1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.8364 OF 2009 SOMANTH DAGADU CHOTHE PETITIONER. V/S THE ADDITIONAL COMMIS SIONER AURANGABAD DIVN.AU AURANGABAD AND OTHERS. RESPONDENTS. Mr. DIGHE PRAVIN S. Advocate for the petitioner. V. G. Shelke, A.G.P. for R/ 1 TO 3 Respondents No.4 and 5 served. CORAM : S. B. DESHMUKH, J. DATE : 4TH FEBRUARY, 2010. PER COURT :- 1. Heard learned counsel Mr. Dighe for the petitioner, learned A.G.P for respondent Nos. 1 to 3. None appeared for respondent Nos.4 and 5. 2- Present petitioner had filed appeal before learned Divisional Commissioner under section 16 (2) of the Bombay Village Panchayat Act, 1958. This appeal was delayed, therefore was accompanied by an application for condonation of delay. Application for condonation of delay is on record. It was not registered specifically but then said application was along with appeal itself annexure ‘I (page 62) is copy of said appeal. Counsel for the petitioner read paragraph No.3 pointing out filing of the earlier writ petition No. 2 1738/2008 and order passed by this Court. Ground thus raised is that after passing of order by Single Judge of this Court in writ petition No.1738/2008, appeal with application for condonation of delay was filed. This has been rejected by the learned Divisional Commissioner by the order passed on 12.11.2009. Prayer for condonation of delay around 4 days is rejected. Said order is impugned in this writ petition. 3- Counsel for the petitioner took me to order passed by learned Single Judge of this Court in writ petition No.1738/2008. Annexure ‘H is copy on record. Present petitioner had filed said writ petition before this court, challenging the order of learned Additional Collector, Jalna in dispute No. 2007/SS/CR-30 on 02.02.2008. Order passed by learned Additional Collector was on the application of respondent No.4 in that proceeding i.e. dispute application. Contentions raised by respondent No.4 in that proceeding filed by the present petitioner, who was petitioner in writ petitioner in No.1738/2008, was hit by the principles of res-judicata. said application/contentions was accepted and that is how said order was subject matter of writ petition before this court i.e. writ petition No.1738/2008. Order passed by this court in writ petition No.1738/08 on July 10,2008 shows that this court dismissed writ petition on the ground of availability of appellate remedy. In paragraph No.7 this court permitted present petitioner, who was also writ petitioner in that writ petition to file appropriate appeal within two weeks from the date of order with application for condonation of delay. It was further observed that 3 authority concerned, shall, take into account the fact that writ petition No. 1738/2008 was pending in this Court, there after appellate authority would deal with the appeal, in accordance with law. 4- Counsel for the petitioner submits that after passing order immediately petitioner obtained certified copy, filed appeal before learned Divisional Commissioner (Revenue) however, in this exercise, around four days delay was occurred. This four days delay, as noted above, has been rejected by the learned Divisional Commissioner, Aurangabad. 5- I have considered the principles of section 5 of the Limitation Act, grounds raised for condonation of four days delay, order passed by learned Single Judge of this Court in writ petition No.1738/2008 and order impugned in this writ petition passed by learned Divisional Commissioner, Aurangabad. 6- In my view, just and sufficient cause has been raised by present petitioner for condonation of four days delay occurred in preferring the appeal. This delay, ought to have been condoned by the First Appellate Court. Order passed by the learned Divisional Commissioner, Aurangabad, is perverse, requires to be quashed and set aside in view of the judgment of the Honourable Supreme Court in the Matter of N. Balkrishnan V/s. M. 4 Krishnamurthy reported in AIR 1998 S.C. Page 3222. 7- In my view, case for exercise of extra ordinary jurisdiction is established. Order impugned, being perverse, is quashed and set aside. Delay around four days in filing appeal before Divisional Commissioner is quashed and set aside. Said appeal is restored on the file of Divisional/Additional Commissioner, Aurangabad. It is directed to hear the parties and to decide the appeal in accordance with the provisions of law. Writ Petition, accordingly is allowed in above terms and disposed of. Appeal to be decided expeditiously and within a period of three months from the date of receipt of the order of this Court. Petitioner is directed to serve writ of this Court to learned Divisional Commissioner, within two weeks from today. No costs. ( S. B. DESHMUKH ) JUDGE. ..... aaa/8364.09