ORAL JUDGMENT :- Rule. 2. By this petition, the petitioners challenge orders rendered by learned Additional Commissioner, Aurangabad whereby the election of the petitioner No. 1 as Sarpanch of Village Panchayat, Kukkadgaon was cancelled and moreover, the respondent No.5 - Ashok was declared as the elected Sarpanch of the village. 3. The internal election for appointment of Sarpanch of the Village Panchayat, Kukkadgaon was held on 11-10-2008. The Sarpanch was to be elected by nine (9) elected members of the Village Panchayat. There were only two (2) candidates for the post, namely, the petitioner No. 1 and the respondent No.5. The meeting for such election was conducted under the chairmanship of the Returning Officer-cum-Naib Tahsildar, Beed. The Returning Officer allowed confidential casting of votes by the members. After the votes were counted, it was found that the petitioner No.1 had secured five (5) votes whereas the respondent No.5 had secured four (4) votes. Consequently, the petitioner No. 1 was declared as elected Sarpanch of the Village Panchayat. 4. There is no dispute about the fact that the petitioners No.4 and 5 sought assistance while casting of their confidential votes in the process of election. They submitted that they were illiterate and were unable to read or to identify the election symbols. As per their requests, the assistance was given by the Returning Officer (Naib Tahsildar) to each of them. 5. The respondent No.5 challenged the election of the petitioner No. 1 by filing Dispute No. 19/2008 as provided under section 33(5) of the Bombay Village Panchayat Act, 1958 (for short, “the BVP Act”). The Additional Collector held that the election process was erroneously conducted because the petitioners No.4 and 5 were assisted by the petitioner No.1 himself or by his henchman i.e. the proposer. The Additional Collector, therefore, held that the petitioner No. 1 manipulated to extract the votes from the illiterate women members. In other words, the petitioners No. 4 and 5 were not given any independent assistance as such, but were given assistance of the contesting candidate himself and as such, the election process was found to be illegal. The Additional Collector, by his order dated 17-2-2009, was pleased to set aside the election of the petitioner No. 1 and ordered holding of afresh elections for appointment to the post of Sarpanch. The Additional Collector, by his order dated 17-2-2009, was pleased to set aside the election of the petitioner No. 1 and ordered holding of afresh elections for appointment to the post of Sarpanch. The respondent No. 5 preferred appeal against the said order which came to be allowed by the impugned order of the learned Additional Commissioner, Aurangabad. The learned Additional Commissioner held that if the two (2) invalid votes of the petitioners No.4 and 5 could be excluded, then the respondent No.5 was the candidate in whose favour highest valid votes were casted. He was, therefore, declared as the elected Sarpanch of the Village Panchayat. That order is challenged by the petitioners by filing the present petition. 6. Heard learned counsel for the parties. 7. Clinching question involved in the present petition is whether the two (2) invalid votes of the petitioners No.4 and 5 could be outrightly discarded by the appellate authority and the respondent No. 5 could be declared as elected Sarpanch of the Village Panchayat on assumption that he had secured more votes than the petitioner No. 1. Mr. Thombre would submit that if the votes of the petitioners No.4 and 5 were found to be invalid, then the only proper course left open to the competent authority was to direct de novo election for the post of Sarpanch. He would submit that the respondent No.5 could not be declared as elected Sarpanch when the material indicated that there was no support of majority of the members to him. He would further submit that the democratic process could not be taken over by the Additional Commissioner for the purpose of exercising powers to declare the respondent No.5 as elected Sarpanch of the Village Panchayat. Mr. Thombre seeks to rely on certain observations in Chandrakalabai Giridharrao Khangar and another vs. Additional Commissioner and others, 2008(6) Mh.L.J. 376 = 2009 (1) Bom. C.R. 243. The learned Single Judge of this Court considered import of section 33 (5) of the BVP Act and held that the Additional Collector could not have declared the unsuccessful candidates as elected for the post of Sarpanch and Upa-Sarpanch because some of the votes were found invalid. 8. There cannot be any two opinions about invalidity of the election of the petitioner No. 1 as Sarpanch of the Village Panchayat. The petitioners No.4 and 5 sought assistance while casting their votes. 