Shankar Tukaram Gaikar and Ors. v. Suvarnaprabha Dattatraya Adurkar and Ors.

2.3. After a hiatus of more than 33 years, the predecessors-in-title of Gaikar family filed RTS Appeal No.23 of 1996 before the Sub- Divisional Officer (‘SDO’), Thane challenging the Mutation Entry No.1201 dated 14.07.1962 whereby names of their predecessors-intitle were deleted. It is seen that though the said RTS Appeal was filed after such a humongous delay it was filed without any Application seeking condonation of delay of 33 years. Despite that being the case, without condoning the delay in filing the Appeal, the SDO proceeded with passing of order dated 20.12.2001 by which RTS Appeal No.23 3 of 20 of 1996 was allowed and Mutation Entry No.1201 was cancelled.

2.4. Being aggrieved by order dated 20.12.2001, members of the Adurkar family filed RTS Appeal No.25 of 2002 before the Deputy Collector, Thane which was dismissed by order dated 17.12.2003.

2.5. The Adurkar family challenged the order dated 17.12.2003 before the Additional Commissioner, Konkan Division in Revision Application No.482 of 2004 which was allowed by order dated 27.05.2005 on the ground of the enormous delay of more than 33 years not having been condoned by the SDO before deciding the Appeal on merits. Thereafter the Gaikar family filed a Review Petition before the Additional Commissioner, Konkan Division against the order dated 27.05.2005 which was dismissed by order dated 14.12.2005.

2.6. Challenge in Writ Petition No.2547 of 2006 filed by members of Gaikar family is to the order dated 27.05.2005 passed by the Additional Commissioner, Konkan Division which has reversed the two concurrent decisions i.e. order dated 20.12.2001 of the SDO, Thane in RTS Appeal No.23 of 1996 and order dated 17.12.2003 passed by the Additional Collector, Thane.

2.7. In so far as Writ Petition No.10280 of 2023 filed by members of the Adurkar family is concerned, it is seen that pursuant to passing of order dated 20.12.2001 by the SDO, Thane thereby cancelling the Mutation Entry No.1201 dated 14.07.1962, the Gaikar family 4 of 20 immediately filed Application bearing Tenancy Case No.28 of 2002 under Section 32G of the Maharashtra Tenancy and Agricultural Lands Act, 1948 (for short “MTAL Act”) for fixation of purchase price of the suit land before the Agricultural Lands Tribunal (‘ALT’), which came to be allowed by order dated 02.08.2002.

2.8. Against the order dated 02.08.2002, the Adurkar family filed Tenancy Appeal No.16 of 2005 before the SDO, Thane alongwith a Application for condonation of delay of more than 2 years which occurred in filing the Appeal for reasons duly stated in the Application for condonation of delay. It is seen that without adjudicating the Application for condonation of delay, the SDO, Thane proceeded to adjudicate the Appeal on merits and by order dated 24.02.2006 dismissed the said Appeal filed by Adurkar family. Being aggrieved, the Adurkar challenged that order dated 24.02.2006 in Revision proceedings filed before the Maharashtra Revenue Tribunal (MRT) and the MRT by order dated 07.02.2023, confirmed the order dated 24.02.2006 passed by the SDO, Thane and dismissed the Revision proceedings. In the interregnum there is a series of proceedings between the parties before this Court, the MRT and the SDO, Thane however the relevant is order dated 23.10.2017 which was passed by the SDO, Thane on remand of the matter thereby rejecting the application for condonation of delay filed by the Adurkar family. 5 of 20

2.9. That order dated 23.10.2017 was challenged by the Adurkar family before the MRT in Revision Application No.16 of 2020 and by order dated 07.02.2023, the MRT confirmed the order dated 23.10.2017 passed by the SDO, Thane rejecting the condonation of delay of more than 2 years in filing the Tenancy Appeal by the Adurkar family.

2.10. Hence Writ Petition No.10280 of 2023 is filed by the Adurkar family challenging the order dated 07.02.2023 passed by the MRT and also order dated 23.10.2017 passed by the SDO, Thane rejecting Application for condonation of delay.

