IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CIVIL CIVIL CIVIL APPLICATION NO.122 OF 2008. APPLICATION NO.122 OF 2008. APPLICATION NO.122 OF 2008. IN IN IN SECOND SECOND SECOND APPEAL (ST) NO.3652 OF 2007. APPEAL (ST) NO.3652 OF 2007. APPEAL (ST) NO.3652 OF 2007. The State of Maharashtra ...Applicant Versus. Secretary, Satara Education Society, Satara and Anr. ...Respondents Shri B.H.Mehta, A.G.P for the Applicant. Shri G.S.Godbole for the Respondents. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 13th February, 2008. : 13th February, 2008. : 13th February, 2008. P.C.: P.C.: P.C.: 1. This is an application filed by the State of Maharashtra for grant of leave to prefer a Second Appeal against judgment and decree dated 29th July, 1994 passed by the trial Court which has been confirmed in appeal by District Court. 2. The suit was filed by the first respondent against the second respondent (The Chief Officer, Satara Municipal Council) in this application. The operative part of the decree passed by the trial Court reads thus: "1. The suit of the plaintiff is decreed. 2. It is hereby declared that plaintiff institute is entitled to run 22 divisions from first standard to forth standard and are entitled for recognition to it from the : 2 : 2 : 2 : defendant. 3. It is hereby declared that plaintiff institution are entitled fro the grant and salary for the 22 teachers working for 22 divisions in its primary school. 4. Defendants are permanently restrained from taking any action for withdrawing their recognition granted to the institution of the plaintiff to run the institution. 5. It is also declared that plaintiffs are entitled for an additional division of standard second and an additional division of standard fourth run by them, for the recognition from the defendant on non grant basis. 6. Parties to bear their own costs. 7. Decree be drawn accordingly". 3. The said decree has been affirmed by the District Court by judgment and decree dated 29th July, 1999. It must be stated here that the Second Appeal in which the present application is made has been purportedly preferred by the State of Maharashtra : 3 : 3 : 3 : through Administrative Officer, Nagarpalika Shikshan Mandal, Satara. There was an application being Civil Application No.310 of 2007 made by the applicant for condonation of delay of 7 years and 110 days. When it was brought to the notice of the learned A.G.P during the course of hearing of the said application that the applicant-State of Maharashtra was not a party to the suit or appeal before the courts below, time was sought by him for filing the present application for seeking leave to prefer the appeal. 4. The submission of the learned A.G.P appearing for the applicant is that State Government was a necessary and proper party as ultimately the salary grant will have to be released by the State Government. He invited my attention to clause No.4 of the operative part of the decree passed by the trial Court which permanently restrains the defendant in the suit from taking any action of withdrawing the recognition granted to the institution of the first respondent. He submitted that not only that the applicant State of Maharashtra is directly affected by the decree but in view of the clause 4 of the decree the authorities will be prevented from withdrawing the recognition in case any breaches are committed by the original plaintiffs. He submitted that under the circumstances a leave to prefer an appeal be granted. : 4 : 4 : 4 : 5. The learned counsel for the first respondent opposed the application on various grounds. His first submission is that the Deputy Director of Education was all along aware about the decree passed by the trial Court which was confirmed in the appeal in the year 1999. He has invited my attention to the various documents annexed to additional affidavit filed by the present applicant in Civil Application No.310 of 2007. He submitted that the said documents indicate that the applicant accepted the impugned judgments and decrees and infact a direction was issued to implement the impugned judgments and decrees. He submitted that in any event there is a gross delay of more than 7 years on the part of the applicant in approaching this Court. 6. I have carefully considered the submissions. The copies of the correspondence made at various levels relating to impugned judgments and decrees have been annexed to Civil Application No.310 of 2007. On 24th November, 1999 the Municipal School Board invited attention of the Deputy Director of Education, Kolhapur, Division Kolhapur to the decision of the trial court and the first Appellate Court and sought advice of the Deputy Director of Education. The Deputy Director of Education in turn invited attention of the Director of Education (Primary) to the said decision of the Courts : 5 : 5 : 5 : below. My attention was invited to letter dated 07th September, 2004 sent by the Director of Education (Primary) to the Deputy Director of Education as well as to the Administrative Officer of the Municipal School Board. The said letter records that the decision of the trial Court will have to be implemented. Accordingly, correspondence was made by the Administrative Officer of the School Board. It appears from the annexures to aforesaid Civil Application that there was correspondence made between the Deputy Director of Education as well as the Director of Education. 7. There is a letter dated 04th September, 2003 sent by the Director of Education (Primary) to the Secretary of the Education Department. In the said letter the Director of Education has specifically recorded that the legal adviser of the Municipal School Board has opined that there was no explanation for delay of more than three years in preferring the appeal and that there was no basis for preferring an appeal. Therefore, the Director of Education noted in the said letter that approval has been granted to the six division unauthorisedly started by the first respondent from the year 1990-1991. In the said letter directions were sought from the State Government for releasing 100% grant-in-aid to the said six divisions. By letter dated 05t November, 2003 to Desk Officer of the Education : 6 : 6 : 6 : Department communicated to the Director of Education (Primary) that permission was accorded to grant recognition to six divisions with effect from 1990-1991. The said order records that permission has been granted to sanction the grant to the said divisions. Thus, it is crystal clear that in November 2003 a decision was taken at the level of the State Government to accept the impugned judgments and decrees and to implement the same by granting recognition from 1990-1991 and by releasing grant-in-aid. The present Second Appeal alongside application for condonation of delay was thereafter filed on 20th February, 2007. 8. Thus, apart from the delay involved of more than seven years, from the documents which are produced on record by the applicant it is apparent that in the year 2003 a conscious decision was taken by the applicant to accept the impugned judgments and decrees and to act upon the same. 9. A grievance was made by the learned A.G.P as regards clause No.4 of the operative part of the decree. If in law there is a power vesting either in the appellant or any other authority to take action of withdrawal of recognition in case concerned institution commits breaches, it is obvious that the power available under the law is not taken away by clause No.4 of the : 7 : 7 : 7 : impugned judgments and decrees. Therefore, there is no merit in the said submission made by the learned A.G.P. 10. Accordingly, I pass the following order: (i) Civil Application is rejected. (ii) Consequently Civil Application Nos.310 of 2007 and 311 of 2007 also stands rejected. Judge. Judge. Judge.