As per case facts, the Petitioner challenged a judgment from the Maharashtra Revenue Tribunal which rejected his application for condonation of delay in filing an appeal under the Maharashtra Restoration ...
wp13889-2018-J.doc
Shabnoor
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13889 OF 2018
Ravindra Vasudeo Salvi … Petitioner
Vs.
1.Sunil Janu Wayade
2.Simgu Janu Wayade … Respondents
Mr. R.D. Suryawanshi with Mr. Suraj N. Naik for the
Petitioner.
Mr. Jaydeep Raut with Mr. Rishabh Patel i/by Mr. Vinod
Naik for the Respondents.
Smt. Mamta S. Shrivastava, AGP for the State.
CORAM :AMIT BORKAR, J.
RESERVED ON :SEPTEMBER 7, 2026.
PRONOUNCED ON:SEPTEMBER 9, 2026
JUDGMENT:
1.By filing the present Petition, the Petitioner has challenged
the judgment and order dated 20 December 2017 passed by the
learned President of the Maharashtra Revenue Tribunal, Mumbai.
By the said order, the learned President rejected the Petitioner's
application seeking condonation of delay in filing Appeal No.
TRB/APL/MUM/L-52/2015 under Section 6 of the Maharashtra
1
ATUL
GANESH
KULKARNI
Digitally signed by
ATUL GANESH
KULKARNI
Date: 2026.09.09
13:21:18 +0530
wp13889-2018-J.doc
Restoration of Lands to Scheduled Tribes Act, 1974 (hereinafter
referred to as “the Act of 1974”).
2.The brief facts which have led to filing of the present Petition
are stated below. The present Petition and the proceedings before
the Sub-Divisional Officer as well as before the Maharashtra
Revenue Tribunal relate to land bearing Survey No. 157 (Part),
New Survey No. 239, Hissa No. 3, and Survey No. 245, Hissa No.
1. The total area of the said lands is about 3 Acres, equivalent to
11,085.36 square metres or 13,260 square yards. The lands are
situated at Village Malad, Taluka Borivali, District Mumbai
Suburban. These lands are hereinafter referred to as “the suit
lands”. According to the Petitioner, Respondent Nos. 1 and 2, on 7
June 2008, filed an application before the Sub-Divisional Officer,
Mumbai Suburban District. By that application, they sought
cancellation of Mutation Entry Nos. 1640 and 992 relating to
Survey No. 245, Hissa No. 1 and Survey No. 239, Hissa No. 3,
respectively, situated at Village Malad, Taluka Borivali, District
Mumbai Suburban. They sought restoration of the said lands in
their favour. On 4 July 2008, the Petitioner appeared in the said
proceedings., on 25 August 2008, he filed a detailed reply
opposing the application filed by Respondent Nos. 1 and 2 on
various grounds stated in the reply., the Sub-Divisional Officer,
Mumbai Suburban District, fixed the application for hearing on 22
May 2009. The Advocates for Respondent Nos. 1 and 2 and the
Petitioner were present on that day. The Petitioner filed an
application seeking an adjournment. The matter was adjourned to
8 June 2009. On 8 June 2009, the Advocates for Respondent Nos.
2
wp13889-2018-J.doc
1 and 2 and the Advocate for the Petitioner, along with the
Petitioner, were present before the Sub-Divisional Officer. The
parties made their oral submissions. After hearing them, the Sub-
Divisional Officer closed the matter for orders. According to the
Petitioner, the office of the Sub-Divisional Officer informed him
that the order would be communicated to him. After this, the
Petitioner made enquiries from time to time with the office of the
Sub-Divisional Officer, Mumbai Suburban District, about the status
of the proceedings. On every such occasion, he was informed that
the order would be sent to him by post when it was ready. The
Petitioner states that, after making several enquiries and still not
receiving any communication, he stopped visiting the office and
waited for the order to be communicated to him. The Petitioner
states that, despite this, he did not receive any notice,
communication or information about the order passed by the Sub-
Divisional Officer on the application dated 7 June 2008 filed by
Respondent Nos. 1 and 2. In these circumstances, the Petitioner
received a notice dated 18 November 2013 from Thakordas and
Madgaonkar, Advocates and Solicitors. The notice was issued on
behalf of Respondent Nos. 1 and 2 and two other persons. It
related to R.T.S. Appeal No. 55 of 2013 filed before the Sub-
Divisional Officer, Mumbai Suburban District. The notice was
accompanied by an application seeking condonation of delay.
