as.wp.2658.18.

doc

Ajay

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.2658 OF 2018

Balkrishna Sadashiv Thakur and Ors. .. Petitioners

Versus
Prabhakar Sadashiv Thakur and Ors. .. Respondents
...................
 Mr. A.S. Khandeparkar a/w. Mr. Amogh Karandikar, Mr. Shubham
Jawlekar i/by Khandeparkar & Associates for the Petitioners.
 Mr. Vaibhav D. Kadam for Respondent Nos.3, 8E, 9 and 10.
 Mr. S.D. Rayrikar, AGP for Respondent Nos.11A to 11C.
...................

CORAM : MILIND N. JADHAV, J.

RESERVED ON : JANUARY 25, 2021.
PRONOUNCED ON : FEBRUARY 10, 2021.

JUDGMENT :

Heard Mr. A.S. Khandeparkar along with Mr. Amogh Karandikar

and Mr. Shubham Jawlekar, Advocates for the petitioners; Mr.

Vaibhav Kadam, Advocate for respondent Nos.3, 8E, 9 and 10 and Mr.

S.D. Rayrikar, AGP for respondent Nos.11A to 11C.

2. By the present petition filed under the provisions of Article 227

of the Constitution of India, petitioners are challenging the judgment

and order dated 05.10.2017 passed by the Minister for Revenue, State

of Maharashtra in revision proceedings under the provisions of Section

257 of the Maharashtra Land Revenue Code, 1996, (for short “the

MLR Code”), dismissing the Revision Application filed by petitioners in

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respect of mutation entry No.508 dated 17.10.2010 pertaining to Gat

No.54 admeasuring 08 Hectares 87 Ares of village Khairgavan, Tal.

Yeola, Dist. Nashik. Mutation entry No.508 was certified on

17.10.2010 in the names of the petitioners i.e. four brothers namely,

Balkrishna, Gopalkrishna, Vishwanath and Dattatraya. The fifth

brother namely Ramkrishna had waived of his right / share in Gat

No.54 in lieu of getting sole right in Gat No.59 following family

partition. Therefore, after following due process of law as

contemplated under the MLR Code, Prabhakar and Ramkrishna's name

was not certified in the mutation entry. The legal heirs of deceased

Ramkrishna and Prabhakar however filed revenue proceedings before

the Sub-Divisional Officer, Yeola (for short “SDO”) i.e. appeal to

challenge mutation entry No.508 in the year 2013. These proceedings

culminated in the passing of the impugned judgment and order dated

05.10.2017 by the State of Maharashtra in revisions proceedings

against the petitioners.

3. To appreciate the lis between the parties it will be apposite to

briefly refer to the relevant facts for consideration.

3.1. Ancestral land of Thakur family originally belonged to six

brothers namely; Ramkrishna, Prabhakar, Dattatraya,

Balkrishna, Gopalkrishna and Vishwanath, sons of Sadashiv

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Thakur. Legal heirs of deceased Ramkrishna Sadashiv Thakur

filed Civil Suit being RCS No.187 of 1985 for injunction and

declaration of title to the ancestral land. This civil suit came to

be dismissed after recording evidence by the Civil Judge, Junior

Division on 08.09.2003. Being aggrieved the legal heirs of

Ramkrishna filed appeal being Civil Appeal No.74 of 2003

before the Additional District and Sessions Judge, Niphad at

Niphad. On 15.07.2008 all parties in the civil appeal entered

into a compromise and consent terms were filed wherein

entitlement to Gat No.59 was exclusively given to the legal heirs

of deceased Ramkrishna Sadashiv Thakur by the respondents

i.e. other brothers therein.

3.2. Petitioners have asserted that prior to 1985 there was an oral

partition of ancestral property between the brothers wherein

Prabhakar Sadashiv Thakur and Ramkrishna Sadashiv Thakur

were not given any right, title and interest in Gat No.54, but in

lieu thereof Ramkrishna Sadashiv Thakur was given the entire

right, titile and interest in Gat No.59. Prabhakar Sadashiv

Thakur, the sixth brother, however, has maintained challenge to

the mutation entry right from inception.

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3.3. Sometime in the year 2008 petitioners filed application for

mutation and recording their names in the revenue record in

respect of Gat No.54. Prabhakar Sadashiv Thakur and legal heirs

of deceased Ramkrishna Sadashiv Thakur i.e. respondent Nos.2,

3 and 4 endorsed the said application by specifically giving their

no objection to the recording of the names of the petitioners

against Gat No.54.

