ARJUNJI JETHUJI VAGHELA vs ANIRUDHSINH NAGENDRASINH ZHALA
- Court
- Gujarat High Court
C/LPA/591/2026 JUDGMENT DATED: 14/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 591 of 2026
In
R/SPECIAL CIVIL APPLICATION/42/2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In
R/LETTERS PATENT APPEAL NO. 591 of 2026
With
R/LETTERS PATENT APPEAL NO. 592 of 2026
In
R/SPECIAL CIVIL APPLICATION NO. 29 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In
R/LETTERS PATENT APPEAL NO. 592 of 2026
In
R/SPECIAL CIVIL APPLICATION NO. 29 of 2025
With
R/LETTERS PATENT APPEAL NO. 593 of 2026
In
R/SPECIAL CIVIL APPLICATION NO. 42 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2026
In
R/LETTERS PATENT APPEAL NO. 593 of 2026
In
R/SPECIAL CIVIL APPLICATION NO. 42 of 2025
With
R/LETTERS PATENT APPEAL NO. 594 of 2026
In
R/SPECIAL CIVIL APPLICATION NO. 29 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2026
In
R/LETTERS PATENT APPEAL NO. 594 of 2026
In
R/SPECIAL CIVIL APPLICATION NO. 29 of 2025
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FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
======================================
Approved for Reporting Yes No
✔
======================================
ARJUNJI JETHUJI VAGHELA
Versus
ANIRUDHSINH NAGENDRASINH ZHALA & ORS.
======================================
Appearance in LPA/591/2026:
MR. MIHIR JOSHI, LD. SR. ADVOCATE WITH MR. D.K.PUJ,
LD. ADVOCATE FOR STAGE THE APPELLANT
MR. SANJAY UDHWANI, LD. AGP FOR RESP. NO. 2 & 3
MR. DIPAN DESAI, LD. ADV. FOR RESP. NO.1
MR. VIMAL A. PUROHIT & MR. PRADIP K. VALERA, LD.
ADVOCATES FOR RESP. NO. 10-13, 4-9
Appearance in LPA/592/2026:
MR. MIHIR JOSHI, LD. SR. ADVOCATE WITH MR. D.K.PUJ,
LD. ADVOCATE FOR THE APPELLANT
MR. SANJAY UDHWANI, LD. AGP FOR RESP. NO. 2 & 3 MR.
DIPAN DESAI, LD. ADV. FOR RESP. NO.1
Appearance in LPA/593/2026:
MR. MIHIR JOSHI, LD. SR. ADVOCATE WITH MR. D.K.PUJ,
LD. ADVOCATE FOR THE APPELLANT
MS. HETAL PATEL, LD. AGP FOR RESP. NO. 2 & 3
MR. DIPAN DESAI, LD. ADV. FOR RESP. NO.1
MR. VIMAL A. PUROHIT LD. ADVOCATE FOR RESP. NO. 10-
13, 4-5, 7-9.
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Appearance in LPA/594/2026:
MR. MIHIR JOSHI, LD. SR. ADVOCATE WITH MR. D.K.PUJ,
LD. ADVOCATE FOR THE APPELLANT
MS. HETAL PATEL, LD. AGP FOR RESP. NO. 2 & 3
MR. DIPAN DESAI, LD. ADV. FOR RESP. NO.1
======================================
CORAM: HONOURABLE THE CHIEF JUSTICE MRS.
JUSTICE SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 14/07/2026
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS.
JUSTICE SUNITA AGARWAL)
1. This set of four Letters Patent Appeals are arising out of
two set of writ petitions, namely Special Civil Applications
Nos. 29 of 2025 and 42 of 2025, wherein by common interim
order dated 13.11.2025, the learned Single Judge has decided
the preliminary issue framed by order dated 03.01.2025, on
the locus of the respondent (seller) herein to contest an
application for condonation of delay in a revision application
filed by the appellants (purchaser), against an order passed by
the Deputy Collector declaring the sale in favour of the
appellants as invalid under the provisions of the Gujarat
Prevention of Fragmentation and Consolidation of Holdings
Act, 1947 (hereinafter referred to as ‘the Prevention of
Fragmentation Act’ 1947’).
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2. The connected Letters Patent Appeals Nos. 591 of 2026
and 592 of 2026 are directed against the interim orders
passed in two connected writ petitions, however, during
pendency of the aforesaid appeals, by judgment and order
dated 06.04.2026, both the aforesaid writ petitions have been
finally decided for setting aside the order passed by the
Special Secretary, Revenue Department (SSRD) dated
18.12.2024, condoning the delay of 40 years, holding the said
order being bereft of reasons and in ignorance of the
documents on record.
3. The Letters Patent Appeals Nos. 593 of 2026 and 594 of
2026 are directed against the final judgment and order dated
06.04.2026, as aforesaid.
4. For the sake of convenience, the brief facts of the case
are noted from the record of the writ petition namely, Special
Civil Application No. 29 of 2025, out of which the Letters
Patent Appeal No. 594 of 2026 has arisen, as they are
common to both proceedings.
5. The original petitioner namely, respondent herein claims
to be owner of Survey No. 1525/337 admeasuring 3035
square meters and Revenue Survey No. 1525/377
admeasuring 6677 square meters, both of Village Ognaj,
Taluka Ghatlodia, District Ahmedabad.
6. It is stated in the writ petition that the aforesaid land
along with other parcels of land were originally owned and
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occupied by one Kamlaben @ Babuba, daughter of Dipuji
Jethiji, who by way of registered sale deed dated 22.08.1975
sold the aforesaid lands in favour of Vaghela Jethiji Laljibhai,
predecessor of appellant No.1 herein/respondent No.2
therein. The said sale was registered before the Sub-
Registrar, Ahmedabad vide entry No.12281. A copy of the
sale deed dated 22.08.1975 is on record as Annexure ‘B’ to
the writ petition.
7. It is the case of the contesting respondent No. 1 herein,
that the sale being in contravention of the Prevention of
Fragmentation Act’ 1947, the Deputy Collector, Land
Reforms issued notices to the parties and by order dated
01.07.1981 held the sale being in violation of the Act, the
same be cancelled. The occupation of the land by the
purchaser / appellants herein is held illegal and it was
directed that they should be evicted from the land in question.
8. It is contented that the order dated 01.07.1981 was
passed after issuance of notice to the purchasers and when
they remained present and filed oral and documentary
evidences in the proceedings, by order dated 01.07.1981, sale
of both the parcels of land namely, Survey Nos. 1525/337 and
1525/377 by way of the registered sale deed dated
22.08.1975, had been held to be in violation of the Prevention
of Fragmentation Act’ 1947. Even an entry with regard to the
order dated 01.07.1981 was mutated in the revenue record,
more particularly, Village Form No. 7/12, by way of entry No.
2394 dated 09.04.1982 in the remark column, which has been
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certified on 11.05.1982. Another entry was mutated with
regard to the order dated 01.07.1981 in the Village Form
No.7/12 on 25.03.2009 by way of entry No. 8560, appended as
Annexure ‘E’ to the writ petition.
