Bombay High Court
Shaikh Abdul Razak Shaikh Ahmed vs The State Of Maharashtra And Others on 17 February, 2026
2026:BHC-AUG:6829
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8168 OF 2013
Shaikh Abdul Razak s/o Shaikh Ahmed,
Age : 65 years, Occu : Business,
R/o. Survey No. 408/1, Income Tax Colony,
Old Jalna, Taluka and District Jalna. ... Petitioner
Versus
1. The State of Maharashtra,
Through its Secretary,
Urban Development Department,
Mantralaya, Mumbai - 32.
2. The Collector, Jalna,
Taluka and District Jalna.
3. The Sub Divisional Officer, Jalna,
Taluka and District Jalna.
4. Abdul Rashid s/o Abdul Gaffar,
Aged 45 years, Occupation Business,
R/o. Railway Station Road, Jalna,
Taluka and District Jalna. ... Respondents
.....
Mr. R. N. Dhorde, Senior Advocate i/by Mr. V. R. Dhorde, Advocate
for the Petitioner.
Mr. S. K. Shirse, APP for Respondent Nos.1 to 3-State.
Mr. Kshitij Surve h/f Mr. Hemant Surve, Advocate for Respondent
No.4.
.....
CORAM : ABHAY S. WAGHWASE, J.
Reserved on : 09.02.2026
Pronounced on : 17.02.2026
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JUDGMENT :
1. Rule. Rule made returnable forthwith. By consent of the parties,
matter is heard finally.
2. By invoking Articles 226 and 227 of the Constitution of India,
petitioner herein, who is original respondent in the proceedings
before Sub Divisional Officer, Jalna bearing File No.
2012/ROR/CR/166 initiated at the instant of present respondent
no.4, has raised following prayers :
“A) Call for recording and proceeding of the case;
B) Hold and declare that, the impugned order dated
05.07.2013 passed by the respondent No. 3 in File No.
2012/ROR/CR/166 is illegal, arbitrary and without
jurisdiction and is violative of Article 14 of the
Constitution of India and for that purpose issue
necessary orders;
C) Issue writ of prohibition or any other appropriate writ
prohibiting the respondent No. 3 from proceeding with
the appeal filed before him in File No.
2012/ROR/CR/166 by respondent No. 4 and for that
purpose issue necessary orders;
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D) Pending hearing and final disposal of the Writ Petition,
grant stay to the execution and implementation of the
impugned order dated 05.07.2013 passed by the
respondent No. 3 in File No. 2012/ROR/CR/166 and
for that purpose issue necessary orders;
DD) Pending the hearing and final disposal of this Writ
Petition, grant an injunction restraining the
respondent No.4 from creating any third party interest
over the suit property and for that purpose issue
necessary orders.
E) Grant stay to the proceeding in File No.
2012/ROR/CR/166 filed before Respondent No.3 by
the Respondent No.4 and for that purpose issue
necessary orders.
F) Grant ad-interim relief in terms of prayer clause “D”.
G) Pass such other further orders as this Hon’ble Court
may deem fit and proper in peculiar facts and
circumstances of the case.”
3. The matter has a checkered history and before touching the
main controversy of impugned order condoning delay, a brief account
of the same is required to be noted which is as under :
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4. It is the case of the petitioner that, one Khanderao Wamanrao
Deshpande originally owned land survey no. 408 admeasuring 7 acres
8 gunthas in around 1919 said original owner sold half of above land
i.e. to the extent of 3 acres 24 gunthas land to the grandfather of
present petitioner for valuable consideration. As regards to remaining
half land, it was sold by the original owner to Ramji Umaji and he in
turn further sold it to Bhanekhan Fattekhan. To this extent, according
to the petitioner, there is no dispute.
5. It is further case of petitioner that, though there was sale
transaction between Ramji Umaji and Bhanekhan, the physical
possession of land Survey No. 408/1 had remained with the
grandfather of petitioner and after his demise, it came in possession
of petitioner’s father namely Shaikh Ahmed Shaikh Amir. To this
extent, entries were taken in Revenue record which are placed at
Exhibit-A.
6. It is next contention of the petitioner that, the Hyderabad
Tenancy and Agricultural Lands Act, 1950 (hereinafter referred to as
“Tenancy Act“) came into effect from 12.03.1956 and petitioner’s
father being in possession, came to be declared as protected tenant.
