Full Judgment Text
2025:BHC-AS:16624
27-wp2994-2025-FF.doc
AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.2994 OF 2025
B.M.E.’s Bhagyawan Cooperative
Housing Society Limited.,
N.G. Acharya Marg, Khardev Nagar,
Chembur, Mumbai 400 071
… Petitioner
ATUL
GANESH
KULKARNI
Digitally signed by
ATUL GANESH
KULKARNI
Date: 2025.04.09
19:37:38 +0530
V/s.
1. The District Superintendent of Land
Records, Mumbai Suburban District,
th
10 Floor, Administrative Bldg.,
Bandra (E), Mumbai 400 051
2. The City Survey Officer, Chembur,
Mumbai Suburban District,
Mumbai.- 400 080
3. Chetana Arvind Patil
4. Nilesh Arvind Patil
5. Rakesh Arvind Patil
6. Alkesh Arvind Patil
7. Ramesh Maheshwar Patil
8. Satyajeet Ramesh Patil
9. Dipti Ramesh Patil
10. Ravindra Maheshwar Patil
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11. Mandar Ravindra Patil
12. Shital Ravindra Patil
13. Sushil Maheshwar Patil
14. Nishant Sushil Patil
15. Shweta Sushil Patil
16. Sneha Sushil Patil
17. Latika Vasant Bhoir
18. Sunita Mahadeo Shidke
19. Vanita Ramesh Gavali.
For Respondent Nos.3 to 6 and 7 to
17 G.P. holder Shri Ramesh
Maheshwar Patil, 302-B, Riddhi
Complex, Plot No.119, 20, Sector-13,
Khanda Colony, New Panvel, Navi
Mumbai
20. Charishma Builders
Through Suresh Vasu Shetty
st
Kamal Kunj, 1 Floor, C.G. Road,
Chembur, Mumbai- 400 071
21. Municipal Corporation of Greater
Mumbai, Mahapalika Marg, Opp.
C.S.T. Fort, Mumbai 400 001
22. The Hon’ble Dy. Director Land Record
Officer, Fort, Mumbai
23. The Hon’ble Revenue Minister,
Maharashtra State, Mantralaya,
Mumbai
24. The State of Maharashtra … Respondents
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Mr. Kishor Patil i/by Mr. Shantanu Raktade for the
petitioner.
Mr. Prasad Dhakephalkar, Senior Advocate (through
V.C.) with Mr. Nitesh Bhutekar, Ms. Priyanka Lanke,
and Mr. Prathamesh Mahdlik for respondent Nos.3 to
20.
Mr. Santosh Mali with Mr. Santosh Parad for
respondent No.21-MCGM.
Smt. M.S. Srivastava, AGP for respondent Nos.22 to
24-State.
CORAM : AMIT BORKAR, J.
DATED : APRIL 9, 2025
ORAL JUDGMENT.:
1. Rule. Rule is made returnable forthwith.
2. By this Writ Petition under Article 226 of the Constitution of
India, the petitioner challenges the Judgment and Order dated 3rd
October 2024 passed by respondent No.23 in Appeal
No.2621/1877/P.K.227/J-3, whereby the said authority has
confirmed the Judgment and Order dated 21st December 2020
passed by respondent No.1 in Appeal No.SR/854/2019. The said
appeal arises from proceedings under Section 247 of the
Maharashtra Land Revenue Code, 1966 (hereinafter referred to as
“the MLRC” for the sake of brevity).
3. The facts and circumstances giving rise to the filing of the
present writ petition, as pleaded by the petitioner, are as under:
4. According to the petitioner, the petitioner-Society is situated
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on Plot No.15 admeasuring approximately 53,405 sq. meters,
which was acquired by the State Government on behalf of
respondent No.21. It is the petitioner’s case that an area
admeasuring 6,521 sq. meters was allotted to the petitioner-
Society on leasehold basis by the Municipal Corporation of Greater
Mumbai (for short, “MCGM”) vide lease deed executed on 29th
August 1975. However, out of the said area of 6,521 sq. meters, an
area admeasuring 5,167.31 sq. meters was actually handed over to
the petitioner-Society by MCGM on 30th April 1982, pursuant to a
possession receipt and a joint survey receipt executed on the said
date. It is contended that the petitioner-Society has been in
peaceful possession of the said land since 30th April 1982.