3. Mr. Sawant, learned Advocate for members of the Gaikar family would submit the suit land is already acquired by CIDCO and is in its possession. Hence the dispute between parties as decided will result in its entitlement to the parties. He would submit that the order dated 27.05.2005 which is subject matter of challenge in Writ Petition No.2547 of 2006 is passed mainly on the ground that the Revision Application was filed by the Gaikar family belatedly after 33 years before the SDO, Thane and was time-barred. He would submit that the predecessors-in-title of the Gaikar family i.e. Kathari Shimgya and Tukaram Ramji were in possession of the suit land and were cultivating the same prior to 1950 and on 01.04.1957 i.e. on Tillers day their names were recorded in the Revenue Records of the suit land 6 of 20 until 1965 vide Mutation Entry No.1282 dated 13.03.1965 in the land consolidated scheme. He would submit that as the predecessors-intitle of the Gaikar family were protected tenants of the suit land as per provisions of the MTAL Act, their names could not have been deleted from the Revenue Records without following the due procedure provided under Section 70(b) readwith Section 29 of the MTAL Act.

3.1. He would submit that the Gaikar family learnt about the acquisition of the suit land by CIDCO in the year 1990 after the predecessors-in-title of Gaikar family were dispossessed from the suit land by CIDCO. He would submit that as their predecessors-in-title were illiterate and did not possess legal knowledge, as per advice received by them they approached the concerned authorities for claiming the compensation amount as per the Award passed by SLAO besides seeking allotment of the plot to them as per the 12.5% scheme framed by the Government and it is at this time that they became aware about Mutation Entry No.1201 dated 14.07.1962.

3.2. He would submit that there is no limitation period prescribed under the Maharashtra Land Revenue Code, 1966 for challenging Mutation Entry in the Revenue Record and more so considering the facts of the present case where the order directing deletion of names of the predecessors-in-title of the Gaikar family was passed without giving them an opportunity to put forth their case and without following the 7 of 20 procedure laid down under Section 70(b) of the MTAL Act.

3.3. He would submit that thereafter the predecessors-in-title of the Gaikar family approached the SDO, Thane for challenging the Mutation Entry No.1201 which was allowed to be deleted by order dated 20.12.2001 and the names of the predecessors-in-title of Gaikar family were restored in the Revenue Records of the suit land vide Mutation Entry Nos.2473, 2474 and 2475. He would submit that against that order dated 20.12.2001 was confirmed and upheld by the Deputy Collector, Thane in Appeal by order dated 17.12.2003 and hence there are two concurrent orders in favour of the Gaikar family.

3.4. He would submit that in the interregnum predecessors-intitle of the Gaikar family filed proceedings under Section 32G of the MTAL Act for fixation of the purchase price of the suit land which was allowed by the ALT by order dated 02.08.2002 subsequent to which Certificate under Section 32M of the said Act was issued in favour of the Gaikar family. He would submit that the said order dated 02.08.2002 was challenged by the Adurkar only after a delay of more than 2 years and that the said Appeal was dismissed on merits and thereafter after various remands of the matter by this Court as well as the MRT for adjudication on the condonation of delay application, the application was rejected by the SDO, Thane by order dated 23.10.2017 which was thereafter challenged by the Adurkar family before the MRT 8 of 20 in Revision proceedings which was also dismissed by order dated 07.02.2023 which is the subject of challenge in Writ Petition No.10280 of 2023.

3.5. He would submit that in view of the above series of orders which are in favour of the Gaikar family, it is clear that the predecessors-in-title of the Gaikar family were the protected tenants of the suit land and hence the order dated 20.12.2001 passed by the SDO, Thane directing deletion of Mutation Entry No.1201 being a well reasoned was upheld by the Deputy Collector, Thane in Appeal proceedings filed by Adurkar family. He would therefore submit that the order dated 27.05.2005 passed by the Additional Commissioner, Konkan Division, Mumbai reversing the two concurrent orders is erroneous and incorrect and would urge the Court to quash and set aside the said order.

3.6. In so far as challenge to order dated 07.02.2023 passed by the MRT confirming the order dated 23.10.2017 passed by the SDO, Thane by the Adurkar family is concerned he would submit that though the Adurkar family had filed Appeal against order dated 20.12.2001, there was no stay granted by the Appellate Authority when the 32G proceedings were filed and hence the order dated 23.10.2017 was passed by the SDO, Thane directing issuance of 32M certificate which is correct and does not call for any interference. He 9 of 20 would submit that the Adurkar family has failed to place on record any sufficient cause for the delay of more than 2 years which occurred on their part in challenging the order dated 02.08.2002 directing issuance of 32M Certificate in favour of the Gaikar family and despite a series of remand of the said proceedings, the SDO rejected the Application for condonation of delay by order dated 23.10.2017 which was upheld by the MRT by order dated 07.02.2023 which do not call for any interference.

