*1* wp.4454.4455.10.925.sxw kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4454 OF 2010 WITH WRIT PETITION NO.4455 OF 2010 Anil Namdeo Patil. (wp/4454/10) Sunita Chandrakant Patil. (wp/4455/10) ..Petitioners ­Versus­ Tukaram Krushna Sargar and others. (wp/4454/10) Indubai Sakharam Ghode and others (wp/4455/10) ..Respondents .......... Mr.Amit Sale, for the Petitioners in both petitions. Mrs.A.P.Pise with Mr.Satyajeet Mirajkar i/b P.D.Pise, for the Respondent No.1 in both petitions. Mr.S.N.Bhosale, AGP, for the Respondent Nos.2 and 3/State. .......... CORAM : S.C.DHARMADHIKARI, J. Date : 24th June, 2011. P.C.: 1 Heard the learned counsel appearing for the Petitioners. These petitions under Articles 226 and 227 of the Constitution of India impugn the orders passed by the Additional Commissioner rejecting the appeals preferred by the Petitioners and confirming the orders of the Collector. 2 It is the case of the Petitioners that they have been elected as members of the Village Panchayat. It is their case that the elections of the Village Panchayat were held in the year 2007. The Petitioners contested *2* wp.4454.4455.10.925.sxw the elections and they were elected. On account of political differences and merely to harass them, the original Complainants made the complaints alleging that each of the Petitioners had third child born after 12.09.2001 and as such, they are disqualified under Section 14(1)(j­1) of the Bombay Village Panchayats Act, 1958 as amended on 13.09.2000. It was alleged in the complaints that child was born after cut­off date and therefore, the Petitioners have incurred disqualification. 3 The Collector issued notices to the Petitioners, they appeared and denied the allegations and also contended that the complaints are made by the defeated candidates. The concerned village has population of 1500 people and all families are known to each other very well. Therefore, the Complainants ought not to have maintained silence for all these years and should have raised the issue at the threshold. Assuming that the Petitioners are disqualified, the Complainants could question the validity of elections by filing an election petition. It was urged that the remedy provided in the Act to challenge the validity of election would include the issue of disqualification of the candidate. Therefore, the present proceedings are not maintainable. 4 In both cases, the Collector rendered a finding on the basis of the record that each of the Petitioners has third child and therefore, they are disqualified and cannot continue as members of the Village Panchayat. It is this order of the Collector which has been confirmed in appeal by the Additional Commissioner leading to filing of these Writ Petitions. 5 On these matters, when notices were issued, reliance was placed by Mr.Sale in support of his submissions, on the judgment of this Court in the case of Atmaram Chapa Sandanshiv and another v/s Shamshadbi Bashir Shah Fakir, reported in AIR 2008(5) Bom. R. 205, and it was urged that the Additional Commissioner is not the authority to *3* wp.4454.4455.10.925.sxw decide the appeal. The appeal lies before the State Government and the State has delegated the powers to the Commissioners of the respective divisions and therefore, the Additional Commissioner was not authorized to hear the appeals and his orders are, therefore, without jurisdiction. 6 The other argument that is now raised before me is that the Petitioners cannot be proceeded against in two forums. If the alleged disqualification has been incurred prior to the date of declaration of results and commencement of term of the office of the Petitioners, then, that could be made a subject matter of an election petition. It is on the date of filing of the nomination that the alleged disqualification had been incurred. If such was the position, the Complainants should have taken recourse to filing of election petitions. The Petitioners cannot be proceeded against under Section 14 by making a reference to the Collector or making a complaint to the authorities, namely, the Collector. For both these reasons, the impugned orders must be set aside. 7 There is no substance in both contentions of Mr.Sale. The judgment of the learned Single Judge which has been relied upon in support of the first contention, stands overruled by the judgment reported in 2009(3) Mh.L.J. 546 (Vimal Bhimrao Rathod v/s State of Maharashtra and others), wherein the Division Bench has held that the term “commissioner” includes the Additional Commissioner and the powers are delegated to other officers of the Revenue Department including the Additional Commissioner. The first contention must, therefore, fail as the appeal could have been decided by the Additional Commissioner. 