JUDGMENT - B.H. MARLAPALLE, J.:---We have heard the learned Counsel for the respective parties. Rule. Respondents waive service. Petition is taken up for final hearing forthwith with the consent of the parties. 2. Elections to the 83 wards of Aurangabad Municipal Corporation, Aurangabad (respondent No. 2 herein) were held in the month of April, 2000. The petitioner No. 1 is one such elected councillor from Ward No. 57 and petitioner No. 2 is elected councillor from Ward No. 67. So also, the respondent Nos. 7 and 8 are elected councillors. Elections to the post of Mayor were held soon thereafter and the respondent No. 4 came to be elected for the said post as a candidate of alliance between the Bhartiya Janata Party and Shiv Sena. He is elected by a margin of only one vote. 16 councillors came to be elected as members of the Standing Committee on 2nd May, 2000 as required under section 20 of the Bombay Provincial Municipal Corporations Act (for short, the Municipal Corporations Act). Under section 21(1) of the said Act, the councillors are also required to elect the Chairman of the standing committee and three persons had submitted their nomination forms for the post of chairman i.e. petitioner No. 1, respondent No. 7 and Shri Salim Shamsher Patel in the meeting held on 22nd May, 2000. This meeting came to be adjourned and no further stages for the said elections could take place. 3. Writ Petition No. 2006 of 2000 came to be filed before this Court challenging the proceedings of the meeting held on 22nd May, 2000. By order dated 13th June, 2000 this Court was pleased to dispose of the said petition in view of the mandatory provisions of section 21(5) of the Municipal Corporations Act. In order to complete the remaining stages of the meeting held on 22nd May, 2000, a fresh meeting was scheduled on 14th June, 2000 and respondent No. 4 presided over the said meeting. The third candidate viz. Salim Patel withdrew his nomination to contest the election of the chairman of the standing committee and, therefore, there were a straight contest between petitioner No. 1 and respondent No. 7. The polling started at about 1.00 p.m. on 14th June, 2000 and it was over by about 2.15 p.m. and all the 83 councillors exercised their franchise. Salim Patel withdrew his nomination to contest the election of the chairman of the standing committee and, therefore, there were a straight contest between petitioner No. 1 and respondent No. 7. The polling started at about 1.00 p.m. on 14th June, 2000 and it was over by about 2.15 p.m. and all the 83 councillors exercised their franchise. While the polling was going on, alongwith respondent No. 4, the respondent No. 3, respondent No. 5 and the Deputy Mayor were sitting on the dias and Shri M. P. Khairnar, Chief Accounts Officer of the respondent No. 2, corporation was directed to work as a Polling Officer (Scrutiny and Counting). Petitioner No. 2 was the polling agent of petitioner No. 1 and respondent No. 8 was the polling agent of respondent No. 7. They were called on the dias after the polling was over and at the time of opening the ballot box. The ballot papers were taken out by respondent No. 4 and the polling officer and each ballot paper was signed by respondent No. 4 after ensuring that there were in all 83 ballot papers. After scrutiny the ballot papers were shown to each of the counting agents and simultaneously read over and placed in the tray of the respective contesting candidates by the polling officer. Four ballot papers were objected to by respondent No. 8 and hence they were reportedly kept in a separate tray. The reading over of the ballot papers by the polling officer was admittedly on a mike and, therefore, the number of votes cast in favour of both the candidates was known to the councillors and the others who were present in the hall and the petitioner No. 1 had secured 39 votes as against 40 votes secured by respondent No. 7. On the disputed votes the respondent No. 4 gave his decision and held all of them invalid. The polling officer, thereafter, announced the election results and declared that the respondent No. 7 won the said election by a margin of one vote. This election of respondent No. 7 to the post of Chairman of standing committee has been challenged in the instant petition. 4. The petitioner contends that out of the 83 votes approximately 43 votes were cast in his favour and the respondent Nos. This election of respondent No. 7 to the post of Chairman of standing committee has been challenged in the instant petition. 