JUDGMENT - P.B. SAWANT J.:---The short question involved in this petition is whether the learned Judge while trying the election petition under section 15 of the Bombay village Panchayats Act, 1958 (hereinafter referred to as the Act) could have resorted to the procedure prescribed by second proviso to sub-clause (b) of sub-section (5) of the said section. In the present case. 2. The elections to the Grampanchayat were held on December 23, 1986 and the counting of votes polled took place on December 2, 1986. The petitioner and respondent No. 1 were the rival candidates contesting from Ward No. 1. At the time of the counting of votes, respondent No. 6-Election Officer found that both had got equal number of votes viz. 93 each. As required by the Rules, he therefore drew the lots and declared the petitioner elected to the Grampanchayat from the said Ward. 3. Respondent No. 1 thereafter filed an election petition under the said section 15, challenging the validity of the election of the petitioner on the only ground that some votes which were counted in favour of the petitioner were invalid while some others which were not counted in favour of respondent No. 1 were valid. In the petition the parties led no evidence but agreed that they would abide by the result of the recounting, of the votes. For the purpose of recounting, a Commissioner was appointed and he submitted his report which showed that the counting of votes done by respondent No. 6. Election Officer was proper and no change in the votes polled by the petitioner and Respondent No. 1 was required. On the basis of this report, the Judge ought to have dismissed the petition. However, by taking a mistaken view of the provisions of the second proviso to sub-section (5)(b) of section 15, he proceeded to decide the result of the petition by drawing a lot. In the lot so drawn respondent No. 1 was declared successful and the learned Judge by his impugned order of April 10, 1981 set aside the election of the petitioner and declared Respondent No. 1 as the successful candidate. 4. In the lot so drawn respondent No. 1 was declared successful and the learned Judge by his impugned order of April 10, 1981 set aside the election of the petitioner and declared Respondent No. 1 as the successful candidate. 4. Admittedly Respondent No. 1 had challenged the validity of the petitioner's election on the ground that some votes counted by the Election Officer in favour of the petitioner were invalid while some other votes not counted in his favour, namely, of respondent No. 1, were valid. The scope of the petition was therefore limited to finding out whether this allegation was correct. The report of the Commissioner showed that there was no substance in this allegation and the votes counted in favour of the petitioner were all valid and those not counted in favour of Respondent No. 1 were invalid. The second proviso to sub-section (5)(b) comes into play only when the Court finds that the Election Officer had wrongly accepted or rejected some votes and after computing such votes, it is found that the candidates have equal votes in their favour. Since in the present case, no illegality was found in the counting of votes by the Election Officer, there was no question of the Court deciding the matter by drawing a lot under the said proviso. The learned Judge has also incidentally ignored the provisions of sub-section (7) of section 15 which in terms states that if the validity of any election is brought in question only on the ground of an error made by the Officer charged with carrying out the rules made in that behalf under section 176 read with sub-section (2) of section 10 and section 11, or of an irregularity or informality not corruptly caused, the Judge has no power to set aside the election. 5. This being the position of law, we allow the petition and set aside the impugned order of the learned Judge. The result, therefore, is that the declaration made by the impugned order that Respondent No. 1 stands elected from Ward No. 1 of Khambale Gram Panchayat of Taluka Khanpur, District Sangli to the said Gram Panchayat stands set aside and instead it is hereby declared that it is the petitioner who stands elected from the said Ward to the said Gram Panchayat. Rule is made absolute accordingly. Rule is made absolute accordingly. In the circumstances of the case there will be no order as to costs. Rule made absolute. -----