3.4. In January 2010 statutory notice under the provisions of the

MLR Code was issued to the parties and affixed at the Chavadi

fixing the date of hearing on 20.01.2010 and calling for

objections if any. Respondents recorded their "no objection" in

writing for mutating the names of petitioners before the

Tahsildar on 20.01.2010, 07.04.2010 and 23.10.2010.

3.5. In April 2010 the Tahsildar passed order under the provisions of

Section 85 of the MLR Code after conducting the statutory

inquiry and recorded the arrangement between the brothers

and certified that the names of petitioners i.e. four brothers be

entered in the revenue record against Gat No.54 and gave

further directions for issuance of Form 12 and making entry

under the provisions of Section 149 read with section 150 of the

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MLR Code. On the basis of this order passed under Section 85

of the MLR Code. Accordingly mutation entry No.508 came to

be certified on 17.05.2010 in the names of the petitioners. The

names of the petitioners was entered into the revenue record.

3.6. On 02.09.2013 respondent Nos.1, 2, 9 and 10 filed statutory

R.T.S. appeal challenging the certification of the aforesaid

mutation entry No.508 dated 17.05.2010 before the SDO, Yeola

under the provisions of Section 247 of the MLR Code. The

limitation for filing statutory appeal as prescribed under Section

250 of the MLR Code is 60 days. No application seeking

condonation of delay to file the appeal for more than 3 years

and 2 months was filed by the respondents. The memorandum

of appeal also was devoid of any pleading and prayer seeking

condonation of delay of 3 years and 2 months in filing the

appeal.

3.7. On 31.01.2014 petitioners (being respondents therein) filed

affidavit-in-reply in the appeal proceedings and raised

preliminary issue of maintainability of the appeal on the ground

of gross delay in filing the appeal and that too without any

application seeking condonation of delay and therefore sought

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dismissal of the appeal. Preliminary issue raised by petitioners

was not consider, but on 03.03.2014 the appeal was heard and

dismissed on merits, inter alia, holding that the R.T.S. appeal

was not filed within time.

3.8. On 29.04.2014 only 3 respondents i.e. respondents Nos.1, 2 and

10 namely; Prabhakar, Sumati and Lilavati being aggrieved filed

statutory first appeal before the Additional Collector being RTS

Appeal No.104 of 2014 to challenge the order dated

03.03.2014.

3.9. On 05.08.2014 respondent No.1 filed a letter through his

Advocate before the Additional Collector, inter alia, stating that

he has no objection in respect of mutation entry No.508

pertaining to Gat No.54 in the names of his four brothers.

Written submissions were filed by the petitioners to challenge

the appeal on the ground that the appellants therein had not

filed any application seeking condonation of delay before the

SDO in the first instance; as such maintainability of the original

application / appeal was barred by limitation.

3.10. On 09.04.2015 the Additional Collector allowed the appeal and

directed cancellation of mutation entry No.508.

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3.11. Petitioners being aggrieved filed statutory second appeal before

the Divisional Commissioner, Nashik under the provisions of

Section 257 of the MLR Code. On 21.03.2017 appeal filed by

the petitioners came to be dismissed by upholding the order

passed by the Additional Collector dated 09.04.2015.

3.12. Petitioners being aggrieved filed Revision Application under the

provisions of Section 257 of the MLR Code before the State

Government of Maharashtra. On 05.10.2017 the State

Government of Maharashtra dismissed the Revision Application

of petitioners and confirmed the order passed by the Additional

Collector and Divisional Commissioner of cancellation of

mutation entry No.508.

3.13. Being aggrieved, present petition is filed to challenge the order

dated 05.10.2017.

4. Mr. Khandeparkar, learned counsel appearing for the petitioners

submitted that the principal grievance raised in the petition is that the

respondents did not file application for seeking condonation of delay

of 3 years and 2 months in filing the appeal on 02.09.2013 to

challenge mutation entry No.508 pertaining to Gat No.54;

respondent’s appeal memo did not have any pleading and or relief /

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prayer for seeking condonation of delay in filing the appeal; appeal

was clearly time barred; unless the delay was condoned, the Court

would not get jurisdiction to decide on the merits of the case and

therefore there was a fundamental jurisdictional error in as much as

the order dated 03.03.2014 though decided on merits was

fundamentally void and non-est. SDO, Yeola clearly acted without

jurisdiction in entertaining the appeal of respondents which was

barred, that too without condoning the delay in filing the appeal.

