Heard.

2. Rule. Rule made returnable forthwith. The matter is taken up for final hearing at admission stage with the consent of the parties.

3. This petition is filed by the petitioners herein raising exception to the order passed by the Additional Commissioner, Nasik Division. Nasik on 28-11-2005. The petitioners are the elected members of Village Panchayat Biloli. The general elections to the Gram Panchayat were held on 28-8-2005 and the petitioners are the elected candidates from ward Nos.1 and 3 respectively. It transpires that respondent No.1 raised objection with the Collector by moving an application on 15-92005 to the effect that the petitioners herein are disqualified to contest the elections as well as to continue on the post of member of Village Panchayat as they have incurred disqualification as laid down under section 14(1)(ii) of the Bombay Village Panchayats Act. 1958. The objection raised by the respondent No.1 is to the effect that the petitioners were involved in a crime and, in a prosecution lodged against them. they are sentenced to suffer imprisonment for one year and three months. It is stated that the judgment of Criminal Court has attained its finality. It is further contended that in view of the provisions of section 14(1)(a)(ii) of the Bombay Village Panchayats Act, the petitioners cannot continue members of the Village Panchayat and as such they are required to be unseated. The Collector considered the objection raised by respondent No.1 and by an orderdt.26-10-2005 declared that the petitioners are disqualified to hold and continue on the post. Said order passed by the Collector was subjected to appeal at the instance of the petitioners. The appeals were heard and disposed of by the Additional Commissioner, Nasik and after hearing both the parties same came to be dismissed by common order dt.28-1 1-2005. Said judgment and order passed by the Additional Commissioner, Nasik dismissing the appeal presented by the petitioners is subject matter of challenge in this petition.

4. The only short point that has been raised by the petitioners is in respect of authority and powers of the Additional Commissioner to decide the appeal while exercising powers under section 16 of the Bombay Village Panchayats Act. It is contended that the powers to decide appeal are required to be exercised by the Commissioner and the Additional Commissioner is not empowered to pass a verdict in an appeal presented under the provisions of Bombay Village Panchayats Act, 1958. While contro verting the contentions, Shri. Kazi. learned counsel for the respondents has strenuously contended that the question in respect of exercise of jurisdiction by the Additional Commissioner to hear and dispose of the appeal was not raised before the said authority at any point of time by the petitioners. It is contended that as petitioners failed to raise this question before the Appellate Authority. it is not open for them to raise it when decision in appeal is rendered against them.

5. In order to resolve the controversy in the matter, it is appropriate to refer to the relevant provisions. Section 14(I)(a)(ii) of the Bombay Village Panchayats Act. 1958 reads thus:-

"14. (I) No person shall be a member of a panchayat continue as such, who -

(a) has. whether before or after the commencement of this Act, been convicted

(i) * * * * * *

(ii)of any other offence and has been sentenced to imprisonment for not less than six months, unless a period of five years, or such lesser period as the State Government may allow in any particular case. has elapsed since his release;

Section 16(2) of the Act lays down as :16(2) [If any question whether a vacancy has occurred under this section is raised by the Collector suo motu or on an application made to him by any person in that behalf, the Collector shall decide the question as far as possible within sixty days from the date of receipt of such application. Until the Collector decides the quest