Rajendra Shivsing Chanda vs Additional Commissioner And Ors

A.S. Chandurkar, J

RULE. Heard finally with consent of counsel for the parties.

An order condoning delay in filing an appeal under Section 16(2) of the Maharashtra Village Panchayats Act, 1958 (for short, 'the said Act')

challenging the order rejecting the disqualification proceedings filed against each petitioner from continuing as Member of the Gram Panchayat is

under challenge in these writ petitions.

The facts in brief are that the disqualification of each petitioner was sought under provisions of Section 14(1)(jÂ3) of the said Act on the ground

that encroachment had been committed on Government land as a result of which each petitioner was not entitled to continue as Member of the Gram

Panchayat. The Additional Collector while adjudicating said proceedings recorded a finding that encroachment as alleged by the respondent no.4Â‐

complainant had not been proved and hence the proceedings for disqualification came to be dismissed. An appeal came to be filed by the complainant

but beyond the period of fifteen days as stipulated by the provisions of Section 16(2) of the said Act. In the said proceedings, a preliminary objection

was raised by each petitioner that as the appeal had been filed beyond the period of limitation and there being no power to condone delay, each appeal

was liable to be dismissed. The Additional Commissioner however proceeded to condone the delay and directed further adjudication on merits. Being

aggrieved by these orders, the present writ petitions have been filed.

Shri P.A. Kadu, learned counsel for the petitioners submitted that in absence of there being any power to condone delay in filing an appeal under

Section 16(2) of the said Act, the Additional Commissioner was not justified in condoning the delay and directing further adjudication on merits.

Placing reliance on the decisions in Prabhakar Sabaji Kandalkar Versus Tahsildar, Sangamner [2002(1) Mh.L.J. 881], Umesh Tukaram Kamble

Versus Shamrao Sakharam Patil [2008(2) Mh.L.J. 727] and Kishor Tanaji Kharat Versus Divisional Commissioner, Aurangabad [2013(1) Mh.L.J.

838], it was submitted that it has been held by this Court that the provisions of Section 5 of the Limitation Act, 1963 (for short, 'the Act of 1963') had

no application in the matter of condoning delay in filing proceedings under the said Act. It was however contended that in Writ Petition No.1213 of

2011 [Maruti Vasant Kashid Versus The Divisional Commissioner, Pune Division & Others], a learned Single Judge had held that such delay in filing

an appeal under Section 16(2) of the said Act was liable to be condoned. In the process, the ratio of the earlier decisions had not been followed. It

was submitted that in the light of the law as laid down in the earlier decisions it should be held that such delay was not liable to be condoned. It was

then submitted that the impugned orders came to be passed without there being any application for condonation of delay. Merely by accepting a

statement made on behalf of the complainants that they were not aware about the orders passed by the Additional Collector, the delay came to be

condoned. Such course was not permissible. It was thus submitted that the impugned orders were liable to be set aside and it ought to be held that the

appeals filed by the complainants were not tenable.

On the other hand, Shri N.A. Gawande, learned counsel for the respondent no.4Âcomplainant supported the impugned order and submitted that the

Additional Commissioner acted within jurisdiction while condoning the delay. Referring to the judgment of the Division Bench in Sangitabai Vasudeo

Rajput Versus State of Maharashtra & Others [2017(6) Mh.L.J. 841], it was submitted that the judgment of the learned Single Judge in Maroti Vasant

Kashid (supra) had been affirmed therein as a result of which the Appellate Authority had jurisdiction to condone delay in filing an appeal under

Section 16 of the said Act. No error was committed by the said Authority when it accepted the reasons assigned for the purposes of condoning the

delay. Hence, no interference with the impugned orders was called for.

In reply, it was submitted on behalf of the petitioners by referring to the decision in Ganesan representation by its Power Agent G.Rukmani Ganesan

Versus Commissioner, The Tamil Nadu Hindu Religious and Charitable Endowments Board & Others [2019(7) SCALE 439 t]hat the provisions of

Section 29(2) of the Act of 1963 would not be applicable to proceedings filed before statutory Authorities under local law. On that basis, it was

submitted that the decision of the Division Bench in Sangitabai Vasudeo Rajput (supra) does not lay down the correct law.