Therefore the order dated 03.03.2014 passed by the SDO was without

jurisdiction, nullity and its invalidity could be set up whenever and

wherever it is sought to be enforced and relied upon, even at the stage

of execution or appeal proceedings.

4.1. He submitted that mutation entry No.508 was passed on

07.05.2010 after following the due process of law and the

names of the petitioners were recorded in the revenue record

after inquiry.

4.2. After a lapse of more than three years, some of the respondents

challenged the mutation entry before the SDO. The said

proceeding was preferred by respondent Nos.1, 2, 9 and 10

only. The said applicants did not file any application for seeking

condonation of delay of more than 3 years. The memorandum

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of appeal is filed in the present petition. Without prejudice to

the contention of the petitioners that a separate application for

condonation of delay is required and that unless the delay is

condoned the Authority did not get jurisdiction to decide the

appeal; perusal of the prayer clauses of the appeal memo shows

that no prayer for seeking condonation of delay was made

further the date of knowledge is left blank; the roznama of

hearings conducted before the SDO shows that no application

for condonation of delay was filed; therefore trial court did not

have jurisdiction to consider the challenge on merits without

condoning the delay.

4.3. Petitioners by their application dated 31.01.2014 prayed for

framing a preliminary issue of limitation as to “ whether the

challenge was maintainable without condonation of delay

application or similar prayer therein ”; admittedly the appeal

was filed without preferring application for condonation of

delay or even a prayer for seeking condonation of delay; appeal

being filed on 02.09.2013, as such the appeal was beyond

limitation; the delay was not condoned.

4.4. SDO by order dated 03.02.2014 dismissed the appeal on merits

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recording petitioners’ challenge in the order that application for

setting aside mutation entry was beyond limitation. The

respondents were given notice to appear before the SDO and

had personally appeared and given their No objection

statements. After hearing the arguments, the SDO held that “ No

objection to enter the petitioners’ names in respect of Gat

No.54” were given before the Tahsildar while conducting the

statutory inquiry and hence, there was no merit in the

contention of the respondents (appellants therein). However,

no observation was made on the issue of limitation.

4.5. Thereafter respondent Nos. 1, 2 and 10 filed statutory appeal

challenging the order of the SDO. During the pendency of the

said appeal, respondent No.1 i.e. Prabhakar filed application on

05.08.2014 accepting the order / mutation entry No. 508 of the

Tahsildar and praying that partition as prayed for in the

application be effected. He also submitted that he was not

interested in prosecuting the appeal and that there was no

dispute between the parties.

4.6. Petitioners filed their reply, wherein a specific stand taken was

that the parties had already accepted the partition and that the

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original challenge before the SDO was beyond limitation; it was

contended that wife of deceased Ramkrishna did not have right

to file appeal as suit for partition was originally filed by her

husband i.e. Ramkrishna and she had filed consent terms being

legal heir of Ramkrishna on the basis of which partition came to

be effected; all respondents were parties to the civil appeal

wherein consent terms were filed and the parties were bound

by such consent terms. Petitioners urged that challenge in the

first instance before the SDO which was the basis of the appeal

before the Additional Collector was not maintainable in the

absence of application seeking condonation of delay and

without delay being condoned, the SDO did not have

jurisdiction to pass any order on merits.

4.7. Additional District Collector passed order dated 09.04.2015 and

allowed the appeal of respondents. The Additional District

Collector recorded the submissions of the parties but ignored

the contention as regards delay / limitation.

4.8. Petitioners filed revision application before the Divisional

Commissioner, Nashik Divison being RTS/Revision/159/2015.

Petitioners submitted that the original challenge before the SDO

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was itself beyond limitation; however Divisional Commissioner

did not consider the submission of limitation and condonation

of delay; basic issue of jurisdiction remained to be addressed.

Divisional Commissioner rejected the revision application of

petitioners.

