Gajanan Govind Thombare vs Parshuram Tipu Mahadik & Ors.

By this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioner is challenging the legality, validity and correctness of the common judgment and order dated 15 November 2017 passed by the Maharashtra Revenue Tribunal, Mumbai in Tenancy Revision No.137 of 2017 and Tenancy Revision No.138 of 2017. By the said order, the Tribunal allowed the revisions filed by the respondents and set aside the judgment and order dated 30 May 2017 passed by the Sub-Divisional Officer, Panvel in Tenancy Appeal No.24 of 2017. As a result, the Tribunal restored and confirmed the judgment and order dated 4 February 1989 passed by the Additional Tahsildar and Agricultural Lands Tribunal, Panvel in Tenancy Case No. ALT/32-G/SR/1843/89. In substance, the grievance of the petitioner is that his application for condonation of delay in filing Tenancy Appeal No.24 of 2017 was initially allowed by the Sub-Divisional Officer, but was rejected by the Maharashtra Revenue Tribunal by the impugned judgment and order.

The facts which have led to filing of the present writ petition, as stated by the petitioner, are as follows. Agricultural land bearing Survey No.137/1, now bearing New Survey No.11/1, admeasuring 0.38-0 R, situated at Village Chirvat, Taluka Panvel, District Raigad, is the subject matter of the present proceedings and is hereinafter referred to as the “suit land”. According to the petitioner, one Parvatibai Mahadik had executed a Will in his favour. Earlier, the predecessor of the petitioner, namely, Mhadeo Narayan Mahadik, was recorded as a protected tenant in respect of the suit land. His name was shown as tenant in the revenue record by Mutation Entry No.207 in the year 1947-48. Shri Mhadeo Narayan Mahadik was the husband of Parvatibai. There is a dispute regarding another Mutation Entry No.422, by which the name of Sahadev, stated to be the brother of Mahadev, was entered in the revenue record on 30 April 1964. By this entry, the name of Mhadeo Narayan Mahadik was deleted and the name of Sahadev was entered as the protected tenant. Thereafter, proceedings under Section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 were initiated, and those proceedings resulted in the purchase of the land being declared in favour of Sahadev. The case put forward was that one Mhadu Narayan Mahadik was cultivating five lands, including the disputed land, as a tenant and therefore his name had been recorded as a protected tenant. It was further stated that he had been admitted to a lunatic asylum about 10 to 12 years earlier and had died there. On that basis, his name was deleted and the name of Sahadev was entered as tenant. It is, however, important to note that Mutation Entry No.422 does not appear to have been certified. There is no certification endorsement or any date showing when and by which officer the mutation was certified. It is also stated that the said mutation entry was challenged up to the High Court of Bombay and was cancelled.

The 7/12 extracts for the years 1957-58 to 1963-64 show the possession and cultivation of the land by Mhadu Narayan Mahadik as a tenant. It further appears that, in respect of another disputed land covered by the same Mutation Entry, a dispute arose between Smt. Parvatibai Mahadik and Sahadev Namdeo Mahadik. The same issue and similar facts were involved in that dispute. The matter reached the Maharashtra Revenue Tribunal. By its order dated 21 September 2012 in Tenancy Revision No.1024/B/2003, the Maharashtra Revenue Tribunal confirmed the tenancy in favour of Parvatibai Mahadik and rejected the claim of Sahadev, whose name had been entered under Mutation Entry No.422. That matter is stated to be presently pending before this Court.

