-1- IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.1217 OF 2008 NO.1217 OF 2008 NO.1217 OF 2008 Ramchandra D. Patil and ors. ...Petitioners v/s The State of Maharashtra and ors. ...Respondents Mr S.U. Kamdar i/b Mr S.M. Shettigar for Petitioners. Mr V.P. Malvankar, AGP for Respondents. CORAM : D.K. DESHMUKH AND N.D. DESHPANDE JJ. DATE : 2ND JUNE 2008. -2- P.C. :- 1. Rule, returnable forthwith. Heard finally by consent of the parties. 2. By this petition, the petitioners challenge the order passed by the State Government under section 34 of the Urban Land (Ceiling and Regulation) Act 1976 dated 7th November 2007. By that order, the State Government has set aside the order dated 31st May 2007 passed by the Additional Commissioner, Konkan Division under section 33 of the said Act. That order was passed in appeal filed by the petitioners. Perusal of the order of State Government shows that the State Government has set aside the order passed by the Appellate Authority for only one reason and that reason is that there was delay in filing appeal before the Appellate Authority and the Appellate Authority decided the appeal on merit without condoning the delay. The relevant part of the order of the State Government reads as under :- "When there is a clear provision in section 33 of the Urban Land (Ceiling and Regulation) Act 1976, the Additional Commissioner entertaining -3- the appeal of the landholder is against the provisions of the said Act. Similarly, considering the fact that the said appeal is not filed within the limitation as prescribed by section 5 of the Limitation Act, 1963 for entertaining such appeal it was necessary for the Appellant to explain the delay and it was necessary for the said concerned authority to pass necessary orders condoning the delay in filing the said appeal, after accepting the reasons for the said delay. The said legal position is confirmed by the Aurangabad Bench of the Hon’ble High Court in Smt Kamlabai Shrimal v/s Shri Ganpat Gavare (2007 (1) Mah.L.J. 807). After considering the said aspect, it is necessary to set aside the orders of the Additional Commissioner passed under section 33." . The case of the petitioners is that this is factually wrong. There was delay in filing the appeal. Therefore, the petitioners applied before the Appellate Authority for condonation of delay and that delay was condoned by the Appellate Authority and thereafter the appeal was heard on merit. This position is accepted by the State Government in its affidavit filed by one Shri Sudhakar Nangnure. Paragraph 2 of the said affidavit is -4- relevant, which reads as under :- "2. I say that being aggrieved by the said order dated 20-3-2006, the Petitioner preferred an appeal before the Additional Commissioner, Konkan division, Navi Mumbai in filing the said Appeal, there is a delay. By order dated 13-11-2006, the said delay was condoned and appeal was directed to be heard on merit. The Respondent No.2, Additional Commissioner, Konkan Division, Navi Mumbai vide order dated 31.05.2007 partly allowed the said Appeal and order dated 20-3-2006 was set aside and Additional Collector, Thane was directed to pass a fresh order under section 8(4) of the said Act." . It is thus clear that now on the record it is common ground that the reason for which the State Government set aside the order of the Appellate Authority was a nonexistent reason. Obviously therefore, the order of the State Government suffers from non-application of mind and it will have to be set aside. In the result therefore, petition succeeds and is allowed, the order of the State Government dated 7th November 2007 impugned in the petition is set aside. Rule is made absolute accordingly with no order as to -5- costs. . Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of the Court. . Certified copy expedited. ( D.K. DESHMUKH J.) ( N.D. DESHPANDE J.)