3.7. In support of his submissions he has referred to and relied upon the following decisions of the Supreme Court:-

(i) Sawarni (Smt) Vs. Inder Kaur (Smt) and Ors.1;

(ii) P. Kishore Kumar Vs. Vittal K. Patkar[2];

(iii) Indian Oil Corporation Limited and Ors. Vs. Subrata

(iv) Suman Verma Vs. Union of India and Ors.4; and

(v) Narayan Laxman Patil Vs. Gala Construction Company

3.8. In view of his above submissions and judgements cited by him, he would contend that this Court should consider the series of orders passed in favour of the Gaikar family in the Tenancy proceedings and hence would urge the Court to allow Writ Petition

4. PER CONTRA, Mr. Patil, learned Advocate for the Adurkar family would submit that when the RTS Appeal was filed in the year 1996 by the Gaikar family to challenge the Mutation Entry No.1201 dated 04.12.1962 after more than 33 years, the Gaikar family did not file any Application seeking condonation of delay of more than 33 years which is the sine qua non for challenging the said Mutation Entry after such an enormous delay. He would submit that without the delay being condoned, the SDO, Thane could not have assumed jurisdiction to determine the Appeal and hence the order dated 20.12.2001 passed by the SDO, Thane is without jurisdiction and nullity in law. He would submit that MRT has taken into account all these considerations and thereafter by a cogent and well-reasoned judgment and order set aside the order dated 20.12.2001 passed by the SDO, Thane and also order dated 17.12.2003 passed by the Deputy Collector i.e. Appellate Authority. He would therefore support the order dated 27.05.2005 passed by the MRT and would urge the Court to uphold the said order and dismiss Writ Petition No.2547 of 2006.

5. In so far as challenge in Writ Petition No.10280 of 2023 is concerned, Mr. Karandikar has tendered across the bar a compilation of documents and drawn my attention to page No.5 therein which is the Application filed by Gaikar family under Section 32G of the MTAL 11 of 20 Act and would submit that in that Application the Gaikar family has arrayed 5 Respondents wherein Respondent No.5 is CIDCO and out of the remaining 4 Respondents, one Mr. Shashikant Madhukar Adurkar is a non-existing person, second Respondent Mr. Suvarnaprabha Dattatraya Adurkar expired prior to 1988 and in so far as other two Respondents are concerned neither their names nor addresses are mentioned properly and would thus submit that the proceedings in that Application have been conducted surreptitiously without bringing on record the legal heirs of deceased original Respondent, despite which some of the legal heirs did appear in the said proceedings suo motu. He would submit that though the original landlord was survived by 11 legal heirs and the Gaikar family did not implead them. He would submit that this was one of the reasons due to which delay occurred on part of the Adurkar family in filing the Appeal.

5.1. He would submit that the SDO, Thane initially did not even adjudicate their Application for condonation of delay and directly dismissed the Appeal, however after a series of proceedings which were filed upto this Court, the SDO, Thane thereafter adjudicated the Application for condonation of delay. Hence he would submit that the SDO, Thane has passed the order dated 23.10.2017 without complete application of mind, in a mechanical and prejudiced manner. He would therefore urge the Court to allow Writ Petition No.10280 of 2023 and condone the delay of more than 2 years occurred in filing the Appeal 12 of 20 for reasons stated in the Application for condonation of delay.

5.2. In support of his submissions, he would refer to and rely upon the decision of the Supreme Court in the case of Pune Municipal Corporation Vs. State of Maharashtra and Ors.[6] to support his proposition that an order passed without arraying the affected party is liable to be set aside.

5.3. In view of his above submissions, he would urge the Court to allow the Writ Petition No.10280 of 2023.

6. Mr. Hegde, learned Advocate for Respondent - CIDCO has drawn my attention to the Affidavit-in-Reply dated 18.11.2024 filed in Writ Petition No.2547 of 2006 and would submit that in compliance to order dated 02.07.2018 passed in Civil Application No.2403 of 2017, the CIDCO has earmarked Plot No.20D in Sector 10A which shall be allotted as per the terms and conditions of CIDCO subject to orders of this Court as per the entitlement of the parties concerned.

7. I have heard learned Advocates appearing for the respective parties and with their able assistance perused the record and pleadings of the case. Submissions made by the learned Advocates have received due consideration of the Court.

