2024:BHC-AS:38611-DB

S.S.Kilaje 1-WP-5561-2022.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5561 OF 2022
1 Ashokrao Ganpati Ghatge )
Age : 70 Years )
2 Arun Ganpati Ghatge )
Age : Adult, )
Both residing at 1458, ‘E’ Ward )
7th Lane, Rajarampuri, Kolhapur )
3 Suresh Ganpati Ghatge )
(Since deceased through Lrs.) )
3A Smt. Rekha Suresh Ghatge )
Age : Adult, Occupation : Household )
3B Kum. Sweta Sunil Ghatge )
Age : Adult, Occupation : Houshold )
Both residing at Ganesh Bunglow )
526/1, Plot No.6, Suryawanshi Mal Samratnagar, )
Kolhapur )
4 Ajit Ganpati Ghatge )
(Since deceased through Lrs.) )
4A Asha Ajit Ghatge )
Age : Adult, Occupation : Household )
4B Anish Ajit Ghatge )
Age : Adult, Occupation : Service )
Both residing at Plot NO. 129, )
Mukta Sainik Housing Society, Kolhapur )
4C Sou. Anushri Pawan Ghatge )
Age : Adult, Occupation : Household )
Residing at 1331/1, Nagar Road )
Near Decathlon, Wagholi, Pune )
5 Kiran Ganpati Ghatge )
(Since deceased through Lrs.) )
)
5A Smt. Sunita Kiran Ghatge )
Age : Adult, Occupation : Household )
5B Shri. Prasad Kiran Ghatge )
Age : Adult, Occupation : Service )
Both R/at- R.C.S. No. 250/B1 to B2 )
Nagala Park, Next Keviz Park, Kolhapur )... Petitioners

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Versus
1 Shri. Madhavrao Ramchandra Ghatge )
Age : 65 years, Occupation : None )
2 Diliprao Ramchandra Ghatge )
(Since deceased through Lrs.) )
2A Smt. Mangal Dilip Ghatge )
Age : Adult, Occupation : Household )
2B Shri. Ashwin Dilip Ghatge )
Age : Adult, Occupation : Service )
2C Sou. Amrita Pranav Advitot )
Age : Adult, Occupation : Household )
All residing at C.S.No. 1458, ‘E’ Ward, 7th Lane, )
Rajarampuri, Kolhapur )
3 Deputy Director of land Records )
Pune Division, Pune )
4 Superintendent of Land Records, Kolhapur )
Copy to Respondent Nos. 3 and 4 )
To be served on the Office of Government Pleader, )
High Court, Appellate Side, Mumbai ) … Respondents
…………...
 Mr. Chetan Patil a/w. Mr. Mandar Bagkar, Advocates for the
Petitioners.
 Mr. Pandit Kasar, Advocate for Respondent No.1.
 Mr. J. P. Patil, AGP for Respondent Nos. 3 and 4- State.

SONALI
Digitally signed
by SONALI
SATISH KILAJE
CORAM : R. M. JOSHI, J.
SATISH Date:
2024.10.01
KILAJE 10:20:50
+0700

RESERVED ON: 23rd SEPTEMBER, 2024.

PRONOUNCED ON: 27thSEPTEMBER, 2024.
JUDGMENT :

1. The petitioner takes exception in this petition to order dated

06.04.2022 passed by Deputy Director of Land Records, Pune holding that

the challenge to order before him is not tenable and Revision can only be

preferred before the State under Section 257 of the Maharashtra Land

Revenue Code, 1966 (for short “the Code”).

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2. It is the case of the petitioner that the name of his father was

entered into revenue record in respect of old City Survey No. 1458/4/1,2

and 3 (renumbered as Plot No. 162 as per the Town Planning Scheme

sanctioned by City of Kolhapur, in the year 1979). His name was entered

on the basis of statement made by respondent Nos. 1 and 2 and other co-

sharers. An order was passed on 10.01.1980 by the City Survey Officer

directing name of Ganpati Ishwar Ghatge (father of petitioner) to be

entered in the property card of the subject land. According to the

petitioners respondents have challenged order dated 10.01.1980 passed by

the City Survey Officer by filing an appeal before the Superintendent of

Land Records, Kolhapur under Section 247 of the Code. On 30.11.2008

i.e. after the period of 38 years of the said order, appeal came to be filed.

