Bombay High Court
Gurunath Kanha Mhatre And Ors vs Karsan Mahipat Munde And Ors on 21 August, 2024
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2024:BHC-AS:33521
WP 2201-19.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2201 OF 2019
1) Gurunath Kanha Mhatre ]
Age : 47 years, Occ: ]
2) Shyam Kanha Mhatre ]
Age : 42 years, Occ: Nil. ]
3) Smt. Kanha Chahu Mhatre ]
Age : 45 years, Occ: Household. ]
4) Smt. Mayuri Chahu Mhatre ]
Age : 26 years, Occ: Household, ]
Sr. Nos. 1 to 4 all R/o Agasan, ]
Behind Datta Mandir, ]
Post Diva Station, Diwa (east), ]
Taluka and District Thane. ]
5) Smt. Mukta Baburao Patil ]
Age : 55 years, Occ: Household ]
R/o. At Khidkali, Post padale ]
Taluka & District Thane. ]
6) Smt. Vimal Govind Kalan, ]
Age : 52 years, Occ: Household, ]
R/o. At Pimpoli, Post Neral, ]
Taluka Karjat, District Raigad. ]
7) Smt. Ranjana Ganesh Gaikar ]
Age : 46 years, Occ: Household, ]
R/o Powarnicha Pada, ]
new Manishanagar, Kalya (west), ]
District Thane. ]
8) Shri. Manish Madan Mhatre ]
Age : 57 years, Occ: Nil. ]
9) Shri. Nishant Madan Mhatre ]
Age : 29 years, Occ: ]
10) Sau. Nilam Hemant Patil ]
Age : 57 years, Occ: Household ]
11) Sau. Reshma Namit Patil ]
Age : 18 years, Occ : Nil. ]
Sr. Nos. 8 to 11 all R/o.Agasan ]
Post Diwa station, Taluka & ]
District Thane. ]
Patil-SR (ch) 1 of 18
WP 2201-19.doc
12) Pravin Bhimrao Mhatre ]
Age 35 years, Occ : ]
For Self and Constituted Attorney ]
of the Petitioner No. 1 to 11 ]
R/o. Agasan Post Diwa station, Taluka & ]
District Thane. ] ...Petitioners.
Versus
1) Karsan Mahipat Munde. ]
Age : 78 years, Occ : Agriculture. ]
R/o. Agasan, Post Diwa Station, ]
Taluka & District Thane. ]
2) Shri. Narayan Srikrishna Patkar. ]
Age Major, Occ : Not known. ]
3) Shri. Padmakar Shrikrishna Patkar ]
Age: Major, Occ:Not known, ]
Sr. Nos. 2 and 3 both R/o Patkar ]
House, Ramnagar, Dombivali (E). ]
4) Smt. Yashodhara Avinath Kamat ]
R/o Near Kamath Hospital, ]
Mith Chouki, Evershine Nagar, ]
Malad, Mumbai. ]
5) Shri. Chandrashekar Srikrishna ]
Patkar, R/o Shubhamkaroti, ]
Baji Prabhu Chouk, Dombivali ]
(East), Taluka Kalyan Dist. Thane. ]
6) The Agriculture Land Tribunal ]
and Tahsildar, Thane. ]
7) Sub-Divisional Officer, Thane ]
officer of the Collector, Thane, ]
2nd Floor, Taluka & District Thane. ]
8) The President, Maharashtra Revenue ]
Tribunal, Mumbai. (Copies to be served ]
upon the office of Government Pleader, ]
High Court, Appellate Side, Bombay for ]
the Respondent No. 6 to 8) ]
9) National High Speed Rail Corporation ]
Limited, A Government Company ]
Through its Chairman and Managing ]
Director, Having its Registered office at ]
2nd Floor, Asia Bhavan, Road No. 205, ]
Sector -09, Dwarka, New Delhi 110 077. ] ...Respondents.
Patil-SR (ch) 2 of 18
WP 2201-19.doc
------------
Ms. Neeta Karnik, Ms. R. W. Carreia i/b Mr. A. V. Chatuphale for the Petitioners.
Mr. Amit A. Gharte for the Respondent No. 1.
Ms. M. S. Bane, AGP for the Respondent-State.