5. The petitioner further contends that the City Survey Officer-
VIII, Bombay Suburban District, vide letter dated 20th October
1987, intimated the Additional District Deputy Collector, B.S.D.,
Andheri, regarding changes in the City Survey Nos. 25, 28, 29, and
37. Pursuant thereto, by order dated 25th November 1987, the
Additional District Deputy Collector, Andheri, directed the City
Survey Officer-VIII to substitute the said CTS numbers with CTS
Nos.101 (part), 103, 108 (part), 109, 110, 111, 112 (part), 113
(part), 284 (part), and 285 (part). Upon final measurement of the
said Plot No.15, the City Survey Officer found the area to be
6,540.75 sq. meters instead of 5,167.31 sq. meters, and
accordingly directed the petitioner-Society to pay Non-Agricultural
Assessment in respect of the area admeasuring 6,540.75 sq. meters
with effect from 1st December 1983.
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6. It is further the case of the petitioner that the building of the
petitioner-Society was constructed in the year 1990. It is the
petitioner’s grievance that respondent Nos.3 to 19 entered into an
agreement with respondent No.20 only in the year 2005. Pursuant
to a letter addressed by the petitioner-Society, respondent No.2
conducted a survey of Plot No.5 vide M.R. No.76/2004 dated 17th
and 18th March 2005 and accordingly prepared a measurement
map. A survey notice was displayed at the Ghatla Municipal
School, Chembur, which is a prominent location in the vicinity.
Thereafter, respondent No.2, upon conclusion of the said survey
and taking into consideration the communication dated 25th
November 1987 and the Land Acquisition Award Nos.462/1962
and 1287/1962, passed an order dated 31st May 2005.
7. Being aggrieved by the said order dated 31st May 2005,
respondent Nos.2 to 19 preferred Appeal No.408 of 2018 before
respondent No.1, after a delay of 11 years and 4 months.
Respondent No.1, by order dated 28th February 2018, allowed the
said appeal. The petitioner-Society, being dissatisfied thereby,
challenged the said order before the District Land Records Officer
by filing Appeal S.R. No.780 of 2018. The said appeal came to be
allowed and the matter was remanded back to respondent No.1 for
deciding the application for condonation of delay. Pursuant
thereto, respondent No.1 allowed the application for condonation
of delay by order dated 31st December 2020.
8. The petitioner thereafter filed an application before
respondent No.1 seeking reopening of the hearing of the appeal
and recall of the order, inter alia contending that the appeal itself
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was not maintainable. However, respondent No.1 proceeded to
allow the appeal by Judgment and Order dated 22nd July 2021.
Aggrieved thereby, the petitioner preferred Appeal No.836 of 2021
before respondent No.23. By the impugned Judgment and Order
dated 3rd October 2024, respondent No.23 has dismissed the
appeal and confirmed the order of respondent No.1, which is
under challenge in the present proceedings.
9. Shri Kishor Patil, learned Advocate appearing on behalf of
the petitioner, submitted that the only ground furnished by the
contesting respondents for seeking condonation of delay of 11
years and 4 months was lack of knowledge regarding the order
dated 31st May 2005. He would urge that except for this plea of
want of knowledge, no other explanation or cause was put forth by
the respondents for such an inordinate delay. The learned counsel
submitted that the impugned order allowing the condonation of
delay does not record any satisfaction regarding the sufficiency of
the cause shown by the contesting respondents. It was further
contended that mere ignorance of an order for such a prolonged
period cannot, by any stretch of imagination, constitute a
"sufficient cause" within the meaning of law, so as to condone a
delay of over 11 years. It was thus submitted that the impugned
order suffers from non-application of mind, is arbitrary and
perverse, and hence, liable to be set aside.
10. Per contra, Shri Dhakephalkar, learned Senior Advocate
appearing on behalf of the contesting respondents, vehemently
opposed the petition. He invited my attention to the impugned
orders to contend that the order dated 31st May 2005 came to be
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passed by the concerned authority without granting any
opportunity of hearing to the contesting respondents, who are the
affected parties. It was submitted that the contesting respondents
became aware of the said order only in the year 2015 and that
immediately thereafter, they initiated appropriate proceedings by
filing an appeal in the year 2016. The learned Senior Advocate
further invited my attention to the merits of the dispute to contend
that the area in possession of the petitioner-Society is in excess of
what was legally allotted to it, and that such excess area forms
part of the property owned by the contesting respondents. He
further submitted that the present writ petition is directed only
against the orders allowing the application for condonation of
delay; however, in the interregnum, the appeal itself has been
decided on merits in favour of the contesting respondents.
