1. In this writ petition the petitioner who is an elected candidate of Sidhanerli Village Panchayat in Taluka Kagal of Kolhapur district! has challenged the election of respondents Nos. 3 and 4 as Sarpanch and Upasarpanch respectively of the said Village Panchayat, After the election to the Village Panchayat was held, the Presiding Officer for the elections of Sarpanch and Deputy or Upasarpanch fixed the election for the said posts on 29th of May, 1978, At the time of this election of the Sarpanch and Up-sarpanch the petitioner Maruti Bandu Patil, who was also one of the candidates, filed a written application before the Presiding Officer requesting him that voting for the said election should be by a secret ballot This request was opposed by 7 members of the Village Panchayat and the said members contended that voting should take place by show of hands. The Presiding Officer took a decision that voting should take place by show of hands and for this decision he gave the reason that four members of the said Village Panchayat are illiterate and they would not be in a position to understand and follow the procedure of voting by secret ballot. Thereafter the elections to the posts of Sarpanch and Upasarpanch were carried out by show of hands and the petitioner lost the election by a margin of one vote. Respondent No. 3 secured 7 votes and the petitioner got 6 votes. Voting for election of Upasarpanch was also by show of hands. Being aggrieved by this result of elections the petitioner filed a dispute under Section 33 (5) of the Bombay Village Panchayat Act, 1958 before the Collector of Kolhapur. The Collector of Kolhapur came to the conclusion that the refusal to allow the voting by secret ballot does not vitiate the election of Sarpanch or Up-sarpanch and therefore the Collector dismissed the said election dispute vide his order dated 22nd July, 1978.
2. Being aggrieved by this order of the Collector, Kolhapur the petitioner filed an appeal under Section 33 (5) of the Bombay Village Panchayat Act, 1958 before the Commissioner, Pune Division, Pune, The Additional Commissioner, Pune vide his Order dated 4-11-1978 confirmed the finding recorded by the Collector, Kolhapur and came to the conclusion that the appellant has not been able to prove that the so-called irregularity or illegality has materially affected the result of the election end in this view of the matter he dismissed the appeal.
3. Being aggrieved by these orders the present writ petition is filed by the petitioner. Shri Bhimrao Naik, learned counsel appearing for the petitioner contended before us that the procedure laid down by Rule 10 of the Sarpanch Election Rules framed under the Bombay Village Panchayat Act, 1958 is mandatory in nature. According to him, the illegality of not holding the election by a secret ballot goes to the very root of the election and, therefore, in such a case further question as to whether result of the election has been materially affected or not is wholly irrelevant.
4. On the other hand it is contended by Shri Jahagirdar, learned counsel appearing for the respondents that the authorities below were right in coming to the conclusion that the discretion has been rightly exercised by the Presiding Officer in not holding the election by a secret ballot as four members of the Village Panchayat were illiterate. He further contended that the provisions of Rule 10 are directory and not mandatory. He also contended that assuming that the said provision is mandatory, it is impossible to comply with the said provision as no procedure has been laid down in the said Rule as to how the election should be held by a secret ballot if a voter-member is illiterate. The learned counsel further contended that assuming that the said provision is mandatory, the election of the respondent cannot be set aside until it is established by adducing cogent evidence that because of the non-compliance of the said Rules the result of the election has been materially affected.
5. For properly appreciating the controversy raised before us it will be worthwhile to make a reference to some of the relevant provisions of the said Act as well as the Rules. Section 33 of the Act lays down the procedure for the election of Sarpanch and Upasarpanch. The said provision reads as under:--
'33. (1) On the establishment of a panchayat for the first time under this Act or on its reconstitution or establishment under Sections 145 and 146 or on the expiry of the term or extended term of a panchayat a meeting shall be called on the date fixed under Sub-section (1) of Section 28 by the Collector for the election of Sarpanch and Upasarpanch. In the case where the offices of both the Sarpanch and Upasarpanch become vacant simultaneously, a meeting shall be called on the date fixed by the Collector for the election of Sarpanch and Upasarpanch.
(2) The meeting called under Sub-section (1) shall be presided over by such officer as the Collector may by order appoint in this behalf. The officer aforesaid shall when presiding over such meeting, have the powers and follow the procedure prescribed but shall not have the right to vote.
(3) No business other than the election of the Sarpanch and Upasarpanch shall be transacted at such meeting.
(4) If in the election of the Sarpanch or Upasarpanch there is an equality of votes the result of the election shall be decided 'by lot drawn in the presence of the officer presiding in such manner as he may determine.
(5) In the event of a dispute arising as te the validity of the election of a Sarpanch or Upasarpanch under Sub-section (1) the officer presiding over such meeting or any member other than an associate 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.'
In exercise of the powers conferred by Clause (v) of Sub-section (2) of Section 176 of the said Act read with Section 33 (2) the Government of Maharashtra has framed necessary Rules known as the Bombay Village Panchayat (Sarpanch and Upasarpanch) Election Rules, 1964. Relevant Rule viz., Rule 10 of the said Rules reads as under:
'10 Procedure for election-- (1) If only one candidate has been duly nominated for the office of the Sarpanch of Upasarpanch he shall be declared to have been duly elected as Sarpanch or, as the case may be, Upasarpanch.
(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, Upasarpanch. When an 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, Upasarpanch, 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.'