Mr. Pralhad D. Paranjape for the Respondent No. 9.
------------
Coram : Sharmila U. Deshmukh, J.
Reserved on : July 16, 2024
Pronounced on : August 21, 2024.
Judgment :
1. Rule. Rule made returnable forthwith and by consent of learned
counsel for the respective parties, taken up for final hearing.
2. By this petition, challenge is to the order dated 9 th October 2018
passed by the Maharashtra Revenue Tribunal [for short, "MRT"] in
Revision Application No.TNC/REV/THN/257 of 2017, the order dated
31st August 2017 passed by the Respondent No.7-the Sub Divisional
Officer [for short "SDO"], the order dated 24 th November 2015 and the
order dated 19th October 2006 passed by the Respondent No.6 -
Tahsildar and ALT, Thane.
FACTUAL MATRIX:
3. The Respondent No.1 initiated proceedings under Section 32G of
the Maharashtra Tenancy and Agricultural Lands Act [for short "Tenancy
Act"] being Application No 38 of 2005 seeking fixation of purchase
price in respect of land bearing Survey No.170B admeasuring 63.9 Ares
situated at Village Agasan, Taluka: Thane, District: Thane. Vide Order
Patil-SR (ch) 3 of 18
WP 2201-19.doc
dated 19th October, 2006, the Tahsildar and ALT allowed the application
fixing the purchase price. Subsequently Certificate under Section 32M
of Tenancy Act was issued in favour of the Respondent No.1 on 24 th
January, 2007.
4. The Petitioners challenged the order dated 19 th October 2006
before the SDO, Thane by preferring Tenancy Appeal No. 107 of 2012
filed on 14th August 2012 which was allowed by the SDO vide order
dated 31st May 2013 and the matter was remanded to Tahsildar for
consideration afresh. The order of remand passed by SDO was
challenged by the Respondent No.1 before MRT. Vide order dated 21 st
November 2016, MRT set aside the order of SDO and directed the SDO
to decide the delay condonation application separately and if the SDO
is satisfied on the point of delay, to decide the application on merits.
5. Upon remand, the application numbered as Revision Application
No.7 of 2017 vide order dated 31 st August 2017 came to be dismissed
by SDO refusing to accept the explanation tendered by the Petitioners
for the delay. The dismissal of application for condonation of delay was
challenged by the Petitioners before the MRT by preferring Revision
Application No.257 of 2017. Vide order dated 9 th October 2018, MRT
dismissed the revision application thereby upholding the order dated
31st August 2017 passed by the SDO.
6. The Respondent No.1 moved a fresh application being Remand
Patil-SR (ch) 4 of 18
WP 2201-19.doc
Case No.34 of 2013 before the Tahsildar and ALT pursuant to the order
of SDO dated 31st May, 2013 which came to be disposed of vide order
dated 24th November, 2015 holding that neither party have adduced any
documentary evidence in support of their claim under Section 32G of
Tenancy Act.
SUBMISSIONS:
7. Ms. Karnik, learned Counsel appearing for the Petitioner would
submit that in the order dated 31 st May, 2013 the Tahsildar had made
certain pertinent observations in respect of Section 32G proceedings
initiated by Respondent No.1. She submits that the Survey No.170, in
respect of which the Petitioner's predecessor was the protected
tenant, was fraudulently sub divided in Survey No.170A and Survey
No.170B resulting in Section 32G proceedings in favour of Respondent
No.1 in respect of 63.9 Ares based upon non existent Mutation Entry
No.247. She submits that in the present proceedings, this Court by
order dated 5th August 2019 directed the Collector to peruse the entire
papers and to file an Affidavit considering that there exists two 32G
certificates in regard to the same land, one in favour of the
predecessors of Petitioner and other in favour of the Respondent No.1.