9. It is submitted that in order to give effect to the order
dated 01.07.1981, the petitioner herein filed an application
before the Mamlatdar, Ghatlodia, who had consigned the
same on record. RTS Appeal No. 373 of 2020 was preferred
before the City Deputy Collector, Ahmedabad West, whereby
the Mamlatdar Ghatlodia was directed to give effect to the
order dated 01.07.1981 appropriately in the revenue record.
10. On the other hand, the appellants herein (respondent
before the writ Court) had preferred Revision Application
No.5 of 2021 before the Special Secretary Revenue
Department (Appeals) challenging the order dated 01.07.1981
passed by the Deputy Collector under the Prevention of
Fragmentation Act’ 1947, after a delay of 40 years.
11. The seller, i.e., the original owner or his heirs and legal
representatives were intentionally not made party in the
Revision.
12. The aforesaid Revision Application was not only
entertained but by order dated 25.11.2021, the SSRD partly
allowed the revision by setting aside the order dated
01.07.1981 remanding the matter back to the Deputy
Collector for fresh hearing.
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13. Another Revision Application No. 3 of 2022 was filed
challenging the order dated 01.07.1981 with respect to the
land bearing Survey No. 1525/377, wherein also the
petitioners / successors of the original owner were not joined
as party. By order dated 28.03.2022, the SSRD allowed the
Revision Application No. 3 of 2022 in the same manner as was
in the order dated 25.11.2021 in Revision Application No. 5 of
2021.
14. The arguments of the original petitioners / respondents
herein before the writ Court was that the SSRD had
committed a grave error of law in entertaining the Revision
Applications after a period of 40 years and that for condoning
the delay for setting aside the order dated 01.07.1981 and
remitting the matter back, no reasons have been given.
15. The aforesaid two orders of SSRD, quashing of the
order dated 01.07.1981 and remitting the matter back for
fresh consideration, had been set aside by the judgment and
order dated 24.02.2023 passed by this Court in Special Civil
Application No.13956 of 2022 and Special Civil Application
number 14129 of 2022. The matter was remanded to the
Special Secretary with the direction to pass an appropriate
order afresh after hearing all the parties and also the
contentions with regard to the delay in moving the Revision
Applications.
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16. After restoration, the Revision Applications were
renumbered as Revision Application No. 1 of 2023 and
Revision Application No.2 of 2023. The petitioners have also
filed objection to the delay condonation application and also
on the merits of the Revision Applications.
17. Again, by order dated 28.7.2023, the Revision
Application preferred by the original respondents Nos. 2 to 4
has been allowed setting aside the order dated 01.07.1981
passed by the Deputy Collector.
18. Aggrieved, the original petitioners approached this
Court in two Special Civil Application No.19973 of 2023 with
Special Civil Application No.20179 of 2023. Both the aforesaid
writ petitions were allowed vide common judgment and order
dated 21.08.2024 by this Court quashing the order dated
28.07.2023 of the SSRD, with the directions as under:-
“7. Learned Advocates for the respective parties, are ad-
idem on the same. Hence to this Court the following
order would suffice the interest of justice:
[1] Impugned order dated 28.07.2023 is hereby quashed
and set aside.
[2] The learned SSRD to hear and decide the revision
applications preceded by hearing of the applications for
condonation of delay. It is clarified that the learned
SSRD shall first pass an order in the application for
condonation of delay if sufficient cause is made out
according to learned SSRD and whereas only thereafter
the learned SSRD would hear the revision application.
[3] Hearing of the application for condonation of delay as
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well as the hearing of revision application if required
shall be completed within a period of 90 days from the
date of receipt of this order.
[4] With these observations and directions the present
writ petitions are disposed of.
[5] It is clarified that this Court has not gone into the
merits of the matter and whereas learned SSRD shall
decide on the merits of the application for condonation
of delay as well as merits of the revision application if
required independently in accordance with law.
[6] It is clarified that neither any observations above are
to be treated as this Court having expressed any opinion
as regards the delay as well as this Court having
expressed any opinion as regards locus of the petitioner
herein. “
19. Pursuant thereto, the hearing on the delay condonation
application was conducted and the delay in filing the Revision
Application has been condoned by the SSRD by common order
dated 18.12.2024 passed in Revision Application No.1 of 2023
along with Revision Application No. 2 of 2023. The said order
was challenged before the learned Single Judge in a set of two
writ petitions, out of which the present set of appeals have
arisen.
20. As noted hereinabove, the preliminary issue as to the
locus of the petitioner to participate in the proceedings before
the SSRD has been decided in favor of the petitioner and by
the final judgment and order dated 06.04.2026, while
entertaining the contentions of the petitioner that the order
for condonation of delay of 40 years is bereft of reasons, both
the writ petitions have been allowed quashing and setting
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aside of the order dated 18.12.2024 of SSRD for condoning
the delay in filing the Revision Applications against the order
dated 01.07.1981 passed by the Deputy Collector holding the
sale of the aforesaid two parcels of land being void in breach
of the Prevention of Fragmentation Act’ 1947.
21. From a perusal of the judgment and order dated
06.04.2026 passed by the learned Single Judge, we may note
the reasoning given therein:-
16. Having heard the learned advocates appearing for
the respective parties, following emerge:
16.1. The facts as referred to herein-above are
undisputed and hence the same are not repeated.
16.2. By the impugned order dated 18.12.2023
(18.12.2024), the respondent no.1 allowed the
application for condonation of delay being CON/AMD/1
& 2/2023 preferred by the private respondent nos. 2 to
4, wherein, the respondent no.1 in para-5.5 of the
impugned order accepted the locus of the petitioner
herein, while condoning the delay of 40 years, wherein,
delay is condoned mainly only on the ground that the
Revision Application should be decided on merits and
cannot be disposed of, merely on technical issue of
delay. The aforesaid has given rise to the filing of the
present Petition, wherein, the petitioner herein submits
that the delay of 40 years ought not have been condoned
by the respondent no.1.
16.3. It emerges from the record that, the order dated
01.07.1981 passed by the respondent- Deputy Collector
at page-50 records that, upon inquiry by the team of
record of the rights informed that there is a breach of
Section 9 of the Fragmentation Act, and therefore,
appropriate steps are required to be taken. Upon powers
conferred by the Collector, by notification dated
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21.05.1981 and upon issuance of the statutory notice in
accordance with the rules to the respective parties, the
parties were also present, wherein, the oral as well as
documentary evidences were produced on record. The
notice and intimation of order was also sent on
19.10.1981, which is recorded on top of left-hand side of
the order.
16.4. The private respondents have produced the said
order at page-235, which forms the part of the list of
documents at page-222 of the present petition, produced
by the private respondents before the revisional
authority, wherein, the said order appears at item no.3,
is ticked/ sent to Jethiji Lalji, i.e. predecessor of the
private respondents herein. In absence of any document
to prove the contrary, the knowledge of the order dated
01.07.1981 is to be accepted on demurrer, on perusal of
the records.
16.5. The effect of the order dated 01.07.1981 was given
in the revenue record by way of entry no. 2394, the same
was posted on 09.04.1982 and certified on 11.05.1982.
