This writ petition was heard on 3rd September 2012 and was placed today for judgment/order. Since the point involved in the writ petition is short, with consent of the parties, it is disposed of finally. Hence, Rule. The learned A.G.P waives service for respondent Nos.1 to 3. Respondent Nos.4 and 5 are duly served and respondent No.5 is represented by Mr. Sandeep Koregave. Respondent No.4 is a formal party and service on the same can be dispensed with.

2} The petitioner has been disqualified on an application made by respondent No.5. The proceeding is under the Bombay Village Panchayats Act, 1958. The Gram Panchayat of Tardal, Taluka Hatkanangale , District Kolhapur is the Gram Panchayat in question. The petitioner was elected as a Member of this Gram Panchayat in the elections held in 2007. An application for disqualification of the petitioner was made by respondent No.5 alleging that the petitioner is disabled from continuing as a Member as he was disqualified in terms of section 14(1)(j1) of the Bombay Village Panchayats Act, 1958 (for short “the Act”).

3} It was alleged that the petitioner has more than two children. He had married one Vijayalaxmi and from this wedlock the petitioner has one son named Kunal. He was born on 16th September 2003. Thereafter, the petitioner married Smt.Annapurna and has two children from this wedlock, namely, a daughter born on 1st March 2008 and a sonKrutadnya born on 19th August 2009. Thus, the petitioner has incurred the disqualification and, therefore, a vacancy arises which should be filled in accordance with law. The question whether a vacancy had arisen was, therefore, to be determined by the Collector of Kolhapur District and which has been determined and decided by the said Authority. An appeal against his decision has been preferred by the petitioner, which appeal also has been dismissed by the Appellate Authority, namely, Additional Collector, Pune Division, Pune.

4} The only contention that has been raised before me and which was also urged before the Authorities is that the petitioner married Smt.Vijayalaxmi and from that wedlock he had one son Kunal. It is stated that Smt.Vijayalaxmi left the matrimonial home and never returned. The petitioner and Smt.Vijayalaxmi separated from each other by a divorce by mutual consent in terms of Deed of Divorce dated 24th March 2004. The child is in the custody of Smt.Vijayalaxmi permanently.

5} After this divorce from his first wife Smt.Vijayalaxmi, the petitioner married Smt.Annapurna and from that wedlock the couple was blessed with two children, namely, daughter was born on 1st March 2008 and son was born on 19th August 2009. If the petitioner has been elected as a Member of the Gram Panchayat in the year 2007, then, the application made after three years seeking to disqualify him, is not maintainable, firstly, on the ground that it is belated and secondly that the petitioner does not incur the disqualification in terms of the aforementioned statutory provision. That provision can be invoked only when the petitioner is stated to have more than two children from a single marriage. If the petitioner had contracted second marriage, then, it is that marriage which is relevant and the first marriage which was dissolved by a Deed of Divorce, cannot be taken into consideration.

6} The Authorities below concurrently found that there is no dispute with regard to the birth of the children as the public documents would evidence this fact. That on the own showing of the petitioner, he has contracted marriage with Smt.Vijayalaxmi and that he was blessed with a son from that marriage, is an undisputed factual position. Secondly, the petitioner has married for second time and from that marriage he has only two children, is also an undisputed position. In such circumstances, the findings of fact that the petitioner has three children, requires no interference in writ jurisdiction as it is consistent with the documents placed on record and cannot b