4. The petitioner contends that out of the 83 votes approximately 43 votes were cast in his favour and the respondent Nos. 4 and 8, in collusion and with preplanned strategy, decided to declare some votes cast in favour of the petitioner No. 1, as invalid. The acts of respondent Nos. 4, 7 and 8 created a bedlam in the house and the councillors present, belonging to rival group, created unruly scenes. This free for all atmosphere continued for some time and the respondent No. 4 hurriedly took out the four objected ballot papers from the third tray and gave his decision invalidating two of the ballot papers. At this stage, again there was a chaos in the house and, the petitioner alleged that, the remaining two ballot papers were pocketed by respondent No. 4. It is further alleged that one of the doubtful ballot paper was torn by respondent No. 4 and, thereafter, without giving any reasons the respondent No. 4 gave his decision invalidating these two ballot papers as well. The petitioner alleges that the disputed four ballot papers were deliberately kept aside by the respondent No. 4 as he had, by way of the earlier announcement on mike, by the polling officer, realised that the respondent No. 7 had secured only 40 votes which would not be a majority vote for getting elected out of 83 votes and by way of evil desire he decided to declare the disputed ballot papers as invalid. The petitioner also alleges that respondent No. 6, who is not an elected councillor and had no reason to be present in the house, had ignited the unruly behaviour of the councillors and pressurised the respondent No. 4 to declare the four disputed ballot papers as invalid. It is contended that respondent No. 6 belongs to Shiv Sena party and is a former member of Parliament from Aurangabad. The respondent No. 4 came to be elected as Mayor on the support of Shiv Sena and, therefore, he was obliged to follow the dictates of respondent No. 6. 5. The respondent No. 4, 6, 8 and No. 7 have filed their affidavits in reply and opposed the petition. The respondent No. 4 came to be elected as Mayor on the support of Shiv Sena and, therefore, he was obliged to follow the dictates of respondent No. 6. 5. The respondent No. 4, 6, 8 and No. 7 have filed their affidavits in reply and opposed the petition. The respondent No. 3 as well as the polling officer have also filed their individual affidavits setting out in detail the events that had occurred in the house on 14th June, 2000, from the time of polling till the election results were announced by respondent No. 4. 6. The respondent No. 4 has stated that (i) the instant petition is not maintainable in view of alternature remedy under section 16 of the Municipal Corporations Act; (ii) the petition involves disputed questions of facts which cannot be gone into a writ petition (iii) under section 451 of the Municipal Corporations Act the State Government is empowered to call for the proceedings and examine the legality of the election proceedings as well as the decision given by the presiding officer on the disputed votes; (iv) his decision on the disputed votes is legal, valid and just in view of the provisions of Rules 45(j)(i) and 50 of "the Rules for Conducting Meeting of the Corporation, Committees etc. of the City of Aurangabad" (hereinafter referred to as the Rules for short); (v) while giving his decision on the disputed votes, declaring them invalid, he has exercised his powers in bona fide manner and taken a possible view which cannot be set aside in a writ petition and (vi) the allegations made against him personally by the petitioners are baseless, fabricated and politically motivated. The respondent No. 4 has specifically denied all the allegations made against his behaviour and also submitted that his decision was free from any mala fides, political considerations as well as preplanned strategy and he has acted fairly and as per his conscience while performing the role of a presiding officer. He has further urged that his decision cannot be impaired on the ground of partiality or favouritism on account of political alliance, in favour of respondent No. 7 or his party. 7. He has further urged that his decision cannot be impaired on the ground of partiality or favouritism on account of political alliance, in favour of respondent No. 7 or his party. 7. Respondent No. 6 has admitted, in his affidavit, his presence in the house during the time of counting and has taken a stand that he entered the house after he realised that the councillors had resorted to unruly behaviour and his intention was to pacify them so as to bring the house in order. He has also stated that he is not a necessary party to the petition as there is no relief claimed against him. Respondent No. 8, in his affidavit in reply, has admitted to have taken objection to four votes cast in favour of the petitioner No. 1 and specifically denied the allegation that he had told the respondent No. 4 to reject the four votes. He has also denied the allegation of preplan, in collusion with respondent Nos. 4, 6 and 7, and his role in creating pandemonium in the house during the course of counting of the ballot papers. He has also supported the contention of respondent No. 4 that the fourth ballot paper was not destroyed by respondent No. 4 and has stated that the said ballot paper was destroyed by petitioner No. 2 himself by snatching it from the hands of respondent No. 4. 