The main legal point established in the judgment is that the grounds for disqualification, existing at the time of the election, should be challenged through an election petition under the relevant acts, and not through separate disqualification proceedings.

( 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[1-E] 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[l][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[j-3] 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 mother-in-law 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 reported at air 2007 SC 903 (State of Himachal pradesh and others Vs. Surinder Singh banolta) for the said purpose.

( 4 ) I have heard Shri. A. M. Ghare, learned counsel for petitioner, Shri. S. D. Chopde, learned Counsel for Respondent No. 2, shri. R. M. Mardikar, learned Counsel for respondent no. 3 and Shri. V. A. Thakre, learned assn. Govt. Pleader for Respondent No. 5 in writ Petition No. 5034/2009. Respondent no. 1 who filed complaint and sought disqualification of petitioner has chosen not to appear though notice for final disposal has been served upon him. In Writ Petition No. 5658/2009 I have heard Shri. M. V. Samarth, learned Counsel for petitioner, Shri. A. M. Ghare, learned Counsel for Respondent Nos. 3 - Gram Panchayat and 4- Complainant, and Mrs. T. D. Khade, learned asstt. Govt. Pleader for Respondent Nos. 1 and 2. The complaint for disqualification was filed by respondent no. 4 and one Kedar together. That Kedar was joined as respondent no. 5 earlier, but later on the petitioner sought his deletion and the same has been allowed on 25. 01. 2010. As the facts are in dispute in Writ petition No. 5658/2009,1 find it proper to deal with that Writ Petition first.

( 5 ) PETITIONER Vandana accepts that there is encroachment on government land, however, she has pointed out that, that encroachment has been noted on 12. 11. 2003 and it has been done by her mother-in-law rukhma. She states that the encroachment was done in the year 1991 by Rukhmabai who lateron applied for is regularization. She got married with Surendra who is son of rukhmabai, in the year 1999 i. e. before she was elected as Sarpanch of Gram Panchayat. In this situation, contention is as encroachment is not done by the petitioner, she cannot be disqualified on that account. The other contention is that she has been elected as member of Gram Panchayat in 2007 and sarpanch thereafter. Hence, encroachment and disqualification available at that time cannot be used by filing proceedings under Section 14 of the 1958 Act to disqualify her, when that challenge was open in election petition under section 15 of the Act. Support