Full Judgment Text
2019:BHC-AS:2929
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 6351 OF 2017
M/s. D. Dayabhai & Co. Pvt. Ltd.
Through their Director
Shri Nitesh Kothari,
R/o. 121/12th Floor, CC Wing,
Mittal Tower. Nariman Point,
Mumbai 400 021 ..Petitioner
v/s.
Shri Narayan Ganu Tangdi (since deceased)
through LRs.
1/1. Shri Siddharth Narayan Tangdi
1/2. Shri Bhalchandra Narayan Tangdi
Since decesed through his Lrs.
1/2/1. Smt. Bhima Bhalchandra Tangdi
1/2/2. Shri Vijaydeep Bhalchandra Tangdi
1/2/3. Smt. Nalini Bhalchandra Tangdi
1/2/4. Shri Bhupendra Bhalchandra Tangdi
1/3. Smt. Bhagwati Patil
1/4. Smt. Sita Yadav Gharat.
1/5. Smt. Gulab Ramesh Tare.
1/6. Nayna Vishwanath Tangdi
1/7. Shri Avinash Vishwanath Tangdi
1/8. Shri Dnyaneshwar Vishwanath Tangdi
1/9. Shri Rakesh Vishwanath Tangdi
Sr.Nos.1/1 to 1/9. all R/o. Tangdi Niwas
Chitalsar, Manpada, Ghodbunder
Thane (W) ..Respondents
Mr.P.K.Dhakephalkar, Sr. Adv. along with Mr. K.S. Dewal for the
Petitioner.
Mr. P.S.Dani, Sr. Adv. a/w. Mr. Amol Mhatre for the Respondent.
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CORAM : SMT. ANUJA PRABHUDESSAI, J.
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DATED : 23 JANUARY, 2019.
ORAL JUDGMENT.
1. With consent, heard finally at the stage of admission.
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2. The petitioner herein has challenged the Order dated 4 May,
2017 whereby the learned Member (Administrative), Maharashtra
Revenue Tribunal, Mumbai, has allowed the revision application and
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set aside the order dated 23 February, 2017 passed by the Divisional
Officer, allowing the application for condonation of delay of 11 years
and 9 months in filing Tenancy Appeal No. 109 of 2015.
3. A brief narration of the facts leading to this petition:
. The petitioner Company is the owner of the property bearing
Gut No. 59 Hissa No.1 (part), admeasuring 69 H51R07p situated at
Village Chitalsar, Manpada, Taluka & District Thane. (The said
property shall be hereinafter referred to as "the subject property". )
Shri Narayan Ganu Tangdi, the predecessor of the respondents
nos.1/1 to 1/9 hereinafter referred to as the respondents) claimed to
be an agricultural tenant in respect of the subject property. In the
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year 1991 he filed an application under Section 70(b) of Bombay
Tenancy and Agricultural Lands Act, 1948 (B.T.&A.L.Act). The
petitioner herein initially contested the said proceeding under
Section 70(b). However, subsequently the petitioner failed to
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appear, and by Order dated 23 February, 2004, the learned ALT
declared said Narayan Ganu Tangdi as a protected tenant in respect
of the subject property.
4. The petitioner filed an appeal before the SDO, Thane along
with an application for condoning the delay of 11 years and 9 months
in filing the tenancy appeal. The petitioner claimed that it had no
intimation whatsoever of the Order dated 24th February, 2004. The
petitioner further stated that it had learnt about the said order for
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the first time on 23 October, 2015. The said order was received on
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29 October, 2015, and an appeal with application for condonation
of delay was filed immediately thereafter.
5. The respondents claimed that the petitioner had filed an
application under Section 6 of the Forest Act before the Deputy
Collector (Private Forest) Thane Division and requested to exclude
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the subject property from the purview of the Forest Act. Said
Narayan Tangdi had filed an intervention application in the
proceedings under Section 6 of the Private Forest Act contending that
he was a tenant of the subject property. The Deputy Collector
(Private Forest) Thane Division, Thane allowed the said intervention
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application and by judgment and order dated 27 December, 2004,
exempted the subject property whereof Narayan Ganu Tangdi was a
tenant and ordered restoration of the subject property to the
intervenor Narayan Tangdi.
6. The respondent therefore disputed that the petitioner had no
knowledge about the proceedings under Section 70(b) of the B.T.&
A.L. Act. The respondents claimed that Narayan Tangdi had
participated in all forest proceedings till the year 2014 as he was in
possession of the subject property and was declared as a tenant in
70(b) proceedings. The respondents claimed that the petitioners
had full knowledge about the decision of 70(b) proceedings at every
stage.
7. The learned SDO allowed the application for condonation of
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delay mainly on the ground that the Order under Section 70(b) was
passed without serving a notice on the petitioner. The learned SDO
accepted the contention of the petitioner that they were not aware of
the order passed in 70(b) proceeding and that they had learnt about
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the same for the first time on 21 October, 2015. Relying on the
judgment of the Apex Court in N. Balkrishnan Vs. M.