The same is also further recorded in the promulgation
entry mutated on 25.03.2009 by way of entry no. 8560
(pg.52), which records that the sale is declared illegal.
16.6. Copy of plaint of the Regular Civil Suit No.187 of
2012 which is produced at pg.462 also mentioned the
revenue records, wherein, the same was a partition suit
between the family members, wherein, private
respondents herein are 1/1/1, 1/1/1/1 to 1/1/1/4,
wherein, there is a reference of survey numbers at pg-
471 and also mutation of entry no. 2394 (incorrectly
mentioned as 2395, pg.474). That deceased Amarsinh
Jethiji Vaghela is represented by the heirs, i.e. Sajanba
Amarsinh Vaghela, Vikramsinh Amarsinh Vaghela,
Ghanshyam Amarsinh Vaghela and Shambhuji Amarsinh
Vaghela as defendant nos. 1/1/1 to 1/1/1/4. In the plaint
itself, it was stated in para-4 that, ‘The Ld. Deputy
Collector, vide Entry No. 2395, has passed an order
declaring the sale of the said Survey No. measuring 1.13
Guntha as null and void and ordered a penalty of 50%
against the selling owner. Along with this, an order has
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been passed for recording the name of the vendor in the
revenue records in place of the occupant. Thus, it is
established prima facie that the defendants are
conducting transactions in collusion with each other.’.
Thus, the Deputy Collector has declared the sale deed as
illegal and void and the same is recorded by entry no.
2395 of Survey No. 1/13 Guntha. The survey numbers of
the land in question are included in the plaint at page-
468 of the petition. The aforesaid suit was filed on
02.03.2012, which was dismissed for non-receipt of
notice to the respondent nos. 17 to 23. The notice was
also served to the private respondents herein, who were
the party defendants in the aforesaid Suit proceedings,
wherein, there is a reference of mutation of entry no.
2394.
16.7. The petitioner herein by way of additional affidavit
has placed on record the Village Form Nos. 6 and 7/12
extract. From the said record, it transpires that in the
year 2009, in the Village Form No. 7/12 in the second
right column, there is entry of the order passed by the
Deputy Collector declaring sale to be invalid (Annexure-
P-1). Further, in the same year, i.e. in the year 2009,
there is an entry no. 8560 in the Village Form No.6
recording the fact about the order dated 01.07.1981,
declaring the sale to be invalid and the said entry is
certified (Annexure-P-2). It is further recorded that 135-
D notice has been issued and the same has ben served
upon the private respondents.
16.8. Thereafter, in the year 2012 also, in the Village
Form No. 7, details are given in boja and other rights,
with regard to the order passed of declaring the sale to
be invalid(Annexure-P-3). On 25.09.2012, in Village
Form No.6 there is a specific entry no. 10232 with
regard to the order dated 01.07.1981. The entry further
records that the said entry has been certified, after
serving of notice through the Talati and taking
statements and recording the Panchnama and also
affidavits of the private respondents. That even Village
Form No.7 as on dated 16.05.2012 also records the
entry with regard to the order of the Deputy Collector
declaring the sale to be invalid as on 16.05.2012
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(Annexure-P-5). Even in the latest village form no.7 of
the year 2025 also records the entry with regard to the
order of the Deputy Collector declaring the sale to be
invalid (Annexure-P-6).
16.9. It further transpires that, while disposing of land
bearing Survey No. 1525/372, the private respondents
have specifically disclosed in the sale deed that they
have verified the Entry No. 8560 dated 25.03.2009, and
when the said entry verified, the later part of the said
entry is with regard to the land in question viz. Survey
No. 1525/377.
The aforesaid demonstrates the knowledge of the order
passed by the Deputy Collector dated 01.07.1981 to the
private respondents, which is contrary to their stance in
Additional Affidavit.
17.1. Upon perusal of the application for condonation of
delay filed by the private respondents duly produced at
Annexure-J, pg.71, wherein, in the said application in
para1.5 stated thus:
“Since the sale of the said land was in violation of the
fragmentation, proceedings were initiated under the
Fragmentation Act and in this regard Entry No. 2394
was made in the village records. In respect of the breach
of the Fragmentation Act in the sale of the said land, the
Ld. Deputy Collector, Land Reforms, Ahmedabad, vide
Order No. CON/SR/1443 dated 01/07/1981, passed an
order declaring the sale executed in favor of us, the
applicants, as invalid and an order of eviction was
passed by treating the possession of the vendee as
illegal. Upon being dissatisfied (aggrieved) by the said
order, the present Revision Application is submitted
before Your Honour.”
17.2. It is further stated in para-2 that, there is a delay in
filing the Revision Application, however, the application
may not be dismissed on the technical ground of delay,
but be decided on its own merits.
17.3. Though the petitioner herein vehemently objected
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before the revisional authority with respect to the
permission of taking the additional affidavit on record
filed by the private respondents herein, the SSRD has
taken on record the said additional affidavit (Annexure-
N, page-152), wherein, the private respondents have
taken a contrary stance to that of the original application
seeking condonation of delay having stated that, the
private respondents have no knowledge about the said
order and have stated in para-6 completely contrary
stance to that of the original application have been
taken, wherein, it is stated that, the private respondents
herein are not aware of the order passed by the Deputy
Collector dated 01.07.1981 and that its’ a cyclostyled
order, coupled with the other documents that were
produced with the said Affidavit, to substantiate the
reason of delay of around 39-40 years in approaching the
competent Court. It was further stated that, in absence
of prescribed any period of limitation under Section 35
of the Act, the private respondents have preferred the
application within a period of reasonable time of
acquiring the knowledge of the order dated 01.07.1981.
The said order having passed after a period of 6 years is
also barred by delay and latches.
17.4. In the opinion of this Court, the order dated
01.07.1981 passed by the Deputy Collector was well
within the knowledge of the private respondents as
referred to herein-above. In view thereof, the
contentions of the private respondents, where such a
delay of 40 years is sought to be condoned by making an
endevaour to make out a case that, private respondents
were not in the knowledge of the order dated
01.07.1981, is contrary to the record and the same is not
believable.
17.5. That some of the documents which were produced
before the SSRD were sufficient for the SSRD to give a
thoughtful consideration with respect to the delay of 40
years that occurred in filing the Revision Application.
17.6. The very edifice to seek condonation of delay is the
lack of knowledge of the order dated 01.07.1981,
however, the revenue record reflects otherwise. The
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contention of the private respondents in delay
condonation application with respect to the order dated
01.07.1981 passed by the Deputy Collector not being
recorded in the revenue records is contrary to the record
available, as referred to herein-above.
17.7. It is well settled principle of law that, while
considering an application for condonation of delay, the
superior Court as such should not disturb the findings of
the authority having exercised its discretion, however,
the same is coupled with the fact whether sufficient
cause is made out by the person seeking condonation of
delay especially when in the facts of the present case the
delay of 40 years is to be condoned. In absence of any
time limit provided for considering an application for
condonation of delay, the same to be filed within a
reasonable period. The parties are not permitted to
resort to dilatory tactics to seek such remedy. Hence,
the discretionary powers exercised by the authority are
unwarranted.