She has taken this Court in detail through the Affidavit of the Collector
and would submit that the Collector has specifically stated that the
name of Petitioner's predecessor was entered into revenue record as
Patil-SR (ch) 5 of 18
WP 2201-19.doc
protected tenant in respect of Survey No. 170 admeasuring 1-Acre 34-
Gunthas by Mutation Entry No. 37 which was prior to the tiller's date,
that the Respondent No.1 in the proceedings under section 32G of the
Tenancy Act has attached 2 documents, the first document is 7/12
extract of Survey No. 170B for the year 2004-2005 admeasuring 63.9
Ares which shows that the Respondent No.1 is the protected tenant
vide Mutation Entry No. 247 and that from the perusal of original
record pertaining to Mutation Entry No.247, there are certain erasures
and interpolations and that Mutation Entry No. 247 is not at all related
to Survey No.170 and that the Mutation Entry No. 247 is not original
but fabricated one. She submits that once a finding of fraud has been
arrived at by the Collector, the entire proceedings are vitiated.
8. Pointing out to the condonation of delay application, she submits
that the same was preferred against the Section 32M certificate
granted in the year 2007 and it is specifically pleaded that the
Petitioner acquired knowledge about the same on 3rd May 2012.
9. She submits that the order of SDO refusing to condone delay is
without any reasoning. She submits that the findings of MRT are
perverse that there is no proper draft of application and that as on 11th
March 2004 and even prior thereto the applicant was consciously aware
of the holding of Respondent. She submits that after remand, the
Tahsildar & ALT by order dated 24 th November 2015 has held that no
Patil-SR (ch) 6 of 18
WP 2201-19.doc
purchase price can be fixed and has rejected the revision application.
10. Per Contra Mr. Gharate, learned counsel for Respondent No.1
would submit that the Petitioners have no locus as regards the Section
32M certificate granted in favour of Respondent No.1. He submits that
Tahsildar's order was nullity as the matter was remanded by the MRT.
He submits that there was no requirement of filing any rejoinder to the
affidavit filed by the Collector as the Collector has no business to
inquire into 32G proceedings. He submits that the Collector has no
role under the Tenancy Act to give any finding as regards the 32G
proceedings and, at any rate no opportunity of hearing was given to the
Respondent before the affidavit is filed by the Collector.
11. On the application seeking condonation of delay, he submits that
the Mutation Entry No. 724 by which the names of legal heirs of the
predecessor of Petitioner were certified would indicate that the
predecessors of Petitioner had expired 45 years prior to 1990 and that
in the survey numbers the present Survey No. 170 has not been
included. He would further submit that the Petitioners had initiated
Section 32G proceedings in respect of Survey No. 170 admeasuring 7-
Are and Pot-kharab 4-Are, that is, total 11-Are whereas the 32G
proceedings of Respondent No.1 is in respect of 63.9 Ares. He submits
that the Petitioner was aware in the year 2002-03 itself about the
mutation entries which were effected, which is noted in the impugned
Patil-SR (ch) 7 of 18
WP 2201-19.doc
order of MRT. He submits that as such there is considerable delay which
has not been explained by the Petitioner. In support of his submissions
he relies upon the following judgments:
[a] Dr. Premachandran Keezhoth v. Chancellor, Kannur University
[ 2023 SCC OnLine SC 1592];
[b] Joint Action Committee of Air Line Pilots' Association of India
v. Director General of Civil Aviation [(2011) 5 SCC 435];
[c] Bahadursingh Lakhubhai Gohil v. Jagdishbhai M. Kamalia
[(2004) 2 SCC 65];
[d] Pannalal Tilokchand Khedkar v. Rukhabaso Nathusao Jain
[2005(3) Mh.L.J. 484];
[e] Nagesh Dutta Shetty v. State of Karnataka [AIR 2005 SC 1550];
[f] Shiromani Gurdwara Prabandhak Committee v. Raja Shiv
Rattan Dev Singh [AIR 1955 SC 576];
[g] Zuari Cement v. Regional Director ESIC Hyderabad [AIR 2015 SC
2764]; and
[h] S V Matha Prasad v. Lalchand Meghraj [2007 AIR SCW 4320]
12. In-rejoinder, Ms. Karnik, would submit that the compilation of
documents have been tendered without any supporting affidavit and
thus the same cannot be taken into consideration. She submits that
there is no rejoinder to the Collector's affidavit which specifically states
that Survey No. 170B was not found in existence. She submits that the
Petitioner is in possession of the entire property and that the Petitioner
was granted 32M certificate only in respect of 7-Ares because through
Patil-SR (ch) 8 of 18
WP 2201-19.doc
fraud Survey No. 170B was created.