It is the case of the petitioner that, after the death of Mahadev, disputes relating to Mutation Entry No.207 and Mutation Entry No.422 continued, along with otherty litigation against Sahadev. According to the petitioner, the dispute had its beginning in the year 1964, when Mahadev was in hospital and Sahadev fraudulently got his name recorded as tenant. During her lifetime, Parvatibai was also involved in litigation relating to otherties covered by the same mutation entry. Before her death, she had executed a power of attorney and a Will dated 19 December 2000, on the basis of which the petitioner claims title to the suitty through Parvatibai. Though the survey numbers of theties are different, the petitioner states that the same Mutation Entry was challenged in respect of thoseties also, and the proceedings went up to the High Court. According to the petitioner, after Parvatibai died, he came to know about the earlier proceedings only on 7 April 2016. It was then that he came to know that the original order had been passed as far back as 4 February 1989 and had not been challenged earlier. In respect of thety bearing Survey No.134/1, which was also connected with the dispute, the purchase price had been fixed in favour of Sahadev. The said 32-G proceedings were set aside and Mahadeo was declared to be the tenant in respect of the suitty.

The disputed Mutation Entry was the same entry which had been set aside by the Revenue authorities and the matter had gone up to the High Court. In respect of some other survey numbers covered by the same Mutation Entry, the purchase price fixed in the 32-G proceedings was also challenged before the Maharashtra Revenue Tribunal, Mumbai. The Tribunal set aside the mutation entry as well as the purchase price order. According to the petitioner, however, he had no knowledge of the proceedings of the year 1989 concerning the present suit land. Immediately after gaining knowledge, he applied for a certified copy of the order. After obtaining the certified copy of the judgment and order dated 4 February 1989, he filed an appeal before the Sub-Divisional Officer, Panvel along with an application for condonation of delay. In the said application, he explained the delay of about 27 years and 2 months. Accordingly, on 17 June 2016, the petitioner filed an appeal under Section 74 before the Sub-Divisional Officer, Panvel along with an application for condonation of delay.

The petitioner states that, with sufficient caution, he gave a detailed explanation for the delay in his application and produced the relevant documents. He pointed out that several proceedings relating to the same Mutation Entry and the survey numbers covered by it had been pending before the Revenue authorities and in tenancy proceedings, and that those proceedings had also been challenged up to the High Court. According to the petitioner, he acquired knowledge of the order dated 4 February 1989 only on 7 April 2016. On that date, Parvatibai had made an application in respect of pending Mutation Entry No.260 for recording her name as legal heir and for deciding the said mutation. In Case No.02/2015, after hearing the parties, the Tahsildar passed an order on 30 January 2016, and thereafter the present proceedings were initiated. It is also the case of the petitioner that he explained the delay not only in the separate delay application but also in the appeal. At the same time, he challenged the legality, validity and correctness of the original order dated 4 February 1989. The respondents filed their written say and opposed the application for condonation of delay.

After hearing both sides and considering the original record, the documents and the submissions made by the parties, the Sub-Divisional Officer was pleased to allow the application for condonation of delay by his judgment and order dated 30 May 2017. The Sub-Divisional Officer thereafter fixed the main appeal for hearing on 8 June 2017. Thus, at that stage, the delay of about 27 years and 2 months was condoned, and the petitioner was permitted to pursue the substantive appeal against the order dated 4 February 1989.

Being aggrieved by the aforesaid judgment and order of the Sub-Divisional Officer, respondent No.1 preferred two Revision Applications before the Maharashtra Revenue Tribunal, Mumbai. They were registered as Tenancy Revision No.TNC/REV/137/2017 and Tenancy Revision No.TNC/REV/138/2017. The Maharashtra Revenue Tribunal allowed the revisions filed by the respondents and interfered with the judgment and order dated 30 May 2017 passed by the Sub-Divisional Officer, Panvel. Consequently, the benefit given to the petitioner by condoning the delay was taken away, and the delay application was rejected.

Mr. Punde, learned Advocate appearing for the petitioner, submitted that the Tribunal failed toly consider the reasons given by the Sub-Divisional Officer while condoning the delay. According to him, the Sub-Divisional Officer had rightly observed that the matter involved substantial questions on merits and therefore deserved to be considered. He submitted that the important fact was that notice was not given to the legal heirs of Mahadu and the proceedings under Section 32-G were decided ex parte without giving notice to the predecessor of the petitioner. Therefore, according to him, the order passed by the Sub-Divisional Officer condoning the delay was a and reasoned order. He submitted that the Tribunal ought not to have interfered with that order in revision merely because it wanted to take a different view of the matter.