According to the Petitioner, by filing the said R.T.S. Appeal,
Respondent Nos. 1 and 2 and two other persons sought, amongst
other reliefs, that their names be entered in place of Ashoka
Farming Society, the present Petitioner and Manzoor Hasan Nakvi.
3
wp13889-2018-J.doc
They sought deletion of the names of Ashoka Farming Society and
the Petitioner from the revenue records. They sought cancellation
of Mutation Entry No. 1855 relating to the same land which was
the subject matter of the earlier application dated 7 June 2008.
The Petitioner states that he was made Respondent No. 2 in the
said R.T.S. Appeal. After going through the appeal memo and the
application for condonation of delay, the Petitioner noticed that
there was no mention of the earlier application dated 7 June 2008
filed by Respondent Nos. 1 and 2 before the Sub-Divisional Officer.
There was no mention of the proceedings which had taken place
pursuant to that application.
3.According to the Petitioner, these facts showed that even
Respondent Nos. 1 and 2 were not aware of the order, if any,
passed on their earlier application dated 7 June 2008. The
Petitioner contends that, if Respondent Nos. 1 and 2 had known
about the order dated 29 December 2009, they would not have
filed R.T.S. Appeal No. 55 of 2013 seeking substantially the same
reliefs. According to the Petitioner, the reliefs sought in that appeal
had been granted by the Sub-Divisional Officer by his order dated
29 December 2009 passed on the application dated 7 June 2008.
After considering R.T.S. Appeal No. 55 of 2013 and the application
seeking condonation of delay, the Petitioner filed his reply to the
application for condonation of delay on 3 December 2013. In
paragraph 3 of the said reply, the Petitioner specifically pointed out
that Respondent Nos. 1 and 2 had filed an application dated 7
June 2008 seeking cancellation of Mutation Entry Nos. 1640 and
992 in respect of the suit lands. The Petitioner pointed out that
4
wp13889-2018-J.doc
those proceedings were registered as Case No. 117 of 2008. On
this basis, the Petitioner contended that the subsequent appeal
challenging the same mutation entries was not maintainable. The
Petitioner filed his reply to R.T.S. Appeal No. 55 of 2013. In
paragraph 8 of that reply, he again raised the same objection
regarding the earlier application dated 7 June 2008 and the
proceedings arising from it., when the application for condonation
of delay in R.T.S. Appeal No. 55 of 2013 was heard on 13 January
2015, the Petitioner and his Advocate brought to the notice of the
Sub-Divisional Officer that the application dated 7 June 2008 had
been filed and that proceedings in respect thereof had taken place.
The Petitioner states that, on 13 January 2015, the Sub-Divisional
Officer called for the record and proceedings relating to the
application dated 7 June 2008. After examining the said record,
the Sub-Divisional Officer informed the Petitioner, Respondent
Nos. 1 and 2 and their respective Advocates that the earlier
application had been disposed of by an order dated 29 December
2009. In view of this, on 13 January 2015, Respondent Nos. 1 and
2 and the other appellants withdrew R.T.S. Appeal No. 55 of 2013.
The Petitioner states that he came to know about the order dated
29 December 2009 only on 13 January 2015. According to the
Petitioner, Respondent Nos. 1 and 2 came to know about the said
order for the first time on the same date. In these circumstances,
the Petitioner applied for a certified copy of the order dated 29
December 2009 on 17 January 2015., the Petitioner challenged the
said order passed by the Sub-Divisional Officer by filing an appeal
under Section 6 of the Act of 1974 before the Maharashtra
5
wp13889-2018-J.doc
Revenue Tribunal, Mumbai.
