JUDGMENT :

1. The petitioner, elected as a Member of Village Panchayat Chitegaon and subsequently it's Sarpanch in June 2021, is aggrieved by an order passed on 16.12.2021 by the Collector, Aurangabad, questioning the maintainability of the proceedings filed before him and requesting to frame preliminary issue about the maintainability of the proceedings.

2. Heard the learned counsel Mr.Kakde for the petitioner, learned counsel Mr. Gore for respondent No.2 and the learned AGP Mr.Borade for the State.

3. The facts involved lie in a very narrow compass. The general election for Village Panchayat Chitegaon was held in the month of January 2022 and the petitioner came to be elected and subsequently appointed to hold the post of Sarpanch.

Respondent Nos. 2 and 3 filed a dispute before the Collector, Aurangabad by invoking Section 14 (j-3) and Section 16 of the Maharashtra Village Panchayats Act, 1959 seeking his disqualification on the ground that the petitioner has made encroachment over the Government land. The specific grievance pleaded by the complainant/respondent Nos. 2 and 3 is to the effect, that one Shaikh Akbar Miya had made a complaint to the Block Development Officer on 14/02/2019 wherein it was alleged that on the drainage line of Sant Dnyaneshwar Nagar, a common toilet is to be constructed, but the petitioner has made construction on the said piece of land. It was further stated that as per the report submitted to the Deputy Chief Executive Officer on 29.05.2019, it was declared that the petitioner had made encroachment and u/s 52 and 53 of the Maharashtra Village Panchayats Act, the construction was directed to be stopped. A copy of the complaint/application specifically alleged that the Block Development Officer, by his order dated 26.03.2019 had directed the petitioner to remove the encroachment and therefore he has incurred a disqualification.

4. The petitioner appeared before the Collector and requested for framing a preliminary point for consideration about the maintainability of the proceedings in view of the reported judgment of the Apex Court in State of Himachal Pradesh and others Vs. Surinder Singh Banolta [AIR 2007 SCW 602].

5. On careful reading of the avernments in the plaint by the respondent, the allegation lavelled is, before the general election of village Chitegaon in the year 2019, the Authority had come to the conclusion about the encroachment made by the petitioner. Relying upon the aforesaid decision of the Apex Court, where the authority had come to a conclusion about a person already declared as an encroacher getting elected, it has been authoritatively pronounced that in such a constituency, a question has to be decided by filing an election petition.

The application so filed was opposed by respondent Nos. 2 and 3 by claiming that the statement of the petitioner is in utter ignorance of the reported decisions. The respondent No.1 rejected the said application on the ground that Maharashtra Village Panchayats Act is a complete Code and hence there is no need to frame the preliminary objection as sought for and the order passed by respondent No.1 reads as under, "Considering the avernments made in the dispute application and in view of the provisions of the Maharashtra Village Panchayats Act and Section 14(1) (j-3) and Section 12, the Maharashtra Village Panchayats Act is a complete Code. Hence issue raised by the respondents is not maintainable. Hence instant application raised by respondent No.1 is hereby rejected. Case is posted for further consideration on merits."

6. The submission advanced on behalf of the petitioner is to the effect that depending upon whether the disqualification is possessed by a candidate at the time of his election as a Member of the Village Panchayat or whether the disqualification is incurred after his election, depending upon the two distinct contingencies, two remedies are provided under the Maharashtra Village Panchayats Act and these remedies exist in the form of disqu