4.9. Petitioners thereafter filed second revision under section 257 of

the MLR Code before the Minister of Revenue, State of

Maharashtra. In the second revision, petitioners, inter alia,

raised the issue of limitation in the first instance and submitted

that since the original challenge to mutation entry No.508

before the SDO was filed beyond limitation, the same was liable

to be dismissed as delay was not condoned. The Minister of

Revenue, State of Maharashtra, however by order dated

05.10.2017 rejected the petitioners’ second revision application

and confirmed the order passed by the Additional

Commissioner directing cancellation of mutation entry No.508.

4.10. It was asserted that, it is settled position in law that Appellate

Court would assume jurisdiction only if delay in filing the

appeal was condoned in the first place. Unless and until the

delay is condoned no jurisdiction would accrue to the Appellate

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Court. The delay can be condoned only if such a prayer is

formally made by the appellant. The Court on its own cannot

find out some reason to grant the relief which is not prayed for

by the applicants. Hence the order dated 03.02.2014 of SDO

itself was a nullity and therefore all subsequent orders passed

thereafter are void, non-est and not-binding.

5. PER CONTRA, Mr. Vaibhav Kadam appearing for the respondent

Nos.1, 2E, 8 and 10 submitted as under :-

5.1. Gat No.54 is situated at Khairgavhan, Tal. Yeola, Dist. Nashik

and was owned by late Sadashiv Vishwanath Thakur. Sadashiv

Vishwanath Thakur expired in 1994 leaving behind six sons and

three daughters as his legal heirs. Petitioners filed application

for partition before the Tahsildar, Tal. Yeola under Section 85 of

the MLR Code where the respondents were not present and

moreover, respondent Nos.2 to 10 have neither given any kind

of signature nor relinquished their rights in any one’s favor till

date.

5.2. Procedure contemplated under Section 85 of the MLR Code in

respect of mutation entry No.508 was not carried out as per the

law laid down in Section 85 of the MLR code. All parties in

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respect of Gat No.54 were not present at the time of the said

proceedings when the consent and the signatures were obtained

and this fact is considered by the Additional District Collector,

Nashik in his order and judgment dated 09.04.2015.

5.3. By virtue of mutation entry No.508, names of the respondents

are removed from the 7/12 extract of Gat No.54 and therefore

respondents are deprived of their share in the property.

5.4. Respondents have never relinquished their legal right in Gat

No.54 in any one’s interest and never registered or executed

any relinquish deed.

5.5. Proceedings under Section 85 of the MLR Code before the

Tahsildar Yeola were conducted in the absence of the

respondents and the signatures on the documents i.e. NOCs’

submitted were forged and fabricated. The said order and

mutation entry No.508 was quashed and set aside vide the

order dated 09.04.2015 by the Additional District Collector

Nashik considering the proper law point.

5.6. Respondents have neither received any kind of notice nor given

any kind of signatures on any document and the learned

Tahsildar Yeola has not followed the due process of law as

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prescribed under Section 85 of the MLR Code.

6. Mr. Rayrikar, learned A.G.P. appearing on behalf of the State

made submissions to defend the impugned order dated 05.10.2017

passed by the Minister of Revenue, Government of Maharashtra.

7. Submissions made by learned counsel for the parties have been

duly considered. Material on record has been perused.

8. Before adverting to the submissions made on behalf of the

parties, it will be apposite to briefly refer to the statutory provisions.

9. Chapter XIII of the MLR Code deals with Appeals, Revision and

Review. Section 247 relates to appeal and Appellate Authorities and

states that an appeal shall lie from any decision or order passed by a

revenue or survey officer specified in column 1 of Schedule E under

this Code or any other law for the time being in force to the officer

specified in column 2 of Schedule E whether or not such decision or

order may itself have been passed on appeal from the decision or

order of the officer specified in column 1 of the Schedule.

9.1. Section 248 relates to appeal to the State Government and

states that an appeal shall lie to the State Government from any

decision or order passed by a Commissioner or by a Director of

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Land Records, or by a Deputy Director of Land Records invested

with powers of Director of Land Records, except in the case of

any decision or order passed by such officer on appeal from a

decision or order itself recorded in appeal by any officer

subordinate to him.

