] cast an obligation upon the Presiding Officer to ensure that every Councillor is give fair and reasonable opportunity to cast his vote and see that vote cast by him is properly recorded. A Councillor whose vote is recorded once is not allowed to recast or change his vote. When entire proceedings are perused in this background, respondent No.3 who acted as Returning Officer and Presiding Officer has not explained the system of voting by the single transferable vote expressing preference to the voters. A Councillor whose vote is recorded once is not allowed to recast or change his vote. When entire proceedings are perused in this background, respondent No.3 who acted as Returning Officer and Presiding Officer has not explained the system of voting by the single transferable vote expressing preference to the voters. The system expressed is of expression of votes by raising hands and counting of majority i.e.by head count. I therefore, do not find any merit in the contention of procedure for voting sought to be urged by Shri Ingle, learned counsel. Even if such procedure is presume to apply, the voters then ought to have been permitted to express their preference and choice in favour of remaining candidates and that opportunity has not been extended to voters by respondent No.3. 16. The proceeding as recorded show that all 50 voters have not voted in favour of any one Chairman for the purpose of electing two Chairmen of remaining two Subjects Committee. The last sentence appearing in Rule 6[4] which states that “the Councillor whose vote is recorded once, shall not be allowed to recast or change his vote.” does not mean that the 50 voters together had to elect only two Chairmen by casting one vote in favour of any one of the contesting candidates. Here as already mentioned above, 25 voters out of total 50, cast vote in favour of respondent No.4, while remaining 25 have cast vote in favour of respondent No.4 and viceversa. Rule 6 deals with procedure for election states that procedure to be followed for electing one candidate as a Chairman. The procedure prescribed therein is required to be followed for electing one Chairman at a time. For election two Chairmen of remaining two Subjects Committee, all 50 voters are entitled to cast their vote. Thus all 50 voters have option to cast two votes i.e., one vote each in respect of each post of Chairman. Subrule [10] and [11] of Rule 8 also does not support the exercise undertaken by respondent No.3, wherein 25 voters who did not vote either for respondent No.4 or respondent No.5 respectively have been denied opportunity to elect the Chairman of their choice. Respondent No.3 ought to have permitted all 50 voters to cast their vote for first post of Chairman and thereafter for second post of Chairman. Respondent No.3 ought to have permitted all 50 voters to cast their vote for first post of Chairman and thereafter for second post of Chairman. As this has not been done, the entire exercise undertaken by him becomes unsustainable. 17. It is to be noted that respondent No.3 has permitted voters to cast one vote only in favour of any one Chairman, when election was to elect remaining two Chairmen of Subject Committees. Why he has not permitted each voter to exercise his right to elect this Chairman is not clear. He has not recorded that after polling was held to elect respondent nos. 4 and 5, names of remaining two candidates i.e. present petitioner and respondent No.6 were called and the voters abstained from voting in their favour. He has recorded that as no votes were left for petitioner and respondent No.6, they have secured zero vote. The procedure followed by him is therefore bad in law and it has denied 50% of voters an opportunity to express their choice and has also denied to petitioner and respondent No.6 their legal right to contest. 18. In view of this, I find that the election of respondent nos. 4 and 5 on 02.12.2009 as Chairman of remaining two Subject Committees is unsustainable and liable to be quashed and set aside. It is necessary to direct respondent nos. 1 to 3 and respondent No.7 to arrange for and to hold fresh elections for electing two Chairman of these Subject Committees in accordance with law. The said exercise be completed as early as possible and in any case by 30th April, 2010. 19. Writ Petition is thus allowed in the aforesaid terms by making Rule absolute, with no order as to cost.