An application for condonation of delay was also filed along with the

appeal. It is claimed by the petitioners that no reason leave apart sufficient

cause has been stated for condonation of delay of 38 years. Pursuant to

the receipt of notice petitioner appeared before respondent No.4 and

objected to the application for condonation of delay. Respondent No.4 by

order dated 01.02.2022 condoned the delay of 38 years. This order was

challenged by filing a Revision Application under Section 257 of the code

before the respondent No.3 -Deputy Director of Land Records, Pune. This

Authority, however, issued impugned communication dated 06.04.2022

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holding that he has no authority to entertain the said Revision Application

and only remedy available for the petitioners is to file Revision Application

before the State Government. Petitioners on various grounds set aside in

the petition in paragraph No.7(a)(2)(h) have challenged the impugned

order.

3. Learned counsel for the petitioners submits that the impugned

communication is not tenable in the eyes of law considering the relevant

provisions of M.L.R Code. It is his submission that the order passed by

Superintendent of Land Records of condonation of delay only has been

challenged before the Deputy Director of Land Record by invoking

provisions of Section 257 of the Code. According to him, since the order of

condonation of delay being not covered by Section 252 of the Code and

since the said order is also not declared as final or conclusive as

contemplated by Section 259 of the Code, the Revision against such order

is maintainable before respondent No.3 being superior officer to

respondent No.4. To support his submissions, he has placed reliance on:

i. Ramanlal s/o. Kachardas Bakliwal Anr. Vs. Niyaj Mohammad Khan

Akhil Khan Ors. (2004 ALL MR 249)
ii. Ahmad Ambir Shaikh (Deceased) thr. Lrs. Mukhtyar Esmael Shaikh
& Ors. Vs. Abdul Rahiman Ambir Shaikh (Deceased) thr. L.R. Safiya
Khalil Shaikh & Ors. (Civil W.P. 1506 of 2022)
iii. State of U. P. and Another Vs. Synthetics and Chemicals Ltd. and
Anr. (1991) 4 SCC 139
iv. Ramanlal s/o. Kachardas Bakliwal & Anr. Vs. Niyaj Mohammad
Khan & Ors. (2004(2) ALL MR 49)

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v. Raichurmatham Prabhakar and Anr. Vs. Rawatmal Dugar

(2004 (4) SCC 766)
vi. Balwant Narayan Thale Vs. Pushplata Vasudev Patil and others
(Civil W.P. 8673 of 2016)

He has also drawn attention of the Court to the judgment of the

Coordinate Bench of this Court in W.P. No. 12965 of 2023, in the case of

Sadanand Tukaram Suroshe Vs. Ashok Gajanan Suroshe and Ors., in Civil

Writ Petition No. 12965 of 2023 passed on 28.03.2024 to contend that

though in this case the Coordinate Bench of this Court has taken a view

that the order of condonation of delay and admitting the appeal can be

challenged only before the State Government in view of Section 257 of the

code, the said judgment does not take into consideration Section 259,

which specifically provides that whenever in this code it is provided that

the decision or order shall be final or conclusive such provision shall mean

that no appeal lies from such decision but it shall be lawful to the State

Government alone to such to modify or reverse under such decision under

the provisions of Section 257. He drew attention of this Court to

provisions of Section 123, 124, 137, 142 and 165(2) which according to

him specifically provide that the orders passed under these provisions are

final or conclusive. As such, the order of condonation of delay being not

covered by the said provision, Section 259 has no application and

resultantly the revision be held maintainable before the Officers referred

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in Section 257 and not before the State Government.

4. Learned counsel for the contesting respondents opposed the said

submissions by mainly relying upon the judgment in the case of Sadanan

Tukaram Suroshe (supra). It is his contention that the Co-ordinate Bench

of this Court after taking into consideration the relevant provisions of the

Code as well as all all judgments on the point has held that in case of

condonation of delay and admission of appeal, the order becomes non

appealable and as such same can be challenged only before the State

Government u/s. 257 of the Code. He drew attention of the Court to the

amendment to Section 257 by introduction of sub-Section 4 on 05.02.2016

to contend that this provision abundantly makes it clear that the power is

only with the State Government to modify or reverse the order issued

under sub-Section 1 or 2 by any Officer referred to therein, when appeal is

barred under Section 252 of Code. Thus, it is his argument that the order

passed by respondent No.4 is in consonance with the judgment of this

Court and hence there is no reason or justification to take any different

view than the one taken by the Coordinate Bench of this Court and to

cause interference in impugned order.