9.2. Section 250 deals with periods within which appeals must be

brought i.e. limitation. It is states that no appeal shall be

brought after the expiration of sixty days if the decision or order

complained of has been passed by an officer inferior in rank to a

Collector or a Superintendent of Land Records in their

respective departments; nor after the expiration of ninety days

in any other case. The period of sixty and ninety days shall be

counted from the date on which the decision or order is

received by the appellant. In computing the above periods, the

time required to obtain a copy of the decision or order appealed

against shall be excluded.

9.3. Section 257 deals with the power of State Government and of

certain revenue and survey officers to call for and examine

records and proceedings of subordinate officers.

9.4. Section 258 relates to review of orders. It states that the State

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Government and every revenue or survey officer may, either on

its or his own motion or on the application of any party

interested, review any order passed by itself or himself or any of

its or his predecessors in office and pass such orders in

reference thereto as it or he thinks fit.

10. In the present case, this Court is concerned with the applicability

of the provisions of Section 247 read with Section 250 of the MLR

Code in the facts of the present case. From the pleadings and record

of the case placed before me, it can be seen that, it has been

consistently submitted by the petitioners at all stages beginning with

the proceedings before the SDO that the proceeding filed by

respondents to challenge mutation entry No.508 dated 17.10.2010

was filed beyond the statutory period of limitation i.e. after a lapse of

3 years and 2 months and therefore not maintainable because the

same was neither accompanied by any formal application for seeking

condonation of delay nor a formal prayer was made seeking

condonation of delay in the proceedings nor the Appellate Authority

i.e. SDO in the first instance has passed any order condoning the delay

in filing the appeal, before entering upon the merits of the lis between

the parties.

10.1. On a thorough perusal of the pleadings it is discernible that it

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has been the consistent stand of the petitioners at every stage of

the proceedings that the course adopted by the SDO to decide

the challenge on merits lacked jurisdiction and was not

permissible in law and for this reason the decision of the SDO

was a nullity and was therefore required to be set aside. This

issue has not been considered by the Additional Collector,

Divisional Commissioner and the State Government in all

subsequent proceedings.

11. Apart from the issue on merits, petitioners have asserted that in

the absence of any application seeking condonation of delay to

maintain the challenge to mutation entry No.508, the entire

proceedings was vitiated; it was incumbent upon respondents to file

application seeking condonation of delay beyond the period of

limitation as prescribed under Section 250 of the MLR Code as the

prescribed period of 60 days had lapsed more than three years ago.

This admittedly having not been done by the respondents, the SDO

could not have the jurisdiction to pass a decision on merits unless and

until the delay was condoned.

12. From the above it can be deduced that admittedly there was a

substantial delay on the part of respondents to file the application for

setting aside mutation entry No.508 dated 17.10.2010. Further the

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statutory appeal before the SDO was admittedly not accompanied by

application / plea for seeking condonation of delay in filing the said

appeal. This being the admitted position, the SDO in the first instance

did not get jurisdiction to consider the grievance of the respondents on

merits without condoning the delay. Orders passed by the SDO and

the appellate / revisional authorities thereafter are therefore nullity.

13. Petitioners have placed reliance on the decision of the learned

Single Judge of this Court in the case of Pandharinath Rambhau

Kavitke vs. Shaikh Hamaja Shaikh Husen1, in Writ Petition No. 3246 of

1987 decided on 20.07.2000, wherein a similar issue had arisen. In

that case neither the Appellate Court nor the Tribunal had examined

the question of delay although it was vehemently raised on behalf of

the petitioner therein particularly when there was no formal

application or formal order condoning the delay in filing the appeal.

The learned Single Judge held that the Appellate Court acted without

jurisdiction in deciding the appeal on merits without first condoning

the delay; unless the delay was condoned, the Appellate Court had no

jurisdiction to entertain the appeal in law. The relevant paragraph

Nos.11 to 14 of the said judgment are extracted as under :

“11. The view which I have been taken has already

been considered by different Benches of this Court. In the
case of Narhar Shamrao Deshpande Vs Lakhu Raghu Dalvi,
1 2000 Vol. 102 (3) Bom. L.R. 563

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(Since deceased) through his heirs, Yeshwant Laxman and

