JUDGMENT - SUGLA T.D., J.:---Writ Petition No. 5298 of 1986 filed under Article 226 of the Constitution of India is by petitioner Bapusaheb Laxmanrao Mohite. By this petition he has challenged the Judgement and order dated 28th October, 1986 passed by the learned Joint Civil Judge, Senior Division, Kolhapur in Election Petition No. 14 of 1985 whereunder the election of the petitioner as a corporator of the Kolhapur Municipal Corporation from Ward No. 58-E, New Shahupuri, Kolhapur was declared illegal and void and the respondent No. 1 Suresh Bapu Gavali, who is petitioner in Writ Petition No. 1521 of 1987, was declared elected by a Margin of 12 votes. It is common ground that on the counting of votes by the Returning Officer, the petitioner was found to have secured 648 valid votes as against 646 by the respondent No. 1. Accordingly, he was declared elected to the Kolhapur Municipal Corporation as corporator. The election petition was filed by the respondent No. 1 being Election Petition No. 14 of 1985 in the Court of Joint Civil Judge, Senior Division, Kolhapur. The prayers in that petition, inter alia, were that certain votes cast in his favour were wrongly declared invalid; that there should be recounting of votes and that the result should be declared in his favour after recounting of votes if majority of valid votes were found to be in his favour. It is also common ground that the learned Judge himself took up the job of recounting the votes, particularly the votes which were rejected by the Returning Officer. On recounting and after reconsidering the rejected votes, he concluded that the respondent No. 1 had secured 660 valid votes. As regards the petitioner, though if the rejected votes in his case were reconsidered on the same basis the valid votes cast in his favour would have come to 661, the learned Judge did not record any finding to that effect on the ground that the petitioner having not made an application for recrimination, his votes could not be recounted. In other words, he took the view that while the number of valid votes cast in favour of the petitioner would have to be taken at 648 only, the valid votes cast in favour of the respondent No. 1 being 660 the respondent No. 1 had to be declared elected by a majority of 12 votes. In other words, he took the view that while the number of valid votes cast in favour of the petitioner would have to be taken at 648 only, the valid votes cast in favour of the respondent No. 1 being 660 the respondent No. 1 had to be declared elected by a majority of 12 votes. Accordingly, he set aside the election of the petitioner and declared the respondent No. 1 as elected as corporator of the Kolhapur Municipal Corporation. It is pertinent to mention that during the pendency of the election petition before the learned Judge, the petitioner filed an application for recrimination dated 19th September, 1986. The petitioner filed another application dated 9th October, 1986 for condonation of delay in filing the recrimination application. Both applications were held to be time barred. 2. It is primarily against the conclusion arrived at by the learned Judge, viz., that in the absence of valid recrimination application by the petitioner the valid votes cast in his favour could not be recounted and taken into account, that the petitioner has filed this petition. It is stated by Shri Shah, the learned Counsel for the petitioner, that there is no dispute between the parties that the rejected votes are reconsidered in the same manner as they have been considered in the case of respondent No. 1, the number of valid votes in favour of the petitioner would come to 661 as against 660 in the case of respondent No. 1. He further states that whereas the petitioner's claim is that the number of valid votes in his favour should be 666 and that 5 votes have been wrongly disputed by the other side, he fairly admits that likewise the respondent No. 1 has also claimed 4 more votes which the petitioner has disputed. Before proceeding to consider the legal position as regards recrimination application, it is considered desirable to first consider the factual aspect of the matter, viz., how many valid votes were cast in favour of the petitioner and the respondent No. 1 respectively. We were taken through the 5 disputed votes which Shri Shah claims to be valid and should be counted in favour of petitioner. The first disputed vote is D. 1. So far as the mark on the motor car, the election symbol of the petitioner, is concerned there is no dispute. We were taken through the 5 disputed votes which Shri Shah claims to be valid and should be counted in favour of petitioner. The first disputed vote is D. 1. So far as the mark on the motor