1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 609 OF 2010 Chaudhary Md. Nooroddin s/o Md. Idris age 39 years, occ. Legal Practitioner r/o Behind Tahsil Office,Paranda Tq.paranda, Dist.Osmanabad. .. PETITIONER VERSUS 1 The State of Maharashtra through its Secretary Urban Development Department Mantralaya Mumbai 32. 2 The Collector, Osmanabad. 3 Jakariya s/o Salam Dehaluj, age 35 years, occ. business r/o Ward no. 13, Paranda Tq. Paranda, Dist.Osmanabad. .. RESPONDENTS Mr. H.I. Pathan, Advocate for the petitioner. Mr. M.B. Kolpe, Advocate for the respondent no. 3. ===== CORAM : R. M. BORDE, J. DATE : 29th MARCH, 2010 PER COURT : 1 Heard. 2 2 Rule. With the consent of the parties, the matter is taken up for final disposal at admission stage. 3 It is the contention of the petitioner that he is the elected Councilor of Municipal Council, Paranda. Respondent no. 3 presented complaint to the Collector alleging therein that the petitioner has incurred disqualification as a third child is born to him after due date. It is contended by the respondent / petitioner that the petitioner has incurred disqualification within meaning of section 16(k) r/w section 44 of the Maharashtra Municipal Councils, Nagar Panchayats & Industrial Township Act, 1965 and, as such, he shall be declared as disqualified to continue as the Councilor. The Collector, Osmanabad, after considering the rival contentions was pleased to accept the objection and the petitioner herein is held to have incurred disqualification and is unseated as a Councilor since 12 th May, 2009. 3 Order passed by the District Collector, Osmanabad is subjected to challenge by presenting appeal to the State Government under section 44(4) of the Act and the appeal is stated to be pending. Initially, the State Government issued order of stay in favour of the appellant / petitioner herein 3 on 6-6-2009, however, the order of stay granted earlier came to be vacated on 23-11-2009 on account of failure on the part of the petitioner to remain present before the appellate forum. It is the contention of the petitioner that he had proceeded on Haj Yatra during the relevant period and was out of India on the relevant date. The factum, of petitioner having proceeded on Haj yatra is not controverted and it also cannot be disputed that he was out of India on the date prescribed by the appellate authority in the matter. Considering these aspects, absence of the petitioner before the appellate authority appears to be genuine and it cannot be inferred that the petitioner is trying to prolong the matter. As the appeal is pending before the State Government, it is appropriate that the appeal be heard expeditiously. Interim protection granted in favour of the petitioner shall remain operative till disposal of the appeal. In this view of the matter, impugned order passed by the State Government thereby vacating the interim order on 23-11-2009 is liable to be quashed and set aside and the same is accordingly set aside. Interim stay granted earlier by the State Government on 6-6-2009 shall remain operative till disposal of the appeal. Petitioner is directed to appear before the appellate authority on 12 th April 2010 and a such, no separate notice requiring the appellant to appear before the appellate forum will be necessary. The appellate authority shall 4 decide the appeal expeditiously preferably before the end of May 2010. Rule is accordingly made absolute. In the facts and circumstances of the case, there shall be no order as to costs. ( R. M. BORDE, J.) dyb/office/wp609.10.odt