JUDGMENT - SHARAD MANOHAR, J.:---The question in this petition relates to the validity of 5 ballot papers recording or, rather, purporting to record votes in favour of the present petitioner, who was contesting the election of the village Ghatane Gram Panchayat. The respondent was the other candidate. Including the impugned 5 ballot paper, the petitioner received 54 votes, whereas the respondent undisputedly, received 52 votes. This evidently means that even if 3 out of the 5 impugned ballot papers are held to be invalid, the result emanating from the judgment of the lower Court shall have to be upheld. If only two of them are rejected, then it shall be equality of votes and hence the election will have to be held by the spin of the coin. It is only if the present petitioner succeeds in establishing that at least 4 out of the 5 impugned ballot papers cannot be invalidated that he can succeed in this petition and can be declared as elected.

2. Let me straightaway go to the question of the nature of the mark put on the 5 ballot papers.

I will firstly consider the case of the petition of Bhagwat Anantrao Deshmukh (Writ Petition No. 4446 of 1988).

3. All the 5 ballot papers in his favour have been held by the learned Judge to be invalid.

(a) A mere glance at the Ballot Paper No. 057 would show that there is not the slightest doubt about the validity of that ballot paper vis-a-vis this candidate Deshmukh. The stamp is neatly put upon the symbol "Tiger" and there is no blurring or indistinctness upon the mark. The learned Judge has held it to be invalid. Clearly wrong view.

(b) Similar is the position of Ballot Paper No. 056. There is nothing indistinct about the mark made upon the symbol 'Tiger', which is the symbol of this candidate Deshmukh. It therefore follows that these ballot papers are wrongly rejected so far as the candidate Deshmukh is concerned.

(c) The 3rd ballot paper is of the number 010. It does appear that there is some blurring or over stamping on the symbol 'Tiger'. But the mark is made in such a manner that not a ghost of doubt can arise about the intention of the voter to vote for this candidate Deshmukh. Manifest position is that after making the mark in the first instance, the voter has put the mark again on the same mark with the result that you find something like blurring. But it has not invalidated the mark as such. That is not the case of double voting. In my opinion, if one mark is put with the stamp and at some distance another mark is put, this may amount to giving two votes to the same candidate, which is spurned down by the rule. But that is not the case here.

The three ballot papers in favour of the petitioner Deshmukh must therefore, be held to be valid.

(d) Then comes the crucial question of Ballot Paper No. 055. In this case the mark is firstly put on the symbol 'Tiger' (symbol of the candidate Deshmukh). But evidently that mark is indistinct and quite a big blurr. The 2nd mark is made touching the 1st mark below the 1st mark. But while doing so, the mark has slightly transferreds the line and the result has been that a very small portion of that mark appears on the space allotted to candidate Suresh Balbhim Lale (symbol 'Umbrella'). Question is whether this particular way of stamping and marking invalidates the stamp.

4. Mr. Katikar, appearing for respondent No. 1, had a two-fold objection to the validity of this stamp.

(a) Firstly, he contended that this is a case of giving two votes by making two marks.

If this was the case of two distinct marks, then I would have been inclined to hold that this is a case of giving two votes to the same candidate. I need not state at this stage the reason why I would have come to the conclusion. I may only mention that Mr. Patankar, appearing for the petitioner, invited my attention to the two judgments of this Court A.I.R. 1987 Bombay, Page 206 (Malikshingh Sitaram Mainawale and etc., v. Jagatsingh Thakursingh and others etc.)1. And A.I.R. 1967 Bombay, Page 264 (Dajib

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