Document to that extent is at Exhibit-B dated 12.03.1956. It is also
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petitioner’s case that on 04.07.1956, tenancy authorities drew
panchanama of both the properties i.e. Survey Nos. 408/1 as well as
408/2 and said authority showed petitioner’s father to be in
possession of both above parts of the land, to which even Bhanekhan
Fattekhan also was a party and was a signatory to the said
panchanama which finds place at Exhibit-C.
7. It is further contention of the petitioner that the Tahsildar, after
issuing notice, called upon petitioner’s father to deposit Rs.850/-
towards Tenancy right and it were duly deposited on 14.04.1961, of
which copy is placed at Exhibit-D, and in consequence to it, further
inquiry was also conducted under Section 38 of Tenancy Act and
possession of petitioner’s father came to be reaffirmed, more
particularly over land Survey No. 408/1. That document is annexed at
Exhibit-E and the certificate issued under Section 38(E) of the
Tenancy Act granted in favour of petitioner’s father is also placed on
record and marked as Exhibit-F.
8. Then it is the contention of petitioner that, there was physical
possession as well as Revenue record showing possession of
petitioner’s father over land Survey No. 408/1 as protected tenant.
However, lis was created by public authorities and while attempt was
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made to acquire back the land, petitioner was constrained to institute
Regular Civil Suit No. 39 of 1987 in the court of learned Civil Judge
Senior Division, Jalna seeking perpetual injunction and the said suit
was duly decreed on 18.09.1991. Copy of the said judgment in R.C.S.
No. 39 of 1987 is placed on record at Exhibit-H. Consequently, it is
petitioner’s contention that, petitioner’s father was shown as a
protected tenant over land Survey No. 408/1 and he is equipped with
certificate to that extent.
9. That, meanwhile on account of demise of Bhanekhan
Fattekhan, he being issue-less, it is the contention of petitioner that,
name of petitioner’s father came to be recorded in the revenue record
vide Mutation Entry no. 1997 and this was in consonance with the
declaration of petitioner’s father as a protected tenant.
10. It is point out that, when Revenue authorities started
proceedings to cancel the said Mutation Entry by taking steps under
Maharashtra Land Revenue Code (MLR Code) by attempting to show
that said property to be intestate, and when further attempts were
made to seek back the possession, said action of the Government was
resisted by petitioner by invoking provisions under Section 257 of the
MLR Code and the Commissioner also, after appreciating the record,
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was pleased to set aside the order of the then Sub Divisional Officer
and as such, Mutation Entry drawn by the Government was set aside
as illegal. Copy of the the said order passed Revision is at Exhibit-J.
11. That, before demise of petitioner’s father, it is petitioner’s case
that, his father executed will deed dated 03.11.1987 in favour of
present petitioner and therefore, on the strength of the same, he
applied before the Sub Divisional Officer to issue ownership certificate
by carrying out necessary changes in the record and said proceedings
were numbered as 98/RB/Appeal/727 in which notices were issued
to present respondent also. However, Revenue authorities did not act
over it and the matter was kept lingering and surprisingly by order
dated 31.03.2004, Sub Divisional Officer kept the matter in sine die
position till decision of Civil Revision Application No. 920 of 1994.
According to petitioner, finally on 22.06.2005, the Sub Divisional
Officer, Jalna was pleased to mutate name of present petitioner in the
Revenue record and the orders to that extent dated 31.03.2004 and
22.06.2005 are placed on record and marked at Exhibit-L. Tahsildar
even directed Circle Inspector and Talathi to incorporate the name of
petitioner in the Revenue record by order dated 07.07.2005 and
finally on 08.07.2005 Mutation Entry in favour of petitioner’s name
came to be approved vide ME No. 3947 and accordingly petitioner’s
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name was entered in the ownership column. Said copy is also marked
at Exhibit-M.
12. Further according to petitioner, due to financial crisis, he
entered into an agreement of sale with one Ambhore, but at the
instance of said Ambhore, agreement was drawn in the name of one
Pradeep Kharde in respect of land Survey No. 408/1 but it was only to
the extent of 1 acre land. According to the petitioner, he also
executed agreement to sale in respect of other properties in favour of
one Shaikh Ismail. According to petitioner, said agreement to sale was
executed to merely seek permission and there was no consideration
received by the petitioner. On the basis of the same, an application
was moved to the Collector seeking permission to sell Survey No.
