JUDGMENT : 1. Heard. 2. Rule. By consent of the learned counsel for the parties rule is made returnable forthwith and taken up for final hearing. By this common judgment both the writ petitions are being disposed of. 3. The petitioners filed applications dated 3-2-2007 and 26-3-2007 before the Collector Osmanabad terming the applications to be under Section 16(1)(k) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act 1965 (for short "the Act, 1965") and prayed for disqualifying the respondent Nos.3 Vijay and Mainoddin. Respondent No.3 Vijay filed his reply to the application. The main ground of the petitioners for seeking disqualification is that third child was born to respondent No.3 after the cut off date i.e. 12th September 2001. The provisions of Section 16(1)(k) of the Act, 1965 invite disqualification to remain as councillor. By separate orders dated 21-6-2007 the Collector Osmanabad rejected the applications filed by the petitioners mainly on the ground that considering the provisions of Section 44 of the Act 1965 the ground of disqualification did not exist during the term of office of the respondents. The Collector has held that the petitioners ought to have filed petition under section 44 of the Act 1965 in stead under section 16. For these deficiencies the Collector decided to reject the applications. 4. In response to the notice issued by this Court, affidavit-in-reply was filed on behalf of respondent No.2 in support of the reasoning advanced by the Collector in the impugned orders. 5. The learned counsel for the petitioners has placed reliance on the reported judgment in Haji Sharafuddin Jainudin v. R.L. Pardeep, 1970 Mh.L.J. 203 in support of the contention that in spite of there being provision of filing of election petition under section 20 of the Act independently the petitioner could file a disqualification petition under section 44. It was further submitted that mentioning of wrong section of the Act in the applications, in the facts of the case, should not have been a ground for rejecting the applications when the averments made in the applications were clear that the petitioners were asking for disqualification of the respondent - councillors. 6. The learned counsel appearing for respondent No.3 submitted that the petitioner has an alternative efficacious remedy of filing Election Petition and in the light of the deficiencies noticed by the Collector, petitioner’s application was rightly rejected. 7. 6. The learned counsel appearing for respondent No.3 submitted that the petitioner has an alternative efficacious remedy of filing Election Petition and in the light of the deficiencies noticed by the Collector, petitioner’s application was rightly rejected. 7. The Division Bench of this Court in the case of Haji Sharafuddin (supra) while considering the issue observed in para 10 thus: "10. As regards the second contention, the following provision is sub-section (1) of section 44 is relevant : "A Councillor shall be disqualified to hold office as such, if at any time during his term of office, he -- (a) is or becomes subject to any of the disqualification specified in section 16 .." Now, it is true that at the date of his election if a person is disqualified, an election petition could be filed and the question of the disqualification could be raised in such a petition. But having regard to the phrase "at any time" in the first part of sub-section (1) of section 44 and the phrase "is or becomes subject to any of the disqualifications specified in section 16" in sub-clause (a) of that sub-section, it is quite clear that the question of continuing disqualification could be raised even at a subsequent date under the provisions of section 44. The scheme in that section for an applicant to raise the question of disqualification is independent of the provisions relating to raising the question of disqualification in an election petition under section 20. This independent right has not been circumscribed by any of the provisions of the Act and must be held to be continuing even when the time to file an election petition as provided by section 20 may have expired." 8. The relevant provisions of Section 16(1)(k), 21 (1) and Section 44(1)(a) of the Act, 1965 read thus: "16.(1) No person shall be qualified to become a Councillor whether by election or nomination, who, -- (k) has more than two children: Provided that, a person having more than two children on the date of commencement of the Maharashtra Municipal Corporations and Municipal Councils, Nagar Panchayats and Industrial Townships (Second Amendment) Act, 1995 (hereinafter in this clause referred to as "the date of such commencement"), shall not be disqualified under this clause so long as the number of children he had on the date of such commencement does not increase. . . Provided further that, a child or more than one child born in a single delivery within the period of one year from the date of such commencement shall not be taken into consideration for the purpose of disqualification mentioned in the clause. Explanation.-- For the purposes of this clause.-- (7) (i) where a couple has only one child on or after the date of such commencement, any number of children born out of a single subsequent delivery shall be deemed to be one entity; (ii) "child" does not include an adopted child or children." "21. (1) No election or nomination of a Councillor may be called in question, except by a petition presented to the District Court, by a candidate at the election or by any person entitled to vote at the election, within ten days from the date of publication of the names of the Councillors in the Official Gazette under section 19 or 20, as the case may be." "44.(1) A Councillor shall be disqualified to hold office as such, if at any time during his term of office, he -- (a) is or becomes subject to any of the disqualifications specified in section 16 except the disqualification specified in clause (h) of sub-section (1) of that section; or ...." 9. Considering the scheme of the Act, 1965 and the import of the provisions of Sections 16, 21 and 44 I find that the petitioners could raise issue of disqualification in election petition or under section 44 of the Act, 1965 and accordingly the petitioners had filed such applications. I do not find any legal impediments in the way of the petitioners in resorting to filing of applications before the Collector seeking disqualification of respondent No.3 on the grounds raised by the petitioners. Certainly, the Collector has not considered the case on merits. The grounds for disqualification raised by the petitioners are not addressed by the Collector. The applications were dismissed on other grounds touching issue of maintainability of the applications. 10. In the facts of the case I am of the opinion that the petitioners shall be permitted to correct the provisions of the Act mentioned in the applications and for that technical deficiency the petitioners be given appropriate opportunity. The petitioners’ applications shall be treated as applications filed under section 44 of the Act, 1965. 11. 10. In the facts of the case I am of the opinion that the petitioners shall be permitted to correct the provisions of the Act mentioned in the applications and for that technical deficiency the petitioners be given appropriate opportunity. The petitioners’ applications shall be treated as applications filed under section 44 of the Act, 1965. 11. The impugned orders dated 21-6-2007 passed by the Collector are quashed and set aside. The matter is remanded back to the Collector Osmanabad. The Collector shall issue fresh notice to the other side by fixing the date of hearing of the applications. After hearing the parties the Collector shall finally dispose of the applications on merits and in accordance with law as expeditiously as possible and in any case within a period of three months from the date of receipt of writ of this Court. 12. Rule is made absolute in the above terms.