Therefore, it was urged that in such circumstances, the present
writ petition, being rendered infructuous, deserves to be dismissed.
11. Rival contentions of the learned counsel for the respective
parties now fall for my consideration.
12. Upon a careful perusal of the material placed on record, it is
evident that the order impugned in appeal was passed on 31st May
2005. The appeal challenging the said order came to be instituted
on 27th October 2016. Thus, there was an admitted delay of 11
years and 4 months in preferring the appeal. From the contents of
the application seeking condonation of delay, it is seen that the
contesting respondents asserted that they became aware of the
impugned order only on or about 9th November 2015. It was their
case that a certified copy of the said order was applied for on 9th
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November 2015 and was delivered to them on 11th November
2015. It was further stated that the Talathi had deleted the stencil
entry in the 7/12 extract on 11th January 2016. Thereafter, the
appellants addressed a letter to the Appellate Authority in
February 2016, whereupon they were advised to file a formal
appeal. It was contended before the Appellate Authority that there
was no delay, and in the alternative, if a delay was found, the same
ought to be condoned in the interest of justice.
13. The reasoning assigned by the Appellate Authority for
condoning the inordinate delay of more than 11 years appears to
be perfunctory and devoid of any independent application of mind.
The Appellate Authority merely reproduced the general principles
for condonation of delay as enunciated by the Hon'ble Supreme
Court in Civil Appeal No.10581 of 2013 decided on 25th
November 2013, without examining the facts and circumstances of
the present case in the light of the said principles. A blanket
observation was made that, in view of the said judgment, the delay
deserved to be condoned. However, no specific findings were
recorded as to how the cause shown by the contesting respondents
could be construed as "sufficient cause" for the delay of such
magnitude.
14. The order of the Appellate Authority was confirmed by the
State Government on the premise that the contesting respondents
were not parties to the earlier proceedings and that, upon
considering the documents on record, sufficient cause had been
made out. It was further observed that the delay was not
deliberate or intentional, and that condoning the delay would not
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cause any injustice to the respondents, whereas refusal to condone
would deprive the contesting respondents of their statutory right
to file an appeal.
15. In my considered opinion, the approach adopted by both the
Authorities under the MLRC is contrary to the well-settled
principles of law governing condonation of delay. It is trite law that
mere assertion of lack of knowledge or belated knowledge of an
order, without explaining why due diligence was not exercised in
the intervening period, cannot, by itself, be treated as a sufficient
cause. Ignorance of an order for an unreasonably long period,
without cogent and credible explanation, cannot be condoned
lightly. The authorities have failed to appreciate that "sufficient
cause" must be shown for the entire period of delay, and that a
liberal approach cannot be adopted so as to defeat the rights that
have accrued to the opposite party on account of long passage of
time.
16. Both the Authorities have condoned the delay merely by
placing reliance on general principles, without scrutinizing
whether the explanation furnished was bona fide, satisfactory, and
covered the entire period of 11 years and 4 months. Such a casual
and mechanical exercise of discretion cannot be sustained in law.
The orders impugned, therefore, suffer from manifest arbitrariness
and non-application of mind and are liable to be set aside.
17. Insofar as the cause furnished by the contesting respondents
in the application for condonation of delay is concerned, it is
evident that the only explanation offered is a mere bald statement
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that the contesting respondents were unaware of the impugned
order. In law, a mere bald and unsubstantiated statement that the
appellants were unaware of the impugned order, by itself, is not
sufficient to constitute a "sufficient cause" warranting condonation
of delay, particularly when the delay is of an inordinate magnitude
spanning over 11 years. In proceedings seeking condonation of
such prolonged delay, the appellants are required to substantiate
their case by placing on record credible and cogent material
demonstrating the following factors:
(i) The circumstances or context in which the impugned order
came to be passed and the chain of events that led to its alleged
discovery by the appellants;
(ii) The due diligence undertaken by the appellants during the
intervening period to safeguard their legal rights or interests;
(iii) Efforts, if any, made by the appellants earlier to inquire into or
ascertain their legal status, title, or rights affected by the impugned
order;
(iv) Absence of constructive or deemed knowledge, particularly in
a case where the impugned order was of such a nature that it
would ordinarily be expected to be communicated, published, or
acted upon in a manner which would alert a reasonable person;
and
(v) Whether the impugned order resulted in any change of status,
title, or right that would have been manifest, patent, or publicly
known, and whether despite such changes, the appellants could
plausibly have remained unaware.