He further submitted that the Tribunal as well as the lower appellate authority ought to have considered that the petitioner had a case which required consideration on merits. The names of the predecessors of the petitioner were appearing in the revenue record under Mutation Entry Nos.207 and 422. He submitted that disputes relating to these entries and the tenancy rights had continued before the Tenancy Court and in the RTS proceedings and some of those proceedings had gone up to the High Court. He further submitted that the order dated 4 February 1989 passed in Tenancy Case No.32-G/SR/1843/1989 was passed ex parte and was contrary to the provisions of law. According to him, the said order had neither been implemented nor acted upon. He also submitted that the petitioner continues to be in possession of the suit land.

Mr. Punde further submitted that Mutation Entry Nos.207 and 422 had been set aside by the Revenue authorities. He submitted that, in respect of the same Mutation Entry concerning other survey numbers, the Tribunal had taken a different view. According to him, these circumstances themselves showed that the petitioner had sufficient grounds for challenging the order and that the Sub-Divisional Officer was justified in condoning the delay. He submitted that the Tribunal committed an error apparent on the face of the record by setting aside the reasoned order of the Sub-Divisional Officer on the ground that the order was not reasoned. According to him, once the Tribunal took the view that the order of the Sub-Divisional Officer was not reasoned, it ought to have given reasons while rejecting the application for condonation of delay. Instead, the Tribunal rejected the delay application and, as a result, did not examine the case on merits. He submitted that this approach of the Tribunal was not.

In any event, Mr. Punde submitted that the impugned judgment and order passed by the Maharashtra Revenue Tribunal deserves to be quashed and set aside. According to him, the appeal filed by the petitioner before the Sub-Divisional Officer, Panvel should be restored and should be heard and decided on its merits.

Mr. Ranade, learned Advocate appearing for respondent Nos.1(a) to 1(c), opposed the submissions of the petitioner. He submitted that Survey No.137 had been divided into five different survey numbers and that this fact was within the knowledge of the petitioner. Therefore, according to him, the creation of new Survey No.11/1 was also within the knowledge of the petitioner. He submitted that the order passed under Section 32-G pursuant to the judgment and order dated 4 February 1989 was published on 10 May 1995 and was certified on 21 May 1995. He further submitted that on 20 May 1995 the order passed under Section 32-G dated 4 February 1989 was given effect to in the revenue record. Accordingly, Mutation Entry was made on 26 May 1995 and the same was certified on 1 July 1995. He submitted that a portion of the new Survey No.11/1 was thereafter sold to another purchaser by a registered sale deed in the year 1996. As a result, Survey No.11/1 was further divided into Survey No.11/1/B and Survey No.11/1/A. According to him, Survey No.11/1/B was handed over to the purchaser, while Survey No.11/1/A remained with the respondent. He submitted that the purchaser and the respondents have been in possession of the respective portions of Survey No.11/1 since 1996. Such possession, according to him, amounted to sufficient notice to the petitioner. Therefore, the petitioner could not now claim that he had no knowledge of the order dated 4 February 1989. He further submitted that Parvatibai died in the year 2018 and, during her lifetime, she never challenged the order dated 4 February 1989. He submitted that merely because some dispute was pending in relation to the revenue record, that fact by could not be treated as a sufficient reason for not challenging an order passed under the provisions of the Bombay Tenancy and Agricultural Lands Act. He therefore submitted that the Maharashtra Revenue Tribunal was right in rejecting the application for condonation of delay, which was for about 27 years.

I have heard Mr. Punde, learned Advocate for the petitioner, and Mr. Ranade, learned Advocate for respondent Nos.1(a) to 1(c). I have also gone through the orders passed by the Sub-Divisional Officer and the Maharashtra Revenue Tribunal and the material placed before this Court. The main question which arises is whether the Maharashtra Revenue Tribunal was justified in interfering with the order by which the Sub-Divisional Officer had condoned a delay of about 27 years and had permitted the petitioner to pursue the appeal against the order dated 4 February 1989.