8. There cannot be any two opinions about invalidity of the election of the petitioner No. 1 as Sarpanch of the Village Panchayat. The petitioners No.4 and 5 sought assistance while casting their votes. The assistance was given to them for the reason that they are illiterate women and were in need of assistance for identification of the symbols and reading of the names of the contesting candidates. The assistance of the petitioner No. 1 himself and the petitioner No. 3, who were candidate in the election and his proposer, was obviously illegal. Impliedly, it amounted to assistance given to the petitioner No.1 in securing the two votes for himself. In other words, he adopted unfair practice in the election so as to get elected to the post of Sarpanch. 9. Reliance placed by counsel for the petitioners on observations in Chandrakalabai Giridharrao Khangar & another (supra) is not, with due respect, much helpful to them. The learned Single Judge held that the only course left open for the concerned Additional Collector was to order holding of fresh elections to the post of Sarpanch and Upa-Sarpanch when their elections were found to be illegal. It is observed that the provisions of section 33(5) of the BVP Act do not empower the Additional Collector to declare the other unsuccessful candidates as elected persons. What appears from the facts of the given case is that objection was raised to the nomination forms by the unsuccessful candidates, alleging that the subsequently declared elected candidates had filed their nominations beyond the prescribed time limit. The objections were over-ruled and the nomination forms were accepted. That process was found to be illegal. The view taken by the learned Single Judge in Chandrakalabai Giridharrao Khangar and another (supra), it appears, is inconsistent with the view expressed by Division Bench of this Court in Meena Shriram Thakre vs. Election Officer through Tahsildar Kalmeshwar and others, 2001 (4) Mh.L.J. 691 . The Division Bench, in a similar fact situation, observed: "The Additional Collector had, therefore, considered the entire matter in correct perspective and held that since the petitioner had polled three valid votes as against two valid votes polled by respondent No.7, the two votes being invalid. re-voting ordered by Election Officer (respondent No.1), in the circumstances, was contrary to law and as such, declared the petitioner elected to the Office of Sarpanch. re-voting ordered by Election Officer (respondent No.1), in the circumstances, was contrary to law and as such, declared the petitioner elected to the Office of Sarpanch. The Additional Commissioner without sufficient and proper justification interfered with the order of the Additional Collector even after discarding the theory of equality of votes put up by the Election Officer before the Additional Collector...... " "....... The Additional Collector, in the exercise of jurisdiction under section 33 (5), was well within his jurisdiction in passing the order dated 4-10-2000. We, therefore, do not find any merit in the first and second contentions raised by learned Advocate for respondent No.7.” 10. A Division Bench of this Court in Tarvindarsingh Mahendrasingh vs. State of Maharashtra and others, 2000 (1) Mh.L.J. 264 , held that the secrecy of voting would definitely be violated because of the method adopted of giving assistance to some of the votes. A duty is cast upon the Presiding Officer to see that the secrecy of voting is maintained. As stated earlier, the facts of the present case indicate that the secrecy of the voting was breached due to assistance given to the petitioners No.4 and 5 which, in fact, facilitated casting of votes in favour of the petitioner No. 1 under his domination. The main thrust of contention raised by Mr. Thombre is that even though the election of petitioner No.1 was declared as invalid, then also there was no power available to the Additional Collector to declare the respondent No.5 as an elected candidate, I do not agree. Section 33 (5) of the BVP Act reads as follows: "33. Procedure for election of Sarpanch and Upa-Sarpanch, - (1) ***** (2) ***** (3) ***** (4) ***** (5) In the event of a dispute arising as to the validity of the election of a Sarpanch or Upa-Sarpanch under sub-section (I) the Officer presiding over such meeting or any member may, within fifteen days from the date of the election, refer the dispute to the Collector for decision. An appeal against the decision of the Collector may, within fifteen days from the date of such decision, be filed before the Commissioner, whose decision shall be final. The Collector or Commissioner shall give his decision as far as possible within sixty days of the receipt of the reference, or as the case may be, appeal." 11. An appeal against the decision of the Collector may, within fifteen days from the date of such decision, be filed before the Commissioner, whose decision shall be final. The Collector or Commissioner shall give his decision as far as possible within sixty days of the receipt of the reference, or as the case may be, appeal." 