8. From the submissions made by both the learned Advocates it is seen that during the pendency of the Appeal and Revision against

13 of 20 the order dated 20.12.2001 passed by the SDO, Thane, the Gaikar family simultaneously and immediately filed statutory Section 32G proceedings for implementation of the order dated 20.12.2001 which was under challenge and thereafter succeeded right upto the Second Appellate Authority. It is seen that the Section 32G proceedings initiated in the year 2002 emanate from the SDO order dated 20.12.2001 passed in RTS Appeal No.23 of 1996. The said order and the subsequent orders passed in Second Appeal and Revision are all under challenge and subject matter of Writ Petition No.2547 of 2006. Though it is vehemently argued by Mr. Sawant that this Court will have to consider the number of orders in favour of the Gaikar family passed by the Statutory Authorities in Appeal and Revision proceedings in order to determine both Writ Petitions, I am not inclined to accept such a naive submission for determination of the present Writ Petitions.

9. Both Writ Petitions will be decided on the basis and strength of their respective facts without being influenced by the submission which is sought to be advanced across the bar by Mr. Sawant. It is seen that proceedings in Writ Petition No.10280 of 2023 emanate from or are a consequence of the order dated 20.12.2001 passed by the SDO, Thane which is the subject of challenge in Writ Petition No.2547 of

2006. Therefore Writ Petition No.2547 of 2006 is taken up for adjudication subject to whose outcome, fate of Writ Petition No.10280 14 of 20 of 2023 shall be accordingly decided.

10. Perusal of the record reveals that the names of predecessorsin-title of the Gaikar family were deleted from the column of tenants in the Revenue Records of the suit land by Mutation Entry No.1201 dated 14.07.1962. That Mutation Entry remained unchallenged and in the year 1986 the CIDCO acquired the suit land for public purpose and in the Award passed by the SLAO, names of the Adurkar family are reflected as owners of the suit land for apportionment of compensation and allotment of an alternate plot under the 12.5% Scheme of CIDCO. It is only thereafter that the Gaikar family has filed the RTS Appeal No.23 of 1996 before the SDO, Thane to challenge the Mutation Entry No.1201 dated 14.07.1962 by raising a ground that they were not given any hearing before deletion of their names and due legal procedure was not followed.

11. It is settled law that Mutation Entry does not confer any right, title or interest in favour of the person and the Mutation Entry in the Revenue Record is only for fiscal purpose. Hence if there is any dispute with regard to the title of a property, the appropriate remedy for the concerned parties namely the Gaikar family was to approach the appropriate Civil Court to crystallize their rights. In the case at hand there is nothing placed on record to show that any Civil Court proceedings were adopted by the Gaikar family in order to substantiate 15 of 20 and confirm their claim of title to the suit land. During acquisition proceedings the Adurkar family was reflected as the owner and right of the owner was relinquished after the acquisition was completed and Award was passed. Benefit of compensation at the time of acquisition was received by the members of Adurkar family in 1986. It is only the future benefit that the Gaikar family members have in mind for invoking the the proceedings after a hiatus of 33 years to challenge the Mutation Entry.

12. Admittedly, the Appeal which was filed by the Gaikar family after a humongous delay of more than 33 years was without an Application seeking condonation of delay and without giving any sufficient explanation for such gross delay and laches. However the SDO, Thane without adjudicating on the issue of delay, proceeded to decide the Appeal on merits and passed order dated 20.12.2001. In absence of any formal Application for condonation of delay or any adjudication on the aspect of delay which is unexplained, SDO could not have assumed jurisdiction to decide the Appeal on merits filed by the Gaikar family. This Court was faced with a similar question in the case of Balkrishna Sadashiv Thakur and Ors. Vs. Prabhakar Sadashiv Thakur and Ors.[7] wherein this Court after taking assistance from the earlier decisions of this Court in the case of Pandharinath Rambhau Kavitke Vs. Shaikh Hamaja Husen[8] and Sidappa Rama Patil Vs. Sattur 7 Civil Writ Petition No.2658 of 2018 decided on 10.02.2021 8 2000 Vol. 102 (3) Bom. L.R. 563 16 of 20 Laxman Kole and Ors.[9] held that when no formal Application seeking condonation of delay is filed before the Quasi-judicial Authority, any order passed by the said Quasi-judicial Authority would be without jurisdiction and would amount to nullity. The same situation prevails in the present case before me and hence I cannot deviate from the view taken by me in the case of Balkrishna Sadashiv Thakur and Ors. (supra). Though it is vehemently submitted by Mr. Sawant that there is no limitation provided in the statute for challenging a mutation entry, however a challenge thereto after such a gross delay of more than 33 years cannot be feigned as ignorance of law and even without an Application, without condoning the delay or examining the sufficient cause behind such a delay, it cannot be decided on merits by the SDO, Thane by assuming jurisdiction to proceed with adjudication of the Appeal filed by the Gaikar family. Order dated 20.12.2001 passed by the SDO, Thane is a nullity in law and not sustainable in the above facts.