Mr. Punde submitted that the Sub-Divisional Officer hadly considered the case before condoning the delay. According to him, the Sub-Divisional Officer noticed that there were questions regarding the manner in which the proceedings under Section 32-G had been conducted. It was submitted that the legal heirs of Mahadu were not given notice and that the proceedings were decided ex parte. It was therefore argued that, when there was a possibility that the original order was passed without giving opportunity to the concerned persons, the delay ought to have been condoned so that the matter could be examined on merits.

There is some force in the submission that while considering an application for condonation of delay, the Court or authority should not normally examine the entire dispute as if it is deciding the main appeal. The question at that stage is whether the person seeking condonation has shown sufficient cause for not approaching the authority within the prescribed period. The existence of a case on merits can be one circumstance, but it cannot by explain a long delay. The petitioner was required to show a connection between the circumstances relied upon by him and his failure to challenge the order dated 4 February 1989 for about 27 years.

In the present case, the Sub-Divisional Officer appears to have been influenced considerably by the allegation that the proceedings under Section 32-G were conducted ex parte and that notice was not given to the legal heirs of Mahadu. However, that question concerns the merits. It does not explain why the order remained unchallenged for such a long period. Even if the petitioner has a good case on merits, that by cannot mean that every delay must be condoned. A person who approaches the authority after such a long period must first explain why the remedy was not pursued earlier.

Mr. Punde further submitted that the petitioner had a strong case because the name of his predecessor appeared in the revenue record under Mutation Entry No.207 and that there was also a dispute regarding Mutation Entry No.422. It was submitted that the said mutation entries and connected proceedings had been challenged before the Revenue authorities and that some of the proceedings had gone up to the High Court. It was therefore argued that the petitioner was justified in believing that the dispute regarding the tenancy rights was still continuing and that the order dated 4 February 1989 could therefore be challenged when the petitioner acquired knowledge of it.

This submission also cannot be accepted as sufficient cause for condoning a delay of about 27 years. The existence of other litigation concerning the revenue entries or other survey numbers may explain why the parties were litigating regarding their rights. But it does not explain why the particular order dated 4 February 1989 was not challenged within the prescribed period. Every proceeding has its own cause, its own order and its own limitation. The pendency of litigation concerning another property or another proceeding cannot stop limitation in respect of an order passed in a separate proceeding.

It is also necessary to keep in mind that Mutation Entry No.207 and Mutation Entry No.422 are revenue entries. The fact that the name of the predecessor of the petitioner appeared in the revenue record may have relevance while deciding the substantive dispute. But, at the stage of deciding whether the delay of about 27 years should be condoned, the mere existence of such entries cannot substitute the requirement of showing sufficient cause for the delay.

Mr. Punde also relied upon the fact that the order dated 4 February 1989 had allegedly not been implemented or acted upon and that the petitioner was in possession of the suit land. According to him, these circumstances showed that the petitioner had a genuine case and that there was no reason to prevent him from challenging the old order.

This submission also does not take the petitioner’s case any further. Whether the order was fully implemented, whether the petitioner was in possession and what effect such possession would have on the rights of the parties are matters which may arise for consideration, if the appeal is otherwise within time. These matters cannot provide an explanation for not filing the appeal for nearly 27 years.

Mr. Punde then submitted that Mutation Entry No.422 was certified and in proceedings concerning other survey numbers covered by the same mutation entry, the Revenue Tribunal had taken a view favourable to the petitioner’s predecessor. It was submitted that these circumstances showed that there was a dispute regarding the mutation entry and the tenancy rights. I have considered this submission. However, again, the question before this Court is not whether the petitioner has a better case regarding the mutation entry or the tenancy rights. The limited question is whether the explanation for the extraordinary delay was sufficient.

The fact that the petitioner may succeed on merits is not a substitute for limitation. If that approach is accepted, every delayed appeal can be permitted to proceed merely because the appellant raises an arguable case on merits.