4.The Petitioner states that the appeal was filed along with an
application seeking condonation of delay. In that application, the
Petitioner explained the circumstances which, according to him,
had caused the delay. He specifically stated that he had never been
served with the order dated 29 December 2009 and had not
otherwise been informed about it. He stated that he came to know
about the said order only on 13 January 2015., the learned
President of the Maharashtra Revenue Tribunal, Mumbai, heard
the Petitioner's application seeking condonation of delay. By
judgment and order dated 20 December 2017, the learned
President of the Maharashtra Revenue Tribunal rejected the
Petitioner's application for condonation of delay. According to the
Petitioner, the judgment and order dated 20 December 2017
passed by the learned President of the Maharashtra Revenue
Tribunal is incorrect and does not consider the facts and
circumstances of the case. The Petitioner contends that the said
judgment and order is liable to be quashed and set aside. It is this
judgment and order which has been challenged by the Petitioner in
the present Petition.
5.Mr. Suryawanshi, learned Advocate for the petitioner submits
that the Sub Divisional Officer was under legal obligation to
communicate judgment in the quasi judicial proceedings. He
submitted that neither the petitioner nor respondents received
copy of judgment of the Sub-Divisional Officer till such fact was
disclosed in the year 2015. He submitted that the fact of lack of
knowledge of the respondents about delivery of judgment supports
6
wp13889-2018-J.doc
petitioner’s case of lack of knowledge of delivery of judgment and
the conduct of the parties. He submitted that only after the record
and proceedings of earlier proceedings were called by the Sub-
Divisional Officer on 13 January 2015, it was revealed that such
proceeding was disposed off by judgment and order dated 29
December 2009. He,, submits that the fact of lack of knowledge
has not been disproved by the respondents.
6.In support of his submissions, Mr. Suryawanshi relied upon
the Supreme Court judgments in
Sheo Raj Singh (Deceased)
Through Lrs. & Ors. v Union of India & Anr
., (2023) 13 S.C.R. 743,
and
Inder Singh v. The State of Madhya Pradesh, (2025) 3 S.C.R.
915.
7.Per contra, Mr. Raut, learned Advocate for the respondents
submits that it is not in dispute that the petitioner was represented
by an Advocate and the Sub-Divisional Officer in 2009 heard
Advocate for the parties. Relying on reasons furnished by the
Revisional Authority, he submitted that the Revisional Authority
has rightly observed that the petitioner was under obligation to
enquiry about the judgment, and he cannot keep mum for five
years. He submitted that this a case of gross negligence of the
respondents and,, the Revisional Authority has rightly refused to
condone the delay.
8.In support of his submissions, Mr. Raut relied upon the
judgments of this Court in
Esha Bhattacharjee v Managing
Committee, Raghunathpur Nafar Academy and Ors
., (2013) 12
SCC 649,
Brijesh Kumar & Ors. v. State of Haryana & Ors., (2014)
7
wp13889-2018-J.doc
11 SCC 351,
Oriental Aroma Chemical Industries Ltd. v Gujarat
Industrial Development Corporation & Anr
., (2010) 5 SCC 459,
Prathapati Subba Reddy v. Special Deputy Collector, (2024) 12
SCC 336.
REASONS AND FINDINGS:
9.I have considered the submissions made by Mr. Suryawanshi,
learned Advocate for the Petitioner, and Mr. Rautl, learned
Advocate for the Respondents. The question, which arises for
consideration is whether the Petitioner has shown sufficient cause
for not filing the appeal under Section 6 of the Act of 1974 within
the prescribed period.