408/1 and the Collector further forwarded it to the lower authorities
to inquire into the matter and in pursuance to it, panchanama was
drawn by Talathi on 03.10.2005 and it was displayed on the notice
board of Tahsil office regarding possession of petitioner over Survey
No. 408/1 to the extent of 1 hector 44 ares. It was specially
mentioned in the panchanama that, Survey No. 408/1 was received
by petitioner under Tenancy Act and ownership certificate had been
issued under Section 38(E) of Tenancy Act. That, on report of
Tahsildar to the Collector Office, Deputy Collector Land Reforms was
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pleased to accord permission to sell land Survey No. 408/1 and copy
of said permission is at Exhibit-P.
13. That, though there was permission to sell, on account of
disputes cropping up with Kharde, transaction could not be
completed. Precisely it is petitioner’s case that said Kharde, colluding
with Talathi, set up a dummy person in the form of one Mohd. Siraj
Mohd. Rangrej, who asserted himself to be legal heir of Bhanekhan,
and took steps to file proceedings under Section 90 of the Tenancy
Act questioning Mutation Entry No. 3947 which is in favour of the
petitioner, thereby there was challenge to the order of Tahsildar
before the Deputy Collector (Land Reforms). The Deputy Collector
(Land Reforms) allowed the appeal directing authorities to obtain
original certificate of tenancy and record the name of present
petitioner and that, if original certificate/file/record is not available,
then to record name of legal heir of Bhanekhan i.e. vide order dated
05.01.2008. That, such order was taken exception to by present
petitioner by approaching MRT, Aurangabad, who was pleased to
grant stay by order dated 05.01.2008 and said matter is still sub
judice before that court. It is in such proceedings, as per the case of
petitioner, the present respondent no.4 filed intervention opposing
petitioner’s said proceedings before the MRT.
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14. It is pointed out that, subsequent to above, present respondent
approached Collector Office, Jalna in 2006 questioning the Mutation
Entry No. 3947 and urging to cancel the same. Present petitioner also
contested above proceedings but Collector closed the file without
passing any order.
15. According to the petitioner, prior to above proceedings, present
respondent no.4 had instituted RCS No. 275 of 2005 before the Court
of learned C.J.S.D., Jalna setting up a case that his father Abdul
Gaffar Shaikh Hyder had purchased suit property in Survey No. 408/1
way back on 08.10.1953 from Bhanekhan and being his legal heir, he
is entitled to succeed as owner and legal heir. Possession was also
asserted on the ground that there was relinquishment deed by
petitioner’s father though he was tenant.
16. According to petitioner, the very sale deed dated 08.10.1953
projected by respondent no.4 to be executed by Bhanekhan was
forged one. That, claim of respondent no.4 in Exhibit 5 was also
rejected by learned court of C.J.S.D., Jalna by order dated 10.07.2006
and finally suit was also dismissed for want of prosecution by present
respondent no.4.
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17. Thus, it is the specific case of petitioner that present respondent
no.4, being completely and fully aware that the alleged sale deed
executed by Bhanekhan was forged, he did not contest the suit and
deliberately permitted it to be dismissed in default.
18. It is further case of petitioner that, in view of attempts of
respondent no.4 in fabricating documents and creating records by
colluding with officials of TILR, the petitioner was constrained to file
Writ Petition No. 1872 of 2011 before this Court, and in such
proceedings reply was tendered by the Deputy Superintendent of
Land Records affirming that false and bogus PR Card with regard to
Survey No. 408/1 and 408/2 appear to have been prepared and it
was assured that action would be taken against the concerned
employees. That affidavit filed by the Deputy Superintendent is part
of the record and placed at Exhibit-S.
19. Lastly it is pointed out that, still respondent no.4 continued to
indulge and he again tendered application along with appeal under
MLR Code before SDO, thereby triggering fresh round of litigation,
challenging Mutation Entry No. 3947 at a hopelessly belated stage of
seven years and even surprisingly the SDO Jalna, in the said
proceedings bearing no. File No. 2012/ROR/CR/166, without
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assigning sufficient reasons, condoned the inordinate delay. Such act
of authority is the subject matter of this Writ Petition.
20. Pointing to the above record, learned senior counsel Mr. R. N.
Dhorde would submit that there is overwhelming evidence showing
present petitioner to be owner of subject land Survey No. 408/1.
That, revenue record, since more than half century back, depicts
initially name of grandfather and thereafter that of father of
petitioner, and subsequently petitioner’s name has been incorporated.
Competent authorities right from Tahsildar to Collector office have
confirmed Mutation Entry No. 3947 by following due process of law.