17.8. For an order which is not given effect to by the
State Government, for non-implementation of its own
order and for the equities having been created by the
private respondents themselves, would not in any
manner give the private respondents right to seek undue
benefit in the garb of non-implementation of the order of
the Deputy Collector dated 01.07.1981 and having
challenged the same after 40 years, would not create
any right in favour of the private respondents.
17.9. Any order /even an order being null and void and
an invalid order, would also be required to be quashed
and set aside by a competent forum. The contentions of
the private respondents that heirship entries are
mutated in the revenue record in the name of the private
respondents’ heirs from 2012 onwards and subsequent
mutation entries were also mutated in the revenue
record. In the opinion of this Court, would also not aid
the private respondents, wherein, such entries are fiscal
entries and the same would not confer any title or right
in their favour, merely by mutation of entries in the
revenue record.
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17.10. When the petitioner herein objected to the
application seeking condonation of delay, the SSRD is
required to deal with the contentions raised by the
petitioner herein and is also required to take into
consideration the documents produced on record.
17.11. Even if we take the case of the private
respondents as it is, that the copy of the order dated
01.07.1981 passed by the Deputy Collector is not served,
the entry recording the said order is duly posted in the
revenue record, after following due procedure.
Therefore, the knowledge is to be considered of the year
1982.
17.12. The present petitioner challenges the order dated
18.12.2024 passed in an application seeking condonation
of delay preferred by the private respondents in Revision
Application, whereby, delay of 40 years is condoned.
Whether there is delay on the part of the petitioner is
not forming a part of the impugned order or the
proceedings initiated by the petitioners. In view of the
aforesaid, in the opinion of this Court, the same would
not arm the private respondents for entitlement for
condonation of delay of 40 years, having failed to make-
out sufficient cause.
17.13. On a pointed query put by the Court to the
learned AGP, to justify the finding about lack of
knowledge of the order dated 01.07.1981 to the
petitioner, as recorded by the SSRD in the impugned
order in Para-5.6, Mr. Parikh, learned AGP is not in a
position to justify the said findings, wherein, in the
opinion of this Court, which is the only finding of fact in
the order passed by the SSRD. It is hence clear that even
the said factual finding is beyond the records and there
is no material available to come to such conclusion.”
22. It was held therein that in the facts of the case, the
private respondents/revisionists waited for a period of 40
years to challenge the order dated 01.07.1981, though they
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were very well aware of the said order. No equities can be
created in favour of such persons to overreach the process of
law. It was held that the impugned order of condonation of
delay is contrary to the basic principles of law, inasmuch as,
while considering the plea for condonation of delay, the Court/
adjudicating authority must not start with the matter on its
own merits, rather it owes a duty to first ascertain the
bonafides of explanation offered by the party seeking
condonation. It is only if sufficient cause is assigned by the
litigant and the opposition of the other side is equally
balanced that the Court may bring into aid the merits of the
matter for the purpose of condoning of delay, depending upon
the facts of each case.
23. It was held that the present case is clearly of that of an
“excuse” and not an “explanation”, and hence has to be dealt
with, accordingly. The private respondents tried to shift the
burden upon the petitioner by making a statement that only
after the petitioner approached the competent authority for
compliance of the order dated 01.07.1981, it came to the
knowledge of the private respondents, which is nothing but
clearly an eyewash, as can be seen upon perusal of the
documents on record.
24. Referring to the decisions of the Apex Court on the
principles of condonation of delay, distinction between an
“explanation” and “excuse”, that is offered as cause for
condonation of delay, it was held that in the facts of the
present case, in the opinion of the Court, the order impugned
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dated 18.12.2024, condoning the delay in filing the Revision
Applications Nos. 1 of 2023 and 2 of 2023 after a delay of 40
years is without assigning any reason and without taking into
consideration the documents produced on record and, as
such, is liable to be quashed.
25. Mr. Mihir Joshi, learned Senior Counsel assisted by Mr.
D.K. Puj, learned advocate for the appellants (in this set of
four appeals) has vehemently argued that the original
petitioners herein are heirs and legal representatives of the
original seller, namely, Kamlaben Babuba daughter of Dipuji
Jethiji, who had executed registered sale deed dated
22.08.1975 in favour of Vaghela Jethiji Laljibhai, the
predecessor of the appellants herein.
26. By order dated 01.07.1981, though the said sale deed for
two parcels of land, namely, Survey No. 1525/337 and Survey
No.1525/377, had been held to be void being in breach of the
Prevention of Fragmentation Act’ 1947, but no eviction
proceedings have been undertaken pursuant to the order
dated 01.07.1981 of the Deputy Collector, till date. The
original purchaser and his successors remained in possession
of the lands in question throughout.
27. When the petitioner filed application before the
Mamlatdar in the year 2020 to give effect to the order dated
01.7.1981 and quash the mutation entry made in the name of
predecessors of the petitioner, it was rejected and the
petitioner had also lost before the Collector. The said order
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has attained finality. Moreover, the petitioner being
successors of the erstwhile owner have never asserted their
right to seek possession of the lands in question, the sale deed
dated 22.08.1975 with respect to which had been declared
void being hit by the Prevention of Fragmentation Act’ 1947.
28. The fact that the appellants herein namely, the
successors of the original predecessors, Vaghela Jethiji
Laljibhai remained in the possession of the lands in question
throughout from the year 1981 till date, and no eviction
proceedings had ever been undertaken against them, would
be a relevant factor, to be taken into consideration for
condonation of delay in Revision Applications filed before the
SSRD.
29. The submission is that the admitted factual position that
the petitioner remained silent for approximately 40 years and
for the first time approached the Mamlatdar to give effect to
the order dated 01.07.1981 in the revenue records, which
application was also rejected and the order of rejection has
attained finality, is sufficient to hold that the appellants
herein/revisionists cannot be non-suited on the ground of
delay.
30. It is urged that present is one of the peculiar cases,
where neither the revenue authorities nor the original
purchasers had taken any action for eviction of the purchasers
and his successors after the order dated 01.07.1981 of
declaration of the sale deed dated 22.08.1975 being hit by the
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Prevention of Fragmentation Act’ 1947, and the purchasers
and his successors continued to remain in actual physical
possession of the lands in question for more than 40 years.
The learned Single Judge, therefore, has committed an
illegality in ignoring this relevant fact having bearing on the
case of the parties.
31. In any case, the petitioner being the successor of the
original owner, who had pocketed money in the year 1975,
does not have locus to challenge the order of the SSRD for
condonation of delay to entertain revision, passed in exercise
of its discretionary jurisdiction.
32. The submission is that at the stage of the delay
condonation application, it is between the quasi-judicial
authority/Court and the applicant as to whether the applicant
is entitled for condonation of delay.
33. It is a settled law that condonation of delay is a
discretionary power conferred upon the quasi-judicial
authority or the Court under the scheme of the enactment or
the Code of Civil Procedure, and if such a power has been
exercised by the competent authority having jurisdiction in
the matter, the supervisory court, on a challenge to the order
of condonation of delay, should be very slow, and any order
passed in the discretionary exercise of power cannot be easily
interfered with. Only in a case where discretion has not been
exercised judiciously, or the Court/authority has committed a
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manifest error of law and jurisdiction, a case for interference
in the order of condonation of delay can be made out.