10.Mr. Suryawanshi, learned Advocate for the Petitioner,
submits that the Petitioner had taken part in the original
proceedings and this position is not disputed. According to him,
after the matter was heard on 8 June 2009 and was kept for
orders, the Petitioner was informed that the order would be
communicated to him. The Petitioner has stated that he made
enquiries from time to time with the office of the Sub-Divisional
Officer. He was informed that when the order was ready, it would
be sent to him by post. It is his case that he had no knowledge of
the order dated 29 December 2009. At the first instance, this
submission of the Petitioner cannot be rejected. The Petitioner is
not saying that he was not concerned with the earlier proceedings.
On the contrary, the material before the Court shows that he
appeared before the Sub-Divisional Officer, filed a detailed reply
on 25 August 2008, was represented by an Advocate and
8
wp13889-2018-J.doc
participated in the hearing. The matter was heard on 8 June 2009,
and it was closed for orders. In view of these facts, it cannot be
said that the Petitioner had left or abandoned the proceedings. The
statement of the Petitioner that he made enquiries about the order
has to be considered. The Respondents have not pointed out any
material from which it can be shown that the order dated 29
December 2009 was in fact communicated to the Petitioner. There
is no material to show that the said order was served upon the
Petitioner or his Advocate, or that in any other manner the
Petitioner came to know about the order before 13 January 2015.
Passing of an order and knowledge of that order are different
matters. Merely because an order was passed and is available on
the record, it cannot mean that the Petitioner had knowledge of
the same.
11.Mr. Raut, learned Advocate for the Respondents, submits
that since the Petitioner was represented by an Advocate, he was
expected to make proper enquiries about the result of the
proceedings. According to him, the Petitioner could not participate
in the proceedings and remain silent for nearly five years. Such
conduct, according to the Respondents, amounts to negligence and
the delay should not be condoned. There can be no dispute that a
litigant is expected to remain careful about his case. But
negligence cannot be presumed only because considerable time
has passed. Whether the Petitioner was negligent in the facts of the
present case has to be seen from his actual conduct and the
material which is available on record. The principle which is
relevant for considering such a situation has been explained by the
9
wp13889-2018-J.doc
Supreme Court in
Sheo Raj Singh. In paragraph 30, the Supreme
Court has held:
“30. Considering the aforementioned decisions, there
cannot be any quarrel that this Court has stepped in to
ensure that substantive rights of private parties and the State
are not defeated at the threshold due to technical
considerations of delay. However, these decisions
notwithstanding, we reiterate that condonation of delay
being a discretionary power available to courts, exercise of
discretion must necessarily depend upon the sufficiency of
the cause shown and the degree of acceptability of the
explanation, the length of delay being immaterial.”
12.From the above principle, it is clear that the length of delay
alone cannot be the only reason for deciding an application for
condonation of delay. The Court has to look at the explanation
given by the party and has to see whether the explanation is
acceptable in the facts of the case. The Supreme Court has made a
distinction between an explanation and an excuse. In paragraph 31
of the same judgment, it has observed:
“31. Sometimes, due to want of sufficient cause being
shown or an acceptable explanation being proffered, delay of
the shortest range may not be condoned whereas, in certain
other cases, delay of long periods can be condoned if the
explanation is satisfactory and acceptable. Of course, the
courts must distinguish between an “explanation” and an
“excuse”.”
13.Therefore, merely because the period of delay in the present
case is long, the Petitioner's explanation cannot be rejected at
once. The Court has to see whether the explanation given by him
is genuine and whether the facts and circumstances surrounding
10
wp13889-2018-J.doc
the case give support to that explanation. The Respondents have
placed reliance upon the fact that the Petitioner was represented
by an Advocate in the earlier proceedings. This fact is certainly
relevant while considering the conduct of the Petitioner. But the
fact that an Advocate represented the Petitioner shows
participation in the proceedings. It does not show that the
Petitioner was informed about the final order. No material has
been shown to this Court to establish that the order dated 29
December 2009 was served upon the Petitioner or upon his
Advocate., merely because the Petitioner was represented in the
earlier proceedings, his actual knowledge of the final order cannot
be presumed.
