Judgment:
Oral Judgment: (B.R. Gavai, J.)
Heard.
2. Admit. By consent of the parties, the appeal is taken up for final hearing.
3. Heard Smt. Sirpurkar, learned counsel appearing for the appellants, Shri M.K.Pathan, learned AGP for respondents 1 to 5 and Smt. Sonali Saware, learned Advocate for respondent no.9.
4. This appeal takes exception to the Judgment and order passed by the learned Single Judge of this Court, by which the learned Single Judge has dismissed the Writ Petition, which was, in turn, filed challenging the order of the Deputy Registrar, Cooperative Societies (Fisheries) thereby dismissing the appeal on the ground that it was not accompanied by an application for condonation of delay.
5. This Court in the case of Madhaos/o Somaji Sarode vs. Jotiba Dhyan Upasak Shikshan Sanstha,Dudhala and others, reported in (2004(3)Mh.L.J., 1078, relying on the Judgment of the Apex Court in the case of State of M.P. And another vs. Pradeep Kumar and another, reported in 2000(7) Supreme Court Cases, 372 and the Division Bench of this Court in the case of AnusayabaiRamchandra Lande and others vs. Union of India and another, reported in 1992 Mh.L.J., 366, has taken a view that if the authority finds that the appeal is delayed, an opportunity should be given to a party for filing an application for condonation of delay. It has been further held that unless an application for condonation of delay is decided, the authority cannot go into merits of the matter.
6. Further, Rule 106 (5) and (6) of the Maharashtra Co-operative Societies Rules, 1961 read as under:
â(5): On receipt of the appeal, the appellate authority shall endorse on it the date of its receipt by it. The appellate authority shall, as soon as possible, examine it and satisfy itself that:-
i) the person presenting it has the authority to do so;
ii) that it is made within the prescribed time limit; and
iii) that it conforms to all the provisions of the Act and these rules.
(6) If the appellate authority finds that the appeal presented does not conform to any of the said provisions, if shall make a note on the appeal to that effect and may call upon the appellant or his agent to remedy the defects within a period of seven days of the receipt of the notice to do so or in case the appeal has not been presented within the prescribed time limit to show cause within the said period of seven days why it should not be dismissed as time barred by the appellate authority.â
Rule 106 (5)(ii) of the Rules lay down that on receipt of the appeal, the appellate authority shall examine it and satisfy itself that it is made within the prescribed time limit.
Rule 106 (6) of the Rules lay down that if the appellate authority finds that the appeal has not been presented within the prescribed time limit, then it should issue notice to the appellant to show cause within seven days as to why the appeal should not be dismissed as time barred. In the present case, it is an admitted fact that the appellate authority has not acted as required by the provisions of Rule 106(5) and (6) of the Rules.
7. In the result, the appeal is allowed. The impugned orders are quashed and set aside. The matter is remitted back to the Deputy Registrar (Fisheries), who is directed to give an opportunity of filing an application for condonation of delay to the present appellant and decide the said application, if filed, before he enters into the merits of the matter. Taking into consideration the peculiar facts and circumstances of the case, the appellate authority shall decide the application for condonation of delay, if filed, by the appellant within a period of four weeks from its filing.
Civil Application (Z) No. 585 of 2012 in L.P.A.No. 430 of 2012 in W.P.No. 4383 of 2012, Civil Application (Z) No.81 of 2013 in LPA No. 430 of 2012 in W.P.No.4383 of 2012, Civil Application (Z) No. 82 of 2013 in LPA No. 430 of 2012 in W.P.No. 4383 of 2012:
In view of the disposal of the appeal, the present applications are disposed of as not survived.