JUDGMENT : A.S. CHANDURKAR, J. 1. In view of notice for final disposal issued earlier the learned counsel for the parties have been heard at length. The petitioner is aggrieved by an order dated 29.10.2015 passed by the Additional Commissioner Amravati Division, Amravati in the appeal that was filed by the respondent nos. 4 to 8 and setting aside the order of Additional Collector dated 28.05.2015 passed in proceedings under Section 33(5) of the Maharashtra Village Panchayats Act, 1959 (for short the said Act). 2. The facts in brief are that the petitioner and respondent nos. 4 to 11 are members of Village Panchayat Bhugaon. On 09.05.2015 elections were held for the post of Sarpanch of the Gram-panchayat. In said election the petitioner and the respondent no.4 were the candidates. A request was made for holding the elections by secret ballot which was accepted. The Returning Officer held that both the candidates had secured equal votes and therefore the Sarpanch was required to be elected by drawing lots. The respondent nos. 4 to 8 therefore filed a dispute under Section 33(5) of the said Act. The Additional Collector while considering the said dispute upheld the decision of the Returning Officer and dismissed the dispute. The respondent nos. 4 to 8 therefore filed an appeal before the Additional Commissioner. The Additional Commissioner recorded a finding that the respondent no.4 had received five votes while the petitioner had received four votes. On that basis the appeal was allowed and the order passed by the Additional Collector was set aside. Being aggrieved the petitioner has challenged the said order. 3. Shri J.B. Kasat, the learned counsel for the petitioner made twofold submissions. According to him the Additional Commissioner was not justified in holding that the respondent no.4 had received five votes. According to him the ballot paper pertaining to the fifth vote had not been properly marked so as to indicate that the said vote was cast in favour of respondent no. 4. According to him the Returning Officer before conducting the election by secret ballot had informed the members about the manner in which the ballot paper should be marked. If the mark put on the fifth ballot paper was not as per the said instructions, the said vote ought to have been treated as invalid as was done by the Returning Officer. If the mark put on the fifth ballot paper was not as per the said instructions, the said vote ought to have been treated as invalid as was done by the Returning Officer. He submitted that the Additional Commissioner was not justified in relying upon the judgment of the learned Single Judge in Pratiksha Pravin Raut Vs. Additional Collector, District Raigad and Others, 2015 (2) Maharashtra Law Journal 655 for gathering the intention of the voter. He, therefore, submitted that Returning Officer had rightly directed the election to be held by drawing lots. It was then submitted that the Additional Commissioner was not justified in declaring that the respondent no.4 was elected as she had received five votes. It was submitted that there was no such power with the Additional Commissioner to grant any declaration and to hold that the respondent no.4 was the successful candidate. According to him in absence of any statutory power in the said Act such declaration could not have been granted. In that regard the learned counsel placed reliance upon the judgment of the learned Single Judge in Chandrakalabai w/o Giridharrao Khangar and another Vs. Additional Commissioner, Amravati Division, Amravati and others, 2008 (6) Maharashtra Law Journal 376. Reference was also made to the judgment in Gawaji alias Gawaja Sawleram Sarode Vs. State of Maharashtra and others, 1992 Maharashtra Law Journal 294 as well as the judgment of the Division Bench in Meena Shriram Thakre Vs. Election Officer through Tahsildar, Kalmeshwar and others, 2001 (4) Maharashtra Law Journal 691 in support of aforesaid submission. It was therefore submitted that the order passed by the Additional Commissioner was liable to be set aside and the order passed by the Additional Collector ought to be restored. 4. Shri R.D. Wakode, the learned counsel for the respondent nos. 4 to 8 supported the impugned order. According to him the Additional Commissioner was justified in arriving at the conclusion that the ballot paper in question indicated that the vote was cast in favour of respondent no.4. He submitted that once the intention of the voter was clear then there was no reason whatsoever to hold that the said vote was intended to be cast in favour of respondent no.4. In that regard learned counsel placed reliance on the decision in Pratiksha Pravin Raut (supra). He submitted that once the intention of the voter was clear then there was no reason whatsoever to hold that the said vote was intended to be cast in favour of respondent no.4. In that regard learned counsel placed reliance on the decision in Pratiksha Pravin Raut (supra). It was then submitted that the Additional Commissioner did not act without jurisdiction when he held that the respondent no.4 had received five votes. According to him there was no question of absence of power with the Additional Commissioner to hold that the respondent no.4 having received higher votes was entitled to be declared as Sarpanch. He submitted that the judgment of learned Single Judge in Chandrakalabai (supra) which was relied upon by the learned counsel for the petitioner has been held to be inconsistent with the view expressed by the Division Bench in Meena Shriram Thakre (supra). In that regard the learned counsel also placed reliance on the judgment in Mahadeo s/o Rambhau Athawale and others Vs. Additional Divisional Commissioner Aurangabad and others, 2010 (5) Maharashtra Law Journal 513 and submitted that the order passed by the Additional Commissioner was liable to be sustained. Ms. T. Khan, the learned Assistant Government Pleader appeared for the respondent nos. 1 and 2. 