14.Respondent Nos. 1 and 2 filed R.T.S. Appeal No. 55 of 2013.
The Petitioner has pointed out that in that appeal there was no
reference to the earlier application dated 7 June 2008 or to the
proceedings which had arisen from the said application. The
Petitioner specifically brought this circumstance before the
authority in his reply dated 3 December 2013. He repeated the
same contention in paragraph 8 of his reply to the R.T.S. Appeal.
This circumstance cannot be ignored while considering the
explanation of the Petitioner. If Respondent Nos. 1 and 2 were
aware of the order dated 29 December 2009, it would be expected
that the earlier proceedings would have been referred to when
they filed another appeal relating to the same lands and connected
reliefs. I am not holding that this circumstance alone establishes
that Respondent Nos. 1 and 2 had no knowledge of the order. Such
a conclusion would be more than what the material permits.
11
wp13889-2018-J.doc
However, this circumstance does give some support to the case of
the Petitioner that the earlier order was not known to the parties at
the relevant time. The position becomes more clear from what
happened on 13 January 2015. During the hearing of R.T.S. Appeal
No. 55 of 2013, the Sub-Divisional Officer called for the record
and proceedings relating to the earlier application dated 7 June
2008. On examination of the record, it was found that the earlier
proceedings had been disposed of by the order dated 29 December
2009. After this fact came before the authority, Respondent Nos. 1
and 2 and the other appellants withdrew R.T.S. Appeal No. 55 of
2013 on the same day.
15.The conduct of Respondent Nos. 1 and 2 on this date is a
relevant circumstance. If they were aware of the order dated 29
December 2009 much before 13 January 2015, their filing and
continuing with R.T.S. Appeal No. 55 of 2013 would require some
explanation. The fact that the appeal was withdrawn after the
earlier order was brought to notice is consistent with the case of
the Petitioner that the existence of the earlier order came to light
when the old record was called for. This circumstance does not
prove the whole case of the Petitioner. However, it is certainly a
circumstance which supports his case.
16.The Petitioner has stated that he came to know about the
order dated 29 December 2009 on 13 January 2015., on 17
January 2015, he applied for a certified copy of the said order. He
then filed the appeal before the Maharashtra Revenue Tribunal
along with an application seeking condonation of delay. Thus, after
the Petitioner claims that he acquired knowledge of the order, the
12
wp13889-2018-J.doc
steps taken by him were within a short period. There is no material
to show that after coming to know about the order he intentionally
waited for a period before taking the statutory remedy. This
conduct after 13 January 2015 is relevant for considering the bona
fides of the Petitioner. If the Petitioner had known about the order
and had intentionally delayed taking steps against it, his conduct
after 13 January 2015 could have shown such intention. However,
the material before the Court shows that he applied for the
certified copy within four days and proceeded to challenge the
order. This subsequent conduct gives support to his case that he
took steps after he came to know about the order.
17.The Supreme Court in Esha Bhattacharjee has stated that the
conduct and bona fides of the person seeking condonation have to
be considered. In paragraph 21.4, the Supreme Court states:
“(iv) No presumption can be attached to deliberate
causation of delay but, gross negligence on the part of the
counsel or litigant is to be taken note of.”
18.In paragraph 21.5, the Supreme Court states:
“(v) Lack of bona fides imputable to a party seeking
condonation of delay is a significant and relevant fact.”
19.On applying these principles to the present case, I do not
find sufficient material to hold that the Petitioner deliberately
caused the delay. Similarly, merely because he did not approach
the authority during the period between 2009 and 2015, there is
no sufficient material to record a finding of gross negligence
against him. His case is that he expected the order to be
communicated to him and that he had made enquiries with the
13
wp13889-2018-J.doc
office. This explanation cannot be looked at separately. It has to be
considered along with the other facts and the conduct of both
sides. At the same time, the long period of delay cannot be
ignored. The Supreme Court in
Esha Bhattacharjee has observed
that “The conduct, behaviour and attitude of a party relating to its
inaction or negligence are relevant factors to be taken into
consideration.”
