SULEMAN ABBAS CHIRAGALI HYDARY Vs. PRAMOD NANDLAL YADAV

JUDGEMENT

(1.) As issue involved in this Letters Patent Appeal is found to be squarely covered by judgment of Hon'ble Apex Court, We have heard parties finally with their consent by making Rule returnable forthwith. We have accordingly heard Advocate P. B. Patil for the Appellant, Shri K. B. Ambilwade, Advocate for respondent No. 1, Shri A. M. Quazi, Advocate for Respondent no. 2 and Smt. Wasnik, learned AGP for Respondent No. 3.

(2.) Challenge in this LPA is to the order dated 17/4/2007 passed by Learned Single Judge admitting Writ Petition No. 1216/2007 filed by Respondent No. 1 for final hearing and granting him interim relief whereby order passed by the Collector nagpur on 28/2/2007 in Case No. 2 of 2007 disqualifying him in view of provisions of Section 16 (1) (k) of Maharashtra Municipal councils, Nagar Panchayats And Industrial Townships Act, 1965, (hereinafter referred to as Municipal Act) on the ground that he has more than two children has been stayed. Said provision reads as under: --

(3.) The following facts are relevant for deciding dispute before us. General election of Respondent No. 2 Municipal council, Kamptee, were held on 7/1/2007 and present Appellant as also present Respondent No. 1 contested it from Ward No. 12. Appellant secured 516 votes and Respondent No. 1 who secured 540 votes was declared elected. Appellant thereafter filed application under Section 16 (1) (k) of Municipal Act before respondent No. 3 Collector for disqualifying Respondent No. 1 on the ground that said Respondent is having 3 issues/children. He pointed out that second child was born on 19/4/2001 while third or last child has been born on 26/4/2006. Nomination form supported by affidavit was filed by Respondent No. 1 on 11/12/2006 in which he did not disclose true position in this respect. Respondent No. 1 filed reply disclosing that third child was given in adoption in religious ceremony held on 2/10/2006 to one Sushil Yadao. It is further stated that this decision to give in adoption was taken in May 2006 itself and said adoption is in accordance with law. The child therefore ceased to be child of respondent No. 1 and member of his family and hence at the time of scrutiny of nomination paper he was not having third issue. The Collector in his order dated 28/2/2007 noticed that respondent No. 1 accepted birth of three children and out of them one is born after 12/9/2001 and hence is disqualified to become member of Municipal Council Kamptee. Parties have addressed arguments before us only on the basis of above facts and only debate before us is whether the alleged adoption dated 2/10/2006 can save the situation for Respondent No. 1. It must be stated that for said purpose fact of adoption has not been questioned before us by Appellant.