Judgment 1. In view of notices for final disposal, the learned Counsel have been heard at length by making the Rule returnable forthwith. 2. This writ petition takes exception to the judgment dated 15.4.2014 passed by the learned Civil Judge, Junior Division, Lonar in Election Petition No.1/2012 whereby the said election petition filed by respondent Nos.1 & 2 has been partly allowed and after setting aside the election of the petitioners, fresh elections have been ordered. 3. General elections to elect members of Gram Panchayat Sawargaon were held on 21.10.2012 for Ward No.2. Three members were to be elected. One seat was reserved for Scheduled Caste (women), one seat was reserved for candidates from the Other Backward Class category and the third seat was for Open (women). The results were declared on 22.10.2012. The petitioner No.1 was declared elected from the Other Backward Class category seat while the petitioner No.2 was declared elected on a seat reserved for Scheduled Caste (women). 4. The respondent Nos.1 & 2 being aggrieved filed an election petition under Section 15 of the Maharashtra Village Panchayats Act, 1958 (for short the said Act) challenging the election of the petitioners. In the election petition, it was pleaded that after the counting of votes was over, respondent No.1 was declared elected having polled 243 votes and petitioner No.2 was also declared elected having polled 271 votes. It was then pleaded that after respondent Nos.1 & 2 went to their village, it was learnt that the Returning Officer in collusion with the petitioners had recounted votes and had declared the petitioners elected. It was pleaded that this was contrary to the provisions of the said Act. The Returning Officer filed his reply stating that respondent Nos.1 & 2 had never been declared elected. When it was noticed in the primary list that the names of the candidates had been incorrectly mentioned, necessary corrections were made after which the result was declared. The petitioners also filed their reply claiming that they had received higher votes and they had been rightly declared as elected. 5. The parties led evidence before the trial Court. The respondent No.1 examined himself. He was also cross-examined. In his cross-examination, he stated that his son had acted as his representative when the votes were counted. The petitioners also filed their reply claiming that they had received higher votes and they had been rightly declared as elected. 5. The parties led evidence before the trial Court. The respondent No.1 examined himself. He was also cross-examined. In his cross-examination, he stated that his son had acted as his representative when the votes were counted. He further stated that the counting of votes took place in a transparent manner and that the document at Exhibit-39 was the rough note prepared by the Returning Officer. He also admitted that in the presence of his son, the sequence of names that had been shown in Exhibit-39 was corrected after which Exhibit-40 came to be prepared. The Returning Officer also examined himself and stated that respondent Nos.1 & 2 had not been declared elected. He stated that the document at Exhibit-37 had been published by the Election Commission as a dummy ballot paper. The petitioner No.1 also examined himself. He stated that he had not raised any objection during the process of counting of votes. 6. During the trial of the election petition, the learned Judge of the trial Court directed production of the Electronic Voting Machine along with the memory chip. The same was accordingly produced and the total number of votes as well as respective votes polled by the candidates were also verified. Thereafter the parties were heard through their Counsel. It was noted by the trial Court that in the document at Exhibit-37 the sequence of the names of the candidates was not as stipulated by the document at Exhibit-56 which was the ballot paper on the basis of which the votes had been polled. A finding was then recorded that it was not proved that the Returning Officer had in collusion with the petitioners declared them elected. Thereafter it was held that by recounting the votes the Returning Officer had exceeded his jurisdiction and had wrongly corrected the results. Relying upon the decision in Smt. Sarla vs. State of Maharashtra, AIR 2001 Bombay 159, the learned Judge set aside the election of the petitioners and directed that fresh elections be held to elect members for the posts reserved for Scheduled Caste (women) and Other Backward Class category. This judgment is impugned in the present writ petition. 7. Relying upon the decision in Smt. Sarla vs. State of Maharashtra, AIR 2001 Bombay 159, the learned Judge set aside the election of the petitioners and directed that fresh elections be held to elect members for the posts reserved for Scheduled Caste (women) and Other Backward Class category. This judgment is impugned in the present writ petition. 