The words 'any member present at the meeting so demands' were substituted in the year 1966 for the words 'majority of the members present at the meeting so demand'. Therefore the provision as to voting by ballot which was dependent upon the demand by the majority of the members present at the meeting was given a go-by and now by amended Rule a duty is cast upon the Presiding Officer to hold election by a ballot if any member present at the meeting so demands. The word used is 'shall' which is obviously peremptory in nature. Normally an election is an expression of popular will. Therefore, obviously it will have to be so conducted that the will of the voter is properly expressed. The purpose of voting by ballot is to keep voting secret so that it may not be known from the ballot paper itself as to who has voted for whom. This assurance against the disclosure of identity of the voter enables him to exercise his franchise in a free and fearless manner. This eliminates the chances of any evil consequences, at the instance of rival candidate for whom the voter may not have voted. To keep the election process free and fair the mode of poll by secret ballot has been introduced in all civilised societies and nations. Secrecy of vote is the fundamental principle of election in all democratic forms of local Governments. This also helps to maintain purity of elections. This is the object behind the provision as made in Sub-rule (2) of Rule 10. Apprehending that the election may not be free and fair if it is held by show of hands any member present at the meeting can make a demand that voting should be by ballot. If such a demand is made then an obligation is cast upon the Presiding Officer to hold the election by ballot alone and not by show of hands. It is no doubt true that only because the word 'shall' is used, it cannot be held that a particular provision is ipso facto mandatory. Construction of the said expression depends on the prorvisions of a particular Act or the Rules as well as the setting in which the said expression appears, the object for which the said provision is made and the consequences that would follow from the infringement of the direction and such other considerations. The question as to whether the provision is mandatory or directory depends upon the intention of the legislature. For determining the question whether the said expression is mandatory or directory the subject matter, the importance of the provision, the relation of that provision to the general object intended to be secured by the Act are all relevant. (See Govindlal v. Agricultural Produce Market Committee AIR 1916 SC 263
6. Rule 10 provides a regulatory procedure for achieving fair and free election. Therefore, interpretative process must advance the basic postulate of free and fair election. Secrecy of ballot is undoubtedly an indispensable adjunct of free and fair election. The election by ballot is to be held when demanded, as to statutorily assure the voter that his identity will not be disclosed so that the voter may vote without fear or favour and is also free from apprehensions. This rule subserves 8 very vital principle that a voter should be absolutely free to exercise his franchise untrammelled by any constraint. The provision of holding election by ballot is made in the rules to help voters to vote free from any inhibition, fear or apprehension of being subjected to some sort of calamity. Thus the provision goes to the very root of the matter, namely, of holding free and fair elections of the office bearers of the Village Panchayat. To hold otherwise is to perpetuate the very mischief which is sought to be suppressed. The word used namely 'shall'' has an inbuilt element of compulsion. If the provisions of Rule 10 are construed in this background, in our opinion, it is quite obvious that the word used viz. 'shall' clearly indicates that the provision is mandatory, and non-compliance of the said provision must result in certain consequences.
7. It is equally well settled that such a mandatory rule has to be followed scrupulously as non-observance of such rule might affect the fairness and purity of election itself. Therefore, challenge in such cases is not only based on the ground of mere error but also on the ground that as a result of such non-observance the whole election process has been rendered impure, which might result in the election not being free and fair. In this context a reference could usefully be made to a decision of this Court in Madhavrao Tatyasaheb Ghatge v. Collector, District Kolhapur, : AIR1965Bom217 . The provision in Rule 10 is made for securing free and fair election, Therefore, it cannot be said that this is merely a technical breach. As the said rule goes to the very root of the matter and ensures a free and fair election, which is the essence of purity of election, the non-observance of the said mandatory provision must vitiate the election as a whole.
8. However, it is contended by Shri Jahagirdar, learned counsel appearing for the respondents that the said provision is impossible of compliance as no procedure has been laid down in the Rules, in case an election is to be held by a secret ballot. He further contended that it is nowhere laid down in the Rules as to what procedure the Presiding Officer should follow if voters are illiterate when an election is to be held by a secret ballot. Therefore, according to the learned counsel, if the provision made in the Rules in that behalf is wholly unenforceable in the absence of procedure to be followed then the Presiding Officer was right in rejecting the said demand when he found that four of the voters were illiterate. It is not possible for us to accept this contention for the obvious reasons. It is not correct to say that the said provision is impossible of observance, It is well established principle of interpretation of statutes that if a statute is passed for the purpose of enabling something to be done, but omits to mention some details which are necessary for the proper and effectual performance of the said work or duty, then the Courts are at liberty to infer that the statute by implication confers all necessary powers without which the said duty cannot be performed. This is what is popularly known as doctrine of implied power. Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means as are essentially necessary for its execution. If the Presiding Officer is obliged to hold election by following the process of voting by ballot, then by necessary implication, he has ample powers to achieve the said object by following the necessary procedure. What should be that procedure must depend upon the facts and circumstances of each case. Guidelines in this behalf are not lacking in the enactment or the Rules. General elections to elect members to the village Panchayat are held by following the procedure of secret ballot. Detailed procedure in that behalf is laid own by the Act and the Rules. The Rules called Bombay Nyaya Panchayat (Conduct of Election) Rules, 1959 also provide for the procedure the Presiding Officer is expected to follow for holding the election by ballot. Therefore, it is not possible for us to come to the conclusion that the observance of the said Rule was wholly impossible in this case only because four voters were illiterate. It is common knowledge that in general elections even an illiterate voter is in a position to exercise his right of franchise.
9. Therefore, it is quite clear to us that as the provision made in Rule 10 is mandatory and goes to the very root of the matter, its non-observance will vitiate the whole election. This being the position, the elections held in the present case without following the said mandatory procedure are obviously illegal and are liable to be set aside.
10. In the result, therefore, the writ petition is allowed. Elections of respondents 3 and 4 to the posts of Sarpanch and Upasarpanch are set aside and respondents Nos. 5, 6 and 7 are directed to hold fresh elections to the posts of Sarpanch and Upasarpanch over again in accordance with law.
Hence Rule is made absolute. However, in the circumstances of the case there will be no order as to costs.
11. Rule made absolute.