Anr.2, Justice R.D. Tulpule, as he then was, has dealt with
similar contention and has rejected the same. In my view the
said decision would squarely apply to the facts of the present
case. In another decision in Madhavdas Damodardas Gujar
and Ors. Vs Mahadu Kern Raut3, following the aforesaid
decision of Justice Tulpule, this Court has reiterated the said
legal position. Another decision of Justice R.M. Lodha
reported in 1998 (4) All M.R. 419 has also held that the
appeal filed against an order which is alleged to be null and
void needs to be filed within limitation or at least sufficient
cause should be shown for condoning the delay. There is one
more decision of this Court which has considered this
question and answered the same against the Respondent
reported in 1999(3) Mh.L.J. 598 of Justice D.G. Deshpande.
In view of the consistent view taken by this Court, it is not
open for me to take a different view and particularly because
of the decision of the Apex Court referred to above. In the
present case we have already noticed that neither the
Appellate Court nor the Tribunal has examined the question
of delay although vehemently raised on behalf of the
petitioner, particularly when there was no formal application
or formal order condoning the delay in filing the appeal. In
other words, the Appellate Court acted without jurisdiction
in deciding the appeal on merits without jurisdiction in
deciding the appeal on merits without first condoning the
delay. Unless the delay was condoned, the Appellate Court
had no jurisdiction to entertain the appeal in law.

12. For the aforesaid reasons, I am of the view that the

Appellate Court clearly acted without jurisdiction in
entertaining the appeal which was barred by 20 years. That
too, without condoning the delay in filing of the appeal. The
learned Counsel for the Respondent during the course of
argument submitted that since neither the Appellate Court
nor the Tribunal has given any reason with regard to the
preliminary objection on the point of limitation, it would be
appropriate to remand the matter to the Lower Court to
consider the same in accordance with law. In my view, such
a course would cause manifest injustice to the Petitioner
inasmuch as 32G proceedings has been concluded on
15.7.1963, on the basis that the Petitioner has become
deemed purchaser on 14.1.1957; and yet the petitioner has
been driven from one Court to another during all these
period. It was, therefore, suggested to the learned Counsel
for the Respondent that instead an affidavit of the
Respondent be filed before this Court to explain the cause for
delay of 20 years in filing of the appeal before the Assistant
Collector. Pursuant to the said liberty, the Respondent has
filed affidavit in this Court and the only the defence or
explanation offered reads as under:-
2 1984(1) Bom.C.R. 14
3 1994(1) Bom.C.R. 509 : 1995 A.I.H.C. 486

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"I say that I have repeatedly visited the

office of the Tahsildar and Deputy
Collector, in order to find out when
proceedings under Section 88C will
commence, but I could not get satisfactory
reply from the office of the concerned
authority. I therefore, after waiting for a
considerable time filed Tenancy appeal. I
say that the delay in filing the appeal was
explained in the Appeal, however, the
concerned authority has failed to make
reference of it. However, my aforesaid
explanation satisfied the concerned
authority and that is why the appeal was
entertained and allowed."
(Emphasis supplied)

13. This cannot be said to be an explanation at all,

leave alone that it is satisfactory or would stand the test of
sufficient cause for condoning the delay. In the
circumstances. I have no option but to conclude that the
appeal filed by the Respondent before the Assistant Collector
was hopelessly time barred and ought to have been
dismissed at the threshold by the Appellate Court. In other
words, the Appellate Court has clearly acted without
jurisdiction in addressing itself to the issues on merits, when
it had no jurisdiction to entertain the appeal as presented by
the Respondent. What is important to note is that pursuant to
the order passed in Section 32G proceedings on 15.7.1963
the Petitioner not only paid purchase price but the
authorities have also issued certificate in favour of the
Petitioner under Section 32M coupled with the fact that
mutation entries have been recorded in the village record as
back as in the year 1966. For all these years till May, 1983
the Respondent did not think it proper to challenge the said
decision. This would also mean that the Respondent had
waived his right to challenge the said order by filing appeal
within the prescribed time and was therefore disentitled for
any indulgence. I have already observed that even on merits
the stand taken by the Respondent is wholly untenable. In
the circumstances the Appellate Court as well as the Tribunal
were completely in error in accepting the stand taken by the
Respondent. Accordingly the order passed by the Appellate
Court as well as the Tribunal which is under challenge in this
writ petition deserves to be quashed and set aside and the
order passed by the Mamalatdar and A.L.T. Indapur dated
15.7.1963 in Section 32G proceedings is restored.