Mr. Punde also submitted that the Tribunal committed an error in interfering with the order of the Sub-Divisional Officer. He submitted that the Tribunal ought not to have substituted its own view for the view taken by the Sub-Divisional Officer. He further submitted that if the Tribunal found the order of the Sub-Divisional Officer to be insufficiently reasoned, the Tribunal ought to have given reasons before rejecting the application for condonation of delay.

I am unable to accept this submission. The Tribunal was exercising its revisional jurisdiction. If the order passed by the Sub-Divisional Officer did consider whether sufficient cause was shown for such an extraordinary delay, the Tribunal was entitled to examine that question. The power to interfere in revision cannot be denied merely because another authority has exercised discretion. The discretion must be exercised on relevant facts and according to law.

In the present case, the important fact is the length of the delay. The order sought to be challenged was passed on 4 February 1989. The appeal was filed only on 17 June 2016. The delay was therefore not of a few months or a few years. It was of approximately 27 years and 2 months. Such a long period requires a convincing explanation. The explanation must cover the relevant period and must show why the remedy could not reasonably have been pursued earlier.

The petitioner states that he came to know about the order only on 7 April 2016. He therefore treats that date as the starting point of his knowledge. I have considered this submission also. Mere assertion of a particular date of knowledge is not sufficient when the surrounding circumstances show that the proceedings and property were reflected in the revenue record for many years.

In this regard, Mr. Ranade submitted that Survey No.137 was divided into different survey numbers and that the new Survey No.11/1 was within the knowledge of the petitioner. He further pointed out that the order under Section 32-G dated 4 February 1989 was given effect to in the revenue record. According to him, the relevant order was published, the mutation was entered and the mutation entry was thereafter certified. He also submitted that a portion of Survey No.11/1 was sold by a registered sale deed in the year 1996 and that Survey No.11/1 was thereafter divided into Survey Nos.11/1/B and 11/1/A.

These facts are relevant while considering the plea of want of knowledge. The respondents have specifically pointed out that since the year 1996 the purchaser and the respondents have been in possession of the respective portions of the land. If these facts are seen along with the changes made in the revenue record and the subsequent registered transaction, the explanation that the petitioner came to know of the order only on 7 April 2016 cannot be accepted merely on the basis of a statement made in the delay application. The petitioner was required to place sufficient material to show why, despite these subsequent developments concerning the same land, the order of 1989 remained unknown to him for such a long period.

The submission of Mr. Ranade that possession constituted notice also requires some consideration. Possession by may not in every case amount to legal notice of every order passed in relation to thety. However, in the present case, the respondents are not relying only upon possession. They have relied upon the subsequent mutation, certification of the revenue entry, division of the survey number and the registered sale transaction of 1996. These are circumstances which cannot be ignored while deciding whether the plea of knowledge raised by the petitioner is believable.

The petitioner has also relied upon the other litigation relating to Mutation Entry No.422 and the fact that proceedings in respect of other survey numbers were pending before the Revenue authorities and the High Court. That material may show that there was continuing litigation between the parties concerning their respective rights. But it also makes it difficult to accept the submission that the petitioner had no occasion to ascertain the position concerning the present land for nearly 27 years. When a party is pursuing litigation concerning the same mutation entry and connected properties, a higher degree of care would reasonably be expected in relation to the other proceedings arising from the same transaction.

Mr. Ranade further submitted that Parvatibai did not challenge the order dated 4 February 1989 during her lifetime. This submission also has to be considered in its context. The petitioner claims through Parvatibai and relies upon the Will dated 19 December 2000. Therefore, the fact that the person through whom the petitioner claims rights did not challenge the order during the substantial period after 1989 is a circumstance which cannot be ignored. It is not necessary at this stage to decide the rights arising from the Will. The fact is relevant only to examine whether the explanation offered for the delay is satisfactory.

