1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 7580 OF 2008 Pralhad Shankarrao Ade, R/o. Baryamsing Nagar, Nanded. ....Petitioner. Versus Nanded Waghala Municipal Corporation and others. ....Respondents. Shri. P.V. Mandlik, Senior Counsel h/f. Shri. Amol Gandhi, Advocate for the petitioner. . Shri. M.V. Deshpande, Advocate for the respondent No. 1. Shri. S.T. Shelke, Advocate for the respondent No. 2. Shri. V.S. Panpatte, Advocate for the respondent No. 3. Shri. S.P. Shah, Advocate for the respondent No. 4. Shri. B.V. Wagh, A.G.P. for the respondent No. 5. CORAM : B.R. GAVAI, AND N.D. DESHPANDE, JJ. DATE : 29th August 2009 PER COURT : 1. By way of present petition, the petitioner seeks exception to the order dated 14th of August 2008, passed by the respondent No. 1, thereby rejecting the application filed by the present petitioner for 2 disqualification of respondent No. 4 Municipal Councillor. 2. The respondent No. 4 was elected as Municipal Councillor from Ward No. 3 of Nanded Wagala Municipal Corporation, Nanded in the election held in the month of September 2007. The petitioner, who is one of the voter in the said election, had filed an application to the respondent No. 1 on 18th of October 2007, stating therein that the petitioner had three issues and as such, has committed the offence of cheating and forgery by filing false affidavit. He had, therefore, requested vide the said communication to take the necessary action against the petitioner. The petitioner had filed a detailed affidavit on 17th of January 208. By way of impugned order dated 14th of August 2008, the application filed by the present petitioner has been rejected. 3. Mr. Mandlik, learned counsel appearing on behalf of the petitioner, submits that the respondent no. 4, on the date of election, had in fact three surviving children and he was disqualified to hold the post of Municipal Corporator in view of provisions of section 10(1)(i) of the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "the said Act"). He submits that the respondent No. 4, with the connivance of Village Development Officer, has fabricated the original record. He submits that this aspect has not been taken in to consideration by the respondent No. 1 while rejecting the application. 3 4. Shri. Deshpande, learned counsel appearing on behalf of the respondent No. 1 Corporation and Shri. S.P.Shah, learned counsel appearing for the respondent No. 4 submit that the respondent No. 1 has rightly on the basis of material placed before it, rejected the application. They submit that the entry regarding the alleged three children of respondent No. 4 was erroneously taken on record, which has been corrected by the Village Development Officer on 25th of July 2008. 5. Undoubtedly, the elections to the Municipal Council were held in the month of September 2007. The remedy available to the petitioner, since he was voter in the said election, is under section 16 of the said Act. If it was the contention of the petitioner that the petitioner was not qualified to be declared to be elected as Councillor, he ought to have file election petition as required under section 16 of the said Act. The perusal of the under sub-section (2-A) of section 16 of the said Act reveals that no election to any Corporation shall be called in question except by an election petition presented to the Judge referred to in sub-section (1) and no Judge other than the Judge referred to in sub-section (1) shall entertain any dispute in respect of such election. 6. So far as the provisions of section 11 and 12 are concerned, prima facie, it would appear that the said provisions would be applicable if the Councillor incurs any of the disqualification during term of his office. 4 7. Admittedly, even according to the petitioner, the respondent No. 4 was not disqualified as on the date of election. In that view of the matter, the only remedy available to the petitioner is under section 16 of the said Act. 8. In any event, this Court while exercising it's extraordinary jurisdiction, cannot be expected for the first time to go in to the disputed questions of facts. If the petitioner find that any of the acts of the respondent No. 4 amounts to any illegality, he is always at liberty to take recourse against him as per the provisions under the law. The petition is, therefore, without any merit and it is dismissed. [N.D. DESHPANDE, J.] [ B. R. GAVAI, J.] ssc/wp7580.08