5. I have heard the respective counsel for the parties at length and I have given due consideration to their respective submissions. As per provisions of Section 33(5) of the said Act in the event of a dispute as regards the validity of the election for the post of Sarpanch, the same is to be referred to the Collector. After the decision of the Collector an appeal can be filed before the Commissioner. It is first necessary to consider the submission made on behalf of the petitioner with regard to the ballot paper which has been held to have been cast in favour of the respondent no.4. The Additional Commissioner had called for the record of the proceedings of the meetings and examined the same in the presence of the counsel for the parties. As per the instructions given by the Returning Officer, the votes that were intended to be cast in favour of the petitioner were to be marked by a symbolcircle and votes to be cast in favour of the respondent no.4 were to be marked by a symboltriangle. As per the instructions given by the Returning Officer, the votes that were intended to be cast in favour of the petitioner were to be marked by a symbolcircle and votes to be cast in favour of the respondent no.4 were to be marked by a symboltriangle. A tick mark was required to be made against the symbol as preferred. It has been observed by the Additional Commissioner that there was no sufficient space for putting the tick mark and the respondent no.4 had raised an objection before the Presiding Officer at that point of time. The mark in question was put inside the triangle and on that basis the Presiding officer and the Additional Collector held said vote to be invalid. In Pratiksha Pravin (supra) the learned Single Judge while considering very same provisions of the said Act has observed in para 11 of said judgment that there were no statutory rules as regards the manner in which a vote has to be recorded or a ballot paper has to be rejected. It was then observed that in this background if the intention of the voter appears to be clear then such ballot paper should not be rejected on the ground that the mark was indistinct. This view has been taken after considering the judgment of the Division Bench in Dajiba Gurunath Gavane vs. Sangappa Sharanappa Patil 1966 Maharashtra Law Journal 804. In the present case, a finding has been recorded by the Additional Commissioner after perusing the ballot paper in question that the intention of the voter was clear and there was no ambiguity. Considering aforesaid legal position, I do not find that the Additional Commissioner misdirected himself when he proceeded to consider the intention of the voter on the ballot paper and thereafter held that the said vote was intended to be cast in favour of the respondent no.4. Hence said submission made on behalf of the petitioner cannot be accepted. 6. As regards the second submission made on behalf of the petitioner, support for the same is derived from the judgment of the learned Single Judge in Chandrakalabai (supra). The facts of said case indicate that an objection was raised to the acceptance of nomination papers of the Sarpanch and Upsarpanch on the ground that the same were filed beyond the prescribed time. The facts of said case indicate that an objection was raised to the acceptance of nomination papers of the Sarpanch and Upsarpanch on the ground that the same were filed beyond the prescribed time. The defect was found to be substantial and the rejection of the nomination papers was upheld. Thereafter by referring to the observations in paragraph 9 of the judgment in Gawaji Sarode (supra) it was held that provisions of Section 33(5) of the said Act did not empower the Additional Collector to grant any declaration in favour of a successful candidate. This judgment of learned Single Judge has been considered in Mahadeo Athawale (supra) by another learned Single Judge. In paragraph 9 thereof it was held that the view taken in Chandrakalabai (supra) was inconsistent with the view expressed by the Division Bench in Meena Shriram Thakre (supra). It was then held that such declaration could be granted by the Additional Collector or by the Commissioner as the case may be. 7. At this stage it would be necessary to refer to the judgment of the Division Bench in Meena Shriram Thakre (supra). The facts of said case indicate that after elections for the post of Sarpanch were held, the Returning Officer held that as the petitioner therein had not secured 2/3rd votes of the total votes, a fresh election was liable to be held. This order was set aside by the Additional Collector and the petitioner therein was declared elected having received higher number of votes. When the proceedings were challenged before this Court, it was submitted that the Additional Collector had no power to declare the petitioner therein to be the successful candidate under Section 33(5) of the said Act. The Division Bench did not accept said contention and held in clear terms that as the petitioner therein had polled higher number of votes, she was entitled to be declared elected. It was held that the Additional Collector in the exercise of jurisdiction under Section 33(5) of the said Act was justified in granting such declaration. From said decision, it is clear that a similar contention as raised by the petitioner herein regarding lack of jurisdiction to declare the candidate elected on the post of Sarpanch has been negatived and it has been held that said jurisdiction was available with the Additional Collector. The judgment of the Division Bench is binding on this Court. 8. From said decision, it is clear that a similar contention as raised by the petitioner herein regarding lack of jurisdiction to declare the candidate elected on the post of Sarpanch has been negatived and it has been held that said jurisdiction was available with the Additional Collector. The judgment of the Division Bench is binding on this Court. 8. It may also be noted that the learned Single Judge in Gawaji Sarode (supra) while observing that under Section 15 of the said Act there was no power conferred to grant a declaration in favour of a successful candidate further observed in paragraph 11 as under:- “11. Eventuality of declaring some other candidate other than the returned one elected under the Bombay Village Panchayats Act is only limited to the change in the result because of the recounting.” 9. These observations therefore clearly indicate the consequence that would follow when the votes are counted in accordance with law. 10. It is also to be noted that there is a material difference between an election being set aside on account of some disqualification of a candidate and a candidate being declared elected on account of receiving higher votes after the same are counted properly. If the decision of the Returning Officer of counting the votes is found to have been done not in accordance with law, it is always open for the superior Authority to correct such error and declare the correct result. As observed in Mahadeo Athawale (supra) this power has to be read within the scheme of Section 33(5) of the said Act. Hence the second submission made on behalf of the petitioner cannot be accepted. 11. In view of aforesaid conclusions, I do not find that any case is made out to interfere with the order passed by the Additional Commissioner. The writ petition is therefore dismissed with no order as to costs. 12. At this stage the learned counsel for the petitioner seeks continuation of the adinterim relief which was granted earlier. This request is opposed by the learned counsel for the respondents. As adinterim relief was granted on 05/12/2015, same shall continue to operate for a period of six weeks from today. It shall cease to operate automatically after the said period is over.