5. At the outset, it is necessary to take into consideration in which facts

in which the judgment has been passed by the Coordinate Bench in the

case of Sadanand Tukaram Suroshe (supra). Perusal of the same

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indicates that the order of condonation of delay and admission of appeal

were subjected to the challenge before the Additional Collector. It is held

therein in paragraph-23 that “ as the order of SDO admits the appeal, there

is statutory interdict as Section 252 of the MLRC bars filing of an appeal

against an order of admitting the appeal. Hence, against the order of SDO

admitting the Appeal after condonation of delay, there is no remedy of 2 nd

appeal to the Additional Collector available to the Petitioner under Section

247 of MLRC Code”. It is further held in paragraph No. 24 that “having

held that no remedy of 2nd appeal was available as the order of SDO

admitted the Appeal, the issue now to be considered is the remedy

available to the Petitioner against the order of SDO condoning the delay

and admitting the Appeal. The power of revision is contained in Section

257 of the MLRC which vests concurrent power of revision in the State

Government and any Revenue or Survey Officer not inferior in rank to

Assistant or Deputy Collector or the Superintendent of Land Records

against the order of subordinate revenue or survey officer ”. After referring

to the relevant provisions of Code it is observed that “ to put it simply, if

order is passed by any revenue or survey officer in exercise of the powers

under Sub-Section (1) or Sub-Section (2) of Section 257 of the MLRC, in

exercise of the revisional jurisdiction, the second revision against the said

order passed by the revenue or survey officer will lie to the State

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Government alone.” In paragraph No. 25 it is held that “in the present

case, it cannot be said that the order issued by the Additional Collector was

an order passed in exercise of the revisional jurisdiction under Sub-Section

(1) of Section 257 of the MLRC against which second revision is

permissible only to the State Government.” Finally in paragraph No. 27 it

is held that “upon conjoint reading of the provisions of Section 251,

Section 252 and Section 259 of MLRC, in my view, the only remedy

available to the Petitioner is the remedy of revision before the State

Government against the order of the SDO admitting the Appeal after

condoning the delay.” In paragraph No. 35 the issues framed for

consideration are answered as, “(a)The order of SDO admits the Appeal

after condoning the delay. Section 252 of MLRC bars filing of Appeal from

an order admitting the Appeal. The only remedy available to the Petitioner

is remedy of revision. (b) By virtue of Section 259 of MLRC, the order

admitting Appeal being final as no appeal lies from such decision, the

revision would lie before the State Government.”

6. This judgment is passed in the facts of the case, wherein, there was

challenge to the order of condonation of delay as well as admission of

appeal. Pertinently, in the instant case, there is no challenge raised by the

petitioner to the order of admission of the appeal and specifically order of

condonation of delay has been taken exception to before the Deputy

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Director of Land Records.

7. The contention of learned counsel for the respondents with regard to

the order of condonation of delay and admission of appeal to be

challenged in one proceeding and therefore revision is not maintainable

except before State Government is based on the doctrine of merger. At this

stage it would be relevant to take note of Judgment of Hon’ble Supreme

Court in the case of Kunhayammed and Others v. State of Kerala and

Another (2000) 6 SCC 376, which deals with issue of doctrine of merger.

“44. To sum up, our conclusions are:

(i) Where an appeal or revision is provided against an order passed
by a court, tribunal or any other authority before superior forum and
such superior forum modifies, reverses or affirms the decision put in
issue before it, the decision by the subordinate forum merges in the
decision by the superior forum and it is the latter which subsists,
remains operative and is capable of enforcement in the eye of law.
(ii) The jurisdiction conferred by Article 136 of the Constitution is
divisible into two stages. The first stage is upto the disposal of prayer
for special leave to file an appeal. The second stage commences if
and when the leave to appeal is granted and the special leave
petition is converted into an appeal.
(iii) The doctrine of merger is not a doctrine of universal or
unlimited application. It will depend on the nature of jurisdiction
exercised by the superior forum and the content or subject-matter of
challenge laid or capable of being laid shall be determinative of the
applicability of merger. The superior jurisdiction should be capable
of reversing, modifying or affirming the order put in issue before it.
Under Article 136 of the Constitution the Supreme Court may
reverse, modify or affirm the judgment-decree or order appealed
against while exercising its appellate jurisdiction and not while
exercising the discretionary jurisdiction disposing of petition for
special leave to appeal. The doctrine of merger can therefore be
applied to the former and not to the latter.”