8. Respondent No. 7, by relying upon a judgment of the Supreme Court, in the case of (D.F.L. Housing Construction (P) Ltd. v. Delhi Municipal Corporation and others)1, A.I.R. 1976 S.C. 386, challenged the maintainability of the writ petition on the ground that the basic facts are disputed and complicated questions of law and facts, depending on evidence, are involved. The respondent No. 7 supports the contentions of the respondent No. 4 regarding alternative remedy to challenge the elections under the provisions of the Municipal Corporations Act or in the alternative to file a civil suit under section 9 of the Civil Procedure Code as was done in the past, to challenge the elections of chairman of the standing committee. Reliance has been placed, in this regard, on a judgment of the Supreme Court in the case of (Smt. Ganga Bai v. Vijay Kumar and others)2, A.I.R. 1974 S.C. 1126. Reliance has been placed, in this regard, on a judgment of the Supreme Court in the case of (Smt. Ganga Bai v. Vijay Kumar and others)2, A.I.R. 1974 S.C. 1126. The respondent No. 7 returned candidate, has supported the decision of the respondent No. 4 presiding officer regarding the disputed votes and urged that the said decision cannot be interfered with by this Court on the point of facts as well as law and, in any case, there is no ground made out to set aside the said decision as it is a possible view taken bona fide while discharging an administrative function as a presiding officer. He has further contended that there was a pre-arranged plot to identify the votes cast so as to show one's loyalty to a particular contesting candidate and the rejected ballot papers carried such identification mark and as per the provisions of Rule 45(j)(i) read with the provisions of Rule 50 of the Rules they have been rightly held to be invalid by the respondent No. 4. In support of these contentions reliance has been placed on a judgment of the Supreme Court in the case of (Era Sezhiyan v. T.R. Balu and others)3, A.I.R. 1990 S.C. 838. While discharging the administrative function as a presiding officer and while giving his decision on the disputed ballot papers the respondent No. 4 was not obliged in law to give reasons for invalidating the subject ballot papers as there is no such specific provision either in the Municipal Corporations Act or the Rules. Unless the decision of the presiding officer is outrageous or palpably erroneous there is no occasion for this Court to interfere with the said decision, invaliditing the subject ballot papers, urged the learned counsel for the respondents. 9. On the point of preliminary objection regarding the maintainability of the petition, the learned Counsel for the respondent Nos. 4 and 7 have placed their reliance on the following judgments of the Supreme Court : (i) (The University of Mysore and another v. C.D. Govinda Rao and another)4, A.I.R. 1965 S.C. 491; (ii) (K.K. Shrivastava v. Bhupendra Kumar Jain and others)5, A.I.R. 1977 S.C. 1703; (iii) (Jeet Mohinder Singh v. Harminder Singh Jassi)6, 1999(9) S.C.C. 386 ; (iv) (Laxmikant Revhand Bhojwani v. Pratapsingh, Mohansingh Pardeshi deceased through his heirs and legal representatives)7, 1997(3) Bom.C.R. (S.C.)1 10. The provisions of section 16(2-A) of the Municipal Corporations Act read, as under :- "No election to any Corporation shall be called in question except by an election petition presented to the Judge referred in sub-section (1) and no Judge other than the Judge referred to in subsection (1) shall entertain any dispute in respect of such election." This provision was incorporated by way of amendment in terms of Maharashtra 41 of 1994 consequent to the 73rd constitutional amendment. The bar created under section 16(2-A) specifically pertains to election to any corporation and it has to be read in conjunction with sub-sections (1) and (2) of the said section which clearly refer to the election of Councillor and the said elections are required to be held by the State Election Commission in terms of the provisions of section 14 and 14A of the Municipal Corporations Act. As against this, the standing committee, which is one of the bodies of the Corporation, is constituted under the provisions of section 20(1) and the appointment of chairman of standing committee is provided under section 21(1) of the Municipal Corporations Act. Having regards to the scheme of the constitution of various committees in terms of the provisions of sections 20 to 32 of the Municipal Corporations Act it is implicit that the elections to such committees do not fall within the ambit of section 16 of the Municipal Corporations Act. The mandate of Article 243-ZG (b) of the Constitution is, therefore, not applicable to the elections of the various committees/sub-committees of the Municipal Corporation constituted under the scheme of the Act. In the case of (K. Venkatachalam v. A. Swamickan and another)8, A.I.R. 1999 S.C. 1723 the Supreme Court inter alia held that Article 226 of the Constitution is couched in widest possible term and unless there is a clear bar to jurisdiction of the High Court, its powers under Article 226 of the Constitution can be exercised when there is any act which is against any provisions of law or violative of constitutional provisions and when recourse cannot be had to the provisions of the Representation of Peoples Act, 1951 for the appropriate relief. 