34. The submission is that the learned Single Judge has
proceeded on the principles of law governing condonation of
delay ignoring the peculiar facts and circumstances of the
present case, and has completely ignored and overlooked the
fundamental principle that where a Court is sitting in appeal
over the exercise of discretion granting condonation of delay,
it is only required to see if there was a proper exercise of
discretion by the Courts below and if the same was for
advancing the cause of justice.
35. An independent application of mind on the principles of
law governing condonation of delay, i.e. as to whether the
cause shown is sufficient, or the applicant has offered a
proper explanation or can it be said to be an excuse, to arrive
at an alternative opinion that the delay has not been properly
explained, was not permissible.
36. The learned Single Judge has committed a grave error of
law in re-appreciation of evidence to answer the question
independently as to the bonafides of the explanation offered
by the appellants seeking condonation and, thus, in examining
whether sufficient cause has been shown by the appellants or
not for condonation of delay of 40 years.
37. It was vehemently argued that the entire discussion in
the order impugned of the learned Single Judge proceeded on
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the merits of the delay condonation application, in an
independent examination on re-appreciation of the material
on record ignoring the law pertaining to the scope of
interference in the order of discretionary exercise of
jurisdiction granting condonation of delay, in a writ petition
under Article 226 of the Constitution.
38. The submission is that the learned Single Judge sat as a
Court of appeal over the exercise of discretion by the SSRD
when it was only required to see as to whether there was a
proper exercise of discretion and if such exercise is for
advancing the cause of justice. Without answering as to the
propriety or exercise of discretion or whether the exercise of
discretion in condoning the delay is unwarranted in the facts
and circumstances of the case, independent evaluation of
evidence to answer the question of delay is beyond the scope
of scrutiny under Article 226 of the Constitution of India.
39. The submission, thus, is that the learned Single Judge
has committed a grave error of jurisdiction in holding an
independent inquiry into the merits of the delay condonation
application to conclude that the order of condonation of delay
passed by the SSRD in exercise of its discretion is without
assigning any reasons and without taking into consideration
the documents produced on record. The perversity sought to
be shown in the order dated 18.12.2024 passed by the SSRD
condoning the delay of 40 years, has not been considered in
the correct perspective, looking to the action and conduct of
the petitioner himself.
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40. It was, thus, urged that the Letters Patent Appeals
challenging the order of the learned Single Judge on merits of
the delay condonation order dated 18.12.2024 deserve to be
allowed while setting aside the judgment and order dated
06.04.2026 in allowing the writ petition for quashing of the
order of SSRD.
41. It was urged that on the question of locus as well, while
setting aside the order dated 13.11.2025 in favour of the
original petitioners, the Letters Patent Appeals challenging
the said order deserve to be allowed and it is to be held that
the petitioner has no locus to challenge the order of
condonation of delay, which was the question exclusively
between the revisionists and the SSRD. The SSRD once in
exercise of its discretionary jurisdiction has condoned the
delay, the petitioner who remained silent for a period of 40
years had taken no action to implement the order dated
01.07.1981, cannot be said to have any locus to challenge the
order condoning the delay.
42. In any eventuality, the appellants who are in possession
of the land in question till today, cannot be evicted without
adopting due process of law and, as such, they cannot be non-
suited on the ground of delay in challenging the order dated
01.07.1981 on its merits, wherein the petitioner may also
participate being the heir and legal representative of the
original owner/seller. However, the issue that the predecessor
of the petitioner had pocketed the money in the year 1975
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while executing the registered sale deed, the petitioner
cannot be given leverage or indulgence in the proceedings of
revision drawn by the appellants herein, beyond the legal
principles.
43. Mr. Dipen Desai, learned advocate appearing for the
respondent, however, would vehemently argue that the
appellants are unauthorised occupant of the land in question,
inasmuch as, after declaration of the transfer in favour of the
predecessor in interest being void by order dated 01.07.1981,
the transferee was left with no right, title or interest in the
land in question, for the transfer being contrary to the
provisions of the Prevention of Fragmentation Act’ 1947
became void. The order of declaration of the transfer being
void dated 01.07.1981 has not been challenged for 40 years.
There were mutation entries and in the remark column entry
was made with regard to the order dated 01.07.1981. The
appellants cannot, therefore, plead that they have no
knowledge or information about the order.
44. When there is no challenge throughout for 40 years, the
explanation offered by the appellants that they came to know
about the order dated 01.07.1981 only in the year 2020 when
the original petitioner/respondent herein filed application
before the Mamlatdar to give effect to the order dated
01.07.1981, declaring the sale deed dated 22.08.1975 as null
and void, is unbelievable.
45. The learned Single Judge has rightly looked to the
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record to ascertain as to whether there was sufficient cause
with the appellants to seek condonation of delay of 40 years in
filing the revision and once the Court found that the
explanation given by the appellants was not sufficient and it
was merely an excuse and not an explanation, no interference
is called for in the order impugned.
46. Relying upon the decision of the Apex Court in
Shivamma v. Karnataka Housing Board [2025 SCC
OnLine SC 1969] , it was argued that it has been clearly
observed therein that in a case where the Court of first
instance was satisfied as to the existence of “sufficient cause”
for not initiating action in appeal or revision, as the case may
be, during the prescribed period of time, and on that basis,
exercised its discretion in condoning the delay, then, in such a
case, a Court sitting in appeal ought not to ordinarily interfere
with the subjective view and it is the prerogative of the Court
below in condoning the delay. However, in order to exercise
the discretion in condoning the delay, there is a requirement
for the Court to be satisfied as to the existence of “sufficient
cause”. Only in case of proper exercise of discretion by the
Court of first instance, the Court sitting in appeal will not
interfere.
47. However, in case the exercise of discretion granting
condonation of delay is improper or unwarranted, it would
require the appellate Court to see if sufficient cause had
occasioned during the prescribed period of limitation, and if
explanation offered inspires confidence, in a case where the
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Court of first instance had ventured into extraneous
considerations or its decision in accepting “sufficient cause” is
either contrary to the law or suffers from any material
irregularity, or is vulnerable for lack of evidence, then the
order condoning the delay would be interfered with by the
appellate Court. A two pronged inquiry is required by the
appellate Court; first, into the existence of a “sufficient
cause” and secondly, into the exercise of discretion itself,
where the first test is satisfied.
48. The submission is that the learned Single Judge while
making inquiry into the order of SSRD in condoning the delay
once reached at a conclusion that no sufficient cause has been
shown for the purpose of condoning the delay, this Court may
not interfere in the intra-court appeals to attach an illegality
to the order impugned.
49. Relying upon the decision of the Apex Court in 2026
State of Odisha v. Managing Committee of Namatara
Girls High School [2026 SCC OnLine SC 191] , it is
submitted that the application for condonation of delay itself
was inherently defective, inasmuch as, the delay in presenting
the revision is about four decades. The learned Single Judge
has rightly held that in absence of any sufficient explanation,
on the mere excuse of the applicant, the delay cannot be
condoned and the revision is to be held as time barred.