It is therefore clear that the doctrine of merger means to sink or

disappear in something else to become absorbed or extinguished. The logic

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behind the doctrine of merger is that there cannot be more than one

decree or operative order governing the same subject matter at a given

point of time. The decree or order is passed in inferior Court is subjected

to a remedy available under law before superior forum, then decree or

order under challenged continues to be effective and binding. Once the

superior Court disposes the dispute before it in any manner either by

confirming a decree or order by setting aside the order modifying the same

it is the decree of the superior Court which is final and operative decree.

The decree of the inferior Court gets merged into the order passed by the

superior forum. Similarly, it can also be said that the grant of interim

relief gets merged in the final decree/order. It is also necessary that the

merger would apply in respect of the judgment / order covering same

subject and not otherwise.

8. Now question arises as to whether it can be said that the order of

condonation of delay stood merged into the order of admission of appeal

to compel the aggrieved party to challenge the same simultaneously.

Section 251 deals with the filing of appeal beyond period of limitation. The

said provision reads thus:

“251. Admission of appeal after period of limitation. :

Any appeal or an application for review under this Chapter may be
admitted after the period of limitation prescribed therefor when the
appellant or the applicant, as the case may be, satisfies the officer or
the State Government to whom or to which he appeals or applies, that
he had sufficient cause for not presenting the appeal or application, as
the case may be, within such period.”

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9. It is settled position of law that there is a delay in causing / filing of

the appeal, unless the delay is condoned the Appellate Authority does not

get jurisdiction to entertain the appeal. Section 251 quoted above

clearly indicates that in case of any appeal is filed beyond the period of

limitation, the same shall not be admitted unless sufficient cause for not

presenting the appeal or application as the case may be within such period.

10. Section 255 provides for the powers of the appellate authority which

include the power of admission the appeal or after calling the record and

giving opportunity of hearing to the appellant summary rejection thereof.

Proviso thereto indicates that the Appellate Authority shall not be bound to

call for the record where the appeal is time barred does not lie. Sub-

Section 2 states about the further stage of the admission of appeal which is

the date of hearing and notice thereof to be served on the respondents. As

per Sub-Section 3 after hearing the parties Appellate Authority may for the

reasons to be recorded in writing either affirm, confirm or modify the order

of appeal against.

11. This provisions, therefore, clearly indicate different stages of the

appeal when the appeal is filed after period of limitation. Undoubtedly,

unless the delay is condoned the Appellate Authority cannot proceed to

pass order of admission of appeal. Coming back to the question of

application of doctrine of merger in case of condonation of delay in filing

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appeal and admission of appeal thereafter. The doctrine of merger as

explained hereinabove would apply to a case where the order of the

inferior Court is confirmed, modified or set aside by the Appellate Court.

Similarly, in the case of interim order, the same merges into the final order

passed in the same proceeding.

12. Application for condonation of delay and appeal are two distinct

proceedings. The question of order admitting appeal to supersede order of

condonation of delay does not arise. One more aspect requires

consideration is criterias for condonation of delay and admission of the

appeal, which are totally different. As per the settled position of law while

condoning the delay the merits of the case cannot be gone into and what is

relevant is the sufficient cause being made out for not presenting the

proceeding within a period of limitation. As against this, the order of

admission of appeal is based upon the application of mind with regard to

the merit of the appeal. Thus for this reason also order of condonation of

delay cannot be said to have merged into the order of admission of appeal.

