Bombay High Court
Shri Sarjerao Sidu Zhambare vs The Deputy Director Of Land ... on 15 March, 2016
Bench: R.M. Savant
wp-110.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.110 OF 2016
Sidu Ravaji Zhambare
since deceased through LRs
Sarjerao Sidu Zhambare and ors. Petitioners
versus
The Deputy Director of Land Record,
Pune and ors. : Respondents.
Mr. Pramod G Kathane for the Petitioners.
Shri S D Rayrikar, AGP, for the Respondent Nos.1 to 3.
Mr. Krishna M Kadam for the Respondent No.4 to 12.
ig CORAM :
DATE :
R. M. SAVANT, J.
15th March 2016
ORAL ORDER
1 Rule, having regard to the challenge raised in the above Petition,
made returnable forthwith and heard.
2 The writ jurisdiction of this Court is invoked against the order
dated 28/09/2015 passed by the Deputy Director of Land Records, Pune
Division, Pune by which order the Appeal filed by the Petitioners herein came
to be dismissed and the order dated 30/05/2013 passed by the District
Superintendent of Land Records, Sangli came to be confirmed.
3 It is not necessary to burden this order with unnecessary details.
Suffice it would be to state that the proceedings concerned are relating to the
consolidation scheme propounded under the Fragmentation and Consolidation
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of Holdings Act. In so far as the village Dongarsoni, Tal. Tasgaon, Dist.Sangli is
concerned, the said scheme is finalized in the year 1965 and Survey Nos. 152
and 153 which belong to the families of the Petitioners and the Respondent
Nos.4 to 12 were divided into Gats. The Respondent Nos.4 to 12 who are the
proponents of the proceedings before the Superintendent of Land Records
claim through one Raju Baji Zhambare. The Respondent Nos.4A to 4C long
after the said consolidation proceedings were finalized and after the said Raju
Baji Zhambare expired, chose to file an Appeal before the Superintendent of
Land Records purportedly on the ground that there was a discrepancy in the
area mentioned in the Gats. In view of the fact that the said Appeal was filed
almost after 45 years of the said scheme being finalized, the Appellants filed an
Application for condonation of delay. The Petitioners herein filed their reply to
the said Application opposing the same. The Superintendent of Land Records,
Sangli has allowed the said Application only on the ground that there appears
to be some discrepancy in the area mentioned in the Gats and therefore the
delay was required to be condoned. In doing so, the Superintendent of Land
Records has not considered whether the Appellants had made out sufficient
cause for condonation of delay of 45 years in filing the Appeal.
4 The Petitioners herein who are the Respondents in the said Appeal
aggrieved by the order passed by the Superintendent of Land Records
challenged the same before the Deputy Director of Land Records, Pune
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Division, Pune. The Deputy Director of Land Records on the ground that a
liberal view has to be adopted in matters of condonation of delay and the
matter should be dealt with on merits, confirmed the order passed by the
Superintendent of Land Records. Hence the Deputy Director of Land Records
also did not venture to consider whether the Appellants had made out a
sufficient cause for condonation of delay of the said 45 years. As indicated
above, it is the said order dated 28/09/2015 passed by the Deputy Director of
Land Records, Pune Division, Pune which is taken exception to by way of the
above Petition.
5 The learned counsel appearing on behalf of the Petitioners Shri
Kathane would submit that both the Authorities below have erred in condoning
the delay of 45 years by going into the merits of the matter rather than
considering whether the Appellants had made out sufficient cause for
condonation of the said huge delay. It was the submission of the learned
counsel for the Petitioners that in matters where the period of limitation is not
stipulated, this Court has held that three years would be reasonable period
within which the proceedings are required to be filed. The learned counsel for
the Petitioner sought to place reliance on the judgment of a Division Bench of
this Court reported in 2001(2) ALL MR 518 in the matter of Smt.Gulabrao
Bhaurao Kakade, since deceased v/s. Nivrutti Krishna Bhilare & ors. in
support of his contention.
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6 Per contra, the learned counsel appearing for the Respondent
Nos.4 to 12 Shri Kadam sought to justify the orders of the Authorities below
but not with any deal of conviction.
7 Having heard the learned counsel for the parties, in my view, the
instant Petition would have to be allowed and the impugned orders would
have to be set aside and the matter would have to be relegated back to the
Superintendent of Land Records, Sangli for a de-novo consideration of the
application for condonation of delay. It is trite as laid down by the judgment of
the Division Bench of this Court in Smt. Gulabrao Bhaurao Kakade's case
(supra) that when no period of limitation is prescribed, the proceedings have
to be filed within a reasonable time and the reasonable time as the Division
Bench of this Court has held would be three years after the cause of action has
arisen.. In the instant case, as indicated above, the Consolidation Scheme has
been finalized in the year 1965 and the proceedings were filed by the
Superintendent of Land Records in the year 2010. Hence the Superintendent
of Land Records was obliged to consider whether the Appellants had made out
a case for condonation of delay. However, without doing so the
Superintendent of Land Records by merely adverting to the merits of the
matter had condoned the said huge delay of 45 years. The matter was further
compounded by the Deputy Director of Land Records by confirming the order
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passed by the Superintendent of Land Records without going into the aspect as
to whether the delay was required to be condoned in the facts and
circumstances of the case having regard to the case made out in the
application.
8 In that view of the matter both the impugned orders are required
to be quashed and set aside and are accordingly quashed and set aside and the
matter is relegated back to the Superintendent of Land Records, Sangli for a
de-novo consideration of the application for condonation of delay. On remand
the parties to appear before the Superintendent of Land Records on
05/04/2016. The Superintendent of Land Records thereafter to consider the
application for condonation of delay on the touchstone of the observations
made in the instant order. The Superintendent of Land Records would be well
advised to give reasons for either condoning the delay or not condoning the
delay so that the higher forum has the benefit of the said reasons. The above
Writ Petition is allowed to the aforesaid extent. Rule is accordingly made
absolute in the aforesaid terms with parties to bear their respective costs of the
Petition.
[R.M.SAVANT, J]
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