8 As far as the second contention is concerned, reliance is placed on the judgment of the Hon’ble Supreme Court in the case of State of Himachal Pradesh v/s Surinder Singh Banolta reported in AIR 2007 SC 903 and an unreported judgment of a learned Single Judge of this Court *4* wp.4454.4455.10.925.sxw in case of Shrikrishna Wasudeo Dhage v/s Shivcharan Trimbakrao Kalne in Writ Petition Nos.5034 & 5658/2009 decided on 15.02.2010. 9 The Bombay Village Panchayats Act, 1958 has made a clear distinction as far as the remedies are concerned. Section 11 which provides for an election to constitute a Panchayat, is then followed by the list of voters, qualification to vote and elect, vacation of seats and then comes disqualification. The disqualifications are not just for becoming a member, but for continuation as well. Therefore, it is not as if that the issue of disqualification cannot be raised subsequent to the election. Section 15 provides for election petition i.e. for determination of the validity of the elections. The provisions of Section 15 enable any person, qualified to vote at the election, to apply to the Civil Court for the determination of validity of election of a member of a Panchayat. 10 As far as the disqualification is concerned, that is a bar for continuing after elections. Therefore, upon election a member can be removed by the process contemplated in law. Once the disqualification is for continuing as a member of the Panchayat, then, I am unable to understand as to how the same issue is being decided in both proceedings. The case before the Hon’ble Supreme Court was covered by both and therefore, once there was remedy provided, then, as far as the disqualification on account of encroachment on the Government land is concerned, the Hon’ble Supreme Court relying on those provisions, concluded that there were two authorities distinctly notified. It is in those peculiar circumstances that the conclusion which has been relied upon by Mr.Sale particularly in paragraph Nos.14 and 17 has been reached. Such is not the situation here. In the case of the present Act, the validity of the election is to be decided in terms of Section 15 and when the complaint is that a member of the Panchayat is disqualified, then, the law permits *5* wp.4454.4455.10.925.sxw removal of such member who is disqualified. The judgments relied upon by Mr.Sale are of no assistance to him. 11 Equally, the learned Single Judge was deciding the issue which arises out of the proceedings under the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961. The Act and the scheme there under has been noted. It is in these circumstances that the conclusion in paragraph No.8 has been reached. Even there it is not as if the learned Single Judge has applied the judgment in its entirety. The judgment of the Hon’ble Supreme Court (supra) has been noted and equally, another judgment of the Hon’ble Supreme Court. It is in these circumstances that the learned Single Judge held that two parallel proceedings as emphasized by the Hon’ble Supreme Court in its judgment are not ruled out. Before him, the Act was the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961. It is not case of Mr.Sale that in this case a complaint could not have been made to the Collector inviting his attention to the disqualification that is incurred by the Petitioners. It is not his submission that the Collector could not have proceeded with the matter further by taking cognizance of such a complaint because the Complainant earlier had not filed an election petition. In the absence of any prohibition to take cognizance of the complaint because an election petition is not filed, is indicative of the fact that the Legislature did not rule out making of grievance on more than one occasion or stage. That is how language of Section 14(1) of the Bombay Village Panchayats Act, 1958 reads. In several cases, the members are sought to be removed by taking recourse to filing of complaints before the Collector of the District. Thus, the eligibility of candidate to contest and get elected and the qualification of member to continue as such, are both contingencies which are taken care of by the statute in question. 12 In such circumstances, I find no merit in the submission of *6* wp.4454.4455.10.925.sxw Mr.Sale. In this case, I find that both authorities have held that third child is born after the cut off date and birth is not disputed. There is adequate evidence on record. There is no error apparent on the face of record and the conclusion cannot be said to be perverse. As a result of the above discussion, both petitions fail and are dismissed with no order as to costs. Interim order stands vacated. (S.C. Dharmadhikari, J)