( 1 ) RULE. Rule made returnable forthwith. Heard by consent. ( 2 ) BY way of present petition, the petitioner challenges the order dated 10th february 2009 passed by the District Collector, Osmanabad, in File No. 2008/gb/desk-1/np/kawi-520, thereby rejecting the application filed by the present petitioner by which the present petitioner had prayed that the application filed by the respondent No. 1 be rejected on the ground of maintainability. ( 3 ) THE factual matrix giving rise to the present petition is as under : (a) The general elections of the Municipal Council, Paranda, were held in the month of November 2006. The petitioner had contested the said election and was elected as Councillor of the said Municipal Council. (b) It is the contention of the respondent No. 1, that twins were bom to the petitioner's wife on 4th May 2006. It is the contention of the respondent No. 1, that this was fourth issue and the children are born after cut off date i. e. 12th september 2001. The respondent No. 1, therefore, filed an application under section 16 (1) (k) of the Maharashtra Municipal Councils, Nagar Panchayats and industrial Townships Act, 1965, and prayed for disqualification of the present petitioner. The said application was filed under section 44 of the Maharashtra municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (For short, hereinafter referred to as "the Act" ). (c) In the said proceedings, an objection came to be filed by the present petitioner contending therein that the disqualification was prior to the date on which election was held and as such, application under section 44 of the Act was not maintainable. It is the contention of the petitioner, that the only remedy available to the respondent No. 1 was under section 21 of the Act by way of election petition and as such, application under section 44 of the Act was liable to be rejected. The said objection of the petitioner has been turned down by the collector by the impugned order. Hence, the present petition. ( 4 ) MR. The said objection of the petitioner has been turned down by the collector by the impugned order. Hence, the present petition. ( 4 ) MR. A. N. Nagargoje, learned Counsel appearing for the petitioner, submits that from the plain reading of section 44 of the Act, it would be clear that for attracting the provisions of section 44 of the Act, it is necessary that the disqualification as contemplated under section 16 should occur during the period when a candidate holds or occupies the office. He submits that since allegedly the fourth issue was born prior to the election of the petitioner, only remedy was to file an election dispute under section 21 of the Act and as such, the Collector ought to have dismissed the application filed by the respondent No. 1 under section 44 of the Act. He relies on the judgment of the learned Single Judge of this Court in the case of Shrinivasrao s/o Balajirao Deshmukh Gorthekar vs. Sanjay s/o Dattatraya Kulkarni and others, delivered in Writ Petition No. 4351 of 2000. ( 5 ) MR. M. B. Kolpe, learned Counsel appearing for respondent No. 1, supports the impugned order. He submits that the provisions of section 44 of the act will also be attracted inasmuch as the petitioner stands disqualified on the date on which he is elected and as such, application under section 44 of the Act would be tenable. He relies on the judgment of the learned Single Judge of this court in the case of Dhananjay s/o Rambhau Raut vs. State of Maharashtra and others, 2009 (1) Mh. L. J. 989. ( 6 ) FOR considering the rival submissions, it would be appropriate to refer to section 44 of the Act. The relevant portion of section 44 of the Act reads thus : "disqualification of Councillor during his term of office : (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 (b ). . . . . . . . . . . . . . . . . . . . . . . . . (c ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (c ). . . . . . . . . . . . . . . . . . . . . . . . . (d ). . . . . . . . . . . . . . . . . . . . . . . . . (e ). . . . . . . . . . . . . . . . . . . . . . . . . (2) When a Councillor whether elected, or nominated incurs any of the disqualifications in sub-section (1), it shall be the duty of the Chief officer to submit a report to the Collector within one month of his becoming aware of the disqualification through any source whatsoever. (3) In every case the authority to decide whether a vacancy has arisen shall be the Collector. The Collector may give his decision on receipt of the report of the Chief Officer under sub-section (2), or on his own motion or on an application made to him by a voter and such decision shall be communicated to the Councillor concerned, the Chief Officer and the applicant, if any. Until the Collector decides that a vacancy has arisen and such decision is communicated as provided above, the councillor shall not be deemed to have ceased to hold office. (4) Any person aggrieved by the decision of the Collector may within a period of fifteen days