B. P. Dharmadhikari, J. - (1.) By these petitions filed under Articles 226 and 227 of the Constitution of India challenge is to order of disqualification passed against the respective petitioners. Petitioner Shrikrishna in Writ Petition No. 5034/2009 has been held disqualified by respondent no.5 Additional Commissioner therein, in Appeal proceeding under Section 58[1E] read with Section 16[1] of the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961. The disqualification is on account of having more than two children after the stipulated date. The Appellate Authority has found that the 4th child of petitioner is born on 23.11.2002 i.e. after the cut off date 12.09.2001 and hence petitioner has incurred disqualification under section 16[1][n] of the 1961 Act. These finding of facts are not in dispute before me.
(2.) Petitioner Vandana in Writ Petition No. 5658/2009 is found disqualified to continue as Sarpanch and Member of Gram Panchayat [respondent no.3] under the provisions of Section 14[j3] of the Bombay Village Panchayat Act, 1958 as she has encroached on 1300 sq. meters of government land. This order of disqualification passed by respondent no.2 Additional Collector has been upheld in Appeal under section 16[2] of the 1958 Act, by respondent no.1 Additional Commissioner. Here though the fact of encroachment by petitioner is not disputed, contention is, encroachment was made long back by her motherinlaw and petitioner married into that family subsequently.
(3.) Basic contention in both these petitions is that as the ground used for disqualification was in existence at the time of election of respective petitioner, election petition was the only remedy available and the proceedings for disqualification moved after expiry of period of limitation are not sustainable. Reliance has been placed on the judgment of Hon'ble Apex Court (State of Himachal Pradesh and others .vrs. Surinder Singh Banolta, 2007 AIR(SC) 903) for the said purpose.;