13. Even though it is the contention of the members of Gaikar family represented by Mr. Sawant that when they realised about the aforesaid issue, they approached the SDO, Thane in 1991 and considering their request the SDO, Thane suo motu filed the proceedings for deletion of Mutation Entry No.1201 in 1996, the same cannot be countenanced. Delay in any form whether on account of the 9 2005 (2) Bom. C.R. 419 17 of 20 affected party or by the statutory officers taking suo motu cognizance will amount to delay. An important intervening event in the year 1986 regarding acquisition of the suit land took place in the present case wherein admittedly names of members of the Adurkar family were reflected as owners of the suit land and therefore delay of more than 33 years in reversal of the Mutation Entry is prima facie evident on the face of record. Hence without even filing Application seeking condonation of such gross delay, proceedings taken out by the Gaikar family are not maintainable in law at the threshold itself.

14. That apart considering the intervening circumstances prior to 1996 relating to acquisition of the suit land, if members of the Gaikar family desire to stake claim to any substantive right as a result of the said acquisition which is in the nature of entitlement they will have to approach the appropriate Civil Court for seeking appropriate declaration rather than use the shield of RTS proceedings in the manner in which they have proceeded with in the present case.

15. In view of the above categorical observations and findings, I do not find any infirmity with the order dated 27.05.2005 passed by the Additional Commissioner, Konkan Division, Mumbai in Revision Application No.482 of 2004 in favour of the Adurkar family and the same is upheld. Resultantly, Writ Petition No.2547 of 2006 fails. 18 of 20

16. In so far as challenge in Writ Petition No.10280 of 2023 to order dated 07.02.2023 passed by the MRT in the Application for condonation of delay in filing Appeal by Adurkar family for challenging the Section 32G order dated 02.08.2002 is concerned, it is seen that the said Section 32G proceedings clearly emanate from the order dated 20.12.2001 which is subject matter in Writ Petition No.2547 of 2006. That order and the order dated 17.12.2003, both having been set aside by the Additional Commissioner, Konkan Division, Mumbai and upheld by me in the present judgement, all subsequent steps and proceedings taken by the members of the Gaikar family under Section 32G of the MTAL Act would stand vitiated and non est.

17. Writ Petition No.10280 of 2023 is disposed of in view of the above directions. Resultantly Mutation Entry Nos.2473, 2474 and 2475 are directed to be deleted.

18.

CIDCO is directed to hand over the earmarked plot by them and any benefit in lieu of acquisition of the suit land to the members of the Adurkar family after compliances of all the necessary formalities within a period of four (4) weeks from today strictly in accordance with law.

19. All parties are directed to act on a server copy of this order downloaded from the High Court website.

20. All contentions of the parties are kept open. Needless to state 19 of 20 that if any of the aggrieved party desires to approach the Civil Court with any suit proceedings as may be available to them for seeking entitlement, all contentions of the parties are expressly kept open as available to them in accordance with law.

21. With the above directions, Writ Petition No.2547 of 2006 and Writ Petition No.10280 of 2023 are disposed.

22. In view of the disposal of Writ Petition No.2547 of 2006, pending Interim Application No.8559 of 2025 stands disposed. Interim Application (Stamp) No.30156 of 2024 is filed for transposition of Petitioner No.7(c) as Respondent, however in view of disposal of Writ Petition No.2547 of 2006, the Interim Application does not survive and is accordingly disposed. [ MILIND N. JADHAV, J. ]

23. After the aforesaid Judgement has been pronounced in open Court, Mr. Sawant, learned Advocate appearing for the Gaikar family persuades the Court to stay the judgement for a period of four weeks from today to enable his client to approach the Superior Court. His request for stay of Judgement is granted by this Court. The judgement is stayed for a period of four weeks from today.

H. H. SAWANT [ MILIND N. JADHAV, J. ]