50. It was vehemently argued that once the transfer is
declared void, it is the duty of the Collector to restore the land
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in question to the original owner and for any inaction of the
Collector, the original owner and his successors cannot be
non-suited. The question of locus, therefore, has rightly been
decided by the learned Single Judge. No error can be said to
have been committed in passing the order impugned dated
13.11.2025 where the learned Single Judge has held that the
order passed by the SSRD dated 18.12.2024 accepting the
locus of the original petitioner cannot be permitted to be
challenged. The primary questions framed under the order
dated 13.11.2025 are answered in the following manner:-
“22. For the reasons referred to herein-above, the
primary question framed by order dated 03.01.2025 are
answered thus:
(i) When would a seller of a property be entitled to
participate / initiate proceedings under the Prevention of
Fragmentation Act? Ans: As discussed above, in line with
the ratio laid down by the Hon’ble Full Bench in
Dashrathbhai Patel (supra), as held in Paragraph-26 to
28 [as referred above].
(ii) Whether the seller would have any locus to object an
application for condoning delay in a revision application
filed by the purchaser against an order passed by the
Deputy Collector declaring the sale in favour of the
purchaser invalid under the provisions of Prevention of
Fragmentation Act?
Ans. As discussed above, in Affirmative.”
51. It was argued that the Full Bench of this Court in
Dashratbhai M. Patel Vs Legal Heirs of Maganbhai
Joitram [Letters Patent Appeal No.1875 of 2007 & allied
matters dated 26.07.2011] has held that the power
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conferred on the Collector under sub-section (3) of Section 9
of the Prevention of Fragmentation Act’ 1947 is not a
legislative power. This is an adjudicatory power insofar as it
empowers the Collector to make an order of summary eviction
against a person, if he is satisfied that such person is
unauthroisedly occupying or in possession of the land, the
transfer or partition whereof by the act of the parties or by
the operation of law, is void under the provisions of the
Prevention of Fragmentation Act’ 1947. It is an executive
power insofar as it authorises the Collector to summarily evict
such person in enforcement of the order made by him. It was
contended that this power is conferred upon the Collector to
ensure enforcement of the salutary and beneficent provisions.
It was held therein that though sub-section (3) of Section 9 of
the Prevention of Fragmentation Act’ 1947 does not say in so
many terms that having summarily evicted such person, the
Collector may restore possession of the land to the original
owner but that is clearly implicit in sub-section (3) of Section
9 of the Prevention of Fragmentation Act’ 1947. If transfer
has been made contrary to the provisions of the Act, it must
not have any effect at all and the status-quo ante must be
restored, or otherwise the object of the Act would be
frustrated.
52. It is submitted that the Full Bench has categorically held
therein that the legislature does not require the transferor or
the original owner to adopt proceedings for recovering
possession of the land, rather it provided that the Collector
shall summarily evict the transferee or any person who is
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unauthorisedly in occupation or wrongfully in possession of
the land and hand back possession to the person who is owner
of the land.
53. It was, thus, vehemently argued that considering the
Full Bench judgment of this Court about the duty and
responsibility of the Collector to ensure summary eviction of
an unauthorised occupant, once the sale deed is declared
void, it was rightly held by the learned Single Judge that the
original petitioner has locus to object to the application for
condonation of delay filed in revision application filed by the
purchaser, against the order passed by the Deputy Collector
declaring the sale in favour of the purchaser void under the
provisions of the Prevention of Fragmentation Act’ 1947.
54. Considering the above submissions made by the learned
Counsels for the parties, at the outset, we may note that we
are not called upon to answer the case of the original
petitioner that the appellants herein are unauthorised
occupant and are required to be summarily evicted by the
Collector to restore the possession to the owner/transferor or
his successor in interest. The reason being that the writ
petitions were filed against the order of SSRD in condoning
the delay and entertaining the revision challenging the order
dated 01.07.1981 with the observation that an inquiry on
merit is required to be made.
55. We, therefore, confine ourselves to the question of
challenge to the exercise of discretion granting condonation of
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delay by the SSRD, at the first issue, and further as to
whether the learned Single Judge has committed any error in
interfering with the order condoning delay in exercise of writ
jurisdiction. In any case, we cannot and should not enter into
the question as to what should be the consequence of the
order dated 01.07.1981 and the nature of the powers of the
Collector under Section 9 of the Prevention of Fragmentation
Act’ 1947.
56. To answer the above issue, at first, we may record the
undisputed peculiar facts and circumstances of the present
case:-
(i) The parties namely, the appellant herein, i.e. the original
respondent and the original petitioner are heirs and legal
representatives of the original purchaser and the seller;
respectively. There is absolutely no disclosure in the writ
petitions by the original petitioners as to how and when they
came to know about the order dated 01.07.1981. The
petitioners have not disclosed in the writ petitions that they
moved an application in the year 2020 for implementation of
the order dated 01.07.1981 passed by the Deputy Collector,
which has been rejected and there is no further challenge to
the rejection order.
(ii) The appellant/original respondent remained in the
possession of the land in question throughout inspite of the
sale deed in favour of his predecessor had been declared void.
The purchaser of the land namely, the predecessor of the
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appellant had died in the year 1982 and the names of his heirs
were duly mutated in the revenue records without any
objection and are continuing till date. There is, thus, a long
drawn entry in the name of the original purchaser namely,
predecessor-in-interest of the appellant.
(iii) The fact is that in the remark column there is an entry of
the order dated 01.07.1981 passed by the Deputy Collector in
the revenue record. However, the said fact cannot be given
much emphasis, inasmuch as, the appellant or their
predecessor have never been evicted by the Collector and the
order dated 01.07.1981 has not been implemented till date.
(iv) The original petitioners and their predecessor are not in
the possession of the land in question since the year 1975,
when it was sold to the predecessor in interest of the
appellants by way of the registered sale deed dated
22.08.1975. No proceedings whatsoever has been initiated by
the original owners during their life time to seek
implementation of the order dated 01.07.1981, when there
was inaction on the part of the Collector. No such
proceedings have also been initiated by the successor in
interest of the original owner except one application moved in
the year 2020, which stood rejected.
(v) The only ground taken by the writ petitioner challenging
the order dated 18.12.2024 passed by the SSRD condoning
the delay in Revision Application Nos.1 of 2023 and 2 of 2023
was that the appellants/revisionists were aware of the order
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dated 01.07.1981 and there is no explanation much less
sufficient explanation seeking for condonation of delay of 40
days. However, the fact remains that the status-quo for a
period of approximately 45 years, i.e. untill today remained as
to the status of the land in question, which remained in the
possession of the purchaser initially and then their successors
throughout.
57. In this facts-scenario of the present case, we are
required to answer as to whether the SSRD has committed an
illegality in condoning the delay while noticing that the matter
is required to be heard on merits and further whether the
learned Single Judge has committed an error in interfering
with the discretion exercised by the SSRD in the facts and
circumstances of the present case.