That, petitioner had succeeded in obtaining decree of perpetual
injunction from the court of Civil Judge Senior Division, Jalna. As
regards to Mutation Entry No. 3947 is concerned, it has already
attained finality long back. He also pointed out that, present
respondent no.4, who had no concern with the land, is meddling and
creating litigation on the strength of manufactured documents. That,
First round of litigation is already in favour of petitioner and
therefore, it is his submission that, present respondent no.4, against
whom affidavit is tendered in this Court in a distinct Writ Petition by
the very authority of Land Records confirming the documents to be
bogus and assuring action against concerned officials, has again made
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fresh attempt by creating second round of litigation which has already
attained finality and his such attempt has been rendered successful by
the SDO by condoning the delay of seven years. Accordingly to
learned counsel, surprisingly in absence of any plausible explanation,
huge and inordinate delay is condoned without due satisfaction on
the point of cause of delay. He pointed out that, respondent no.4 was
completely aware of all the proceedings and regarding finality of
Mutation Entry No. 3947 in favour of the petitioner.
21. For all above reasons, learned senior counsel urges for allowing
the Writ Petition and the prayers raised therein. In support of his
contentions, learned senior counsel seeks reliance on the judgments
of the Hon’ble Court in the case of Pundlik Jalam Patil (deceased by
Lrs) v. Exe. Eng. Jalgaon Medium Project and another , reported in
AIR 2008 SC 1025 and T. Vijendrads and Another v. M. Subramanian
and others, reported in 2008 (1) All MR 446.
22. In answer to above, learned counsel for respondent no.4 would
merely question the maintainability of petition seeking interferance
for setting aside the order passed by SDO and that too, when there
was mechanism and forum provided under the MLR Code to
challenge the impugned order.
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23. Brief account of documentary evidence/annexures placed with
writ petitioner is reproduced hereunder :
a. Pahani-patrak of the year 1343 fasli i.e. 1933 and 1953-54 is at
Exhibit-A showing land Survey No. 408/1 to be in possession of
petitioner’s grandfather.
b. Copy of extract from Revenue record dated 12.03.1956 regarding
declaration of petitioner’s father to be the protected tenant of
Survey No. 408/1 (Exhibit-B).
c. Panchanama dated 04.07.1956 drawn by Tenancy authority,
showing petitioner’s father to be in possession of both, Survey
No. 408/1 as well as 408/2, to which Bhanekhan acted as pancha
witness and was the signatory (Exhibit-C).
d. Notice dated 03.02.1961 issued by Tahsildar to petitioner’s father
and in compliance thereto, petitioner’s father deposited Rs.850/-
towards Tenancy right on 14.04.1961 (Exhibit-D collectively).
e. Second Panchanama carried out by Tenancy authorities under
Section 38 of the Tenancy Act reflecting name of petitioner’s
father to be in actual possession and cultivating land Survey No.
408/1, to which also, Bhanekhan was the signatory (Exhibit-E).
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showing petitioner’s father to be the absolute owner of Survey
No. 408/1 (Exhibit-F).
g. 7/12 extract for the period from 1959 to 1987 showing
possession petitioner’s father over Survey No. 408/1 as protected
tenant (Exhibit-G).
h. Memo of RCC No. 39/1987 filed by petitioner’s father and the
judgment and decree dated 18.09.1991 passed therein granting
perpetual injunction restraining revenue authorities from causing
obstruction to the lawful possession of petitioner’s father, as well
as the memo of appeal preferred by revenue authorities and the
order passed there in dated 01.08.1994 whereby the said appeal
stood dismissed in default (Exhibit-H collectively).
i. Mutation Entry No. 1997 mutating name of petitioner’s father
after death of Bhanekhan (Exhibit-I).
j. SDO passed order dated 15.07.1992 whereby the Mutation Entry
No. 1997 was set aside, against which petitioner’s father
preferred Revision No. 198 of 1994 and the Additional
Commissioner partly allowed the said revision by order dated
29.06.1996 by setting aside the above order to the extent of
taking the suit land in Government possession and instead
directed the suit property to be leased out year after year at
revisible rent to the tenant i.e. petitioner’s father himself (Exhibit
J).
