1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6084 OF 2009 Shridhar s/o Rangnathrao Dalvi, R/o-Ambad Road, Jalna, Near Zilla Parishad, Dist-Jalna. ...PETITIONER. VERSUS 1) The State of Maharashtra Copy to be served with the Govt. Pleader for Divisional Commissioner, Aurangabad, 2) The Chief Executive Officer, Zilla Parishad, Jalna, 3) The Agril. Development Officer, Zilla Parishad, Jalna. ...RESPONDENTS. ... Mr.D.R. Irale Patil Advocate for Petitioner. Mr.V.G. Shelke A.G.P. for Respondent Nos. 1 to 3. ... CORAM: K.K. TATED, J. JUDGMENT RESERVED ON : 1ST OCTOBER, 2009. JUDGMENT PRONOUNCED ON : 15TH OCTOBER, 2009. JUDGMENT : 1. With the consent of the learned counsel for the 2 parties, matter is taken up for final hearing. Rule. Rule made returnable forthwith and matter is heard finally at the stage of admission. 2. By this Petition under Articles 226 and 227 of the Constitution of India the Petitioner - original appellant challenges the order dated 1st August, 2009 passed by the Additional Divisional Commissioner, Aurangabad rejecting Petitioner's application for condonation of delay in preferring the Appeal under Rule 13 and 14 of the Maharashtra Zilla Parishad Dist. Services (Discipline and Appeal) Rules, 1964. 3. It is the case of the Petitioner that Respondent No.3 issued show cause notice dated 12th October, 1999 for taking action against the Petitioner and thereafter passed order suspending Petitioner's two years increments. Thereafter again Respondent No.3 issued order dated 6th September, 2000 and extended the period of suspension of Petitioner's increments for further three years. Thereafter the Petitioner 3 filed Appeal/ letter dated 2nd September, 2006 before the Divisional Commissioner, Aurangabad. In reply to the said Appeal/ letter, the office of the Divisional Commissioner, Aurangabad informed to the Petitioner by their letter dated 5th September, 2006 that the Petitioner have to file appropriate appeal before the competent authority. Thereafter the Petitioner preferred Appeal before the Additional Divisional Commissioner, Aurangabad under Rule 13 and 14 of the Maharashtra Zilla Parishad Dist. Services (Discipline and Appeal) Rules, 1964 challenging the order No. ZPJ/Agril./Est-1/99/2241/1635 dated 25th October, 1999 and order No. ZPJ/Agril./ Est/KV/2000/1806/1262 dated 6th September, 2000 passed by the Respondents. In the said Appeal the Petitioner preferred application for condonation of delay. It is the case of the Petitioner that there was delay of 1 year and 8 months in preferring the Appeal from the date of communication of the letter issued by learned Divisional Commissioner dated 5th September, 2006 and if the delay is calculated from the date of 4 order dated 6th September, 2000, then there would be delay of 7 years and 8 months in preferring the Appeal. It is the case of the Petitioner that from time to time he approached the authorities for redressal of his grievance and therefore he could not prefer the Appeal immediately. Learned counsel for the Petitioner further submitted that the Respondents assured to the Petitioner for taking appropriate steps for giving justice to him and therefore the Appeal was not filed immediately. Learned counsel for the Petitioner submitted that the learned Additional Divisional Commissioner who passed the impugned order dated 1st August, 2009 rejecting Petitioner's application for condonation of delay, has not taken into consideration the very spirit behind the ratio laid down by the High Court as well as the Apex Court in such matters of delay condonation. Learned counsel for the Petitioner submitted that the Petitioner pointed out sufficient cause for condonation of delay and in spite of that the Additional Divisional Commissioner, Aurangabad passed the impugned order rejecting Petitioner's 5 application for condonation of delay. Learned counsel for the Petitioner relies on the Judgment in the matter of Sonerao Sadashivrao Patil and another vs. Godawaribai w/o Laxmansingh Gahirewar and others, reported in 1999 (2) Mh. L.J. Page 272. In this case the Bombay High Court held that liberal approach to be adopted by the Courts while dealing with the application for condonation of delay. It is further held in this Authority that duration of delay is insignificant, the Court has to take into account the facts of the case to do the justice. Head Note of the said Judgment reads as under: "Limitation Act (36 of 1963), S5 - Condonation of delay - Liberal app0roach to be adopted - Courts while dealing with the question have to adopt rational common sense approach- Duration of delay is insignificant - Court has to take into account if there is acceptable or pardonable explanation. The primary function of a court 6 is to adjudicate the disputes between the contesting parties and to advance substantial justice. The rules of limitation are not made