I have heard the learned counsel for the parties at length and I have perused the documents placed on record. I have also given due consideration

to the respective submissions. The question whether delay in filing an appeal under Section 16(2) of the said Act has been considered in detail by the

learned Single Judge in Maroti Vasant Kashid (supra). After referring to various precedents, it has been held that an application for condonation of

delay in filing an appeal under Section 16(2) of the said Act was maintainable and the prayer seeking condonation of delay could be considered on

merits. It was observed that an appeal filed beyond the period of fifteen days could be entertained on merits after condoning the delay. In the process,

the decision in Prabhakar Sabaji Kandalkar (supra) was distinguished on the ground that the said case arose out of a motion of no confidence and such

proceedings could not be equated with the question of disqualification or disability of a Member of the Gram Panchayat to continue in office. The

decision in Umesh Tukaram Kamble (supra) was also distinguished on the ground that the issue arising therein related to condoning delay in filing an

election dispute and that the remedy of filing an election petition was not a common law remedy but a statutory remedy. It is to be noted that the

Division Bench in Sangitabai Vasudeo Rajput (supra) has considered the judgment of the learned Single Judge in Maroti Vasant Kashid (supra) and in

paragraph 5 it has endorsed the conclusion recorded that an application for condonation of delay in filing an appeal under Section 16(2) of the said Act

could be entertained on merits. In effect therefore, the Division Bench has held that the delay in filing an appeal under Section 16(2) of the said Act

can be condoned.

In Kishor Tanaji Kharat (supra), which was decided after the judgment in Maroti Vasant Kashid (supra) was delivered, a dispute arose with regard

to the validity of the resignation tendered by the Sarpanch. Proceedings were initiated under Section 29(4) of the said Act and following the decision in

Prabhakar Sabaji Kandalkar (supra), it was held that the provisions of the Act of 1963 could not be made applicable to proceedings before the

Collector and hence delay was not liable to be condoned. In the light of the reasons assigned in Maroti Vasant Kashid (supra) while making a

distinction between proceedings with regard to no confidence and resignation as contrasted with a prayer for disqualification, same anology thereto

can be applied. The Court has proceeded to apply principles that are analogous to Section 29(2) of the Act of 1963 and has observed that necessary

steps have to be taken within reasonable period. Even otherwise, the judgment of the Division Bench in Sangitabai Vasudeo Rajput (supra) directly

governs the controversy in hand. Thus in view of the law as laid down by the Division Bench, the delay in filing an appeal under Section 16(2) of the

said Act is liable to be condoned. Since the judgment of the Division Bench is binding on this Court, the submissions made on behalf of the petitioners

that the ratio of the decision in Ganeshan (supra) would be applicable cannot be accepted.

Having found that delay in filing appeal under Section 16(2) of the said Act can be condoned, it will have to be seen whether the same has been

rightly condoned. It is seen that in the appeals as filed, no application for condonation of delay was filed. A preliminary objection was therefore raised

by the petitioners that the said appeals were not maintainable on the ground that they were filed beyond the period of limitation. The delay in question

is of 77 days and if at all the Additional Commissioner was of the view that he had jurisdiction to consider the prayer for condonation of delay, the

appellants therein could have been directed to make an application for condoning delay in that regard. However, without there being any such

application, the contention raised on behalf of the complainants that the order passed by the Additional Collector had not been served on them has

been accepted and the said Authority proceeded to condone the delay. That delay can be condoned even on an oral request has been held in

Anusayabai Ramchandra Lande & Others Versus Union of India & Others [1992 Mh.L.J. 366]. There is however a dispute raised by the petitioners

in regard to the reasons for such delay and according to them the impugned orders were duly served on the complainants. Since there is a factual

dispute between the parties, it is felt necessary that an opportunity should be granted to the complainants to move an application explaining the reasons

for the delay after which the Additional Commissioner can consider whether the same is liable to be condoned or not. On that count, a case has been

made out to interfere with the impugned orders.

Accordingly, the orders passed by the Additional Commissioner on 24.05.2018 condoning delay in all the appeals is set aside. The appellants are

granted liberty to move an application with a prayer for condoning the delay. Such applications if moved shall be thereafter considered on their own

merits and in accordance with law.

The Writ Petitions are allowed. Rule is made absolute in aforesaid terms. No costs.