Savita W/O Vishnu Tirmare vs Additional Divisional ...
2021 Latest Caselaw 17097 Bom

                                                           1                           12.WP.5060-2021.odt




               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH AT NAGPUR

                             WRIT PETITION NO.5060 OF 2021
                        Sau. Savita w/o Vishnu Tirmare
                                      Vs.
            Additional Divisional Commissioner, Amravati and others

Office Notes, Office Memoranda                          Court's or Judge's orders
of Coram, Appearances, Court's
orders     or    directions and
Registrar's orders


                                  Mr. A.J. Gilda, Advocate with Mr. L. G. Sagdeo, Advocate for the
                                  Petitioner.
                                  Mr. S.A. Ashirgade, Addl.GP for the Respondent Nos. 1 & 2/State.
                                  Mr. R.D. Dharmadhikar, Advocate for the Respondent Nos. 3 to 5.



                                  CORAM:          AVINASH G. GHAROTE, J.

DATED : 8th DECEMBER, 2021.

Heard Mr. Gilda, learned counsel for the petitioner.

2. The petition challenges the concurrent findings rendered by the authorities below, whereby the Additional Commissioner in the compliant filed by the respondent Nos.3 to 5 under Section 14 (1) (j-1) of the Maharashtra Village Panchayat Act, 1959, which alleged that the petitioner has three children namely, a) Niharika born on 24.05.1996, b) Hartalika born on 12.09.1999 and c) Parth born on 01.12.2002 (Parth expired on 05.12.2017), by his order dated 01.11.2021, held that the petitioner had incurred the disqualification for having more than two children, inspite of the fact, that one of them, was no longer living as on the date of the filing of 2 12.WP.5060-2021.odt

nomination. On appeal, the said order has been maintained by the respondent No. 1.

3. Mr. Gilda, learned counsel for the petitioner, lays great stress on use of the word "has" as occurring in Section 14 (1) (j-1) to contend, that the same would indicate that for the purpose of incurring the disqualification, the third child should be alive and living on the date, when the nomination is filed. He contends, that since this was not so, the third child Parth having expired on 05.12.2017, the finding rendered by the authority below cannot be sustained.

4. Reliance is placed on Sau. Bharti Sunil Wadal Vs. Subhash Bhagwan Mukunde and others in Writ Petition No.3077/2012 decided on 04.10.2012 by learned Single Judge of this Court. He therefore submits, that there was no question of any disqualification having been incurred by the petitioner. Further relying upon Subhash Sajesingh Gavit Vs Returing Officer, Z. P. Nandurbar and others, 2019, SCC OnLine Bom 469, he submit, that Pari materia provision, in the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, has been referred to a Larger Bench, which is pending consideration. He therefore submits, that the impugned orders which hold that the petitioner to be disqualified cannot be sustained.

5. Mr. Dharmadhikari, learned counsel for respondent Nos.3 to 5, by placing reliance upon 3 12.WP.5060-2021.odt

Dnyaneshwar Patiram @ Ratiraj Shirbhiye Vs. Divisional Commissioner, Nagpur, 2012 (3) Mh. L.J. 253 and Dalpat S/o Totaram Kshirsagar Vs. Additional Commissioner, Amravati and others, 2017(2) Mh. L.J 266, and a similar view taken in Sarang S/o Suresh Malani Vs. State of Maharashtra and others in Writ Petition No.6323/2015, decided on 03.05.2016, which relies upon the view taken in Dnyansehswar (Supra) submits, that it is immaterial, whether the third child is living or not and the moment the child is born after the cut off date, the disqualification is incurred, and therefore, supports the impugned orders.

6. Mr. Gilda, learned counsel for the petitioner, in rebuttal submits, that the judgment in Sarang Malani (Supra), is the subject matter of Petition for Special Leave to Appeal No.16262/2016 in which the Hon'ble Apex Court by order dated 07.07.2017 has granted leave and had continued the interim order till 11.07.2016, granting status-quo, as on the date of passing of the order.

7. Mr. Dharmadhikari, learned counsel for respondent Nos.3 to 5, seeks further time to address the Court on the above issue, considering which, issue notice to the respondents, returnable on 15/12/2021.

8. Learned AGP waives notice for respondent Nos.1 and 2.

9. Mr. Dharmadhikari, learned counsel waives notice for respondent Nos.3 to 5.

4 12.WP.5060-2021.odt

10. List the matter on 15/12/2021.

11. In the meantime, there shall be stay in terms of prayer clause (b).

JUDGE SD. Bhimte/Sarkate

Digitally signed byANANT R SARKATE Signing Date:08.12.2021 21:18