Dagdu Sambhu Dhane vs Laxman Sopan Dhane And Ors
2017 Latest Caselaw 7383 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION

                       WRIT PETITION NO. 7292 OF 2014


        Dagdu Sambhu Dhane                          ..       Petitioner
            vs.
        Laxman Sopan Dhane & Ors.                   ..       Respondents


        Mr. Rupesh K. Bobade for Petitioner.
        Mr. Sharad Bhosale i/b. Mr. Dilip Bodake for Respondent No. 1.
        Ms Vaishali Nimbalkar - AGP for State.


                                        CORAM : M. S. SONAK, J.

DATE: 21 SEPTEMBER 2017

ORAL JUDGMENT :

        1]       Rule.



        2]      Rule returnable forthwith with the consent of and at the

request of the learned counsel for the parties.

3] The challenge in this petition is to the order dated 4th March

2014, by which, the Hon'ble Minister (Revenue) in exercise of

powers conferred under Section 35 of the Bombay Prevention of

Fragmentation and Consolidation of Holdings Act, 1947 (said Act)

has set aside the order made by the Assistant Consolidation

Officer- 2, Solapur on 14th February 1975. There is no dispute that

in this case, the respondent No. 1 filed a revision petition under

Section 35 of the said Act before the Hon'ble Minister (Revenue) to

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challenge the order dated 14th February 1975 only on 21st

November 2007. This means that the revision petition was filed after

a period of almost 32 years from the date the Consolidation Officer

made the order dated 14th February 1975. The Minister (Revenue),

has allowed the revision petition, even though, there was no

application seeking condonation of delay, which ex facie, was

inordinate.

4] Learned counsel for the respondent No. 1 points out that there

is no period of limitation prescribed in Section 35 of the said Act for

institution of a revision petition. He points out that the State

Government, can even suo motu exercise revisional jurisdiction. He

further points out that in the impugned order, there are clear

reasons set out as to why the revision was being entertained after

32 years. He points out that in this case the earlier order dated 14 th

February 1975 was made without compliance with the principles of

natural justice. He points out that no notice had been issued by the

Assistant Consolidation Officer to the respondent No. 1 before the

order dated 14th February 1975 was issued. He points out that the

respondent No. 1 came to know about this order when it was sought

to be executed. He points out that the order dated 14 th February

1975 is till date not sanctioned. He points out that the respondent

No. 1 made application to several authorities and thereafter

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followed by the revision petition. He submits that there is absolutely

no jurisdictional error in the making of the impugned order.

5] The circumstance that Section 35 of the said Act prescribes

for no period of limitation does not mean that the revisional

jurisdiction can be invoked after an inordinate delay. In the context

of the very provisions, the Division Bench of this Court in the case

of Gulabrao Bhaurao Kakade (Smt.) since deceased by his

heirs and legal representatives vs. Nivrutti Krishna Bhilare &

Ors.1 has held that even where there is no period of limitation

prescribed for exercise of jurisdiction, jurisdiction has to be

exercised within a reasonable period. Further, ordinarily, exercise of

such powers after 3 years from the date of finalization of the

scheme may not be justified. In the said case, exercise of power on

the ground of error after 15 years was held to be grossly

unjustified.

6] In this case, respondent No. 1, was expected at least to file an

application explaining the circumstances of the delay. Further, the

Minister (Revenue), was expected to afford opportunity to the

petitioner to contest the explanation for the delay. Thereafter, the

Minister (Revenue) could have called for the records to examine

whether the explanation offered by the respondent No. 1 was

1 2001 (Supp.) Bom. C.R. 688

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indeed proper. Since, it is a case of the respondent No. 1 that the

earlier order dated 14th February 1975 was made in violation of

principles of natural justice and without issuance of any notice to

them. These are matters, which were required to be ascertained by

calling for the records and not merely on the basis of statements of

the parties. Nothing of this sort has been done, or, if done,

reflected in the impugned order. This is a case where revisional

jurisdiction has been exercised almost after 32 years. The delay, is

indeed prima facie inordinate. Unless, there was valid explanation

and further, compliance with principles of natural justice in the

matter of affording opportunity to the petitioner to contest the

explanation so pleaded, there was no question of exercising

revisional jurisdiction in this manner.

7] Accordingly, on this ground itself and not on merits the

impugned order dated 4th March 2014 is hereby set aside. The

respondent No. 1 is however granted liberty to file an application

explaining the delay. The matter is remanded to the Hon'ble

Minister (Revenue) who shall consider such application, if made

within a period of four weeks from today and first decide, whether

any case is made out to entertain this revision petition after so much

delay. The petitioner would be entitled to file their reply opposing

the condonation of delay. The Minister (Revenue) will, having regard

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to the respective contentions raised by the parties, as well as upon

examining the records, decide the issue of delay and only in case,

the delay is to be condoned proceed to decide the revision petition

on its own merits and in accordance with law.

8] Parties to appear before the Minister (Revenue) on 31st

October 2017, because, by then, respondent No. 1 will have made

the application explaining the delay. Copy of such application shall

be furnished to the petitioner as well as other respondents in the

revision petition instituted by the respondent No. 1.

9] All concerned to act on basis of authenticated copy of this

order.

10] Rule is made absolute in the aforesaid terms. There shall be

no order as to costs.

(M. S. SONAK, J.) Chandka