IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5716 OF 2024

1. Pravin Gajanan Thakur

2. Smt. Rekha Gajanan Thakur

3. Sou. Anagha Ganesh Kathe

4. Sou. Sadhana Jayendra Pathare ...Petitioners V/s.

1. Kalpana Virbhadra Raut

2. Manohar Madhukar Mhatre

3. Sou. Kalavati Prakash Gharat

4. Sub Divisional Officer Alibag

5. Additional Collector Raigad,Alibag. ...Respondents ______________

Mr. Rohit D. Joshi for Petitioners.

Mrs. V.S. Nimbalkar, AGP for Respondent/State.

Mr. Saurabh K. Raut, (through VC) for Respondent No.1.

______________

CORAM : SANDEEP V. MARNE, J.

Judgment reserved on : 14 February 2025.

Judgment pronounced on : 21 February 2025.

Judgment:

1. The issue of maintainability of a further appeal before the higher appellate authority against an order merely condoning the delay in filing of an appeal passed by the lower appellate authority under Section 251 of the Maharashtra Land Revenue Code, 1966 (MLRC) repeatedly attracts attention of this Court and there has already been sufficient jurisprudence on this issue in the form of judgments of coordinate benches of this Court. However, it is noticed that different interpretations of those judgments are often placed in support and against the contention of maintainability of such appeals, which has necessitated the present judgment so as to avoid confusion and achieve better clarity on the issue.

2. The issue arises in the light of challenge set up by the Petitioners to the order dated 2 August 2023 passed by the Additional Collector, Raigad, holding that the appeal is not maintainable against order dated 17 May 2023 passed by the Sub-Divisional Officer, Aligbag (SDO) allowing the application for condonation of delay.

3. Considering the nature of issue taken up for consideration, it is not necessary to narrate facts of the case in detail. Land bearing Gat No.248/1/C admeasuring 0.08 Hector 60 R at village -Thal, Taluka- Alibag, District-Raigad is the subject matter of the Petition. Mutation Entry No.6866 was certified on 13 May 1960 deleting the name of Krishna Bhaskar Mhatre and entering the name of Gajanan Thakur as holder of the land. Respondent No.1 got aggrieved by the said Mutation Entry No.6866 after period of 65 long years and filed R.T.S. Appeal No.43 of 2023 before the SDO, Alibag challenging the said Mutation Entry. Alongwith the appeal, Respondent No.1 filed application for condonation of delay. SDO took up only the application for condonation of delay and issued notices to the Respondent therein (Petitioners herein). It appears that Petitioners did not appear before the SDO. After considering the submissions canvassed on behalf of the Appellant/Respondent No.1, SDO proceeded to pass order dated 17 May 2023 allowing the application for condonation of delay holding that the Appeal was required to be decided on merits. He accordingly fixed further date of hearing in the appeal.

4. Petitioners got aggrieved by order dated 17 May 2023 passed by the SDO and filed Appeal No.294 of 2023 before the Additional Collector, Raigad. However, the Additional Collector held that the appeal was not maintainable under the provisions of Section 252 of the MLRC and appeal has accordingly been dismissed as not maintainable by order dated 2 August 2023. Petitioners are aggrieved by the order dated 2 August 2023 and have filed the present Petition.

5. Mr. Rohit Joshi, the learned counsel appearing for the Petitioners would submit that the Additional Collector has erred in dismissing the Petitioners’ Appeal as not maintainable. He would submit that there is nothing in the MLRC which bars the remedy of appeal against the order of condonation of delay. That the Additional Collector has ignored the fact that the appeal has not been filed against an order passed by the lower appellate authority admitting the appeal. That the appeal was filed before the Additional Collector against the decision of the SDO condoning the delay in filing the appeal before him. He would submi