car, the election symbol of the petitioner, is concerned there is no dispute. The dispute is only as regards the mark on the back of the ballot paper. In this context, Shri Shah has invited our attention to the Supreme Court decision in the case of (M. Narayan Rao v. G. Venkata Reddy and others)1, A.I.R. 1977 S.C. 208, relevant paragraph being paragraph 35 at page 221, for the proposition that a mark on the back of the ballot paper should be ignored and even though the paper is thin and it might indicate that it is against a particular symbol, it has to be ignored. This vote was accepted by the Returning Officer and in our opinion, rightly. The mark on the back is to be ignored and naturally, therefore, this vote is to be counted as a valid vote in favour of the petitioner. As regards the second disputed vote, i.e., D 2, we are in agreement with Shri Sawant for the respondent No. 1 in Writ Petition No. 5298 of 1986 that the mark is smudged and it is not very clear whether it is made with the instrument to be used for the purpose. Next disputed vote is R. 15. There are two marks against the name of the petitioner and one on the back of the ballot paper. There is no dispute that putting of two marks against the name of the petitioner does not invalidate the vote. The question is as regards the mark on the back only. For reasons stated as regards vote D. 1, we accept Shri Shah's submission and hold that this is a valid vote to be counted in favour of the petitioner. The dispute as regards disputed vote R. 5 is identical and this vote is also counted as a valid vote in favour of the petitioner. As regards disputed vote R. 4, there is something written on the face of the ballot paper. We are inclined to accept the objection of Shri Sawant that it is a sort of identification mark and, therefore, decline to treat it as a valid vote in favour of the petitioner. As regards disputed vote R. 4, there is something written on the face of the ballot paper. We are inclined to accept the objection of Shri Sawant that it is a sort of identification mark and, therefore, decline to treat it as a valid vote in favour of the petitioner. Thus, factually 664 votes have to be treated as valid votes cast in favour of the petitioner. As against this, the respondent No. 1 was held to have secured 660 valid votes by the learned Judge. As regards the disputed 4 votes, the first disputed vote is at Exhibit R. 1. In this ballot paper, the mark is put not exactly on the element or against the name of respondent No. 1 but quite close to it. Therefore, it can be accepted as a clear intention of the voter of casting his vote in favour of the respondent No. 1. Regarding the other disputed vote at Exhibit R. 36, there is no mark on the ballot paper though there is one mark on the back of it. In view of the Supreme Court decision (supra), this has to be treated as an invalid voted. The disputed votes at Exhibit R. 2 and Exhibit R. 3, what has been done is that the mark is put in the shaded portion. Apart from the fact that a mark in the shaded portion is not a vote cast in favour of any candidate, the mark is near both the respondent No. 1 and the other candidate Shaikh Nazir Ramzan with cycle as his election symbol. It is, therefore, difficult to decipher whether the vote was cast in favour of the respondent No. 1 or the other candidate. Naturally, therefore, these two votes require to be ignored. Thus, the valid votes cast in favour of the respondent No. 1 would come to 661. 3. The crucial question, therefore, is whether recounting of votes, which would naturally include reconsideration of the rejected votes in favour of the petitioner, can be done in the election petition filed by the respondent No. 1 when the petitioner had not filed recrimination application in time. In this context Shri Shah, the learned Counsel for the petitioner, referred to the provisions of section 403 of the Bombay Provincial Municipal Corporations Act, 1949. In this context Shri Shah, the learned Counsel for the petitioner, referred to the provisions of section 403 of the Bombay Provincial Municipal Corporations Act, 1949. Inviting our attention to sub-section (5) of section 403 of the said Act, Shri Shah submitted that recrimination application by the winning candidate in the municipal election was not contemplated under this Act. Referring to section 97 of the Representation of People Act, 1951, Shri Shah stated that the said Act did contemplate filing of recrimination application but such a provision was conspicuously absent in the Bombay Provincial Municipal Corporations Act, 1949 and, therefore, such provisions of section 97 of the Representation of People Act could not pressed into service while considering election petition pertaining to municipal corporations. He then invited our attention to the fact that on coming to know of the election petition and the proceedings before the trial Court, the petitioner did file a recrimination application though it was out of time. The petitioner also filed application for condonation of delay in filing the recrimination application. However, both the applications were not considered. 