1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 7310 0F 2009 *** Khaza Mohammad Issaq Tade Versus Jameel Ahmed S/o Jammulal and others *** 1. Heard learned counsel Mr. Sonpethkar for the Petitioner, learned counsel Mr. Sonwane, instructed by learned counsel Mr. V. D. Hon, who appears for Respondent Nos.1 to 4 and learned A.G.P. Mr. S. N. Kendre for Respondent No.5. 2. This petition was before this Court on 10th November, 2009. Notice was issued, returnable on 1st December, 2009. 3. I have heard learned counsel for the respective parties. Rule, made returnable forthwith, heard finally by consent of the parties. 4. This petition takes an exception to the judgment and order passed by the learned Additional Divisional Commissioner, Aurangabad in Appeal No.2001/ROR/Appeal/41 dated 27th July, 2009. With the assistance of the learned counsel for the parties, I have gone through the order passed by the learned Additional Divisional Commissioner. In para 6 of the judgment, learned Additional Divisional Commissioner, has observed that 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. "the appeal filed by the Appellant [present petitioner] is delayed by one year and 19 days, but the appellant has not given any say on condonation of the delay in filing the appeal." Further it has been observed in the same paragraph by the learned Additional Divisional Commissioner that "There is no provision to file appeal before this court against the letter issued by the Collector. However, this court is not deciding the case on the point of tenability and on the point of delay, but deciding it on merit." 5. The Maharashtra Land Revenue Code, 1966 [the Code, for short] provides a remedy for filing an appeal. Such remedy is made available under section 247. Limitation for appeal is made available under section 250 of the Code. In the case on hand, from the observations of the learned Additional Divisional Commissioner, it appears that he was aware that there was delay in the appeal filed before him. He has also observed that appeal is not maintainable. It is not in dispute that the Divisional Commissioner does have a power of appellate authority and revisional authority. If limitation has been provided, party may seek condonation of delay in accordance with the provisions of law. If 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. delay is condoned, of any of the proceeding, n case of provision of limitation, t e authority concerned may proceed to d cide the matter on merits. In the case on ha d, the learned Additional Divisional Comm ssioner has to consider, if limitation is provided for a proceeding i.e. either app al or revision, and if plea of delay condo ation is raised, has to decide said plea. ounsel for the petitioner submits that it was an appeal filed by him. In my view, this petition can be partly allowed, setting aside the order impugned, passed by the le rned Additional Divisional Commissioner wi h direction that the learned Additional Div sional commissioner shall hear th parties and consider the plea of condo ation of delay, which is raised by the pre ent Petitioner in ground No.14 of the memo o appeal, which is on record. In that case, iling affidavit in support of such plea, by t e present Petitioner and if such ple is desired to be opposed by the Respondent os.1 to 4, they also can file such affidav t. The learned Additional Divisional Comm ssioner shall pass appropriate order and ther after if delay is condoned, shall proceed to hear the proceeding concerned in ac 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. ordance with the provisions of law. 6. Impugned order being perverse is quashed and set aside. Case is remitted back to learned Additional Divisional Commissioner with directions to hear the parties i.e. present petitioner and Respondent Nos.1 to 4, on the plea of limitation and pass appropriate order. The parties shall appear before the learned Additional Divisional Commissioner on or before 25th March, 2010. Learned Additional Divisional Commissioner shall decide the proceeding within two months from that day. Petitioner shall carry this order and serve to the learned Additional Divisional Commissioner. 7. Petition is according allowed in above terms. Rule is made absolute accordingly with no order as to costs. 8. It is made clear that this Court has not expressed anything on merits of the matter. [S.B.DESHMUKH, J.] Dated:02/03/2010. ans/7310