1. The petitioner was declared elected as Member and Sarpanch of Gram Panchayat Wadala on 28-8-2005. An objection was lodged by respondent No.3 Gopichand before the Collector, Chandrapur under Section 16(2) of the said Act that the petitioner has incurred disqualification under Section 14(1)(j-1) of the Bombay Village Panchayats Act, 1958 (for short, “the said Act”), as the fourth child was born to him by name Harshal Dnyaneshwar Shirbhiye on 16-2-2002, i.e. after the cut-off date of 12-9-2001, and hence he be removed as Member and Sarpanch of Gram Panchayat Wadala.

2. The Additional Collector, Chandrapur rejected the said objection by his order dated 28-2-2006 holding that the fourth child Harshal born to the petitioner on 16-2-2002 expired on 21-2-2002 and hence there was no increase in the number of children after 12-9-2001 in terms of the first proviso to Section 14(1)(j-1) of the said Act.

3. In appeal filed under Section 16(2) of the said Act by respondent No.3, the Divisional Commissioner, Nagpur Division, Nagpur reversed the decision of the Additional Collector by his order dated 8-11-2006 holding that there was increase in the number of children after 12-9-2001 and hence the petitioner was not protected by the first proviso to Section 14(1)(j-1) of the said Act. Hence, the petitioner has approached this Court challenging the decision of the Divisional Commissioner.

4. The factual aspects of the present case needs to be stated. The first child was born to the petitioner, viz. Ku. Sneha, on 11-2-1997, and the second child, viz. Ku. Kalyani, was born on 1-11-1999. The third child, viz. Master Yash, was born on 23-6-2001, i.e. after the date of publication of the Amendment Act in the Official Gazette on 13-9-2000, but before the date of commencement, which is the cut-off date, i.e. 12-9-2001. The disqualification of the petitioner under Section 14(1)(j-1) of the said Act for being elected and continued as a member of the Panchayat is about the fourth child born to the petitioner on 16-2-2002, which was after the date of the commencement, i.e. 12-9-2001.

5. The main contention of Shri Rohit Deo for the petitioner is that at the most it was a case where the alleged disqualification was subsisting on the date of nomination of the petitioner for election and in terms of Section 13 of the said Act, the petitioner was not qualified to be chosen as a candidate for election. According to him, it was a case of wrongful acceptance of nomination paper, which can be agitated only by way of election petition under Section 15 of the said Act and the jurisdiction of the Collector or the Commissioner under Section 16(2) of the said Act was clearly ousted. He has placed heavy reliance upon the judgment of this Court in ShriShrikrishna Wasudeo Dhage v. Shivcharans/o Trimbakrao Kalne & Ors., reported in 2010(2) AllMR 554. He further submits that Section 15A of the said Act dealing with the bar to interference by Court in electoral matters clearly states that no election to any Panchayat shall be called in question except in accordance with the provisions of Section 15; and no Court other than the Judge referred to in that Section shall entertain any dispute in respect of such election. He, therefore, submits that the order of the Commissioner passed in the appeal, impugned in the present case case, is without jurisdiction.

6. The further contention of Shri Rohit Deo for the petitioner is that the fourth child born to the petitioner on 16-2-2002, and expired on 21-2-2002. The reliance is placed upon the judgment of the Apex Court in Javedand others v. State of Haryana and others, reported in (2003) 8 SCC 369. In para 62 of the said judgment, it has been held that the disqualification is attracted no sooner a third child is born and is living after two living children. He submits that the provision of disqualification would be attracted only if a child is living and it does not apply to a case where the child is born and died. He, t