1 Heard Mr. Vohra, for the Petitioner, the learned AGP Mr. Patne, for Respondent Nos. 1 to 3 and Mr. Prathmesh Bhargude, for Respondent No.4.

2 RULE. Rule made returnable forthwith and heard by consent of the parties.

3 Since common questions of facts and law are involved in all these Writ Petitions, they are being taken up together for hearing and final disposal and are disposed off by this common Judgment.

4 In all these cases, proceeding under Section 14 (j3) of the Bombay Village Panchayats Act, 1958 were initiated against Petitioners on the ground that they have encroached on government land and are thus disqualified and cannot continue to be members of Gram Panchayat of Khanota, Taluka Daund, District Pune. Enquiry was conducted through the CEO ZP and the Block Development Officer. In all these matters, the District Collector, Pune has passed the order on 15th June, 2011 and the Petitioners have been held to be disqualified. Aggrieved by these orders, the Petitioners have filed Appeals under Section 16(2) of the said Act before the Additional Commissioner, Pune Division, Pune and by impugned Orders dated 19th December, 2011, all the Appeals have been dismissed.

5 Mr. Vohra submitted that assuming without admitting that since encroachment is made, since the encroachment is found to have been made several years ago i.e. from the year 1972 onwards on different dates, filing of the Election Petition under Section 15 of the said Act was the only remedy available to the Respondents and proceedings under Section 16 could not have been filed. In support of his submission, Mr. Vohra has relied upon the Judgment of the Supreme Court in the case of State of Himachal Pradesh v/s. Surinder Singh Banolta (AIR 2007 SC 903) Mr. Vohra also relied upon the Judgment of the learned Single Judge ( Coram: B. P. Dharmadhikari J.) in the case of ShrikrishnaWasudeo Dhage v/s. Shivcharan Trimbakrao Kaine & Others (2010 (3) Bom. C.R.635).

6 On the other hand, the learned Advocate for the Respondents relied upon wordings of Clause (j3) of Sub-Section 1 of Section 14 of the Act. They also pointed out that proceedings under Section 15 can determine validity of elections and the questions which can be gone into by the Judge are regarding the wrongful acceptance or rejection of nomination papers and corrupt practice during the course of elections. They submitted that the question under Clause (j3) of Sub-Section 1 of Section 14 can be decided only by the machinery provided under Section 16 of the said Act.

7 I have considered the rival submissions. Section 14 (1) (j3) reads thus:-

“Section 14Disqualifications:

(1) No person shall be a member of a Panchayat continue as such, who - (j-3):-has encroached upon the Government land or public property; or ] Provided that, a person having more than two children on the date of commencement of the Bombay Village Panchayats, and the Maharashtra Zilla Parishads, and Panchayat Samitis (Amendment) Act, 1995 (hereinafter in this clause referred to as “the date of such commencement”), shall not be disqualified under this clause so long as the number of children he had on the date of such commencement does not increase:

Provided further that, a child or more than one child born in a single delivery within the period of one year from the date of such commencement shall not be taken into consideration for the purpose of disqualification mentioned in this clause; or]

8 Section 16 of the said Act reads thus:-

“16 Disability from continuing as member:-

(1) If any member of a Panchayat

(a) who is elected or appointed as such, was subject to any of the disqualification mentioned in Section 14 at the time of his election or appointment, or

(b) during the term for which he has been elected or appointed incurs any of the disqualifications mentioned in Section 14, he shall be disabled from continuing to be a member, and his office shall become vacant.

(2) [If any question whether a vacancy has occurred under this Section is