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k. Will deed dated 03.11.1997 executed by petitioner’s father in
favour of the petitioner (Exhibit-K).
l. Order dated 22.06.2005 passed by the SDO, Jalna thereby
directing to mutate name of present petitioner in the revenue
record on the strength of the will deed at Exhibit-K (Exhibit-L).
m. Mutation Entry No. 3947 dated 08.07.2005 in favour of the
petitioner (Exhibit-M).
n. (i) Application dated 31.08.2005 made by the petitioner before
the Collector seeking permission to sell land Survey No. 408/1,
(ii) panchanama in consequence thereto dated 03.10.2005 by the
Talathi, whereby Talathi declared Survey No. 408/1 admeasuring
1 H. 44 R. to be in possession of petitioner and forwarded it to
the Tahsildar with specific mention that Survey No. 408/1 is
received as tenanted land and the ownership certificate is issued
under Section 38(E) of the Tenancy Act.
(iii) Report by Talathi to Tahsildar dated 04.10.2005. (Exhibit-N
collectively).
o. Report by Tahsildar to Collector, Jalna dated 14.10.2005 with
specific mention about possession of petitioner’s father as owner
u/s 38(E) of the Tenancy Act (Exhibit-O).
p. Permission dated 28.12.2005 accorded by Deputy Collector, Land
Reforms, to the petitioner to sell survey no. 408/1 (Exhibit-P).
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q. Order dated 05.01.2008 passed by SDO on the proceedings filed
by alleged legal heir of Bhanekhan challenging M.E. No. 3947,
whereby the SDO allowed the said proceedings and direcgted the
authorities to obtain original certificate of tenancy and record
name of present petitioner, and in case of absence of original
certificate/record/file, record the name of legal heirs of
Bhanekhan (Exhibit-Q).
r. Stay order dated 05.01.2008 passed by MRT, Aurangabad in the
proceedings by petitioner challenging the above order of SDO
(Exhibit-R).
s. Due to several proceedings by respondent no.4 challenging M.E.
No. 3947 on the basis of alleged fabricated documents, Petitioner
filed Writ Petition No. 1872 of 2011, in which affidavit was filed
by Deputy Inspector of Land Records, Jalna, stating therein that,
false and bogus PR card of Survey Nos. 408/1 and 408/2 are
prepared and assuring action against the concerned employees
(Exhibit-S).
t. Order of this Court in Writ Petition No. 1872 of 2011 dated
17.07.2013, whereby directions were issued to the District
Inspector of Land Records to complete inquiry and take
appropriate action as contended in the affidavit (Exhibit-T)
u. Copy of application file by respondent no.4 before the SDO, Jalna
along with application for condonation of delay dated
10.10.2012 (Exhibit-U).
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24. Thus, here what is pinching petitioner is the above order
whereby delay of seven years has been condoned. Petitioner’s specific
contention is that, delay is condoned without assigning sound and
sufficient reasons which were imperative more particularly in the light
of delay to be of over seven years. Accusations are that, when
petitioner is beneficiary of a decree of trial court, and by virtue of
series of acts of Revenue authorities itself, when the mutation entry is
confirmed, on mere assertions of respondent no.4 that he had no
knowledge about the mutation entry and the proceedings, whether
inordinate delay ought to have been casually condoned by Revenue
authority.
25. At the center of controversy is the delay condonation
application.
Before adverting to the merits, it would be fruitful to give a
brief account of the judicial precedent on law of limitation. Though
there are numerous and series of cases on the point of approach to be
adopted while condoning delay, few landmark and known cases are
referred here viz. Collector, Land Acquisition, Anantnag and another
v. Mst. Katiji and others (1987) 2 SCC 107; N. Balakrishnan v. M.
Krishnamurthy (1998) 7 SCC 123; Balwant Singh (Dead) v. Jagdish
Singh and others (2010) 8 SCC 685; Katari Suryanarayana v.
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Koppisetti Subba Rao (2009) 11 SC 183; Vedabai v. Shantaram
Baburao Patil (2001) 9 SCC 106; B. Madhuri Goud v. B. Damodar
Reddy (2012) SCC 693; Esha Bhattacharyajee v. Raghunathpur Nafar
Academy (2013) 12 SCC 649 and very recently Pathapati Subba
Reddy v. Special Deputy Collector 2024 SCC OnLine SC 513.
26. Certain principles are carved out by referring to the above
rulings by Hon’ble Apex Court which could be summarized as under :
(i) There should be a liberal, pragmatic, justice-oriented,
non-pedantic approach while dealing with an application
for condonation of delay, for the courts are not supposed
to legalise injustice but are obliged to remove injustice.
(ii) The terms “sufficient cause” should be understood in
their proper spirit, philosophy and purpose regard being
had to the fact that these terms are basically elastic and
are to be applied in proper perspective to the obtaining
fact-situation.