11. Section 451 of the Municipal Corporation Act sets out powers of the State Government to suspend or rescind any resolution or order etc. of the Corporation or other authority in certain cases. 11. Section 451 of the Municipal Corporation Act sets out powers of the State Government to suspend or rescind any resolution or order etc. of the Corporation or other authority in certain cases. This section does not specify the State Government's power to set aside the elections to any of the committee of the Corporation and the word "resolutions or order of the Corporation or any other authority" cannot be equated with the election proceedings and, therefore, under the said section the State Government does not have the powers to deal with the challenge against the election proceedings to any of the committees of the Corporation. There is no doubt that the election to any of these committees or sub-committees can be challenged by filing a civil suit under section 9 of the Civil Procedure Code as the said remedy is not impliedly or expressly barred under the provisions of the Municipal Corporations Act. At the same time availability of remedy under section 9 of the Civil Procedure Code by itself will not operate against the petitioners to approach this Court in writ proceedings by invoking Article 226 of the Constitution as the petitioners have the right to elect a remedy from amongst the remedies available and choice of one of the remedies is at the discretion of the party concerned. Having exercised one of such remedies the party is debarred from resorting to the other remedy subsequently that is after being unsuccessful in the earlier proceedings. At the same time if the petition involves disputed questions of facts, it requires to be dismissed at the threshold and we are satisfied that no such disputed facts are involved in the present petition regarding the issues under considerations. We, therefore, hold that the preliminary objections regarding the maintainability of this petition under Article 226 of the Constitution cannot be sustained. 12. We now proceed to examine the main question regarding the legality of the presiding officer's decision of declaring the four ballot papers as invalid. The parties to the petition concede that the provisions of Rules 45, 46 and the rules pertaining to the election of Mayor and Deputy Mayor are applicable to the election of Chairman of standing committee in view of Rule 65 of the said Rules. The parties to the petition concede that the provisions of Rules 45, 46 and the rules pertaining to the election of Mayor and Deputy Mayor are applicable to the election of Chairman of standing committee in view of Rule 65 of the said Rules. Rule 65 specifically states that the rules applicable to the nomination and appointment of the Mayor shall be applicable to the nomination and election of the Chairman of the standing committee. Rules 59 to 66 pertain to the elections of standing committee. Rule 50 states that no Councillor shall vote for more than one candidate and at the time of voting each Councillor will place a cross at the right hand side of the ballot papers opposite the name of the candidate for whom he votes thus "X". Whereas, Rule 45(j)(i) states that a ballot paper shall be invalidated upon which a member signs his name or writes any word or makes any mark by which it becomes recognizable. [emphasis supplied]. Rule 63 provides that the poll shall close at the end of the time fixed by the Mayor under Rule 45(f) and after the close of the poll the presiding authority shall then immediately open the ballot box and initial each ballot paper and thereafter proceed to have the ballot papers scrutinised with the assistance of the secretary. Rule 64 then provides that the presiding authority, after rejecting any invalid ballot papers shall, with the help of the Municipal Secretary, count the votes and the candidate who gets the highest number of votes, including the casting vote of the presiding authority, when given, shall be declared elected. It would be appropriate to reproduce the provisions of Rule 45(j)(i), 50, 63 and 64 of the Rules, as they appear in the Marathi language. It would be appropriate to reproduce the provisions of Rule 45(j)(i), 50, 63 and 64 of the Rules, as they appear in the Marathi language. "45) xqIr ernku ?ks.;kph fjr (t)s [kkyhy ifjfLFkrhr erif=dk voS/k letyh tkby- (1) tj erif=dsoj lHkklnkus vkiys ukao fdaok 'kCn fyghyk vlsy vFkok rks vksG[krk ;sby v'kk fjrhus frP;koj dkgh [kq.k dsyh vlsy vFkok+ 50) dks.kR;kgh lHkklnkyk ,dkis{kk tkLr bPNqdkauk vkiys er nss.kkj ukgh + ernku djrsosGh izR;sd lHkkln ernku if=dsP;k mtO;k cktqyk T;k bPNqdkyk er ?kko;kps vlsy R;kP;k ukokleksj Qqyh djhy + 63) fu;e dz+ 45 (,d) vUo;s Bjfoysyh osy laiY;kuarj ernku laifo.;kr ;sby vkf.k rs laiY;kuarj lHkkifr rkCkMrks erisVh m?kMrhy o izR;sd erif=dsoj