The submission regarding the date of death of Parvatibai also does not alter the position. The material before the Court shows that the petitioner seeks to explain his own knowledge by referring to subsequent proceedings and the date of 7 April 2016. But the explanation must account for the entire period between 4 February 1989 and 17 June 2016. It is not enough to explain only what happened immediately before the appeal was filed. A person seeking condonation of such a long delay must explain the earlier period also.

There is another aspect. The petitioner has sought to rely upon the alleged illegality of the order dated 4 February 1989 for the purpose of explaining the delay. These are two separate matters. An order may be capable of being challenged on merits, but the person challenging it must still satisfy the statutory requirement relating to limitation. The merits of the challenge cannot wipe out the delay.

I have also considered the submission that the order dated 4 February 1989 was never acted upon. The subsequent revenue record referred to by Mr. Ranade indicates that the order was given effect to in the revenue record in 1995. The mutation was thereafter entered and certified. A registered sale transaction also took place in 1996 in respect of a portion of the land. Therefore, the submission that the order was lying dormant and had no effect cannot be accepted at this stage as a basis for condoning the delay. In any event, whether the order was correctly implemented is a matter concerning the merits and effect of the order. It does not furnish a sufficient explanation for the delay.

The Court must also consider the prejudice which may be caused by reopening a matter after such a long period. The order in question was passed in 1989. Revenue entries were thereafter made. The land was divided. A portion was sold by a registered sale deed in 1996. Possession is stated to have been with the purchaser and the respondents thereafter. The rights and conduct of the parties have therefore proceeded on the basis of the position which existed for several years. To reopen the entire matter after about 27 years cannot be permitted merely because the petitioner now seeks an opportunity to challenge the original order.

At the same time, I am conscious that delay should not be decided in a manner which prevents a genuine dispute from being examined on merits. Courts prefer that a matter be decided on merits where sufficient cause is shown. But that principle does not mean that a party has an unlimited right to reopen an old proceeding. There must be a point at which a dispute, which has remained unchallenged for a long period, cannot be reopened without a satisfactory explanation for the delay.

The present case has reached that point. The petitioner has not placed before the Court a satisfactory explanation covering the entire period of about 27 years. The explanation regarding knowledge on 7 April 2016 does not satisfactorily answer the circumstances relating to the subsequent revenue entries, the division of the survey number, the registered sale transaction of 1996 and the possession of the respondents and the purchaser. The pendency of other revenue and tenancy proceedings also does not, by, explain why the particular order dated 4 February 1989 was not challenged earlier.

I, therefore, find that the Maharashtra Revenue Tribunal was justified in examining the order of the Sub-Divisional Officer and in coming to the conclusion that the delay ought not to have been condoned. The Tribunal has not decided the merits of the petitioner’s claim. It has only declined to reopen the proceedings after an unexplained delay of nearly 27 years. In the facts of this case, such an approach cannot be said to be illegal or perverse.

It is true that the petitioner may have certain grievances regarding Mutation Entry Nos.207 and 422. It is also true that disputes relating to those entries and otherties may have been considered by the Revenue authorities and the Maharashtra Revenue Tribunal. Those proceedings may have their own consequences. However, those proceedings cannot revive the petitioner’s right to challenge the separate order dated 4 February 1989 after nearly three decades.

The jurisdiction of this Court under Articles 226 and 227 of the Constitution is not meant to interfere with every discretionary order passed by a statutory authority. Interference is required where the authority has acted without jurisdiction, ignored the material record, or arrived at a conclusion which cannot reasonably be supported by the record. In the present case, the Tribunal considered the issue of delay and the explanation offered by the petitioner. Its conclusion that the delay was not satisfactorily explained cannot be said to suffer from such an error as would require interference in writ jurisdiction.

The petitioner has accordingly failed to establish sufficient cause for the delay of about 27 years and 2 months in challenging the order dated 4 February 1989. The impugned judgment and order dated 15 November 2017 passed by the Maharashtra Revenue Tribunal, Mumbai therefore does not call for interference.

The Writ Petition is accordingly dismissed.

There shall be no order as to costs.