4. Shri Sawant, the learned Counsel for the respondent No. 1 in Writ Petition No. 5298 of 1986 and for the petitioner in Writ Petition No. 1521 of 1987, on the other hand, stated that whether recrimination application was or was not necessary, in an election petition filed by the respondent No. 1, what was required to be done was the recounting of votes in his favour. So far as the petitioner was concerned, he had admittedly not disputed the number of valid votes cast in his favour. It was only respondent No. 1 who had disputed and, therefore, the short question before the trial Judge was whether the number of valid votes cast in favour of respondent No. 1 was 646 or more. 5. In our judgment, this interpretation of Shri Sawant of sub-section (5) of section 403 is fallacious. It was only respondent No. 1 who had disputed and, therefore, the short question before the trial Judge was whether the number of valid votes cast in favour of respondent No. 1 was 646 or more. 5. In our judgment, this interpretation of Shri Sawant of sub-section (5) of section 403 is fallacious. Sub-section 5 of section 403 reads thus : "If an application is made under section 16 that any particular candidate (other than the candidate declared to have been elected) shall be deemed to have been elected, then the returned candidate or any other party may give evidence to prove that the election of the person in whose favour such declaration is sought would have been void, if he had been declared elected and an application had been presented calling in question his election. If the Judge is of opinion :- (i) that in fact any candidate in whose favour the declaration is sought has received a majority of the valid votes, or (ii) that but for the votes obtained by the returning candidate by corrupt practices, such candidate would have obtained a majority of the valid votes, the Judge shall after declaring the election of the returned candidate to be void declare the candidate in whose favour the declaration is sought, to have been duly elected." It is not as if the Judge has to merely recount the valid votes in favour of the person who has filed election petition. He has to declare a candidate to be winner after he comes to the conclusion as to who has secured a majority of valid votes. This, to our mind, clearly implies that the learned Judge is obliged to count valid votes both in favour of the petitioner and the respondent. Moreover, so far as, this case is concerned, the respondent No. 1 himself had, in his election petition, requested the Court for recounting of valid votes both in his favour and in favour of the petitioner so as to arrive at a conclusion who has secured majority of votes. Even otherwise, in our opinion, the construction sought for by Shri Sawant will lead to inequitable results. In the above view of the matter, we hold that there being no special provision for recrimination application under section 403 of the Bombay Provincial Municipal Corporations Act, 1949, it was not necessary for the petitioner to file a recrimination application. Even otherwise, in our opinion, the construction sought for by Shri Sawant will lead to inequitable results. In the above view of the matter, we hold that there being no special provision for recrimination application under section 403 of the Bombay Provincial Municipal Corporations Act, 1949, it was not necessary for the petitioner to file a recrimination application. We further hold that it was incumbent upon the trial Judge to take into account all valid votes cast whether in favour of the candidate who filed the election petition or the person who was declared as a winning candidate by the Returning Officer. 6. In the above view of the matter and having regard to the fact that the valid votes cast in favour of the petitioner are 654 as against 661 in favour of the respondent No. 1, we set aside the judgment and order dated 28th October, 1986 passed by the learned Joint Civil Judge, Senior Division, Kolhapur in Election Petition No. 14 of 1985. Accordingly, the election petition stands dismissed. Rule made absolute in terms of prayer (b) in Writ Petition No. 5298 of 1986. As a natural corollary, Writ Petition No. 1521 of 1987 is dismissed and the rule is discharged. No order as to costs. Order accordingly. -----