vkiyh v?k{kjh djrhy + R;kuarj uXkjlfpo ;kaP;k lgk;kus R;k erif{kdkaph Nkuuh djrhy + 64) v;ksX; erif=dk vlY;kl R;k vekU; dsY;kuarj lHkkifr uxjlflpo ;kaP;k lgkO;kus ers ekstrhy vkf.k vkiys fu.kkZd er R;kauh fnY;kl rs /k#u T;k bPNqdkl lokZr tkLr ers feGkyh vlrhy rks fuoMwu vkyk vls ?kksf"kr djrhy + ,[kk|k lehrhojhy ,dksis{kk vf/kd tkxk Hkjko;kP;k vlY;kl lokZr tkLr ers feGkysyk bPNqd R;kuarj R;kP;k [kkyks[kkyh ers feGkysyk bPNqd vkf.k jhrhus ftrD;k tkxk Hkjko;kP;k vlrhy] frrD;k tkxk Hkjsi;Zr bPNqd fuoMwu vkys vls ?kks"khr dj.;kr ;sby +" A combined reading of all these rules indicates that the Councillors are expected to mark their choice as explained in Rule 50. The votes can be declared invalid only if any of the conditions in Rule 45 are fulfilled. On close of the poll the ballot boxes are sealed and taken to the Presiding Officer, who, in the presence of the counting agents and with the assistance of the Polling Officer opens the ballot boxes, initials each ballot paper and proceeds to have the ballot papers scrutinised with the assistance of the Secretary or the Polling Officer. Thereafter, the Presiding Officer is required to proceed for counting the ballot papers after he gives his decision regarding invalid ballot papers, if any. This implies that once the process of counting of ballot papers commences there is no stage of disputing validity of the ballot papers or giving a decision on such disputed ballot papers as per the said rules which are, admittedly, applicable to the subject election. 13. This implies that once the process of counting of ballot papers commences there is no stage of disputing validity of the ballot papers or giving a decision on such disputed ballot papers as per the said rules which are, admittedly, applicable to the subject election. 13. In the instant case, the Presiding Officer, for reasons best known to him, gave a go by to this procedural chain inasmuch as after the ballot papers were removed from the ballot box and counted, he initialed each of them and ensured that they were 83 in number. He then returned the ballot papers to the Counting Officer who simultaneously read over each ballot paper on the mike. During this process of reading over of the ballot papers the respondent No. 8 objected four ballot papers which were cast in favour of petitioner No. 1 and these disputed ballot papers were kept in a separate tray whereas the ballot papers polled by the respective two candidates were kept in two different trays. After the reading over of the ballots was over, the Presiding Officer ventured to give his decision on the disputed ballot papers which led to the pandemonium in the hall. The respondents agree that for sometime thereafter, there was a total bedlam in the hall and the unruly behaviour of the Councillors as well as the outsiders, including respondent No. 6, disrupted the subsequent proceedings like announcing the results and preparing the result sheet etc. and during this bedlam itself the respondent No. 4, at the first instance, declared two ballot papers as invalid and after sometime he declared the remaining two ballot papers as invalid. This sequence, as described above, has been confirmed in the affidavits filed by the respondent No. 3 on behalf of himself and the respondent No. 2 Corporation and the affidavit filed by the Election Officer. 14. On the first ballot paper the decision given by the respondent No. 4 reads, thus : "lnjhy ernkukP;k tkzxsr u dsY;kcnzny vOkS| dj.;kr ;sr" Whereas, on the second and third ballot papers he does not given any reasons and it only states "invalid". The fourth ballot paper is half torn from the right hand side. We have seen all the four ballot papers and it is unsafe to adjudicate upon the decision of respondent No. 4 regarding the fourth ballot paper which was half torn. The fourth ballot paper is half torn from the right hand side. We have seen all the four ballot papers and it is unsafe to adjudicate upon the decision of respondent No. 4 regarding the fourth ballot paper which was half torn. It is contended by the respondent No. 4 in his affidavit in reply that the said fourth ballot paper was cast in favour of petitioner No. 1 but while casting his vote the voter had made a specific mark of "O". So as to make it recognizable and, therefore, he declared it invalid. As the ballot paper is torn the franchise mark as well as the alleged identification mark portion of the ballot paper is missing. We will, therefore, confine our findings in respect of the first three ballot papers only so as to decide the legality of the decision given by respondent No. 4 declaring them invalid. For this purpose we shall refer to the affidavits filed by respondent Nos. 3 and 4 as well as the Polling Officer. 