1. Heard Mr. Jethmalani, learned Senior Counsel for the petitioner and Mr. Korde, learned Senior Counsel for the respondent at length.

2. Shivaji Laxman Sahane, hereinafter referred to as the petitioner, has instituted this Petition under Section 81 read with Section 100(1)(d) (iii) and (iv) of the Representation of the People Act, 1951 (for short 'Act') calling in question the election of Jaywantrao Pundalikrao Jadhav, hereinafter referred to as the respondent held in the Biennial Election for the year 2012 from the Nashik Local Authorities Members Constituency for Maharashtra State Legislative Council (for short 'Election'). The facts leading to filing of this Petition, briefly stated, are as under:

3. By issuing a press note on 23.04.2012, Election Commission of India declared the Election Programme for the 6 Local Authorities Constituencies for the Maharashtra Legislative Council for the Biennial Election for the year 2012. The last date of filing nominations was 07.05.2012. The scrutiny of the nomination papers was fixed on 08.05.2012. The last date for withdrawal of nominations was 10.05.2012. The date of voting / polling was 25.05.2012 and the date of counting of votes was 28.05.2012. It was also directed that the process of election shall be completed before 30.05.2012. The petitioner being the authorized candidate from the Shiv Sena Party, which is a recognized and registered political party in the State of Maharashtra, submitted his nomination form on 07.05.2012. The same was accepted as a valid nomination form. The respondent also submitted his nomination form being the official candidate from the Nationalist Congress Party (N.C.P.), which is a registered and recognized political party in the State of Maharashtra. Apart from the petitioner and respondent, four other candidates submitted nomination forms, which were either withdrawn or invalidated by the Returning Officer. Thus, the petitioner and respondent were the only contesting candidates after the last date of withdrawal of nomination forms.

4. Total 475 voters were eligible to vote in the election. Out of that, 467 voters actually exercised their right to vote on 25.05.2012. There were 15 polling stations / centres all over the Nashik District. Out of 467 votes, 23 ballot papers were invalidated till last round of counting and scrutiny on different grounds. It is the case of the petitioner that at the end of the first round of counting, the valid votes found in favour of the petitioner were 225 and respondent secured much less votes. The Returning Officer ought to have declared petitioner as the returned candidate but without there being any demand, the Returning Officer suo-motu and for no valid reason again scrutinized the ballot papers and invalidated one ballot paper by which vote was cast in favour of the petitioner. The petitioner objected immediately and questioned the legality of re-scrutiny of ballot papers whereupon the Returning Officer fumbled and could not satisfactorily deal with the objections raised by the petitioner. According to the Returning Officer, the mark which was put by the concerned voter on the said ballot paper in favour of the petitioner was not clearly visible. The petitioner pointed out that the concerned voter had put up his preference against the name of the petitioner by using Roman Numerical (I), which is also allowed as per the guidelines issued by the Returning Officer along with letter dated 23.05.2012. After invalidating one ballot paper, the votes in favour of the petitioner were 224. At that stage, the Returning Officer again started scrutiny of all the ballot papers and during the scrutiny, 6 ballot papers were again invalidated. Out of the 6 ballot papers, 3 voters had voted in favour of the petitioner and remaining 3 voters had voted in favour of the respondent. The objections raised by the petitioners were rejected by the Returning Officer.

5. It is the case of the petitioner that there was equality of votes be