to harm the valuable rights of thew parties. The discretion is given to the ?Court to condone delay and admit the appeal in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. If the spirit behind the empowerment of discretionary power on the court is taken into consideration, it is beyond doubt clear that the court is required to adopt liberal approach in the matter of interpretation of the phrase "sufficient cause". This concept is adequately realistic to enable the court to apply law in a meaningful manner. The requirement of explanation of every day's delay does not mean that a pedantic approach should be taken. The courts are required to adopt rational common sense approach. The Courts are required to take pragmatic approach while interpreting the concept of sufficient cause . Too 7 much rigour of the law is not justice but the denial of it. It is to be borne in mind the maxim "Summum Jus, Summa Injuria". Extreme law is extreme injury. On the matter of condonation of delay, the duration of delay is insignificant. The Court has to take into account whether there is acceptable explanation or pardonable explanation." 4. On the other hand, learned A.G.P. for Respondents opposed the present Writ Petition on the ground that the Petitioner failed to make out any case for condonation of inordinate delay of near about 8 years in preferring the Appeal under Rule 13 and 14 of the Maharashtra Zilla Parishad Dist. Services (Discipline and Appeal) Rules, 1964. Learned A.G.P. for the Respondents pointed out from the affidavit in reply filed by Respondent No.1 dated 30th September, 2009 the way in which the Petitioner availed due benefit without any intimation and/or approval from his higher 8 authorities. On the basis of these submissions, learned A.G.P. for Respondents submitted that the present Writ Petition is liable to be dismissed for not disclosing any sufficient cause of condonation of delay of near about 8 years. 5. The Petitioner in his application for condonation of delay dated 5th May, 2008, stated that to advance the substantial justice, delay to be condoned and matter to be heard on its own merits. It is further stated in his application that rules of limitation are not made to harm the valuable rights of the parties. He submitted that from the date of communication received from the Divisional Commissioner dated 5th September, 2006 there is delay of 1 year and 8 months only and therefore the same can be condoned relying on the ration laid down by the High Court in the matter of Sonerao Sadadhisrao Patil (Supra). It is the contention of the Petitioner that though the impugned order passed by the Department on 25th October, 1999 and 6th September, 2000, the delay to be calculated from the 9 date of letter issued by the learned Divisional Commissioner dated 5th September, 2006 informing the Petitioner to file Appeal before the appropriate authority. It is crystal clear from the Petitioner's application for condonation of delay dated 5th May, 2008 that the Petitioner failed to disclose any sufficient cause for condonation of such inordinate delay of near about 8 years. 6. In construing Section 5 of the Limitation Act, it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired, the decree holder has obtained a benefit under the law of Limitation to treat the decree as beyond the challenge and this legal right which has occurred to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration 10 which cannot be ignored is that if sufficient cause for excusing delay is shown, discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the Court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5 of the Limitation Act. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona 11 fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection I may point out that considerations of bona fides or due diligence are always material and relevant when the Court is dealing with applications made under Section 5 of the Limitation Act. 7. The principles for extension of time under Section 5 of the Limitation Act may be summed up as follows : (a) The party seeking relief has to satisfy the court that he had sufficient cause for not preferring the appeal etc. within the prescribed time; (b) the explanation has to cover the entire period of delay, 12 (c) a litigant should not be easily permitted to take away a right which has accrued to his adversary by lapse of time, (d) the proof of sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. 8. In view of the above mentioned facts and circumstances I do not find any reason to interfere the impugned order dated 1st August, 2009 passed by the Additional Divisional Commissioner, Aurangabad under Articles 226 and 227 of the Constitution of India and therefore the Writ Petition is dismissed with no order as to the costs. Rule stands discharged. [K.K. TATED, J.] asb/OCT09/wp6084.09