15. The Presiding Officer, in his affidavit in reply, has stated that he declared the first two ballot papers as invalid as there was no cross of voting mark on the right hand side of the ballot papers opposite the name of the candidate and this, as per him, amounted to making a mark at different place so that the vote became recognizable. And so far as the third ballot paper is concerned, he stated that it had two cross marks, one in the column where the name of the candidate was written and another on the right hand side of the ballot paper opposite the name of the candidate and as there were two marks on the said ballot paper he declared it as invalid. The respondent No. 4 relies upon the provisions of Rule 45(j)(i) of the rules so far as these three ballot papers are concerned and Shri Bora, the learned Counsel appearing for the said respondent, submitted that even the second marking on the third ballot paper also fell within the ambit of making a mark so as to identify the vote exercised in favour of a particular candidate. Shri Shah, while supporting the decision of the respondent No. 4, has invited our attention to the following observations of the Supreme Court in the case of Era Sezhiyan v. T.R. Balu. (supra). Shri Shah, while supporting the decision of the respondent No. 4, has invited our attention to the following observations of the Supreme Court in the case of Era Sezhiyan v. T.R. Balu. (supra). ".............This, of course, is subject to the rule that before a ballot paper is accepted as valid the ballot paper must not be invalid under any other express provision and the intention of the voter must not be expressed in a manner which is contrary to or totally inconsistent with the manner prescribed under the said Act or the election rules for expressing the same." However, Mr. Shah, the learned Counsel seems to be unmindful of the earlier observations of the Supreme Court in the said case and it would be desirable to quote the said observations, as under : "...... ........ Similarly, sub-rule (2)(b) of Rule 73 only lays down that if the figure 1 is set opposite the name of more than one candidate or is so placed as to render it doubtful to which candidate it applied, the ballot paper would be invalid. Sub-rule (2) of Rule 73 deals with the invalidity of ballot papers and that Sub-rule nowhere states that merely by reason of the preference being marked in the wrong column, if the marking is opposite the name of the candidate concerned, the ballot paper shall be rendered invalid. It is true that the column in which the preference should have been marked and intended for that purposes was the column on the right-hand side of the first column where the name of the candidate was to be put; but there is no express provision to the effect that unless the preference is marked in the correct column, the ballot paper would be invalid." In the case at hand, no doubt, Rule 50 advised the Councillors to vote in the box (column) on the right hand side and opposite the name of the candidate concerned, but the said rule does not provide that failure to mark "X" in that box shall render the vote invalid. In the case of first two ballot papers, admittedly, the mark "X" is placed on the right hand side and opposite the name of the petitioner No. 1 but it is not in the box where it was to be marked. In the case of first two ballot papers, admittedly, the mark "X" is placed on the right hand side and opposite the name of the petitioner No. 1 but it is not in the box where it was to be marked. The ballot papers carry the mark "X" in the first column and opposite the name of the petitioner No. 1 The sole reason to invalid these two votes that the marking "X" was deliberately made at a place, other than reserved for it, was done with an intention to identify the vote, does not impress to any prudent human being. The above quoted observations of the Apex Court are squarely applicable for these two ballot papers as Rule 50 of the rules does not make any specific provision for invalidating the ballot. 15. In the case of (S. Sivaswami v. V. Malaikannan and others)9, A.I.R. 1983 S.C. 1293 the Apex Court observed : "If the right conferred on the people to choose their representatives to the State Legislatures and the Parliament thought the process of free and fair elections is to be meaningful the will of the illiterate and unsophisticated voter expressed through a marking on the ballot paper which though not strictly inside the column of the particular candidate is clearly indicative of the identity of the candidate for whom the vote is cast has to be respected and given its full effect." This observations was made while interpreting the provisions of Rule 56(2) of the Conduct of Elections Rules, 1961. The said rule directs the Returning Officer to reject a ballot paper if the mark indicating the vote thereon is placed in such a manner as to make it doubtful to which candidate the vote has been given or if it bears no mark at all to indicate the vote or it bears a mark elsewhere than on or near the symbol of one of the candidates on the face of the ballot paper or it bears a mark made otherwise than with the instrument supplied for the purpose. A similar issue was also considered by a Division Bench of this Court in the case of (Dajiba Gurunath Gavane and others v. Sangappa Sharanappa Patil