Krishnamurthy (1998) 7 SCC 123, the SDO held that the delay was
sufficiently explained and hence condoned the delay of 11 years and
9 months in filing the appeal.
8. The respondents challenged the said Order in Revision
Application No. TNC/REV/THN/L150 of 2017. The Revisional
Authority held that Narayan Tangdi had intervened in the
proceedings under Section 6 of the Forests Act and that the petitioner
herein was fully aware that he was participating in the said
proceeding in the capacity as a tenant of the subject land. The
Revisional Authority held that the petitioner had not explained the
inordinate delay in filing the appeal and accordingly dismissed the
application for condonation of delay. The order of the Revisional
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Authority is challenged in the present petition filed under Section
227 of the Constitution of India, 1950.
9. Shri Dhakephalkar, learned Sr. Counsel for the petitioner,
submits that the proceedings under Section 70(b) were closed for
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Order on 5 February, 2004 and that the Order was subsequently
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passed on 23 February, 2004. He submits that the petitioner had
not received any intimation of the order passed in the proceedings
under Section 70(b). Relying upon the decision of this Court in
Sharadchandra Malharrao Ajinkya & Anr. vs. Markus Philips
Mendosa, 2003(5) Mh.L.J. 505, the learned Sr. Counsel submits
that by virtue of Section 20 of Mamlatdars Courts Act, 1906 the
learned ALT was required to give due notice of the decision to the
landlord, who was not present before him during the proceedings, or
for that matter, on the day when the decision was pronounced.
10. Shri Dhakephalkar, learned Sr. Counsel further contends that
the revisional authority has interfered with the discretion exercised
by the Appellate Authority without there being any material to show
that due notice of the decision was served on the petitioner. He
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further contends that even in the reply filed before the Appellate
Authority the respondents herein had not contended that the copy of
the order passed in the proceedings under Section 70(b) was
produced in the proceedings under Section 6 of the Private Forests
Act and/or that such a copy was served on the petitioner. He
submits that such contention which is raised for the first time before
this Court cannot be considered.
11. Shri Dani, the learned Sr. Counsel for the respondents disputes
that the petitioner had no knowledge about the order passed under
Section 70(b). He has drawn my attention to the application for
intervention filed by the respondent in the proceeding under Section
6 of the Private Forest Act wherein the respondent had categorically
stated that he had been declared as a tenant of the subject property.
He submits that the said intervention application clearly indicates
that the copy of the order under Section 70(b) was annexed to the
said application.
12. Shri Dani, the learned Senior Counsel has also drawn my
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attention to the judgment dated 27 December, 2004 in case no. 53
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of 1999 in proceedings under Section 6 of the Private Forest Act
wherein the Deputy Collector (Private Forest) Thane has observed
that intervenor Shri Narayan Ganu Tangdi has been declared as a
tenant of the subject property in proceedings under Section 70(b) of
Bombay Tenancy And Agricultural Land Act, 1948.
13. The learned Counsel submits that the petitioner had filed a Writ
Petition No. 9559 of 2015 wherein he had stated that he had learnt
about the order dated 27th December, 2004 passed by the learned
Deputy Collector, Private Forest, Thane for the first time in July
2008. He therefore contends that this statement falsifies the
contention that the petitioner had learnt about the order under
Section 70(b) for the first time in the year 2014.
14. I have perused the records and considered the submissions
advanced by the learned Counsel for the respective parties.
15. The question which arises for consideration in this petition is
whether the cause shown by the petitioner for condoning the delay of
11 years and 9 months in filing the tenancy appeal against the
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judgment and order dated 23 February, 2004 passed in proceedings
under Section 70(b) of B.T.&A.L. Act, 1948 in Tenancy Appeal No.
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109 of 2015, can be construed as "sufficient cause".
16. There is no set definition of the expression “sufficient cause”.
Whether the explanation given constitutes sufficient cause or not
would depend on the factual matrix of each case. As it has been
observed by the Apex Court in Maniben Devraj Shah vs. Municipal
Corporation of Brihan Mumbai (2012) 5 SCC 157 , “what Colour
the expression "sufficient cause" would get in the factual matrix of a
given case would largely depend on bonafide nature of the
explanation. If the Court finds that there has been no negligence on
the part of the applicant and the cause shown for the delay does not
lack bonafides, then it may condone the delay. If, on the other hand,
the explanation given by the applicant is found to be concocted or he
is thoroughly negligent in prosecuting his cause, then it would be a
legitimate exercise of discretion not to condone the delay” .