20.Therefore, it is necessary to examine whether the conduct of
the Petitioner during the relevant period shows negligence. For this
purpose, I have considered whether there is any material showing
that the Petitioner had actual knowledge of the order before 13
January 2015. No such material has been pointed out before the
Court. The Respondents rely upon the fact that the Petitioner was
represented by an Advocate and that a long period had passed.
These two circumstances do not establish that the Petitioner had
knowledge of the order. There is no material showing service of
the order upon the Petitioner or his Advocate. In such
circumstances, if it is held that the Petitioner must have known
about the order only because he had participated in the earlier
proceedings, such conclusion would be based more on assumption
than on material available on record.
21. I am conscious of the principle stated by the Supreme Court
in
Esha Bhattacharjee in paragraph 21.7:
“(vii) The concept of liberal approach has to encapsulate the
conception of reasonableness and it cannot be allowed a
totally unfettered free play.”
14
wp13889-2018-J.doc
22.Therefore, the application of the Petitioner cannot be
allowed only on the ground that he wants his case to be heard on
merits. The Petitioner must establish sufficient cause for the delay.
On considering the material available, I find that his explanation
regarding lack of knowledge of the order dated 29 December 2009
gets support from the surrounding circumstances. It cannot, in the
facts of the present case, be said that the explanation is fanciful or
that it is only an excuse.
23.The question of prejudice and the long period of delay
requires consideration. In paragraph 21.8 of
Esha Bhattacharjee,
the Supreme Court has observed:
“(viii) There is a distinction between inordinate delay and a
delay of short duration or few days, for to the former
doctrine of prejudice is attracted whereas to the latter it may
not be attracted.”24.The period calculated from 29 December 2009 is a long
period. However, the case of the Petitioner is that he did not have
knowledge of the order during this period and came to know
about it only on 13 January 2015. There is no material before this
Court showing that the order had been communicated to him
earlier., this circumstance has to be given proper consideration
while deciding whether the delay should be condoned.
25.The decision in Pathapati Subba Reddy explains the
importance of the law of limitation. Paragraph 28.1 states:
“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;”
15
wp13889-2018-J.doc
26.This principle cannot be lost sight of. The law of limitation
cannot be ignored because a party wants to contest the matter on
merits. At the same time, paragraph 28.3 states that Section 3 is to
be construed strictly whereas Section 5 is to be construed liberally.,
what is required is to examine whether the explanation given by
the Petitioner is sufficient so that the discretion to condone the
delay can be exercised.
27. Paragraph 28.5 of Pathapati Subba Reddy states:
“Courts are empowered to exercise discretion to condone the
delay if sufficient cause had been explained, but 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;”
28.Thus, showing sufficient cause is necessary. But even after
sufficient cause is shown, the Court has to consider the conduct of
the party, whether there was negligence and whether there was
due diligence. In the present case, the Petitioner had participated
in the original proceedings and had filed his reply. His case is that
he made enquiries regarding the order. There is no material
showing that the order was communicated to him. According to
him, he came to know about the order when the earlier record was
called on 13 January 2015. On 17 January 2015 he applied for a
certified copy and pursued the statutory remedy. These
circumstances do not show that after acquiring knowledge he
deliberately remained inactive.
16
wp13889-2018-J.doc
29.The submission of Mr. Raut that a litigant cannot remain
inactive for years without giving a satisfactory explanation is
correct as a general proposition. The authorities relied upon by the
Respondents emphasise diligence and bona fide conduct. However,
those authorities cannot be understood to mean that every delay of
a long period must necessarily be rejected without examining the
explanation in the facts of the particular case. The question
whether sufficient cause is shown has to be decided on the facts
and material of each case.
