The main legal point established in the judgment is the distinction between pre-existing disqualification and disqualification incurred after election, and the strict construction of the consequences of disqualification.

JUDGMENT :

Anil S. Kilor, J.

Rule. Rule returnable forthwith. Heard finally by the consent of parties.

2. The petitioner was elected as a councillor of Nanded Waghala City Muncipal Corporation in the year 2012. Validity of his election was questioned by way of Election Petition u/s 16 of Maharashtra Muncipal Corporation Act, 1949 (for short 'the Act'). The Civil Court set aside the election of the petitioner on the ground u/s 10 (1)(i) of the Act, for having more than two children. The said order setting aside election of the petitioner was confirmed upto Hon'ble Apex Court. The petitioner again contested the General Elections held in the year 2017. Objection to his nomination on the ground of having more than two children, came to be rejected by the Returning Officer. The rejection of objection to nomination remained unchallenged. The petitioner once again got elected as a councillor. This time no Election Petition was filed by any defeated candidate or by any voter. However, the Municipal Commissioner on his own motion disqualified him, vide order Dt. 24.8.2019, exercising powers u/s 12 of the Act, on the same ground u/s 10 (1)(i) of the Act. By the present petition petitioner is calling in question the legality and propriety of the said order Dt. 24.8.2019, on the ground of jurisdiction and applicability of section 11(a) of the Act to his case.

3. Heard learned senior advocate Mr. R.N. Dhorde, assisted by learned Advocate Mr. V.R. Dhorde for petitioner, the learned AGP Mr P.S. Patil for State, the learned counsel Mr Narwadkar for respondent no. 2-Muncipal commissioner and learned counsel Mr S.M. Kulkarni and Mr Boinwad for intervenor.

4. The learned senior Advocate for the petitioner submits that, on setting aside election of the petitioner in Election Petition, it was assailed in W. P. No. 9721/2016, before this court. While dismissing the said writ petition, on the request of the petitioner, this court had granted permission to the petitioner to approach the civil court to get the declaration that the third child Amit was born to wife of his brother Raju. He submits that accordingly civil suit was filed and the same is pending. Therefore, he submits that till the issue whether the third child Amit is of the petitioner or of his brother, is pending for adjudication, the Commissioner ought not to have disqualified the petitioner on the ground of having more than two children.

5. He further argues that language of section 12 of the Act makes it clear that Municipal Commissioner lacks jurisdiction to disqualify any councillor of the Corporation. To fortify this argument, he relied upon judgments of this court in the matter of Smt. Noorjahan M. Aslam Ansari vs. State of Maharashtra and Ors., (2004) 2 AllMR 1, Mrs. Sajeda Nihal Ahmed vs. Malegaon Muncipal Corporation and Ors., (2005) 1 AllMR 864.

6. He also attacks the applicability of section 11(a) of the Act to the case of the present petitioner. He submits that alleged disqualification was pre-existing at the time of election and objection to petitioner's nomination on the ground of alleged disqualification, was rejected by the Returning Officer at the time of scrutiny. He emphasised on the fact that petitioner on being elected as councillor, no election petition was filed by anybody under section 16 of the Act. He further submits that it is clear from the language of Section 11 of the Act that it applies to disqualification incurs after the election and not to the pre-existing disqualification on the date of election, therefore, according to him section 11 (a) would not attract in this case.

7. Per contra, the learned counsel for respondent Municipal Commissioner, supports the order of disqualification of petitioner. He argues that while setting aside petitioner's election the civil court in clear terms held that the petitioner was having three issues. The said finding was affirmed by this court and the Hon'ble Apex court, therefore, according to the learned counsel for the Commiss