11. Perusal of sub-section (5) of section 33 would make it amply clear that the dispute may be referred to the Collector for decision, The expression "the Officer presiding over such meeting or any member may, within fifteen days from the date of the election, refer the dispute to the Collector for decision" would indicate the purport of such reference contemplated under sub-section (5). The dispute pertaining to any election of Sarpanch or Vice-Sarpanch is required to be referred for the purpose of resolving the controversy. The reference is not only for the purpose of examining the issue whether the election of Sarpanch or Upa-Sarpanch, as the case may be, is invalid. The function of the Collector is to decide the dispute as a quasi-judicial authority. The use of word "dispute" in sub-section (5) would indicate that the entire gamut of controversy can be considered by the Collector. The election of the Sarpanch and Upa-Sarpanch is required to be conducted on priority basis in view of section 33(1). The intention of the Legislature is to fill up the vacancy as early as possible and to ensure that the Village Panchayat is not without the elected head i.e. Sarpanch. 12. The procedure for election is envisaged in Rule 10 of the Bombay Village Panchayats (Sarpanch and Upa-Sarpanch) Election Rules, 1964 (for short, "the BVP Rules"). Rule (10) of the BVP Rules reads as follows: "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-Sarpanch. (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, 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. (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, 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 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." 13. Perusal of above Rule will make it amply clear that in case of equality of valid votes as between any two or more candidates, the Presiding Officer is empowered to draw lot. Impliedly, it can be said that the requirement of Sarpanch being representative of the largest number of members is rather moulded in a given situation. In a peculiar situation, the election is left to luck of the candidate when there is equality of votes secured by the two candidates and the Election Officer is empowered to draw his own procedure while completing the process of election. It is in this background that provision of section 21 (10) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (for short, "the MMC Act"). The relevant provision reads as under: “21. Disputes in respect of election nomination of Councillors. It is in this background that provision of section 21 (10) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (for short, "the MMC Act"). The relevant provision reads as under: “21. Disputes in respect of election nomination of Councillors. (1)***** (2) * * * * * (3) * * * * * (4)***** (5) * * * * * (6) * * * * * (7) * * * * * (8) * * * * * (9) * * * * * (10) If the petitioner has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Judge is satisfied that- (a) the petitioner or such other candidate received sufficient number of valid votes to have been elected; or (b) but for the votes obtained by the returned candidate by corrupt practices the petitioner or such other candidate would have obtained a sufficient number of valid votes to have been elected; the Judge may, after declaring the election of the returned candidate void, declare the petitioner or such other candidate to have been duly elected; Provided that (i) for the purpose of such computation, no vote shall be reckoned as valid if the Judge finds that any corrupt practice was committed by any person known or unknown in giving or obtaining it; (ii) after such computation, if any equality of vote is found to exist between any candidates and the addition of one vote would entitled any of the candidates to be declared elected, one additional vote shall be added to the total number of valid votes found to have been recorded in favour of the candidate, or candidates, as the case may be, selected by lot drawn in the presence of the Judge in such manner as he may determine." Perusal of sub-section (10) shows that where there are only two candidates in the fray and if election of one of them is declared as invalid because of discarding of the invalid votes, the candidate who remains in the arena may be declared as elected one. Of course, where there are more than two candidates, such procedure may not be permissible without considering the probability of distribution of the invalid votes. Of course, where there are more than two candidates, such procedure may not be permissible without considering the probability of distribution of the invalid votes. Considering the analogous provision of the law, I find it difficult to countenance the contention of Mr. Thombre. It follows, therefore, that the election of the respondent No.5 as Sarpanch could be declared by the respondents No. 2 and 1. The impugned orders do not require any interference in view of the foregoing discussion. 14. Taking overall view of the matter, the petition is found meritless and, therefore, dismissed. No costs. Petition dismissed.