(iii) Substantial justice being paramount and pivotal the
technical considerations should not be given undue and
uncalled for emphasis.
(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.
(v) Lack of bona fides imputable to a party seeking
condonation of delay is a significant and relevant fact.
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(vi) It is to be kept in mind that adherence to strict proof
should not affect public justice and cause public mischief
because the courts are required to be vigilant so that in
the ultimate eventuate there is no real failure of justice.
(vii) The concept of liberal approach has to encapsule the
conception of reasonableness and it cannot be allowed a
totally unfettered free play.
(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. That apart, the first one warrants
strict approach whereas the second calls for a liberal
delineation.
(ix) The conduct, behaviour and attitude of a party relating
to its inaction or negligence are relevant factors to be
taken into consideration. It is so as the fundamental
principle is that the courts are required to weigh the
scale of balance of justice in respect of both parties and
the said principle cannot be given a total go by in the
name of liberal approach.
(x) If the explanation offered is concocted or the grounds
urged in the application are fanciful, the courts should
be vigilant not to expose the other side unnecessarily to
face such a litigation.
(xi) It is to be borne in mind that no one gets away with
fraud, misrepresentation or interpolation by taking
recourse to the technicalities of law of limitation.
(xii) The entire gamut of facts are to be carefully scrutinized
and the approach should be based on the paradigm of
judicial discretion which is founded on objective
reasoning and not on individual perception.
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(xiii) The State or a public body or an entity representing a
collective cause should be given some acceptable
latitude.
27. Useful reference can also be made to the judgment of the
Hon’ble Apex Court in the case of N. Balakrishnan (supra) and the
observations made in para 11 are borrowed and quoted here :
“11. Rule of limitation are not meant to destroy the right of
parties. They are meant to see that parties do not resort to
dilatory tactics, but seek their remedy promptly, the object
of providing a legal remedy is to repair the damage caused
by reason of legal injury. Law of limitation fixes a life-span
for such legal remedy for the redress of the legal injury so
suffered. Time is precious and the wasted time would never
revisit. During efflux of time newer causes would sprout up
necessitating newer persons to seek legal remedy by
approaching the courts. So a life span must be fixed for
each remedy. Unending period for launching the remedy
may lead to unending uncertainty and consequential
anarchy. Law of limitation is thus founded on public policy.
It is enshrined in the maxim interest reipublicae up sit finis
litium (it is for the general welfare that a period be put to
litigation). Rules of limitation are not meant to destroy the
right of the parties. They are meant to see that parties do
not resort to dilatory tactics but seek their remedy
promptly. The idea is that every legal remedy must be kept
alive for a legislatively fixed period of time.”
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28. Similarly, in Pathapati Subba Reddy (supra) the Hon’ble Apex
Court has observed in Paragraph 26(v) that, ” 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”.
29. In the case of Shivamma (dead) By Lrs v. Karnataka Housing
Board and others reported in AIR OnLine 2025 SC 898, in para 261,
the Hon’ble Apex Court has observed as under :
“261. Thus, for the reasons aforesaid, the impugned order
of the High Court deserves to be set aside. Before we
proceed to close this judgment, we deem it appropriate to
make it abundantly clear that administrative lethargy and
laxity can never stand as a sufficient ground for
condonation of delay, and we want to convey an emphatic
message to all the High Courts that delays shall not be
condoned on frivolous and superficial grounds, until a
proper case of sufficient cause is made out, wherein the
State-machinery is able to establish that it acted with bona
fides and remained vigilant all throughout. Procedure is a
handmaid to justice, as is famously said. But courts, and
more particularly the constitutional courts, ought not to
obviate the procedure for a litigating State agency, who
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litigations due to its own lackadaisical attitude.” (emphasis
laid)
30. The substance of the impugned order dated 05.07.2013, which
was passed after taking into account the submissions and written
statements of both sides, and the translated version of the relevant
portion of the said order is as under :
“……… Upon perusal of the appellant’s application for
condonation of delay, the written statement filed by the
non-appellant and the available documents on record, it is
observed that, in respect of the suit land, the Aakhiv
Patrika (layout extract) was prepared in the name of the
appellant’s father, Abdul Gaffar Shaikh Haidar, on the basis
of a sale deed in the year 1996. After the death of the
father, the name of the appellant was implemented in the
records by way of inheritance rights. This documentary
evidence establishes that the Appellant has a legitimate
interest/stake in the disputed land. Furthermore, the
mutation entry records do not indicate that any notice was
served to the Appellant while sanctioning the disputed
Mutation Entry No. 3947. Although there is a delay of
approximately 7 years in filing this appeal, I have reached
the conclusion that it would be legally justifiable to
condone the said delay in the interest of natural justice.