30. In Sheo Raj Singh, paragraph 32, the Supreme Court has
stated:
“Thus said, there is no formula that caters to all situations
and,, each case for condonation of delay based on existence
or absence of sufficient cause has to be decided on its own
facts.”
31.Therefore, the present case has to be considered on its own
facts. The period between 29 December 2009 and 13 January
2015 is certainly long. But the important question is whether the
Petitioner has given a reasonably satisfactory explanation as to
why the appeal was not filed during that period. On considering
the material before me, I find that the explanation given by the
Petitioner gets reasonable support from the surrounding
circumstances. I cannot accept the submission that the mere fact
that the Petitioner was represented by an Advocate creates a
presumption that he had knowledge of the order dated 29
December 2009. If prior knowledge of the order is to be attributed
to the Petitioner, there should be some material showing service,
17
wp13889-2018-J.doc
communication or actual knowledge of the order. In the absence of
such material, knowledge cannot be presumed only because the
Petitioner had participated in the earlier proceedings. The conduct
of Respondent Nos. 1 and 2 is one of the circumstances which
cannot be ignored. As pointed out by the Petitioner, while filing
R.T.S. Appeal No. 55 of 2013, they did not refer to the earlier
proceedings., when the earlier record was called for on 13 January
2015, the order dated 29 December 2009 came to light and the
said appeal was withdrawn. This circumstance does not decide
whether the Petitioner's statutory appeal is correct or not. It is
relevant only for considering the Petitioner's explanation regarding
when the earlier order became known.
32.On considering the entire sequence of events together, I find
that the explanation of the Petitioner cannot be treated merely as
an excuse. The different circumstances give support to his case.
There is no material showing that the order dated 29 December
2009 was communicated to him. His case is that he made
enquiries regarding the order. The conduct of Respondent Nos. 1
and 2 does not show that they had prior knowledge of the order.
The earlier order came to light when the record was called for on
13 January 2015. Therefore, the Petitioner acted within a short
period. When all these circumstances are considered together, the
explanation given by the Petitioner becomes acceptable.
33.In view of the above, the reasoning given by the learned
President of the Maharashtra Revenue Tribunal requires
interference. The impugned order appears to have proceeded on
the ground that the Petitioner ought to have made enquiries and
18
wp13889-2018-J.doc
could not have remained silent for about five years. That
consideration is relevant and cannot be ignored. However, the
specific case of the Petitioner that he had made enquiries and was
informed that the order would be communicated to him was
required to be considered. There is no material showing service of
the order upon him. The conduct of Respondent Nos. 1 and 2 and
the fact that the earlier order was disclosed only on 13 January
2015 were circumstances which required consideration. These
circumstances have not been given the weight which they
deserved. While considering an application for condonation of
delay, the Court has to exercise its discretion carefully and on the
basis of the material before it. The Supreme Court in
Sheo Raj
Singh
has observed that an appellate power interferes “not when
the order appealed is not right but only when it is wrong”. In the
present matter, interference is required because the important
circumstances which support the explanation of the Petitioner have
not been considered., the refusal to condone the delay cannot be
sustained. It is necessary, however, to make it clear that condoning
the delay does not mean that the Petitioner's challenge to the order
dated 29 December 2009 is being accepted. The merits of that
challenge have not been examined by this Court in the present
proceedings. Whether the order dated 29 December 2009 is legally
correct or not, and whether the Petitioner is entitled to any relief
under Section 6 of the Act of 1974, are matters which will have to
be decided by the Maharashtra Revenue Tribunal after hearing all
the concerned parties. At this stage, the limited question before the
Court is whether sufficient cause has been shown for condoning
19
wp13889-2018-J.doc
the delay.
34.I have considered the question of prejudice to the
Respondents. The Respondents have not pointed out any specific
prejudice which, in the facts of the present case, would require
that the Petitioner be prevented from pursuing his statutory appeal
at the threshold itself. If the delay is condoned, the Respondents
will still have full opportunity to oppose the appeal. Their
objections on facts, law and merits will remain open before the
Maharashtra Revenue Tribunal.Therefore, no final right of the
Respondents is being decided by condoning the delay.