REASONS AND ANALYSIS:
13. Although the issue involved in the present case was testing the
validity of order passed by the MRT and the SDO rejecting the
Petitioner's application for condonation of delay, the present
proceedings will have to be viewed in a new light considering the
Affidavit filed by the Collector. Though Advocate Gharate would submit
that the Collector had no authority under the Tenancy Act to render any
finding, he has forgotten that this Court by order dated 5 th August,
2019 had directed the Collector to peruse the entire record and file an
Affidavit. The order of this Court dated 5 th August, 2019 was not
challenged by the Respondent No.1 and having accepted the order, the
Respondent No.1cannot shy away from the findings of the Collector.
14. The settled position in law cannot be disputed that upon the
order of SDO dated 31st May, 2013 being set aside by the MRT, the
order of SDO will not have any legal sanctity and the order of MRT will
prevail. Upon remand, the matter was positioned on the aspect of
consideration of condonation of delay of 5 years 9 months and 5 days
occasioned in challenging the order dated 19 th October, 2006 fixing the
purchase price in favour of Respondent No.1in respect of land
admeasuring 63.9 Ares bearing Survey No 170B.
15. In the application seeking condonation of delay, the explanation
Patil-SR (ch) 9 of 18
WP 2201-19.doc
tendered is that in the year 2002-2003, the 7/12 extract obtained by
the Petitioners for initiating proceedings under Section 32G showed an
area of only 7 Ares and despite demanding the 7/12 extracts for the
period 1952-53 onward, the same was not made available to the
Petitioners. Based on the 7/12 extract of Survey No 170A which was
made available to the Petitioners, the proceedings under Section 32 G
were initiated in the year 2004 by the Petitioners. It was only upon the
7/12 extract of Survey No 170B being obtained by the Petitioners, that
they became aware of name of Respondent No.1being recorded in
respect of Survey No 170B. Thereafter they searched for the revenue
records since the year 1955-1956 which was made available on 3 rd May,
2012. It was contended that without the name of the Respondent
No.1being entered in the 7/12 extract and without the existence of
Mutation Entry No 247, the order of 19 th June, 2006 was obtained by
misleading the authorities.
16. The reply of Respondent No.1 resisted the application
contending to be the protected tenant in respect of Survey No 170-B
which has been recorded by Mutation Entry No 247. The Petitioners
had instituted proceeding under Section 32G of Tenancy Act for fixing
of purchase price in respect of Survey No.170-A admeasuring 11 Are,
which has been allowed vide order dated 16th February, 2006.
17. SDO vide order dated 31st August 2017 has rejected the
Patil-SR (ch) 10 of 18
WP 2201-19.doc
application for condonation of delay by holding that the explanation
tendered is not acceptable. In the application, the Petitioners have
specifically set out that the 7/12 extract taken out in the year 2002-
2003 showed area of only 7 Are and that the 7/12 extracts for the
period 1952-1953 were not made available. It is contended that the
Petitioners became aware about the Respondent No 1's name being
recorded in the 7/12 extract of Survey No 170-B and thereafter the
7/12 of the years 1955-1956 were made available on 3rd May, 2012.
18. There is no discussion in the SDO's order on the detailed
explanation set out in the Application. From the pleadings it appears
that the Petitioners were unaware about the changes carried out in the
7/12 extract reducing the area and bifurcating the Survey No 170 in
Survey No 170-A and 170-B or about the recording of the name of
Respondent No.1. However, the SDO while passing the impugned order
has not dealt with the explanation tendered and simply rejected the
application by one line finding of explanation not acceptable.
19. Perusal of the order of MRT would indicate that the MRT has not
accepted the explanation for the following reasons:
(a) There is no proper draft of application.
(b) The application seeking condonation of delay was
mismatching.
(c) The date of knowledge were calculatedly given effect
Patil-SR (ch) 11 of 18
WP 2201-19.doc
belatedly though the Applicants were aware of Respondent's
holding.
(d) It cannot be believed that the Applicant or his predecessor
did not procure record for all the years 1952-1953.
