(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 9901 OF 2010 Budhansha Madarsha Fakir, Age : 85 years, Occupation : Agriculture, R/o. Village Kharola, Taluka : Renapur, District : Latur. .. Petitioner. versus 1. The State of Maharashtra. 2. The Divisional Commissioner, Aurangabad. 3. The District Collector, District : Latur. .. Respondents. ....................... Mr. A.N. Sabnis, Advocate, holding for Mr. S.P. Shah, Advocate, for the petitioner. Mrs. V.A. Shinde, Assistant Government Pleader, for respondent nos.1 to 3. ........................ (2) CORAM : B.P. DHARMADHIKARI, J. DATE : 4TH MAY 2011 ORAL JUDGMENT : 1. Heard Adv. Mr. A.N. Sabnis, holding for Adv. Mr. S.P. Shah, for the petitioner; and learned AGP Mrs. V.A. Shinde, for the respondents. 2. Rule. Rule made returnable forthwith. Heard finally with consent. 3. Adv. Mr. A.N. Sabnis states that prayer for condonation of delay has not been considered by the competent authority and its rejection in 2006 was not communicated till the petitioner procured said information under Right to Information Act, on 8-6-2010. It is further argued that the petitioner has specifically sought leave to adduce evidence for condonation of delay. But that application also has not been looked into. 4. Learned AGP Mrs. V.A. Shinde has produced original records and she is relying upon reply affidavit to urge that appropriate opportunity has been given to the petitioner and the petitioner has failed to avail it. (3) 5. It is not in dispute that the proceedings have been initiated by the present petitioner on 11-2-1998 seeking succession to certain properties as per provisions of Hyderabad Atiyat Inquiries Act, 1952. The proceedings were initiated in the office of Sub-Divisional Officer / Deputy Collector at Latur. It is also not in dispute that as there was delay of about 51 years in institution of proceedings, the matter needed to be looked into by the Divisional Commissioner. 6. The impugned order dated 24-2-2006, refusing to condone delay is also passed by the Divisional Commissioner. 7. Perusal of records produced by the learned AGP, however, show that Tahsildar, Renapur, has recorded some statements on 18-3-1999. Learned AGP has attempted to urge that those statements are looked into by the Divisional Commissioner while deciding the matter. 8. If proceedings are to be disposed of by the Divisional Commissioner, it is obvious that delay also needs to be condoned by that authority. If the delay is to be condoned by that authority, evidence, if any, also needed to be recorded by that authority, unless and until somebody else was, with the consent of parties, (4) authorized to record it. Here, statements recorded nowhere reflect that same are on the point of condonation of delay or then are being recorded as a part of inquiry being conducted by Divisional Commissioner. 9. The impugned order dated 24-2-2006 does not contain any discussion of reasons given by the petitioner for condonation of delay. He had urged ignorance, illiteracy and poverty as the reason. The Divisional Commissioner has only noted that the reason put forth is not sufficient. The order of Divisional Commissioner can be used in any matter to contend that delay in that matter has not been condoned. Thus, the order lacks appreciation of facts at hand and hence is unsustainable. 10. In this situation, I find that the impugned order dated 24-2-2006 is unsustainable. The petitioner ought to have been given an opportunity of hearing by respondent no.2 / Divisional Commissioner before passing any orders. 11. In the result, the petition is partly allowed. (i) The impugned order / communication dated 24-2-2006 (Exhibit "F" with petition), issued by the Divisional Commissioner, Aurangabad, is quashed and set aside. Matter is (5) restored back to the file of respondent no.2 for taking fresh decision on the point of condonation of delay, after giving necessary opportunity of hearing to the petitioner. (ii) The petitioner is directed to appear before the Divisional Commissioner, Aurangabad, on 13th June 2011, and to abide by his further instructions in the matter. 12. Rule is made absolute accordingly. No costs. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp9901