7. Shri K.V. Deshmukh, learned counsel appearing for the petitioners submitted that the learned Judge of the trial Court was not justified in setting aside the election of the petitioners. It was submitted that respondent Nos.1 & 2 had never been declared elected and the Returning Officer before declaring results on noticing that the sequence of names of the candidates had been wrongly mentioned in the consolidated statement had corrected the same. It was urged that there was no evidence on record to indicate either that the results had been declared declaring respondent Nos.1 & 2 as victorious nor was there any evidence that at the behest of the petitioners the necessary corrections were made. It was submitted that the Returning Officer on noticing a mistake in the sequence of the names of the candidates had merely rearranged the names as per the ballot paper and, therefore, no illegality was committed by the Returning Officer. It was then urged that the Returning Officer had the implied power to make necessary corrections on noticing such mistake prior to declaration of the results. The same would not amount to altering the result inasmuch as respondent Nos.1 & 2 had never been declared elected. The learned Counsel referred to certain decisions, reference to which would be made at a later stage. It was, therefore, submitted that the order passed by the trial Court can not be sustained and the same deserves to be set aside. 8. On the other hand, Shri A.B. Moon, learned Counsel appearing for respondent Nos.1 & 2 supported the impugned order. It was submitted that the Returning Officer was neither empowered nor was he justified in correcting the sequence of the names of the candidates especially when it was evident from the record that the document at Exhibit-39 was prepared as per dummy ballot paper. It was submitted that having declared respondent Nos.1 & 2 duly elected, no change could have been made in the said result by the Returning Officer. It was submitted that having declared respondent Nos.1 & 2 duly elected, no change could have been made in the said result by the Returning Officer. It was submitted that the consolidated statement was not brought before the Court and, therefore, interference by the trial Court was justified. He placed heavy reliance on the judgment of the Division Bench in Smt. Sarla (supra). It was then submitted that the trial Court did not grant any declaration in favour of respondent Nos.1 & 2 and on the contrary, fresh elections had been directed to be held. It was open for the petitioners to again contest the election and get elected. It was, therefore, submitted that there was no reason to interfere with the impugned judgment. Smt. B.P. Maldhure, learned Assistant Government Pleader appearing for respondent Nos. 3 and 5 supported the impugned order. 9. I have carefully considered the respective submissions and I have gone through the documents filed on record. In the election petition filed under Section 15 of the said Act, it has been pleaded that after the process of counting, the Returning Officer had declared that respondent No.1 had got 243 votes and respondent No.2 had got 271 votes. Both had been declared elected. After the results were declared, the respondent Nos.1 & 2 went to their village but after about 1 to 1½ hour, the supporters of respondent Nos.1 & 2 came to know that the Returning Officer in collusion with the petitioners had recounted the votes and had declared them elected. It is on this basis that the election of the petitioners was challenged being contrary to the mandatory provisions of law. The stand of the Returning Officer is that respondent Nos. 1 & 2 were never declared elected. The mistake that had occurred in the sequence of the names of the candidates which were not as per the sequence as mentioned in the ballot unit had been corrected. Similar is the stand of the petitioners. 10. The evidence led by the parties indicates the following: (a) As per the respondent No.1, his son was his authorized counting agent. Other counting agents of other candidates were also present. The counting had taken place in a transparent manner. The document at Exhibit-39 was a rough statement. It was necessary to give the names of the candidates as per the sequence mentioned at the ballot unit. Other counting agents of other candidates were also present. The counting had taken place in a transparent manner. The document at Exhibit-39 was a rough statement. It was necessary to give the names of the candidates as per the sequence mentioned at the ballot unit. (b) The respondent No.1 admitted that Exhibit-40 had been signed by his son and the representatives of other candidates. The same was done after verifying all documents. (c) The respondent No.1 admitted that Exhibit-37 which was a dummy ballot paper had been published by respondent No.1. Though the Election Officer had issued a certificate to respondent No.1 that he was duly elected, the same could not be produced before the Court. He also admitted that at the venue of the counting itself, he had got information that he had lost the election. (d) The Returning Officer admitted that Exhibit-37 had been published by the Election Commission. (e) The petitioner No.1 had not taken any objection during the course of counting of votes. 