17. It is also a well settled principle that the discretion to condone
the delay should be exercised liberally as to advance substantial
justice. All the same, the Court cannot be oblivious of rights accrued
in favour of the successful litigant on the basis of the judgment under
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consideration. As held by the Apex Court in Balwant Singh vs.
Jagdish Singh & Ors. (2010) 8 SCC 685 “ O nce a valuable right, has
accrued in favour of one party as a result of the failure of the other
party to explain the delay by showing sufficient cause and its own
conduct, it will be unreasonable to take away that right on the mere
asking of the applicant, particularly when the delay is directly a result
of negligence, default or inaction of that party. Justice must be done
to both parties equally. Then alone the ends of justice can be
achieved. If a party has been thoroughly negligent in implementing
its rights and remedies, it will be equally unfair to deprive the other
party of a valuable right that has accrued to it in law as a result of his
acting vigilantly. ”
18. In Esha Bhattacharjee vs. Managing Committee of
Raghunathpur Nafar Academy & Ors. 2013 Vol. XII SCC 649, the
Apex Court after considering the previous judgments on the issue has
culled out the following principles to be considered while dealing
with an application for condonation of delay :
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“15. (i) There should be a liberal, pragmatic, justice
oriented, non pedantic approach while dealing with an
application for condonation of delay, for the courts are not
supposed to legalise injustice but are obliged to remove
injustice.
ii) The terms “sufficient cause” should be understood in
their proper spirit, philosophy and purpose regard being
had to the fact that these terms are basically elastic and are
to be applied in proper perspective to the obtaining fact
situation.
iii) Substantial justice being paramount and pivotal the
technical considerations should not be given undue and
uncalled for emphasis.
iv) No presumption can be attached to deliberate causation
of delay but, gross negligence on the part of the counsel or
litigant is to be taken note of.
v) Lack of bona fides imputable to a party seeking
condonation of delay is a significant and relevant fact.
vi) It is to be kept in mind that adherence to strict proof
should not affect public justice and cause public mischief
because the courts are required to be vigilant so that in the
ultimate eventuate there is no real failure of justice.
vii) The concept of liberal approach has to encapsule the
conception of reasonableness and it cannot be allowed a
totally unfettered free play.
viii) There is a distinction between inordinate delay and a
delay of short duration or few days, for to the former
doctrine of prejudice is attracted whereas to the latter it
may not be attracted. That apart, the first one warrants
strict approach whereas the second calls for a liberal
delineation.
ix) The conduct, behaviour and attitude of a party relating
to its inaction or negligence are relevant factors to be
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taken into consideration. It is so as the fundamental
principle is that the courts are required to weigh the scale
of balance of justice in respect of both parties and the said
principle cannot be given a total go by in the name of
liberal approach.
x) If the explanation offered is concocted or the grounds
urged in the application are fanciful, the courts should be
vigilant not to expose the other side unnecessarily to face
such a litigation.
xi) It is to be borne in mind that no one gets away with
fraud, misrepresentation or interpolation by taking
recourse to the technicalities of law of limitation.
xii) The entire gamut of facts are to be carefully
scrutinized and the approach should be based on the
paradigm of judicial discretion which is founded on
objective reasoning and not on individual perception.
xiii) The State or a public body or an entity representing a
collective cause should be given some acceptable latitude.
16. To the aforesaid principles we may add some more
guidelines taking note of the present day scenario. They
are:
a) An application for condonation of delay should be
drafted with careful concern and not in a half hazard
manner harbouring the notion that the courts are required
to condone delay on the bedrock of the principle that
adjudication of a lis on merits is seminal to justice
dispensation system.
b) An application for condonation of delay should not be
dealt with in a routine manner on the base of individual
philosophy which is basically subjective.
c) Though no precise formula can be laid down regard
being had to the concept of judicial discretion, yet a
conscious effort for achieving consistency and collegiality of
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the adjudicatory system should be made as that is the
ultimate institutional motto.
d) The increasing tendency to perceive delay as a non
serious matter and, hence, lackadaisical propensity can be
exhibited in a nonchallant manner requires to be curbed,
of course, within legal parameters.”
19. In the instant case, the judgment and order in proceedings
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under Section 70(b) was passed on 23 February, 2004, and the
same was sought to be challenged in the year 2015 i.e. after a delay
of 11 years and 9 months from the date of the order. The petitioner
had sought to condone the delay on the ground that the judgment
and order was not communicated to it. It was not aware of the
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order till 21 October, 2015 and hence could not file the appeal
within the stipulated time.