20. In exercise of powers of judicial review, it is not for this Court to
consider whether the explanation tendered is sufficient or not but to
consider whether the discretion has been rightly exercised by MRT
while deciding the application. In my view, the order of MRT does not
shed much light on the reasons which compelled the MRT to reject the
explanation. There is no discussion and no reasons stated in the order
to support the findings arrived by MRT. The order of the MRT does not
deal with the specific pleading about the absence of knowledge in
respect of the order under challenge, the reason being that the
Petitioners were unaware of the reduction of the area which was under
cultivation of their predecessors and the bifurcation of the holding.
21. It is not disputed that in the year 2002-2003, when the Petitioner
obtained 7/12 extract for initiation of proceedings under section 32G,
the Petitioners became aware of the 7/12 extract being only of 7 Are
and pot kharab 4 Are. Pertinently, the challenge is to the order dated
19th October, 2006 and consequent Section 32M certificate issued in the
year 2007 to the Respondent No.1. What assumes significance is the
Patil-SR (ch) 12 of 18
WP 2201-19.doc
date of knowledge of the said order and the date when the Petitioners
became aware of the fraud laying the foundation for challenging the
orders which was in the year 2012. Even if it is held that in the year
2002-2003 the Petitioners became aware of their land being restricted
to only 11 Are, it is nobody's case that the Petitioners were issued any
notice in respect of 32G proceedings initiated by the Respondent No.1
or they had knowledge of the said proceedings.
22. In the application filed by the Petitioner seeking condonation of
delay, the specific contention of Petitioner is that on 3 rd May 2012
when the 7/12 extracts were obtained which showed the sub division of
Survey No. 170 into Survey No. 170A and Survey No.170B, that the
illegal order came to the notice of Petitioner. There was thus sufficient
explanation tendered by the Petitioner in support of the condonation
of delay. The delay, if any, had to be counted from the date when the
Petitioner acquired knowledge of the order being passed in 32G
proceedings and the 32M certificate being issued as the challenge was
to the order passed in those proceedings.
23. The challenge before the SDO was not to the entries recorded in
name of the Respondent No.1 in the 7/12 extracts but to the order
passed on 19th October, 2006 in proceedings under Section 32G of
Tenancy Act, which order could have been challenged only when the
Petitioner acquired knowledge of the alleged fraud in the year 2012
Patil-SR (ch) 13 of 18
WP 2201-19.doc
upon obtaining the 7/12 extracts of Survey No.170 from the year 1952-
1953.
24. Apart from the above, in my view, it is necessary that the
challenge to the order dated 19th October, 2006 and the consequent
Section 32M certificate is not thrown out at the threshold on the
ground of delay considering the Affidavit filed by Collector before this
Court. Pursuant to order of this Court, the Collector has investigated
the matter and filed an Affidavit which reveals startling state of affairs.
25. In his affidavit the Collector has stated that the name of
Petitioner's predecessor was entered vide Mutation Entry No. 37 in
respect of Survey No.170 admeasuring 1-Acre 34-Guntha prior to the
tiller's date. The Collector has further stated that Tahsildar had fixed
the purchase price of land in respect of the predecessor of Petitioner.
The Collector has further examined the proceedings in Case No.38 of
2005 and has stated that on 12th July 2005 the Respondent No.1 had
applied to the Tahsildar claiming to be the tenant on tiller's date and
for fixation of purchase price relying upon 2 documents, namely, the
7/12 extract of Survey No.170B for the year 2004-2005 which showed
the Respondent No.1 as protected tenant vide Mutation Entry No. 247.
The Collector has further stated that in the original record of Mutation
Entry No.247, the names of landlord and tenant and the Survey Number
have been erased and made invisible and that Mutation Entry No. 247 is
Patil-SR (ch) 14 of 18
WP 2201-19.doc
not in respect of Survey No. 170 as it is not reflected in original 7/12
extract of Survey No.170 in the year 1952-53 till the year 1977-78, and
that the same is cancelled mutation entry. It is specifically stated that
Mutation Entry No. 247 was not an original but a fabricated mutation
entry and that the Tahsildar should have examined the original 7/12
extract and mutations before giving decision in the tenancy claim.