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18. The contesting respondents, however, have failed to furnish
any such particulars, nor have they placed on record any material
to demonstrate exercise of due diligence or absence of negligence.
19. When a person claims lack of knowledge of an order passed
several years earlier, certain well-settled principles assume
relevance. Firstly, mere assertion of lack of knowledge, without
more, is insufficient. The person seeking condonation must place
on record specific material to demonstrate (a) how and when
knowledge was first acquired, (b) that no constructive or deemed
knowledge existed earlier, and (c) that there was no negligence or
inaction on their part in safeguarding their rights. Secondly,
material evidence ought to be placed before the Court which may
include affidavits or correspondence showing attempts at inquiry;
contemporaneous documents explaining the reasons for delayed
discovery; statements from similarly situated persons, if applicable;
and any official record, communication, or response evidencing
delayed receipt of information. Thirdly, if an order has been
implemented or acted upon in a manner impacting the legal rights,
title, or possession of the person concerned, it is presumed that the
affected person would have constructive knowledge of the order,
unless such presumption is rebutted by cogent and credible
evidence.
20. In the present case, the contesting respondents have not
placed any material on record to satisfy the aforesaid tests. No
contemporaneous efforts to inquire into the status of the land or
legal rights have been shown. No evidence has been produced to
rebut the presumption of knowledge arising from the
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implementation of the impugned order and consequent mutation
or alteration in revenue records. Thus, the approach adopted by
the Authorities in mechanically condoning the delay without
application of the aforesaid principles cannot be sustained in law.
21. Applying the aforesaid principles to the facts of the present
case, in my considered view, the contesting respondents have
failed to place on record any contemporaneous material,
correspondence, affidavits of third parties, or any documentary
evidence which would indicate that they had made any inquiries
or sought any clarification regarding their legal status or rights at
any earlier point of time. There is a complete absence of any
material demonstrating due diligence on their part. Furthermore,
there is no plausible explanation offered as to how the contesting
respondents remained unaware of the impugned order for such an
extended period of more than 11 years, particularly when the
order in question had direct legal consequences and was passed by
a statutory authority, which would normally be implemented or
acted upon in a manner that would alert a person of ordinary
prudence.
22. The contesting respondents’ explanation, therefore, does not
constitute "sufficient cause" as contemplated by law. The approach
of the Authorities under the MLRC, in condoning such inordinate
delay without due application of mind to the relevant factors and
principles, constitutes a clear error of jurisdiction and is
unsustainable. The orders impugned, thus, warrant interference by
this Court in the exercise of its writ jurisdiction.
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23. Insofar as the contention raised on behalf of the contesting
respondents that the decision of the appeal on merits would render
the present writ petition not maintainable is concerned, the same
is devoid of any merit. It is well-settled that under the scheme of
the Maharashtra Land Revenue Code, 1966, an order condoning
delay is distinct and independent from the order admitting the
appeal or deciding it on merits. Section 247 of the MLRC, read
with Section 257, confers an independent right upon an aggrieved
person to challenge the order condoning delay by way of revision
or other appropriate proceedings. The right to challenge the order
condoning delay is substantive and not rendered illusory merely
because the appeal has thereafter been decided on merits.
24. If the condonation of delay itself is found to be illegal or
without jurisdiction, all subsequent proceedings based upon such
condonation, including the decision on merits, would be rendered
without jurisdiction and non est in the eyes of law. Therefore, the
contention of the contesting respondents that the present writ
petition is rendered infructuous by reason of the subsequent
decision on merits is liable to be rejected.
25. For the reasons stated above, I am of the considered view
that the petitioner has made out a clear case for grant of relief as
prayed for. The impugned orders passed by respondent Nos.1 and
23, condoning the delay in filing the appeal, are vitiated by errors
apparent on the face of the record and deserve to be set aside.
26. In the result, the Rule is made absolute in terms of prayer
clause (a) of the petition. No order as to costs.
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27. Pending interlocutory application(s), if any, stand disposed
of.
(AMIT BORKAR, J.)
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