Accordingly, I am passing the following order regarding the
application for condonation of delay.
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1. For the reasons stated above, the Appellant’s
application for condonation of delay is hereby
granted/allowed.
2. To decide the appeal on its legal merits, the next date
of hearing is fixed for 22.07.2013.
3. The concerned parties are to be informed
accordingly.”
31. Keeping the above legal precedent in mind, if the facts of the
case in hand are considered, in aforesaid paragraphs 23, it has been
demonstrated that the Mutation Entry which is sought to be
challenged by present respondent no.4 has already attained finality
and is intact way back since 08.07.2005. The primary ground which
present respondent no.4 projected before learned SDO was that, he
had no knowledge of the above Mutation Entry and only after getting
knowledge, as there is delay, he urged to allow the same.
32. Here, it is pertinent to note that said land which is subject
matter of the controversy, was initial Survey No. 408 standing in the
name of Khanderao Deshpande. He allegedly sold half portion
admeasuring 3 acres 24 gunthas to the petitioner’s grandfather and
the remaining half indisputably went to share of Ramji Umaji who
allegedly sold it to Bhanekhan. Above discussed record shows that on
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12.03.1956, itself father of present petitioner was declared as tenant
and there is extract at Exhibit-B. Moreover, petitioner’s specific case is
that, at the time of visit and panchanama by tenancy authorities on
04.07.1956, father of present petitioner as well as Bhanekhan were
shown to be present and moreover, Bhanekhan acted as a pancha
witness, i.e. Exhibit-C which is apparently drawn on 04.07.1956. Way
back in 1961, on payment of necessary charges, certificate under
Section 38(E) of the Tenancy Act is also shown to be issued in favour
of father of petitioner, i.e. as regards to land Survey No. 408/1. Copy
of the said certificate is also placed on record. It is also contention of
the petitioner, and by virtue of Exhibit-I, petitioner has demonstrated
that, Bhanekhan having died issue-less, Mutation Entry No. 1997
came to be mutated and when attempt was made by some Revenue
authorities to seek back the possession, petitioner seems to have
preferred revision before Commissioner, who was pleased to set aside
the mutation entry taken by revenue authorities bearing No. 2616.
Copy of same is also placed at Exhibit-J. Exhibit-L shows that SDO,
Jalna has directed mutation of name of present petitioner in the
Revenue record.
33. Therefore, when Bhanekhan was the immediate neighbour, if at
all present respondent no.4 is his heir, it is difficult to comprehend
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that he had no knowledge of previous litigation before Revenue
authorities which have virtually attained finality and have remained
unchallenged for a decade. It is shown that Civil Court has granted
perpetual injunction in favour of present petitioner by decreeing his
suit. Taking such material into consideration, contention of want of
knowledge of Mutation entry for the first time at the time of filing
application before respondent no.3 for condonation of delay, holds no
substance.
34. Here, it is not a case that present petitioner has not contested
the delay condonation application. On the contrary, stiff resistance
seems to be put to the above application. But still learned SDO seems
to have allowed delay of seven years on mere count that it would be
legally justifiable to condone the delay in the interest of justice.
Apparently, as submitted, it is a cryptic and unreasoned order. What
was the sufficient cause for condoning delay of seven years has not
been clarified in the impugned order.
35. This Court posed a question to the learned senior counsel, and
as it is also already submitted by learned counsel for respondent no.4
that, when there is mechanism and forum to assail the order of SDO,
why such remedy is not exhausted, learned senior counsel would
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emphatically submit that there is no dispute to that regard, however
he expressed his serious concern and reservations for triggering fresh
round of civil litigation when petitioner is already beneficiary of
certificate under Section 38(E) of the Tenancy Act, and also being
equipped and armed with decree of civil court granting perpetual
injunction, and Mutation Entry in his favour having attained finality.
According to him, his valuable rights are thus infringed on account of
gross abuse of process of law.
36. In support of his contention that, this Court can invoke writ
jurisdiction, learned senior counsel has urged for reliance on the
judgments of the Hon’ble Apex Court in the cases of Pundlik Jalam
Patil (supra) and T. Vijendradas (supra), also touching the aspect of
Section 5 of the Limitation Act and powers of court to condone delay.