Thus having regard to the different spheres in which both orders operate, it

is not possible to accept that the order of condonation of delay merges in

order of admission of appeal. Consequently, even if order of condonation

of delay and admission of appeal are passed by a common order for all

purposes same are required to be considered as distinct. Hence, it would

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be open to aggrieved party to challenge order of condonation of delay

independently. Section 252 of Code reads thus :

“252. Appeal shall not be against certain orders.

No appeal shall lie from an order
(a) admitting an appeal or an application for review under
section 251 ;
(b) rejecting an application for revision or review; or
(c) granting or rejecting an application for stay.”

13. Reverting back to the fact of the case, in the instant case undeniably

the order of admission of appeal has not challenged before respondent

No.3. In considered view of this Court, therefore, since the order of

condonation of delay is not a final order nor any appeal is denied under

the Code, it would amount to rewriting of the statute which is not

permissible in law. The Judgment of the Coordinate Bench of this Court in

the case of Sadanand Tukaram Suroche (supra) is in the peculiar facts that

both order of condonation of delay and admission of appeal were

challenged. Whereas in the instant case only order of condonation of delay

is challenged before the respondent No.3. In considered view of this

Court, the judgment cited (supra) in the case Sadanand Tukaram Suroche

(supra) will have no application to the present case.

Thus it is specifically provided in the Code that no appeal would

lie against the orders specified therein. With aid of Section 259, it can be

said that those orders which are said to be final and conclusive, no appeal

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would lie against these orders too. However, except any order falls in

these two categories, can not be said that such order is non appealable.

14. It is settled law that the party cannot be denied remedy unless it is

specifically barred by the Statute. Considering the different consideration /

nature of the application of condonation of delay and admission of the

appeal, it cannot be said that order of condonation of delay stood merged

in the order of admission of appeal. These are completely two different

stages and cannot be called as interim stage of same proceeding. Unless

delay is condoned the Appellate Authority does not get any jurisdiction to

entertain the appeal meaning thereby it is only after condonation of delay

the appeal become entertainable and proceeding appeal would come into

existence thereafter. There is no embargo created by code for filing appeal

against the order against the condonation of delay. Thus, to hold that

order of condonation of delay is not appealable would amount to coin new

provision which is absent in the code. Thus, the said order is not covered

under Section 252 of Code and therefore the Petition cannot be called

upon to challenge this order only before the State Government, thereby

taking away his right of filing revision/ appeal before the immediate

superior authority to the authority which has passed impugned order.

15. In so far as the contention of the learned counsel for the petitioner

in respect of the learned Coordinate Bench of this Court in the case of

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Sadanand Tukaram Suroche (supra) having not taken into consideration

Section 259 is concerned, this Court does not agree with the said

submission. Section 259 reads thus :

"259. Rules as to decisions or orders expressly made final.

Whenever in this Code, it is provided that a decision or order
shall be final or conclusive, such provision shall mean that no
appeal lies from any such decision or order; but it shall be
lawful to the State Government alone to modify, annul or
reverse any such decision or order under the provisions of
Section 257.”

With title “Rules as to decisions or orders expressly made final”

provision explains that whenever in this Code it is provided that the

decision or a order shall be final or conclusive, such provision shall mean

that no appeal lies from any such decision or order but it shall be lawful to

the State Government alone to modify or affirm or reverse any such

decision or order under the provisions of Section 257. This provision,

therefore, is explanatory in nature to indicate that wherever any order is

declared as final, no appeal would lie against it and order against appeal

does not lie, is final and conclusive. Thus this Court records full agreement

with the view taken by Coordinate Bench that in case an order is made non

appealable, it is final and conclusive order and resultantly revision against

such order would lie before the State Government under Section 257 of

Code. This however would not apply to the present case owing to the

involvement of difference in facts herein.

16. Though it is sought to be argued on behalf of the respondents that if

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the contention of the petitioner is accepted that there is appeal provided

against the order of condonation of delay, revision filed by him before the

respondent No.3 would not be maintainable. If at all any such issue is

raised, the same will have to be decided by respondent No.3. It is

premature to take up the said issue for consideration and to record any

finding and hence this Court refrains itself from recording any finding to

that effect.

17. As a result of the above discussion the impugned communication

issued by respondent No.3 is not tenable and hence is set aside. The

proceedings are relegated back to respondent No.3 for decision of the same

in accordance with law.

( R. M. JOSHI, J.)

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