14. For the aforesaid reasons the writ petition is

allowed with costs all throughout. Rule is made absolute. The
order passed by the Assistant Collector, Baramati Division,
Baramati dated 28.2.1985 in TNC Appeal No. 36 of 1983

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and the order passed by the M.R.T., Pune dated 12.8.1996 in

Revision No. 7 of 1985 are quashed and set aside and instead
the order passed by the Mamalatdar and A.L.T. Indapur dated
15.7.1963 is restored.”

14. Petitioners have also referred to another decision of the learned

Single Judge of this Court in the case of Sidappa Rama Patil vs. Sattur

Laxman Kole and others4 in Writ Petition No.2963 of 1982 decided on

23.06.2004, wherein it has been held that if the appeal in revenue

proceedings is barred by limitation, the Appellate Court would assume

jurisdiction only if delay in filing such appeal was condoned in the first

place. In this case, the appeal was filed after more than 10 years and

was not accompanied by any formal application for condonation of

delay in filing the appeal nor such prayer was made in the memo of

appeal. Further in the said case there was nothing on record to show

that the Appellate Authority had condoned the delay in filing the said

appeal before entertaining the same on merits. The learned Single

Judge, in view of the aforementioned questions held that the appeal in

such a case was barred by limitation. The facts of this case are similar

to the present case in hand.

15. In view of the above settled legal position and the particular

facts of the present case, it is an admitted position that respondents

have not filed the application for seeking condonation of delay to file

4 2005 (2) Bom C.R. 419

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statutory appeal to challenge mutation entry No.508 dated

17.10.2010. In that view of the matter, it is settled that any order

passed by the Court / Authority would be without jurisdiction and

nullity. It is important to note that the petitioners have consistently

from inception in all their pleadings maintained this ground. In the

present case neither the Appellate authorities nor the Revisional

Authorities have examined the question of delay though it has been

consistently raised by the petitioners, particularly when there was no

application or order condoning the delay in the proceedings in the first

instance. Therefore, in other words the appellate authorities and the

revisional authorities have acted without jurisdiction in deciding the

proceedings on merits and without first condoning the delay. Unless

the delay was condoned appellate authorities and the revisional

authorities have no jurisdiction to entertain the appeal in law.

16. For the aforesaid reasons and in view of the decisions of this

Court referred to hereinabove, I am of the view that the order dated

03.03.2014 passed by the Sub-Divisional Officer, Yeola in RTS Appeal

No.181 of 2013 suffered from an inherent jurisdictional error as the

same came to be passed without condoning the delay in filing the

appeal. Thus the said order suffered from lack of jurisdiction and is

required to be set aside as nullity and non-est. In view of this finding

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the further orders passed by the appellate authorities i.e. the

Additional District Collector, Nashik and revisional authorities i.e.

Divisional Commissioner and the Minister of Revenue, State of

Maharashtra also suffer from a jurisdictional error and all the

authorities have clearly erred in the entertaining the challenge to

mutation entry No.508 dated 17.10.2010 without condoning the delay

in filing the statutory appeal which is a fundamental requirement

under the provisions of the MLR Code. Without condoning the delay

in filing of the statutory appeal, the appellate authorities and the

revisional authorities have clearly acted without jurisdiction.

Appellate authorities have not given any reason with regard to the

preliminary objection raised by the petitioners on the point of

limitation. In the circumstances, the appellate and revisionsal

authorities were in error in accepting the stand taken by the

respondents on merits without condoning the delay.

17. In view of the above discussion and findings, the orders passed

by the appellate / revisional authorities need to be interfered with.

Accordingly, the following orders are quashed and set aside:-

(i) Order dated 03.03.2014 passed by Sub-Divisional Officer,

Yeola in RTS Appeal No.181 of 2013;

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(ii) Order dated 09.04.2015 passed by Additional District

Collector, Nashik in RTS Appeal No.104 of 2014;

(iii) Order dated 21.03.2017 passed by Divisional

Commissioner, Nashik in RTS Review No.169 of 2015;

(iv) Order dated 05.10.2017 passed by Minister of Revenue,

State of Maharashtra in RTS No.3017/3039/p`.k`.154/ja.- 6.

18. Writ petition stands disposed in terms of the above directions.

However, there shall be no order as to costs.

[ MILIND N. JADHAV, J. ]

Digitally signed
Ravindra by Ravindra M.
M. Amberkar
Date: 2021.02.10
Amberkar 14:53:54 +0530

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