and other)10, A.I.R. 1967 Bombay 264. A similar issue was also considered by a Division Bench of this Court in the case of (Dajiba Gurunath Gavane and others v. Sangappa Sharanappa Patil and other)10, A.I.R. 1967 Bombay 264. The ballot paper was rejected on the ground that it had double marks on three symbols and the voter had exercised the vote for three candidates and for like reasons. While disagreeing with the view taken by the returning officer, in declaring the ballot papers invalid, this Court observed : "...... ....... The question then that arises for consideration is whether on these facts and in the aforesaid circumstances the double marks on the voting paper marked with two separate and distinct marks divided by open space against one and the same candidate or on the symbol of one and the same candidate amounts to casting more than one vote for that candidate. We may at once say that there is no rule anywhere which states that putting more than one mark on symbol of a candidate or against the name of the candidate on voting paper would amount to casting more than one vote against that candidate or would render the ballot paper invalid." This Court further went on to observe that the right to vote and elect a representative is a valuable right and is conferred on persons who may even be illiterate and the said right should not be denied on flimsy and technical grounds. It relied upon the view of the Supreme Court and observed that what is to be ascertained is the intention of the voter as evidenced by the marking made by him on the ballot paper and if it clearly indicated that the voter wanted to vote for a particular candidate and has not done anything which law does not permit him to do, the mere fact that the mark indicating the vote is distinct or made more than once would not invalid the ballot paper. 17. The decision of the respondent No. 4 declaring the votes as invalid cannot be said to be solely an administrative decision. He was required to adjudicate the dispute raised by an agent of the contesting candidate regarding the validity of the ballot papers and there is a specific provision in Rule 45(j) for declaring a ballot paper as invalid. 17. The decision of the respondent No. 4 declaring the votes as invalid cannot be said to be solely an administrative decision. He was required to adjudicate the dispute raised by an agent of the contesting candidate regarding the validity of the ballot papers and there is a specific provision in Rule 45(j) for declaring a ballot paper as invalid. Under such circumstances, he is required to apply his mind to the contentions of both the sides, the alleged grounds for invalidation and examine it vis-a-vis the provisions of Rule 45(j). We fail to understand as to how the respondent No. 4 Presiding Officer arrived at a conclusion that the mark "X" on these two ballot papers was made with an intention to identify them so as to express loyalty to a particular contesting candidate namely the petitioner No. 1 It is difficult to accept that what was implicit in the mind of the voter was explicitly known to the Presiding Officer. On one ballot paper the reason given by him is to the effect that the mark "X" was not at the place it ought to have been while on the other ballot paper there is no reason for invalidating the same but in the affidavit in reply he has stated that both these votes were declared invalid for the reasons that the marking "X" was not done in the box specified for it and it amounted to making a mark to identify the vote or the ballot paper. This reasoning, on the face of the subject ballot papers, is manifestly erroneous and it does not appeal a prudent mind. In no circumstances, this decision could be held to be a possible view. On the contrary, it clearly indicates the predetermined attitude of the respondent No. 4 to favour respondent No. 7 (a Shiv Sena candidate) and to get him elected specially when it was known to every one much before the decision on the disputed votes was given, that he had scored only 40 votes and it did not amount to a majority of votes. 18. We have examined the third ballot paper which is alleged to be carrying mark in favour of petitioner No. 1. 18. We have examined the third ballot paper which is alleged to be carrying mark in favour of petitioner No. 1. We have no hesitation to hold that the concerned voter had exercised his franchise properly, the mark "X" was made at the right place and in the right box and there was no second mark made by him. The so called second mark is an impression of the first mark when the ballot paper was folded for being inserted in the ballot box. The respondent No. 4 appears to have proceeded with a predetermined mind to ensure that the score of the petitioner No. 1 did not cross 39 votes. The decision of the Presiding Officer, on this ballot paper, is also palpably erroneous and though while rejecting the said ballot paper no reason has been stated thereon, the reason given in the affidavit in reply is grossly erroneous. The view taken by the respondent No. 4 on this ballot paper as well cannot be held to be a possible view. We may usefully refer to the following observations of this Court in the case of (Bapusaheb Laxmanrao Mohite v. Suresh Bapu Gawali and other)11, 1992(2) Mh.L.J. 963 . "........ ....... 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 identified 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 fact 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. ... ..." 19. As regards disputed Vote R-4, there is something written on the fact 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. ... ..." 19. As we have observed in the foregoing paragraphs the procedure, as laid down under the rules regarding the sequence of singing the ballot papers, scrutiny of the ballot papers, giving decision on the invalid votes and counting of ballot papers has not been followed by the respondent No. 4. On the other hand, the decision on the invalid votes has been given after the result of the poll was known to every one present in the hall and perhaps even the in premises of the corporation because the Election Officer had read out, the votes cast on a mike. This chain of events, as followed by the respondent No. 4, in disregard to the rules provided for elections, again suggests that the respondent No. 4 failed to shed himself of his allegiance to the political alliance he belongs to and the subsequent decisions he gave on the disputed four ballot papers, on two different occasions, were influenced by the fact that the respondent No. 4 as well as the Councillors had known that the respondent No. 7 had secured only 40 votes, two votes short for majority, and the respondent No. 4 also knew that all the disputed four votes were cast in favour of petitioner No. 1 and if they were counted as valid he could have secured 43 votes, thereby getting declared as elected to the post of chairman of the standing committee. 20. So far as the allegations regarding the personal behaviour of the respondent Nos. 4, 6 to 8 on one hand and that of the petitioners on the other hand is concerned, they involve disputed claims and counter claims which could not be gone into in this petition. 21. In the result, we set aside the decision of the respondent No. 4 in respect of the three subject ballot papers and declare them to be as valid ballot papers cast in favour of the petitioners No. 1. 21. In the result, we set aside the decision of the respondent No. 4 in respect of the three subject ballot papers and declare them to be as valid ballot papers cast in favour of the petitioners No. 1. The decision of the respondent No. 4, declaring the respondent No. 7 as elected to the post of chairman of the standing committee of the respondent No. 2 Municipal Corporation of Aurangabad, is hereby set aside. We direct the respondent No. 4 to declare the petitioner No. 1 as elected and complete the further steps in that regard forthwith. 22. Rule is made absolute accordingly. Costs in cause. 23. Before we part with the judgment, we deem it appropriate to make some recommendations to the State Government as well as the respondent No. 3. Respondent No. 6 had no concern with the said elections inasmuch as he was not one of the councillors and, therefore, he had no valid reason to be present in the hall when the pandemonium broke during the process of counting of votes. The scheme of the Act, as it stands as at present, or the rules, does not provide for any action against such trespassers. One does not know how many such trespassers were present in the hall during the time when it was almost a situation of free for all. At the first instance, we feel that respondent No. 3 is not without powers to issue a notice prohibiting the entry/attendance/presence of any such aliens in the hall or in the premises where the election process would be going on and the respondent No. 3 should take such steps in future. At the same time it would be desirable that the scheme of the Act is suitably amended so as to make a penal provision against such trespassers on the lines it is available under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. We direct a copy of this judgment be forwarded to the Principal Secretary, Law and Judiciary Department, Government of Maharashtra, for doing the needful to advise the State Government. After we pronounced the judgment Shri Pravin Shah learned Counsel appearing for respondent No. 7, prayed for stay on the operation of our judgment for a period of six weeks. We direct a copy of this judgment be forwarded to the Principal Secretary, Law and Judiciary Department, Government of Maharashtra, for doing the needful to advise the State Government. After we pronounced the judgment Shri Pravin Shah learned Counsel appearing for respondent No. 7, prayed for stay on the operation of our judgment for a period of six weeks. We have considered the prayer and we are of the view that the prayer is devoid of merits and hence it is rejected. Record be returned to the Commissioner, Municipal Corporation, Aurangabad. Petition allowed. -----