: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1362 OF 2008 WRIT PETITION NO. 1362 OF 2008 WRIT PETITION NO. 1362 OF 2008 Jaffar Mohd. Shaikh ... Petitioner v/s 1. The State of Maharashtra & ors. ... Respondents Mr.P.S.Dani for the petitioner. Mr.R.M.Patne, A.G.P. for respondent Nos.1 to 3. CORAM : SMT.NISHITA MHATRE J. CORAM : SMT.NISHITA MHATRE J. CORAM : SMT.NISHITA MHATRE J. DATE : 20TH APRIL, 2009. DATE : 20TH APRIL, 2009. DATE : 20TH APRIL, 2009. P.C.: P.C.: P.C.: 1. The petitioner has challenged the order passed by the Additional Commissioner, Konkan Division, Mumbai, in Appeal/Desk/VP339/07 by which the appeal filed by the petitioner under Section 16(2) of the Bombay Village Panchayat Act, 1958 has been dismissed. 2. This appeal was filed by the petitioner against the order passed in the election petition for his disqualification on the ground that he had more than two children after 12.9.2001. : 2 : 3. Mr.Dani for the petitioner submits that, an affidavit was filed by a person claiming to know the petitioner. By this affidavit, it has been brought on record that the petitioner had one child Munni from his marriage with his second wife. In these circumstances, the election petition was allowed and the petitioner’s election has been set aside. 4. According to Mr.Dani, the petitioner was not given any opportunity to cross-examine the affiant since the affidavit was filed after the arguments were heard. He submits that the appellate authority has also ignored this fact. The learned advocate further points out that the petitioner’s wife had undergone a tubectomy in 2002 and, therefore, could not possibly have another child thereafter. 5. An affidavit has been filed by the Additional Collector, Raigad-Alibag in reply to the petition. It has been pointed out that one Khalil Hussein Shaikh, who claims to be the uncle of the petitioner, had affirmed that the petitioner had two wives and that his second marriage has taken place in October, 2004 after which Munni was born in March, 2006. An additional affidavit has also been filed by the respondent in which the statements recorded before the Additional : 3 : Collector were exhibited. 6. It appears from the material on record that the petitioner was not given any opportunity to cross-examine Khalil Hussein Shaikh who had filed his affidavit on 20.3.2007 after the arguments were heard. The impugned order indicates that the election petition has been allowed only on the basis of this affidavit and the birth certificate produced indicating that the petitioner was the father of the child Munni. 7. In these circumstances, in my opinion, the order impugned in the petition must be set aside and is accordingly quashed. 8. The petitioner shall be given an opportunity to cross-examine Khalil Hussein Shaikh. 9. The election petition shall be decided afresh, after taking into account the cross-examination of Khalil Hussein Shaikh and any other evidence, both oral and documentary, that the petitioner may desire to lead, in rebuttal. 10. Writ petition is disposed of accordingly. : 4 : 11. The petitioner to appear in the Court of Additional Collector, Raigad-Alibag on 18th May, 2009 at 11.00 a.m.