26. Despite the affidavit being filed by the Collector pursuant to the
order passed by this Court, the Respondent No.1 has not filed any
rejoinder to the Collector's affidavit. Even if it is accepted that the
Collector did not have any right under the Tenancy Act to determine
whether the 32G proceedings were rightly conducted or not or that no
notice was given to the Respondent No.1, the fact remains that the
Affidavit has been filed pursuant to the order of this Court and this
Court cannot shut its eyes to the said affidavit which indicates that the
32G proceedings initiated on the basis of Mutation Entry No. 247 was
not in respect of Survey No.170 and that the original record was
tampered with.
27. Dealing with the decisions cited by Mr. Gharate, in Dr.
Premachandran Keezhoth (supra), Joint Action Committee of Air Line
Pilots Association of India (supra) and Bahadursingh Lakhubhai Gohil
v. Jagdishbhai M. Kamalia (supra), the Apex Court has reiterated the
Patil-SR (ch) 15 of 18
WP 2201-19.doc
well settled proposition of law that the authority which is conferred
with the competence under the statute alone can pass the order. There
is no quarrel with the said proposition. The same was pressed into
service by the learned counsel for the Respondent No.1 to drive home
the point that the Collector could not have given any finding in respect
of the 32G proceedings initiated under the Tenancy Act. The fallacy of
the said submission is that it is under the order of this Court that the
Collector has investigated into the matter and has filed affidavit.
Admittedly, the order passed by this Court is not challenged by the
Respondent No.1 before higher forum and as such pursuant to the
order passed by this Court the Collector has investigated into the
matter and filed the affidavit. The affidavit is only for the purpose of
bringing on record the inquiry which was carried out by the Collector
and it is then for this Court to decide the course of action to be taken
based on the said affidavit of Collector. The affidavit of Collector does
not constitute an order under the Tenancy Act and thus the reliance
placed on the above decisions is misplaced.
28. As far as the decision in S.V. Matha Prasad (supra) is concerned,
there is no quarrel with the proposition that the proceedings after
remand to the trial court becomes null and void and in fact learned
counsel appearing for the Petitioner fairly conceded to the said
position.
Patil-SR (ch) 16 of 18
WP 2201-19.doc
29. On the issue of condonation of delay, decision in the case of S. V.
Matha Prasad (supra) was on the point that a decision on merits is not
required to be taken while considering an application for condonation
of delay. However in the present case in view of the Affidavit of the
Collector, it is necessary for the matter to be considered afresh by the
Tahsildar.
30. The principles which are laid down in Esha Bhattacharjee (supra)
gives sufficient guidance to the Courts while deciding the application
for condonation of delay. However, in facts of present case, I find that
MRT has not considered and dealt with the explanation tendered by the
Petitioner and the discretion exercised by MRT deserves interference.
31. In view of the discussion above, the position now stands altered
with the aspect of fraud being spelt out by the Collector's Affidavit. The
proceedings therefore stand vitiated and it is necessary in the interest
of justice for a detailed inquiry to be carried out by the Tahsildhar and
ALT before the purchase price in respect of the subject land can be
fixed in favour of either party. The delay in the challenge to the order
dated 19th October, 2006 and Section 32M certificate granted in favour
of the Respondent No.1is required to be condoned. Hence I pass the
following order:
Patil-SR (ch) 17 of 18
WP 2201-19.doc
: ORDER :
(a) The impugned orders dated 9th October, 2018 passed by MRT and order dated 31st August, 2017 passed by the SDO declining to condone the delay are hereby quashed and set aside.
(b) The delay of 5 years 9 months and 5 days caused in preferring the appeal before the SDO stands condoned.
(c) Consequently, the SDO is directed to decide Tenancy Appeal No. 107 of 2012 afresh, on its own merits and in accordance with law.
(d) In view of direction contained in clause (c) above, the order dated 24th November 2015 passed in Remand Case No. 34 of 2013 is quashed and set aside.
(e) Till the adjudication of proceedings by the SDO, the newly added Respondent No.9 is prohibited from disbursing the compensation in respect of Survey No 170-B to any party.
(f) It is open for the Petitioners to adopt appropriate remedy for correction of the revenue records.
32. Petition stands allowed in the above terms. Rule is made absolute.
[Sharmila U. Deshmukh, J.] Patil-SR (ch) 18 of 18 Signed by: Sachin R. Patil Designation: PS To Honourable Judge Date: 21/08/2024 19:41:24