wp515-10.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.515 OF 2010 Mrs.Priya Sunil Rasal .. Petitioner Versus Santosh Moreshwar Kolambe .. Respondent Mr.R.R.Salvi for petitioner Mr.V.S.Kapse for respondent Nos.2 to 5 Mr.R.M.Patne, AGP for respondent No.11 Mr.Sachin B. Shetye for respondent No.6 CORAM : S.C.DHARMADHIKARI, J. DATE : 23rd JUNE 2011. P.C.: 1] On this petition an order was made by hearing both sides by learned Single Judge. That order dated 22nd January 2010 was challenged by filing Letters Patent Appeal before a Division Bench of this Court being LPA No.32 of 2010. The Division Bench set aside the order on hearing both sides. A perusal of the order of the Division Bench would show that the only point that was kept open was with regard to limitation. The Division Bench order and particularly para 6 thereof shows that, the argument on behalf of the appellants was that the appeal wp515-10.doc 2 before the Additional Commissioner was within limitation and not barred because the period prescribed in law was adhered to. The Division Bench noted that the Single Judge held that the appeal before the Additional Commissioner, Konkan Division was barred by about four days and, therefore, was beyond the period of limitation. The learned Single Judge proceeded to set aside the order of the Additional Commissioner. The Division Bench noted that as far as this aspect is concerned, no arguments were canvassed before the Single Judge when the order dated 22nd January 2010 was passed. Therefore, the matter was remanded back to examine as to whether in the facts and circumstances of the present case actually the appeal was beyond limitation or not and further even the delay is condoned, what is the effect on the proceedings, if no orders are made on the said application. 2] It is only on this point that I have heard Mr.Salvi for petitioner and Mr.Kapse for respondent Nos. 1 to 4. wp515-10.doc 3 3] I have also perused the original record which was produced by Mr.Patne, AGP. The record shows that there is a remark that the appeal has been preferred after four days of the period of limitation prescribed and an application for condonation of delay has been filed separately. On that application no separate orders appear to have been passed. Therefore, the argument of Mr.Salvi is that the order of the Additional Commissioner is bad in law as it is made on an appeal which was barred by limitation. He invited my attention to the provisions of Bombay Village Panchayat Act and particularly section 35(3-C). He submits that the appeal has to be preferred within a period of 7 days from the date of receipt of the decision rendered by the Collector. Mr.Salvi submits that that in this case the Collector has passed the order on 4th November 2009. The file shows that the order has been signed on 5th November 2009. Both the judgement as also the order have been signed separately. The appeal before the Commissioner has been preferred on 20th November 2009. An application for condonation of delay is made on behalf of wp515-10.doc 4 Bharat P. Deshkukh, Dyneshwar and Lata. The application is not signed by Santosh Moreshwar Kolambe. He is appellant No.1 and his name is scored off. It is stated that he received the copy of the order dated 4/5th November 2009 and he filed the appeal within the period of 7 days prescribed. It is only the appellant Nos. 2 to 4 who made this application. 4] I have also perused the original order passed by the Additional Commissioner from the file. The original order shows that the parties have argued the matter on merits. Even the Roznama indicates the same as the request was made to the Commissioner to summon the records from the office of the Collector, which he did. The Roznama has been signed by the parties and their Advocates. When the records were summoned and were available, the matter was posted on 8th December 2009 but the Commissioner was not available on that date. The arguments were heard on 18th December 2009. After oral arguments were heard, the parties were permitted to file written arguments. These written arguments have also wp515-10.doc 5 been taken on record. Thus, it does not appear that at any stage request was made to decide the issue of limitation. 5] While it may be true that such a plea can be raised even before this Court but none the less it is settled principle that it is a mixed question of law and fact. Further, on the own showing of the parties, the order passed by the Collector was received in time and the appellant No.1 approached the Commissioner in time. The application for condonation of delay was made on behalf of other appellants only. In these circumstances, it is too late in the day to now urge that the Commissioner passed an order on an appeal which is not maintainable in law. The matter had proceeded on merits and each aspect of the controversy has been noticed. From a perusal of the order passed by the Single Judge which is set aside by the Division bench, it is clear that only the aspect of limitation was to be examined by this Court. Having carefully examined the same and finding that at no stage the petitioner made a grievance that the appeal was barred by limitation but wp515-10.doc 6 proceeded to argue the case on merits, it will not be proper to interfere with the order of the Commissioner and hold that the no confidence motion was not validly passed. This is not a case where the grievance with regard to no confidence motion can now be examined as it is concluded by the order of Division Bench. The Division Bench having found that the motion was validly passed, it is only whether the order of the Commissioner upholding it can be said to be vitiated because of cognisance of appeal which was barred by limitation, is a matter which was be kept open. Finding that grievance of the petitioner has no substance, there is no alternative but to dismiss this petition. It is accordingly dismissed. No costs. (S.C.DHARMADHIKARI, J)