from the date of receipt of the decision of the collector by him, appeal to the State Government and the orders passed by the State Government shall be final : provided that, no order shall be passed under sub-section (3) by the collector or under sub-section (4) by the State Government in appeal, against any Councillor without giving him a reasonable opportunity of being heard. Explanation : if any elected or nominated Councillor were subject to any disqualification specified in section 16, at the time of his election, or nomination and continues to be so disqualified, the disqualification shall, for the purposes of this section, be deemed to have been incurred during the term for which he is elected or nominated. Explanation : if any elected or nominated Councillor were subject to any disqualification specified in section 16, at the time of his election, or nomination and continues to be so disqualified, the disqualification shall, for the purposes of this section, be deemed to have been incurred during the term for which he is elected or nominated. " It can thus be clearly seen that the bare perusal of the said section would reveal that a Councillor shall be disqualified to hold office, as such, if at any time during his term of office, he 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. ( 7 ) THE disqualification relevant for the purpose of the present petition is under section 16 (1) (k ). It would thus be clear that the Collector under sub-section (3) of section 44 is empowered to decide the question as to whether the councillor is disqualified to hold office on the ground that the said Councillor is or becomes subject to any of the clauses specified in section 16. Not only this, the explanation to the said section is also very clear. The explanation clearly provides that if any elected or nominated Councillor were subject to any disqualification specified in section 16, at the time of his election, or nomination and continues to be so disqualified, the disqualification shall, for the purposes of this section, be deemed to have been incurred during the term for which he is elected or nominated. The explanation leaves no doubt, that even if the disqualification is at the time of election of a Councillor, the said disqualification for the purpose of this section is deemed to have been incurred during the term for which he is elected. It can thus be seen that on the date of election since the petitioner's wife had given birth to two children which were of the fourth issue, the Collector is very much empowered to go into the said question. ( 8 ) THE Full Bench of this Court, in the case of Dattatraya Narhar Pitale vs. Vibhakar Dinkar Gokhale and another, 1975 Mh. ( 8 ) THE Full Bench of this Court, in the case of Dattatraya Narhar Pitale vs. Vibhakar Dinkar Gokhale and another, 1975 Mh. L. J. 701, while considering explanation to section 44 of the Act, has observed thus : "it should not be overlooked that every conceivable ground for challenging the validity of an election by reason of disqualification is permissible under section 44, if regard be had to the explanation thereto. Undoubtedly the effect of the explanation to section 44 is to widen the scope of operative part of the section itself, but that too to a limited extent. The explanation provides that if any elected, co-opted or nominated Councillor were subject to any disqualification specified in section 16, at the time of his election, co-option or nomination, as the case may be, and continues to be so disqualified, the disqualification shall, for the purposes of this section, be deemed to have been incurred during the term for which he is elected, co-opted or nominated. The words "continues to be so disqualified" contemplate that such disqualification must be existing at least at the point of time of the election, or co-option or nomination. " ( 9 ) INSOFAR as the judgment of the learned Single Judge of this Court, in the case of Shrinivasrao s/o Balajirao Deshmukh Gorthekar vs. Sanjay s/o dattatraya Kulkarni and others (supra), is concerned, the same would not be of any assistance to the case of the petitioner. In the said judgment, the learned single Judge was considering the provisions of section 40 of the Maharashtra zilla Parishads and Panchayat Samitis Act, 1961. The said provisions are totally different. There is no similarity in both the provisions. In that view of the matter, i find that the said judgment of not be of any assistance to the case of the petitioner. ( 10 ) I am of the considered view that the view taken by the learned Single judge in the case of Dhananjay s/o Rambhau Raut vs. State (supra) is a correct view and also in consonance with the law laid down by the Full Bench in the case of Dattatraya Narhar Pitale vs. Vibhakar Dinkar Gokhale and another (supra ). ( 11 ) THE petition is, therefore, devoid of any merit and the same is accordingly dismissed. Rule is discharged. There shall be no order as to costs. Petition dismissed.