1 wp6719.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.6719 OF 2010 Vasant Jivba Patil (Nikam) ...Petitioner vs. Abaji Baburao Patil & Ors. ...Respondents Mr.R.M.Haridas i/b Mr.Kishor S. Patil for the petitioner Mr.Sachin Chavan i/b Mr.Sameer S. Tambekar for the respondents CORAM :A.S.OKA,J. DATE : SEPTEMBER 14, 2010 P.C. 1 Heard the learned counsel for the parties. With a view to appreciate the submissions made by the learned counsel for the parties, it will be necessary to briefly refer to the facts of the case. . The petitioner is an elected member of the village panchayat. An application was made by the 1st and 2nd respondents under section 14 r/w section 16 of the Bombay Village Panchayat Act,1958 (hereinafter referred to as the said Act). It was pointed out in the application that in the election held in October 2007 for the term of 2007-2012, the petitioner was elected. It is stated that he had three surviving issues on the date of the election. It is alleged that on 17th March 2002 the third child of the petitioner was born and therefore, on the date on which the petitioner contested the election, he had incurred disqualification. 2 The said application made by the 1st and 2nd 2 wp6719.sxw respondents was decided by the Additional Collector by order dated 20th April 2010 and it was held that the petitioner stood disqualified and the post held by him became vacant. An appeal was preferred by the petitioner before the Commissioner. The appeal has been dismissed by the Judgment and order dated 16th August 2010. 3 The first submission made by the learned counsel for the petitioner in support of the petition is that disqualification provided under sub clause (J-1) of section 14 of the said Act was brought on the statute book on 12th September 2001 and the third child of the petitioner was conceived in June 2001 which is prior to the cut off date of 12th September 2001. The second submission is that even according to the case of the 2nd and 3rd respondents, the petitioner was disqualified on the date on which the election was held and therefore, only remedy available for the petitioner was to challenge the election by filing necessary proceedings under section 15 of the said Act. The learned counsel for the petitioner submitted that the fact that the disqualification at the time of filing nomination papers could be challenged only by way of an election petition under section 15 of the said Act has not been considered by the authorities. He has placed reliance on the decision of Andhra Pradesh High Court in case of Eesam Vijaya Vs. Venumula Sathamma & others (CDJ 2009 APHC 185). He submitted that the burden to prove the disqualification was not discharged by the 1st and 2nd respondents. He relied upon the decision of Allahabad High Court in the case of Jabbar and others vs. State (AIR 1966 SC 590) which holds that the `person includes a child whether born or unborn. Lastly, he placed reliance on the decision of Delhi High Court in the case 3 wp6719.sxw of Prakash and others Vs. Arun Kumar Saini and another (CDJ 2010 DHC 555) which holds that for the purpose of claim petition under the Motor Vehicles Act,1988 an unborn child in womb can be considered as a minor child. He submitted that the petitioner had not incurred any disqualification after the cut off date. He, therefore, submitted that as the petitioner who has been duly elected cannot be disqualified. He submitted that earlier an application was made for disqualifying the petitioner, when the petitioner was elected for the term 2002-2007. The application for disqualification of the petitioner was allowed and that the order of disqualification was stayed by this Court. 4 I have carefully considered the submissions. Disqualification under clause (j-1) of sub section 1 of section 14 of the said Act is incurred when a person has more than two children. The section provides that no person shall be a member of the panchayat who has more than two children. The relevant date for consideration of the question whether a person has two children is 12th September 2001 when the said clause was brought on the statute book. Clause (a) of sub section 1 of section 16 provides that if any member of a Panchayat who is elected or or appointed as such, was subject to any of the disqualifications mentioned in section 14 at the time of his election or appointment, he shall be disabled from continuing to be a member and his office shall become vacant. Thus, even after election, if a member of the village panchayat is found to be disqualified under section 14 under the said Act, he is disentitled to continue as a member and his office becomes vacant. Power of adjudication on the question whether any vacancy occurred on the basis of the disqualification has been conferred on the Collector in view of sub section 2 of 4 wp6719.sxw section 16 of the said Act. Under the said provision, jurisdiction is conferred on the Collector to decide the question whether at the time of election a member had incurred a disqualification under section 14 of the said Act. If the Collector finds that the member has incurred disqualification, such member shall be disabled from continuing as a member. In view of sub-section (2) of section 16 of the said Act, the Collector had jurisdiction to decide the question as to whether the petitioner had incurred disqualification on the date of election. In the circumstances, the first submission made by the learned counsel for the petitioner cannot be accepted. 5 Clause (j-i) of sub section 1 provides that a person is disqualified if he has more than two children. Admittedly, the third child of the petitioner was born after 12th September 2001. Assuming that the child was in the womb of the wife of the petitioner on the relevant date, it cannot be said that on 12th September 2001 the petitioner had more than two children. On that date, the petitioner had only two living children and the third child was admittedly born after 12th September 2001. The decision of the Delhi High Court relied upon in case of Prakash (supra) has no application as what was held by the Delhi High Court was for consideration of question whether compensation can be claimed under the Motor Vehicles Act,1988 on account of death or injury to the unborn child. Apart from this, this Court has taken a contrary view in case of Marappa Vadar Vs. Proctor and Gamble and another [2008 (4) Bom.C.R. 820]. The decision of Allahabad High Court in the case of Jabbar (supra) is in the context of section of 304-A of the Indian Penal Code. 5 wp6719.sxw 6 As far as earlier application for disqualification is concerned, the same was not finally decided in much as the order of disqualification passed against the petitioner was challenged in this Court and this court granted interim stay. 7 In the present case, admittedly the third child was born to the petitioner after 12th September 2000. Thus, on the date on which the election was held in the year 2007, the petitioner had incurred disqualification. 8 Hence, no fault can be found with the impugned orders. Writ petition is accordingly rejected with no order as to costs. 9 Ad-interim relief granted on 25th August 2010 will continue to operate for a period of three weeks from today. JUDGE