( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 2329 OF 2010 Bharat Mahadappa Ghavane PETITIONER VERSUS The State of Maharashtra and others RESPONDENTS .... Mr. S.V. Warad, advocate holding for Mr. A.V. Joshi, advocate for the petitioner. Mr. D.R. Korade, AGP for the respondents No. 1 to 5. Mr. S.J. Salgare, advocate holding for Smt. S.S. Jadhav, advocate for the respondent No. 6. Mr. N.N. Chitlange, advocate for the respondent No. 7. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 10th August, 2010] PER COURT : 1. By this petition, the petitioner challenges the orders rendered by the learned Additional Collector, Osmanabad and learned Divisional Commissioner, Aurangabad whereby his application seeking declaration of disqualification of the respondent No. 6 – Vijaysing @ Vijay Ramkrishna Jangle under section 14 (1) (J-1) of the Bombay Village Panchayat Act, 1958 (for short, “the BVP Act”) came to be rejected and the appeal preferred by him vide appeal No. 221/2008 also came to be ( 2 ) dismissed on the ground that jurisdiction was unavailable to the Collector and on account of delay of 20 days in filing of the said appeal. 2. Having heard learned counsel for the parties and learned AGP, it is manifestly clear that the learned Collector committed patent error while refusing to entertain the application of the petitioner simply on the ground that there was difference in the dates of the birth of the third child who was born, according to the petitioner, after the cut-off date i.e. 13th September, 2001 whereas, was born, according to the respondent No. 6 Vijaysingh, prior to such date. The learned Additional Collector noticed that there were two (2) separate birth certificates which indicated different dates of birth and place of birth of the third child. It is for such a reason, particularly, owing to the different birth certificates and record, that the learned Additional Collector held that he had no jurisdiction to determine the issue pertaining to the date of the birth of the third child and hence, the application could not be entertained. The learned Additional Commissioner held that the delay of 20 days was not properly explained and, therefore, the appeal was not maintainable. The view taken by the Additional Commissioner is ( 3 ) improper for the reason that there was no inordinate delay as such. There was also explanation given for the delay of 20 days. Not only that, but the petitioner had filed a copy of medical certificate issued by Dr. Subhash Mortale. The learned Additional Commissioner did not refer to the explanation submitted in the application for condonation of delay, but simply refused to entertain the appeal for the reason that section 5 of the Limitation Act was not applicable to the said appeal. The view taken by the learned Additional Commissioner is erroneous. The appellate authority has always discretion to condone the delay if satisfactory reasons are furnished for the delay caused in filing of the appeal. The statutory provision of filing of the appeal does not specifically put legal embargo on the power of the appellate authority to condone the delay. 3. The learned Additional Commissioner has referred to “Prabhakar Sabaji Kandalkar v. Tahsildar, Sangamner and others” 2002 (1) Mh.L.J. 881. A Single Bench of this Court observed in the given case that section 5 of the Limitation Act is not applicable to the dispute under section 35 (3B) of the BVP Act. The careful reading of the case-law reveals that section 5 of the Limitation Act was held inapplicable to the original proceedings. For, the dispute to be raised before ( 4 ) the Collector under section 35 (3B) of the BVP Act is in the form of original proceedings like a suit or application. It is well settled that section 5 of the Limitation Act is inapplicable to the suit as such. It is on the basis of such inference and logic that the view has been expressed by the learned Single Bench of this Court regarding applicability of section 5 of Limitation Act. It does not mean that section 5 is not applicable to the appellate proceedings. The view taken by this Court in the given case is not properly appreciated by the learned Additional Commissioner and as such, the error has crept in while rejecting the application for condonation of delay. 4. The learned Additional Collector could not have simply dismissed the application for the reason that there were disputed dates about the birth of the third child of the respondent No. 6 – Vijaysingh. The Collector is required to conduct summary enquiry about such an allegation. He may record necessary evidence if so required. He cannot abdicate the responsibility of holding the enquiry for the reason that there are two (2) different documents and there is controversy about the birth date of the third child of the respondent No. 6 – Vijaysingh @ Vijay. Needless to say, the impugned ( 5 ) rendered by the learned Additional Commissioner is also totally arbitrary and erroneous. 5. Considering the foregoing reasons, both the impugned orders deserve to be interfered with. Hence, the petition is allowed. Both the impugned orders are set aside. The application filed by the petitioner is restored to its original position, with direction that the learned Collector shall conduct necessary enquiry as contemplated under the provisions of the BVP Act and to decide the question of disqualification on merits thereof, as expeditiously as possible. The petitioner and the respondent No. 6 are directed to appear before the learned Additional Collector on 23rd August, 2010 at 2.30 p.m. for the purpose of such enquiry. Petition is disposed of accordingly. No costs. [V.R. KINGAONKAR] JUDGE NPJ/wp2329-10 ( 6 )