58. Proceeding further, when we have gone through the
order impugned, pertinent is to note that the learned Single
Judge has proceeded to examine the merits of the delay
condonation application to answer the question as to whether
the SSRD was justified in passing the order condoning the
delay in order to entertain the Revision Applications after a
period of 40 years. It is noted by the learned Single Judge
from the submissions made on behalf of the private
respondents therein / appellants herein that it was the case of
the appellant that revenue entry No.2394 dated 09.04.1982
was made, no notice was issued to the purchaser and further
in a subsequent entry namely, mutation entry No.4126 dated
18.12.1995, the land was not stated to be a fragmented land.
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It was also noted that the original petitioner made
application dated 20.02.2020 for mutation of his name in the
revenue record, which was rejected by an order dated
09.10.2020 by the City Mamlatdar. The said order was
challenged by the petitioner by way of RTS Appeal No.373 of
2020 wherein the appellant herein is arraigned as party
respondents.
59. It is the case of the appellants herein/respondent therein
that they proceeded to file revision after coming to know of
the order dated 01.07.1981, when proceedings for mutation
was initiated by the original petitioners and their application
was rejected in the year 2021.
60. The learned Single Judge while deciding on the issue of
explanation being sufficient or only an excuse has simply
proceeded on a premise that the effect of the order dated
01.07.1981 was given by mutation entry No.2394 dated
09.04.1982 and certified on 11.05.1982. And there was a
promulgation entry mutated on 25.03.2009 by way of entry
No.8560, which records the sale deed being declared illegal.
And there was a partition suit filed between the family
members of the private respondents/appellants herein
wherein there is a reference of mutation entry No.2394
(incorrectly mentioned as 2395). The deceased Amarsingh
Jethiji Vaghela was represented by his heirs as defendants
and the plaint records the mutation entry of the sale deed
being declared null and void. The said suit was filed on
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02.03.2012 and the private respondents herein where party as
defendants in the said suit proceedings wherein there was
reference of the mutation entry No.2394, of the order dated
01.07.1981.
61. The learned Single Judge also records that in Village
Form No.7, a specific entry No.10232 was made with regard
to the order dated 01.07.1981. By noticing various documents
submitted by the original petitioner before the writ Court, it
was ultimately concluded that the private respondents
therein/appellants therein had knowledge of the order dated
01.07.1981 passed by the Deputy Collector and the
explanation offered by them in the delay condonation
application was merely an excuse and cannot be considered as
an explanation, much less sufficient explanation.
62. The learned Single Judge has further proceeded to
discuss the law as to how discretionary power in the matter of
condonation of delay is to be exercised and when it can be
interfered with.
63. It is, however, held that the private respondents
therein/appellants herein waited for a period of 40 years to
challenge the order dated 01.07.1981, though they were well
aware of the order and no equity can be created in their
favour, which would amount of overreaching the process of
law.
64. The order of condonation of delay has been held to be
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bereft of reasons and without taking into consideration the
documents produced on record.
65. Before making any observation on the order of the
learned Single Judge, we may note the legal principles
governing the exceptions ingrained under “sufficient cause”
vis-a-vis, in what circumstances the Court can interfere in the
exercise of discretion to condone the delay:-
(a) There cannot be any quarrel to the proposition that the
law of limitation is based upon public policy that there should
be an end to litigation by forfeiting the right to remedy rather
than the right itself.
(b) A right or remedy that has not been exercised or availed of
for a long time must come to an end or cease to exist for a
fixed period of time.
(c) Section 5 of the Limitation Act’ 1963 is to be construed
liberally. However, in order to advance substantial justice,
though liberal approach, justice oriented approach or cause of
substantial justice may be kept in mind but the same cannot
be used to defeat the substantial law of limitation contained in
Section 3 of the Limitation Act’ 1963, which has to be
construed in a strict sense.
(d) The Courts are empowered to exercise discretion to
condone the delay if sufficient cause has been explained but
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that exercise of power is discretionary in nature and may not
be exercised even if sufficient cause is established for various
factors, such as, where there is inordinate delay, negligence
and want of due diligence.
(e) The question as to whether sufficient cause has been
explained to condone the delay or the cause shown is
sufficient, is a matter of satisfaction of the Court concerned in
the particular facts and circumstances of the case and cannot
be decided in ignorance of or overlooking the particular facts
and circumstances of the case.
(f) The merits of the case are not required to be considered
in condoning the delay. The delay condonation application
has to be decided on the parameters laid down for condoning
the delay.
(g) The expression “sufficient cause” must be construed in a
manner that advances substantial justice while preserving the
discipline of limitation. The Courts are not to be swayed by
sympathy or technical rigidity, but rather by judicious
appraisal of whether the applicant acted with reasonable
diligence in pursuing the remedy. Where explanation is
bonafide, plausible and consistent with ordinary human
conduct, Courts have leaned towards condonation. When
negligence, want of good faith, or a causal approach is
discernible, condonation has been refused.
(h) The length of delay is immaterial, when it comes to
condonation of delay, what matters is the acceptability of the
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explanation. A short delay may still warrant dismissal if
unsupported by sufficient cause, whereas even a long delay
may be condoned if justified by circumstances demonstrating
bonafides.
(i) The delay by itself is not inherently indicative of
negligence. The quantum of delay, thus, has no direct nexus in
law with sufficiency of the cause.
(j) In construing “sufficient cause”, it must be borne in
mind that rules of procedure are handmaids of justice. The
procedural rigidity should not become an instrument of
injustice.
(k) In the context of Section 5 of the Limitation Act’ 1963,
this balance assumes special significance, inasmuch as, Court
shall repeatedly underscore that while limitation provisions
are founded on sound principles of finality and certainly, their
application cannot be divorced from the overreaching
objective of ensuring that litigants are not shut out from the
doors of justice merely on account of technicality.
(l) Where adherence to the rule of limitation results in
injustice, the Court is duty bound to apply a liberal
interpretation of “sufficient cause” so as to balance technical
requirements with the demands of justice.
(m) Generally, an application to condone the delay filed
under Section 5 of the Limitation Act’ 1963 will have to be
viewed in a liberal and lenient way to do substantial justice
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between the parties.
(n) However, strength of the case on merits is not a factor to
be taken into consideration for condonation of delay
(Reference be made to the decision of the Apex Court in
Pathapati Subba Reddy (Died) by L.Rs Vs. Special
Deputy Collector [2924 SCC OnLine SC 513] referred to
and relied on in Shivamma (Supra), relied on by the
Counsel for the the original petitioner).
66. Now coming to the most relevant question for us that,
where the Court of first instance was satisfied as to the
existence of “sufficient cause” for not instituting the case
within the prescribed period of time, what would be the scope
of interference in exercise of the discretion in condoning the
delay.
67. In a catena of decisions, it has been held by the Apex
Court from time and again that once the Court of first
instance accepts the explanation as sufficient, it is the result
of positive exercise of discretion and normally the superior
Court should not disturb such finding, unless the exercise of
discretion was on wholly untenable grounds, arbitrary or
perverse. However, it is a different matter when the first
Court refuses to condone the delay. In such cases, the
superior Court would be free to consider the cause shown for
the delay afresh and it is open to such superior Court to come
to its own finding even untrammeled by the conclusion of the
lower Court.