11. Amongst the relevant exhibited documents is the document at Exhibit-37 titled as 'dummy ballot paper'. The same, however, reproduces names of “Jai Sevalal Panel”. Only the names of respondent Nos.1 & 2 and another candidate from the open category (women) belonging to “Jai Sevalal Panel” have been mentioned. The names of the petitioners do not find place in said dummy ballot paper. Exhibit-39 is the copy of Annexure-25 dated 22.10.2012 with an endorsement by the Returning Officer that as the sequence of the names of the candidates mentioned therein had been changed, recounting had been done. Exhibit-40 is again a copy of Annexure-25 also dated 22.10.2012 duly signed by the Returning Officer and the representatives of the candidates showing names of the candidates as per the ballot unit. Exhibit-56 is the authenticated copy of the ballot unit that was produced by the Tahasildar on the directions of the trial Court. 12. At this stage, it is necessary to refer to certain relevant provisions of the Bombay Village Panchayat Election Rules, 1959 (for short the said Rules). Rule 32 of the said Rules relates to counting of votes and Rule 32(4) thereof refers to preparation of a consolidated statement by the Returning Officer regarding the total number of votes polled by each candidate. Rule 34 of the said Rules relates to declaration of results by the Returning Officer. Rule 32 of the said Rules relates to counting of votes and Rule 32(4) thereof refers to preparation of a consolidated statement by the Returning Officer regarding the total number of votes polled by each candidate. Rule 34 of the said Rules relates to declaration of results by the Returning Officer. The sequence in which results are to be declared are mentioned in Rule 34. If a seat is reserved for Scheduled Castes or Scheduled Tribes, such results have to be declared first and then the results of seats reserved for women have to be declared. Thereafter the results of unreserved seats have to be declared. Rule 35 of the said Rules relates to recounting of votes. 13. The question, therefore, that requires consideration is whether the Returning Officer could have corrected the sequence of the names of the candidates which according to him had been wrongly mentioned in Exhibit-39. Before considering said question, the observations of the Supreme Court in Chandavarkar Sita Ratna Rao Vs. Ashalata S. Guram, 1986 Mh L.J. 955 in para 20 can be taken into consideration : “20. It is true that in exercise of jurisdiction under Article 227 of the Constitution the High Court could go into the question of facts or look into the evidence if justice so requires it, if there is any misdirection in law or a view of fact taken in the teeth of preponderance of evidence.” 14. Exhibit-56 is the copy of ballot unit produced by the Tahasildar and the voters had exercised their franchise through the electronic voting machine as per the sequence of the candidates mentioned at Exhibit-56. Said document indicates the manner in which the names of the candidates have been placed. At Sr. Nos.1 & 2, the candidates belonging to the Scheduled Caste (women) category have been shown. At Sr. Nos.3 & 4, the candidates belonging to the Other Backward Class category have been shown while at Sr. Nos. 5 & 6, the candidates belonging to the Open (women) category have been shown. If Exhibit-56 is compared with Exhibit-39, it would be clear that at Exhibit-39 the sequence of the names of the candidates indicates that at Sr. Nos.1 & 2 those from the other backward category have been mentioned. At Sr. Nos.3 & 4 those from the Scheduled Caste (women) have been mentioned while at Sr. If Exhibit-56 is compared with Exhibit-39, it would be clear that at Exhibit-39 the sequence of the names of the candidates indicates that at Sr. Nos.1 & 2 those from the other backward category have been mentioned. At Sr. Nos.3 & 4 those from the Scheduled Caste (women) have been mentioned while at Sr. Nos.5 & 6 the candidates from the Open (women) category have been shown. Rule 34(1) specifies the manner in which sequence of results have to be declared. It is, therefore, apparent that same were to be declared as per the sequence of the candidates shown at Exhibit-56 which was the sequence in which the voters had cast their votes. As it was found by the Returning Officer, according to his deposition, that such sequence was wrongly mentioned in Exhibit-39, the same was immediately corrected by preparing the document at Exhibit-40. Another pertinent aspect is that in so far as Column No.3 at Exhibits 39 & 40 is concerned, there is no change whatsoever and only the name of the candidates has been arranged as per sequence of the names shown in the ballot unit at Exhibit-56. 15. The evidence on record indicates that the necessary correction in the sequence of names of the candidates was done in the presence of the representatives of all the candidates. The same was done suo motu by the Returning Officer on noticing the mistake. The deposition of respondent No.1 indicates that when he was present at the voting center itself, he got knowledge that he had lost in the elections (para 13 of his deposition). This statement, therefore, falsifies his own case that respondent Nos.1 & 2 had gone back to their village after the results were declared and when they were celebrating their victory, they got knowledge that the petitioners had been declared elected. Similarly, absence of any certificate to show respondent No.1 to be duly elected is also a relevant factor. It is further admitted by respondent No.1 that it was necessary to show the names of the candidates as per the sequence of names contained in the ballot unit and the corrections were done in presence of all the representatives. Similarly, absence of any certificate to show respondent No.1 to be duly elected is also a relevant factor. It is further admitted by respondent No.1 that it was necessary to show the names of the candidates as per the sequence of names contained in the ballot unit and the corrections were done in presence of all the representatives. In fact, the trial Court has also recorded a finding that there was no evidence on record to come to the conclusion that the Returning Officer in collusion with the petitioners had altered the results of the election. 