1 wp 4033.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4033 OF 2011 Popat S/o Bajirao Gaikwad, Age : 22 Years, Occu. : Agril., R/o Nithrud, Tq. Majalgaon, Dist. Beed. .. Petitioner Versus 1. Dinkar S/o Bhagwanrao Gaikwad, Age : 32 Years, Occu. : Agril., R/o Nithrud, Tq. Majalgaon, Dist. Beed. 2. The Additional Collector, Ambajogai, Dist. Beed. 3. The Additional Divisional Commissioner, Aurangabad, Dist. Aurangabad. .. Respondents Shri V. D. Salunke, Advocate for the Petitioner. Shri S. J. Salunke, Advocate for the Respondent No. 1. Shri S. B. Pulkundwar, A.G.P. for the Respondent/State. CORAM : S. V. GANGAPURWALA, J. DATE : 26TH AUGUST, 2011. 2 wp 4033.11 ORAL JUDGMENT : . Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing. 2. The present respondent No. 1 had filed proceedings before the Additional Collector, purportedly U/Sec. 16 of the Bombay Village Panchayat Act on the ground that the petitioner is disqualified to be a Member of the Gram Panchayat as he is below 21 years of age. The Additional Collector allowed the same. Aggrieved thereby the petitioner filed an appeal before the Commissioner along with an application for stay. The Additional Commissioner rejected the application for stay, though the appeal is admitted and pending. Aggrieved thereby the present writ petition is filed. 3. Shri V. D. Salunke, the learned counsel for the petitioner states that at the time of acceptance of nomination no such objection was raised. The election was conducted. The petitioner was elected as member and thereafter as Sarpanch. The respondent No. 1 thereafter filed proceedings U/Sec. 16, which are not tenable. The election can only be challenged by way of an election petition U/Sec. 15 of the said Act. The learned counsel 3 wp 4033.11 relies on the judgment of the learned Single Judge of this Court in a case of Tulsabai Shelke Vs. Additional Commissioner reported in 2004 BCI (0) 29. 4. Shri S. J. Salunke, the learned counsel for the respondent No. 1 submits that the documents on record clearly shows that the petitioner was below 21 years of age on the date he contested the election. The petitioner has no right to remain as member and U/Sec. 16 the Additional Collector has every right to entertain the said proceedings. As the petitioner did not have any prima facie case, the Additional Commissioner has rightly rejected the stay petition. 5. Undisputedly, the appeal is pending before the Additional Commissioner and same is kept on 19.10.2011. If the stay is not granted the very purpose of filing appeal would stand frustrated. The issue as to whether the Additional Collector had the jurisdiction to entertain the proceeding U/Sec. 16 in respect of dispute of present nature will also have to be decided. There are triable issues. In such circumstances, the Additional Commissioner ought to have allowed the said stay application. 4 wp 4033.11 6. Taking into account the above conspectus, the Rule is made absolute in terms of prayer Clause "B" and the stay petition in appeal filed before the Additional Commissioner is allowed. The Additional Commissioner shall hear the appeal expeditiously and decide the same preferably within a period of four (4) months from today. No costs. Sd/- [ S. V. GANGAPURWALA, J. ] bsb/Aug. 11