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68. In Sheo Raj Singh Vs. Union of India [(2023) 10
SCC 531] , it is held by the Apex Court that there is a fine
distinction between when a Court is hearing application for
condonation of delay and when it is sitting in appeal over the
exercise of discretion granting condonation of delay. In the
former, the only material question is whether the delay be
condoned or not whereas in the latter, the question is
confined to if there has been proper exercise of discretion in
favour of grant of such prayer. It was cautioned that the
Court of appeal should not ordinarily interfere with the
discretion exercised by the Courts below.
69. What is meant by proper exercise of discretion has been
answered by the Apex Court in Shivamma (Supra) relied by
the learned Counsel for the respondent herein /original
petitioner. Paragraph ‘161’, ‘162’ and ‘163’ of the said
decision are to be extracted hereinunder:-
“161. However, where a court is sitting in appeal over
the exercise of discretion granting condonation of delay,
it is only required to see if there was a proper exercise of
discretion by the courts below and if the same was for
advancing the cause of justice. But the question that we
ask ourselves is, what is meant by “proper exercise of
discretion”? What does the enquiry into the propriety of
discretion encompass?
162. Proper exercise of discretion in condoning the
delay connotes that the such exercise was not improper
or unwarranted. This as a naturally corollary would open
up an inquiry into the fundamental constituents or
ingredients necessary for the exercise of power to
condone delay. As such it would require the appellate
court to see if the sufficient cause had occasioned during
the prescribed period of limitation, if the explanation
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offered inspires confidence, if the court below in
construing “sufficient cause” had ventured into
extraneous considerations. Likewise, where a lower
court's decision in accepting the “sufficient cause” is
either contrary to the law or suffers from any material
irregularity or is vulnerable for lack of evidence, then
such an order condoning the delay would be a fit one to
be interfered with by the appellate court.
163. Thus, a two pronged inquiry is required by the
appellate court; first , into the existence of a “ sufficient
cause ” and secondly , into the exercise of discretion
itself, where the first test is satisfied.”
70. It is held therein that the true test is to see, if it had
been up to the appellate Court, could the delay have been
plausibly condoned for the same reason that was assigned by
the Court below, by looking into the material on record to see
if the ingredients of Section 5 of the Limitation Act’ 1963 were
fulfilled or not. If the ingredients of the provisions is found to
not have been fulfilled, the appellate Court can and ought to
interfere with the order of the Court below. However, if the
answer is in affirmative, all that remains to be seen is that the
discretion that was exercised in condoning the delay was not
done mechanically, arbitrarily or capriciously, and was
exercised for the purpose of advancing the cause of justice.
Only where the exercise of discretion was clear wrong, would
the Court sitting in appeal, interfere with the same.
71. When the above noted principle of law are applied in the
peculiar facts and circumstances of the present case, we are
of the considered view that certain degree of leeway ought to
be accorded to the appellant herein, owing to the complexities
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of the factual position, where status-quo remained operative
for a period of 45 years and even the petitioners do not
disclose as to how and when he came to know about the order
dated 01.07.1981 and further the application of the
petitioners seeking mutation of their name in the revenue
record has been rejected in the year 2020.
72. It is one of the unique cases where it seems that both the
parties were not aware of the order dated 01.07.1981, which
was passed during the life time of their predecessors. We do
not know and cannot know as to why no proceeding has been
drawn or initiated to seek possession of the land in question
after the sale deed was declared void by the order dated
01.07.1981. However, at this stage, when we consider the
explanation of the appellant herein/revisionist that they came
to know about the order dated 01.07.1981 in the year 2020
when the original petitioners initiated proceedings for
mutation of their names, we are not able to pursuade
ourselves with the opinion of the learned Single Judge that the
said explanation is merely an excuse and not an explanation
at all.
73. The fact that there was a mutation entry in the revenue
records entered into in the year 1982 is not so compelling as
to non-suit the appellant that too where as per own statement
of the petitioners, the mutation entry in Village Form No.6
was made in the year 2012. Moreover, no proceeding
whatsoever under Section 9 of the Prevention of
Fragmentation Act’ 1947 has been initiated till date by the
Collector.
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74. The Prevention of Fragmentation Act’ 1947 does not
mandate that the purchaser shall handover possession of the
lands, subject matter of sale deed after it was declared void,
rather the Collector is empowerd to evict the purchaser as
unauthorised occupant or being in illegal possession of the
transferred land, which has not happened in the present case
for a period of approximately 45 years.
75. In the above peculiar facts and circumstances of the
present case, we reach at an irresistible conclusion that the
learned Single has committed an error of law in dealing with
the delay condonation application independently, to find fault
with the discretion exercised by the SSRD in condoning the
delay for deciding the revision on merits.
76. We are of the opinion that in the facts and circumstances
of the present case, it cannot be said that the exercise of
discretion granting condonation of delay by the SSRD is
contrary to the law, or suffers from any material irregularity
or lack of evidence.
77. This is one of such cases where the learned Single Judge
has laboured into each facts in detail to independently decide
on the question of knowledge and the correctness of the
statement made by the appellants in the delay condonation
application.
78. This independent exercise in the limited scope of writ
jurisdiction while dealing with the correctness of the order
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condoning the delay in discharge of discretionary exercise of
power under the Limitation Act, in our considered opinion,
amounts to the writ Court acting as a Court of appeal,
substituting its finding with that of the Court of first instance,
i.e. SSRD.
79. The present case cannot be said to be a case of improper
exercise of discretion by the SSRD or of perversity in the
order of condoning the delay.
80. With the aid of the decision of the Apex Court in
Pathapati Subba Reddy (Supra), we may say that the
length of the delay is not a determinative factor rather
adequacy and acceptability of the explanation matters.
81. For the reasons given hereinabove, we do not need to
deliberate on the question of locus of the original petitioner to
participate in the proceedings of condonation of delay. We
simply hold that with the affirmation of the order of the SSRD
in condoning the delay, the original petitioner herein shall
have a right to participate in the proceedings of revision in
order to contest the challenge to the order dated 01.07.1981
passed by the Deputy Collector on merits.
82. It is clarified that the Revision Applications shall be
decided by the SSRD on merits independently, without being
influenced by any of the observations made hereinabove.
83. In view of the above discussion, we reach at an
irresistible conclusion that the common judgment and order
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dated 06.04.2026 passed by the learned Single Judge cannot
be sustained and, as such, is hereby set aside. In so far as the
common order dated 13.11.2025, subject matter of challenge
in the connected Letters Patent Appeals, we may simply say
that for the reasons assigned hereinbefore, we found no
reason to enter into the issue of locus of the original
petitioners to participate in the delay condonation
proceedings. No interference is called for in the said order.
Consequently, the order dated 18.12.2024 passed by the
SSRD in Revision Application No.1 of 2023 connected with
Revision Application No.2 of 2023 is hereby affirmed. The
original writ petitions lack merit and are dismissed,
accordingly.
84. With the above observations and directions, all the
Letters Patent Appeals stand disposed of, accordingly.
Connected Civil Applications for stay would not survive and
shall stand disposed of, accordingly.
(SUNITA AGARWAL, CJ.)
(D.N.RAY, J.)
siji
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