16. The statement of the Returning Officer that the document at Exhibit-37 was supplied by the Election Commission as a dummy ballot paper cannot be accepted for the simple reason that same does not contain list of all the contesting candidates. It only refers to the name of a panel of which respondent Nos.1 & 2 were the candidates. Though much was sought to be made of aforesaid admission by the Returning Officer by the Counsel for respondent Nos.1 & 2, considering the document at Exhibit-56, it cannot be held that the document at Exhibit-37 was a dummy ballot paper supplied by the Election Commission. 17. The word “recounting” used by the Returning Officer on Exhibit-39 does not appear to be appropriate. In fact, there is no evidence of any recounting being done or any such request being made by any of the candidates. It was merely rearrangement of the sequence of the names of the candidates to bring the same in tune with the ballot unit at Exhibit-56. The total number of votes polled are unchanged and similarly, the votes polled by each candidate as reflected in Column No.3 of documents at Exhibits-39 & 40 are unchanged. It appears that use of the word “recounting” has led to aforesaid conclusion. The expression ‘recounting’ would have to be understood in terms of provisions of Rule 35 of the said Rules which contemplates the procedure by which the recounting of votes has to be done. 18. The learned Counsel for the petitioners relied upon the decision in Maruti Bandu Patil vs. Village Panchayat Sidhnerli and others 1981 Mh.L.J. 255 and urged that under the doctrine of implied power, the Returning Officer was entitled to correct his mistake. 18. The learned Counsel for the petitioners relied upon the decision in Maruti Bandu Patil vs. Village Panchayat Sidhnerli and others 1981 Mh.L.J. 255 and urged that under the doctrine of implied power, the Returning Officer was entitled to correct his mistake. In the facts of the present case, it has been found that immediately on noticing the error in the sequences of names of the candidates, necessary correction has been made. Thus, the implied power to correct an error within the framework of the Rules and prior to declaration of results would have to be granted to the Returning Officer. This is more so when the result has not been shown to be declared in terms of Rule 34 of the said Rules. 19. The judgment in the case of Smt. Sarla (supra) is clearly distinguishable on facts. In said case, after the results were declared as per Rule 34(1) of the said Rules, the Returning Officer on the basis of a notification issued by the State Election Commission modified the result and declared another candidate as elected. It was in that background that it was held that such power was not vested with the Returning Officer. In the present case, it has been found that the results were not at all declared as per Rule 34(1) of the said Rules and on noticing that the sequence of the candidates was not as per the sequence mentioned in the ballot unit (Exhibit-56) necessary rearrangement of the names of the candidates was made. Moreover, in Smt. Sarla (supra), the aggrieved candidates had approached the High Court by filing writ petitions while in the present case, the adjudication is in proceedings under Section 15 of the said Act. The ratio of the aforesaid decision cannot, therefore, be made applicable to the facts of the present case. 20. In the present case, it has been held that the sequence of candidates on the ballot unit was not clear. This finding in para 27 of the impugned judgment cannot be sustained in view of the document at Exhibit-56 which was a copy of verified ballot paper produced by the Tahasildar and its authenticity was not in doubt. Further, no declaration was granted in favour of respondent Nos.1 & 2 and instead, fresh elections ordered. This finding in para 27 of the impugned judgment cannot be sustained in view of the document at Exhibit-56 which was a copy of verified ballot paper produced by the Tahasildar and its authenticity was not in doubt. Further, no declaration was granted in favour of respondent Nos.1 & 2 and instead, fresh elections ordered. In the light of the findings recorded herein above, it is clear that the trial Court misdirected itself while setting aside the election of the petitioners. In fact, there was no legal and valid ground to set aside the election of the petitioners. In the absence of any such ground, the impugned order cannot be sustained. 21. Accordingly, the following order is passed: (1) The judgment dated 15.4.2014 passed in Election Petition No.1/2012 is set aside. Instead, said election petition stands dismissed. (2) Rule is made absolute in aforesaid terms. No costs.