A contract of service between a member of the Panchayat Samiti's wife and the Zilla Parishad is a contract with the Panchayat Samiti, and therefore disqualifies the member from holding office under section 16 (1) (a) (i) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961.

MASODKAR J.- The debated issue in the present petition relates to the jurisdiction of the Assistant Judge, Nasik, to entertain Election Petition No.7 of 1979 and further to the disqualification that has been found against the present petitioner in view of the provisions of section 16 (1) (a) (i) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961, for, admittedly, the petitioner's wife is a primary teacher since September 3, 1965 and she was posted at Deola at the time of election of the petitioner as a member of the Panchayat Samiti, Kalvan from Deola Electoral College -and she has been thereafter serving as a primary teacher at village Adgaon which falls in the Panchayat Samiti area of Nasik. Holding that the petitioner was disqualified under section 16 (I) (a) (i) of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 to be the member of the Panchayat Samiti, his election ~as been set aside.

2. Mr. Kankaria, the learned counsel, in support of the present petition, mainly urged three points. Firstly, the learned counsel contended that in view of the Rules framed under section 14 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 which are made applicable because of section 58 (IA) thereof to the election of the Panchayat Samiti, the election petitioner could, at the most, at the time of scrutiny of nomination papers, raise such an objection. Under the rules framed, against the decision of the Returning Officer, an appeal is provided and the decision in appeal is made final. The learned counsel submits that at no other stage the question of disqualification can be re-agitated. Secondly, it is contended that the remedy provided for by section 27 of the Maharashtra Zilla Parishads and Panchyat Samiti. Act, 1961, do not confer the jurisdiction on the Election Court to enquire into the matters of disqualification of the returned candidate. Reliance is placed on a Division Bench decision of this Court in the case of Gopikisan Agarwal v. District Judge, Bhandara1, which followed the earlier judgment of this Court rendered by another Division Bench in the case of Venkatrao Vithalrao v. Vithal Sambhaji2. On the authority of this decision, the learned counsel submitted that under section 27, the question of disqualification of the petitioner could not have been gone into and the eventual order impugned in the present petition is thus without jurisdiction. Lastly, it is contended that up to proper reading of section 58 (I A), which, by reference incorporates section 16, matters of disqualification with regard to members of Panchayat Samiti, as far as the provisions of sub-section (I) (i) are concerned, will have to be read as indicating that before a person is held disqualified, he should have direct or indirect share. or interest in any work done by order of the Panchayat Samiti in place of Zilla Parishad or in any contract with, by or on behalf of the Panchayat Samiti, in place of Zilla Parishad. The submission is that, the contract with the Zilla Parish ad is not the contract with the Panchayat Samiti, and therefore, the employment of the wife of the petitioner by the Zilla Parishad in a primary school of Adgaon in the area of another Panchayat Samiti, would not be a disqualification. As a second limb of this submission, the learned counsel submitted that, the provisions of the Act show that the Panchayat Samiti is an independent entity and as such, is capable of employing servants and having contracts. Unless, therefore, there exists such type of contract, section 16 (1)(i) is not attracted. Even otherwise, the submission is that the matters of primary education and the employment with regard to that education, are not exclusive matters of contract, but are governed by the provisions of the. Bombay Primary Education Act, 1947. It is contended that, at the most, the contract of employment of a teacher in a primary school would be a statutory contract within the meaning of that Act,