37. In the case of Pundlik Jalam Patil (supra), specific reliance is
placed on para 11 and 12, wherein, after formulating point as to
‘whether respondent made incorrect statement in application seeking
condonation of delay?’, and secondly, ‘whether High Court properly
exercised its jurisdiction?’, the Hon’ble Apex Court has observed as
under :
WP-8168-2013
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the application seeking condonation of delay?
There is no dispute whatsoever that the respondent
being the beneficiary of the acquisition has been duly
impleaded as a party respondent in the reference cases as
is requited in law, It hot only appeared in the matter
through a properly instructed counsel but also filed its
written statement opposing the claim for enhancement of
compensation but did not choose to lead any evidence
whatsoever. In the application filed in the High Court the
plea token by the respondent is as under
“The applicant submits that, although the applicant being
Acquiring Body, was arrayed as opponent in the said
reference, the opponent no. 4 herein (Original Opponent
No. 1) S.L.A.O., or his subordinate contested the said
reference by filing written statement. Therefore, this
applicant was unaware about the stand taken by S.L.A.O.
well as the impugned judgment and award.”
This averment in the application on the face of it is totally
incorrect. The Law and Judiciary Department as early as on
13.4.2000 i.e. to say within the period of 15 days from the
date of the award of the Reference Court communicated its
decision to acquiesce in the decision of the Reference Court
and communicated the same to all the concerned including
the beneficiary of the acquisition. It is not the case that the
Executive Engineer did not receive the said
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communication. Having received the said communication
the respondent did not act in the matter and initiated any
steps for filing the appeals if it was really aggrieved by the
decision of the Reference Court. There is no doubt
whatsoever in our mind that the respondent made totally
incorrect statement in the application filed in the High
Court. We express our reservation as to the manner in
which a public authority conducted itself in its anxiety to
somehow get the relief from the court. In our considered
opinion incorrect statement made in the application
seeking condonation of delay itself is sufficient to reject the
application without any further inquiry as to whether the
averments made in the application reveal sufficient cause
to condone the delay. That a party taking a false stand to
get rid of the bar of limitation should not be encouraged to
get any premium on the falsehood on his part by
condoning delay. [See: (1993) 1 SCC 572].
12. Whether the High Court properly exercised its
discretion?
The High Court in its order having noticed the
relevant fact in categorical terms held that there was no
substance in the plea that it was unaware about the
judgment and award passed by the Reference Court since it
was a party before the Reference Court and contested the
matter. The High Court also found that the decision of the
Joint Secretary to acquiesce was communicated to the
beneficiary of the acquisition and therefore, its plea about
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the unawareness of the award and decision taken by the
Government cannot be accepted. The High Court in its
order emphatically rejected the ground raised by the
respondent in that regard. In such view of the matter can it
be said that the High Court properly exercised its
jurisdiction? It is true that the power to condone the delay
rests with the court in which the application was filed
beyond time and decide whether there is sufficient cause
for condoning the delay and ordinarily the superior court
may not interfere with such discretion even if some error is
to be found in the discretion so exercised by the court but
where there is no sufficient cause for condoning the delay
but the delay was condoned, it is a case of discretion not
being exercised judicially and the order becomes
vulnerable and susceptible for its correction by the superior
court. The High Court having found that the respondent in
its application made incorrect submission that it had no
knowledge of the award passed by the Reference Court
ought to have refused to exercise its discretion. The High
Court exercised its discretion on wrong principles. In that
view of the matter we cannot sustain the exercise of
discretion in the manner done by the High Court.”
38. Thus, from above judgment of the Hon’ble Apex Court, it is
clear that when subordinate forum fails to exercise its discretion
judiciously, the same is liable to be corrected by the superior court.
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39. In the second judgment of T. Vijendradas (supra), it is clarified
that, when fraud is played on the court, either superior or inferior, it
can be challenged in any court at any time in appeal, revision, writ or
even in collateral proceedings.
40. In the light of above discussion, taking the peculiar facts in the
case in hand into consideration, there is no hurdle to invoke writ
jurisdiction for granting prayers raised herein. Hence, the following
order :
ORDER
I. The Writ Petition is allowed in terms of prayer clauses (B) and
(C).
II. The impugned order dated 05.07.2013 passed by Sub Divisional
Officer, Jalna in File No. 2012/ROR/CR/166 is quashed and set
aside.
III. Rule made absolute in the above terms.
IV. The Writ Petition is accordingly disposed off.
[ABHAY S. WAGHWASE, J.]
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