35.The principle of substantial justice is required to be kept in
view. In paragraph 21.3 of
Esha Bhattacharjee, the Supreme Court
states:
“(iii) Substantial justice being paramount and pivotal the
technical considerations should not be given undue and
uncalled for emphasis.”36.This principle does not mean that the statutory period of
limitation can be ignored. It only means that where a party gives a
reasonable explanation and the surrounding circumstances support
that explanation, the statutory remedy should not be shut out only
because there has been delay, without examining the cause shown
for such delay.
37.Having considered the rival submissions, the material on
record and the entire sequence of events, I record a finding that
the Petitioner has shown sufficient cause for the delay in filing the
appeal under Section 6 of the Act of 1974. I find that the material
20
wp13889-2018-J.doc
on record does not establish gross negligence, deliberate delay or
lack of bona fides on the part of the Petitioner. His conduct after 13
January 2015 is relevant. In particular, he applied for the certified
copy on 17 January 2015 and proceeded with the statutory
remedy. This conduct supports his case that he acted after
acquiring knowledge of the order.
38.The submission of Mr. Raut that the silence of the Petitioner
for nearly five years amounts to gross negligence cannot be
accepted in the facts of the present case. The period is substantial.
That fact has been taken into consideration. But the explanation
given by the Petitioner for the said period is supported by the
surrounding circumstances. For the limited purpose of deciding the
application for condonation of delay, I accept the case of the
Petitioner that he came to know about the order dated 29
December 2009 only on 13 January 2015.
39.For the reasons discussed above, the refusal to condone the
delay cannot be sustained. The judgment and order dated 20
December 2017 passed by the learned President of the
Maharashtra Revenue Tribunal, insofar as it rejects the application
of the Petitioner for condonation of delay, is required to be
quashed and set aside. The delay deserves to be condoned so that
Appeal No. TRB/APL/MUM/L-52/2015 can be heard and decided
by the Maharashtra Revenue Tribunal on its own merits and in
accordance with law.
40.In view of the foregoing discussion, and upon overall
assessment of the material record, the following order is passed:
21
wp13889-2018-J.doc
(i) The Petition is allowed;
(ii) The judgment and order dated 20 December 2017
passed by the learned President, Maharashtra Revenue
Tribunal, Mumbai, rejecting the Petitioner's application for
condonation of delay in filing Appeal No. TRB/APL/MUM/L-
52/2015 under Section 6 of the Maharashtra Restoration of
Lands to Scheduled Tribes Act, 1974, is quashed and set
aside;
(iii) The delay in filing Appeal No. TRB/APL/MUM/L-
52/2015 is condoned;
(iv) Appeal No. TRB/APL/MUM/L-52/2015 shall stand
restored to the file of the Maharashtra Revenue Tribunal,
Mumbai;
(v) The parties shall appear before the Maharashtra
Revenue Tribunal, Mumbai, on 21 September 2026, without
requiring any fresh notice, subject to the directions of the
Tribunal;
(vi) It is clarified that this Court has not expressed any
opinion on the merits of the Petitioner's challenge to the
judgment and order dated 29 December 2009 passed by the
Sub-Divisional Officer. All questions arising in the said
Appeal are kept open for consideration by the Maharashtra
Revenue Tribunal;
(vii) The Maharashtra Revenue Tribunal, Mumbai, shall
hear and decide the said Appeal on its own merits, and in
22
wp13889-2018-J.doc
accordance with law, without being influenced by the
observations made by this Court while deciding the present
Petition and shall decide Appeal within 6 months from
today;
(viii) The Petition is accordingly disposed of in the above
terms.
(ix) There shall be no order as to costs.
(AMIT BORKAR, J.)
23
Legal Notes
Add a Note....