20. The records indicate that the proceedings under Section 70(b)
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of the B.T.&A.L. Act were closed for judgment on 5 February, 2004
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and the judgment was pronounced on 23 February, 2004. It is true
that there is nothing on record to indicate that the learned ALT had
intimated the date of the decision to the petitioner. The records
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however indicate that the petitioner had filed proceedings under
Section 6 of Private Forests Act. Said Narayan Tangdi had filed an
intervention application in the said proceedings wherein he had
specifically stated that he had been declared as a tenant in respect of
the subject property in case N0. 70B. Ch.Mann.16 of 1991. A perusal
of the intervention application reveals that said Narayan had
annexed copy of the order to the said intervention application. The
Deputy Collector, Forest, disposed of the said proceeding under
Section 6 of the Private Forests Act by judgment dated 27th
December, 2004. While considering the issue whether Narayan
Tangdi was a tenant of the subject property and whether the subject
land qualifies for exemption under Section 3(2) of the Act, the
Deputy Collector has observed as under :
“ The intervenor has contended in his arguments that the
original owner of the land Gat No.59/1, was on
Shamaldas Gandhi and in the year 1960 D. Dayabhai &
Co. purchased Gat No.59/1 and his father had been
cultivating the land much prior to the 'Tiller Day'. And
that he took crops such as paddy, barley and vegetables.
For the first time in 1991 when the owner company tried
to interfere with the peaceful possession of the intervenor,
made an application u/s. 70B of B.T.A.L. Act, 1948,
which came to be decided on 15.3.2004 in which the
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intervenor was declared as lawful tenant over Gat
No.59/1 to the extent of an area admeasuring 18A 18G.
…
In view of both side arguments mentioned above, the only
issue in the present inquiry which needs to be settled with
the scope of Section 3 (2) of Private Forest Act is whether
the area of 18A 18G claimed by intervener was was
under lawful cultivation or not. On perusal of various
orders cited above by the intervener the trial Court in Cr.
Case No.5227 /82 and the Honourable High Court in Cri.
Appeal No.172/93 have held that the Intervenor was in
possession of the said 18A18G from and out of Gat
No.59/1 pt.
...
During the oral arguments Advocate for the Forest
Department raised the issue whether the intervener is a
lawful tenant on 'Tillers Day' which is qualitative
statutory requirement under B.T.A.L. Act to this Advocate
for Forest Department of the intervener pointed out that
the said question of tenancy cannot be raised in the
present proceedings. In my opinion this question here is
whether the land was under cultivation prior to the
appointed day i.e. 30.8.1975 under the Private Forest Act
of 1975 and not the issue whether the intervenor is a
tenant or not. So in view of the discussion views
expressed above I have come to the conclusion that the
intervenor was in possession and was cultivating the land
admeasuring 18A:18G. Prior to the appointed day and
hence the said land qualifies to be exempted u/s. 3(2) of
the Private Forest Act, 1975, thus consequently cease to be
a 'Private Forest' within the definition and meaning of the
term. Hence the said land admeasuring 18A:18G on
which Shri Narayan Ganu Tangdi has been declared as a
tenant stands exempted u/s. 3(2) of the said Act.” .
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21. Based on the aforesaid findings the subject land of which
Narayan Tangdi was the tenant was exempted under Section 3(2) of
the Act and the land was restored to him.
22. It is thus evident that Narayan Tangdi had intervened in the
proceedings under Section 6 of Pvt. Forest Act filed by the Petitioner
and disclosed that he was declared as a tenant of the subject land. He
had also produced a copy of the order before the ld. Dy. Collector
(Pvt Forest) and after considering the Orders, produced by Narayan
Tangdi, the Dy. Collector had exempted the subject property of which
Narayan Tangdi was a tenant and had ordered to restore the subject
land in favour of Narayan Tangdi. It is inconceivable that the
petitioner, was not aware of the claim put forth and documents
produced by Narayan Tangdi or the order passed in the said
proceedings. As such the explanation given by the petitioner is ex
facie not plausible.
23. The petitioner had filed WP No.9559 of 2014, wherein it had
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averred that it had learnt about the order dated 27 December 2004
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for the first time in July 2008. If that be so, atleast as on July 2008,
the petitioner would have had knowledge that Narayan Tangdi was
declared as a tenant in 70(b) proceedings, and consequently the
subject land which was held by him as a tenant was exempted under
Section 3(2) of the Private Forests Act. The above facts therefore
would clearly falsify and negate the contention of the petitioner that
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it had learnt about the order dated 23 February, 2004 passed in
Section 70(b) proceedings for the first time in 21st October, 2015.
24. The plea of lack of knowledge therefore lacks bonafides.
Furthermore, the petitioner has not explained its inaction from 2008
till the year 2015. In the absence of any tangible explanation, the
only inference that can be drawn is that the inordinate delay is the
result of inaction and gross negligence on the part of the petitioner.
Suffice it to say that such inordinate delay cannot be condoned and a
valuable right accrued in favour of the respondent cannot be taken
away on the basis of a false plea coupled with gross negligence and
inaction.
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25. In the light of above, the impugned order is neither illegal nor
perverse and hence does not warrant interference. Petition stands
dismissed.
(ANUJA PRABHUDESSAI, J.)
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