Bombay High Court
LUKE DANIEL MACHADOversusTHE DEPUTY COLLECTOR (APPEALS) AND 6 ORS.
- Decided
- Disposal
- DISMISSED
Holding
The Court held that the delay in filing the review petition could not be condoned and the petition was dismissed as an abuse of process.
Summary
The petitioner, heir of the late Edward Machado, sought a review of the Bombay High Court's order dated 11 March 2015 that dismissed his writ petition challenging the deletion of his name from revenue records for 28.52 acres of land in Village Bapnala, claimed to be in his possession since 1944. The land was later subject to an eviction order by the Airport Appellate Tribunal in 2013, which the petitioner unsuccessfully challenged. After a prolonged delay of approximately 1,699 (or 2,419) days, the petitioner filed a review petition in 2022 along with an interim application for condonation of delay, arguing that the original order was null because the reasoned order was uploaded late and that his age and health prevented timely action. The respondents contended that the review petition was an abuse of process, a case of forum‑shopping, and that the order under review was final and could not be reopened. The Court examined the delay, the alleged procedural defect, and the principle of finality of litigation, and concluded that the delay could not be condoned and the review petition constituted an abuse of process. Consequently, the interim application for condonation of delay was dismissed with costs and the review petition was disposed of.
Issues considered
- The applicability of condonation of delay under Section 5 of the Limitation Act, 1963 to a review petition filed after a delay of over 1,600 days.
- Whether the failure to upload the reasoned order promptly renders the original order dated 11 March 2015 a nullity.
- Whether the review petition amounts to an abuse of process and forum‑shopping, given the finality of the earlier judgments.
- Whether a review petition can be entertained despite the finality of the earlier orders and the dismissal of the Special Leave Petition.
Legislation cited
- Airports Authority of India Act, 1994 — s. 28-B
- Code of Civil Procedure, 1908 — s. 114, Order XLVII Rule 1
- Limitation Act, 1963 — s. 5
Subjects
- review petition
- condonation of delay
- abuse of process
- finality of litigation
- land dispute
- eviction order
- revenue records
- airport land
Judgment
17-IA-5023-2022.doc
Arjun
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO.5023 OF 2022
IN
REVIEW PETITION (L) NO.36411 OF 2022
IN
WRIT PETITION NO.234 OF 2015
Luke Daniel Machado …Applicant/
Heir and legal representative of Petitioner
Edward alias Adward Paul Machado
IN THE MATTER OF :
Edward alias Adward Paul Machado …Petitioner
Versus
The Deputy Collector (Appeals) & Ors. …Respondents
WITH
REVIEW PETITION (L) NO.36411 OF 2022
IN
WRIT PETITION NO.234 OF 2015
Luke Daniel Machado …Petitioner
Heir and legal representative of
Edward alias Adward Paul Machado (since deceased)
Versus
The Deputy Collector (Appeals) & Ors. …Respondents
_______________________________________________________________
Ms. Madhavi Diwan, Senior Advocate a/w Jyoti Kukreja & Prathmesh
Mandhre i/b Vis Legis Law Practice, for the Applicant/Petitioner.
Mr. Vikrant Parashurami, AGP, for Respondent Nos.1 to 4 and 7-State.
Ms. Sneh Parikh a/w Krutika Mehta i/b J. Sagar Associates, for
Respondent No.5.
_______________________________________________________________
CORAM: MADHAV J. JAMDAR, J.
DATED: 27 AUGUST 2026
P.C.:
1. The Review Petition has been filed seeking review of the Order
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dated 11th March 2015 passed by a learned Single Judge [Coram: A.A.
Sayed, J.] in Writ Petition No.234 of 2015 dismissing the Writ Petition.
2. This Interim Application has been taken out for condonation of
delay of about 1699 days in filing the Review Application. However,
Ms. Parikh, learned Counsel appearing for Respondent No.5-Mumbai
International Airport Private Limited states that the delay is not of 1699
days, but of 2419 days.
3. It is the submission of Ms. Diwan, leaned Senior Counsel for the
Applicant, that the Order of dismissal of the Writ Petition is dated 11 th
March 2015, however, the reasoned order was uploaded on 21 st
November 2015 and the certified copy of the same was received on 11 th
March 2016. It is submitted that as the reasons are not uploaded
immediately, the impugned order is nullify and required to be set aside.
Reliance is placed on the following decisions of Supreme Court :-
1. K.V Rami Reddi Vs. Prema (2009) 17 SCC 308.
2. Oriental Insurance Co. Ltd. Vs. Zaixhu Xie & Ors.,
(2020) 18 SCC 823;
3. Balaji Baliram Mupade & Anr. Vs. State of
Maharashtra & Ors., (2021) 12 SCC 603;
4. Ratilal Jhaverbhai Parmar & Ors. v. State of Gujarat
& Ors., 2024 SCC OnLine SC 298 and
5. Anil Rai v. State of Bihar, (2001) 7 SCC 318.
4. On the other hand, it is the submission of Ms. Parikh, learned
Counsel for Respondent No.5, that the filing of this Review Petition is an
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abuse of the process of law. She submits that the Order under review is
challenged in the Supreme Court by filing Special Leave to Appeal (C)
No.9701 of 2016 (“SLP”) and the said SLP has been dismissed by the
Supreme Court by Order dated 11th July 2017 by conditional order for
non-removal of defects. She submits that in fact SLP was not pursued as
the Writ Petition (L) No. 2522 of 2015 challenging eviction order dated
10th July 2013 passed by Chairperson of the Airport Appellate Tribunal,
New Delhi was dismissed by the Division Bench of this Court by
judgment and order dated 30th October 2025 and the SLP challenging
the same was dismissed on 11th January 2016 and immediately
thereafter the original Petitioner lost the possession. She submits that
this Review Petition along with the Application for condonation of delay
has been filed in this Court on 21 st November 2022 after the learned
Single Judge [Coram: A.A. Sayed, J.] was appointed as the Chief Justice
of the High Court of Himachal Pradesh on 23 rd June 2022. She submits
that for malafide purpose the Review Petition was not filed when
learned Single Judge [Coram: A.A. Sayed, J.] was Judge of this Court.
5. Before considering the rival contentions, it is necessary to set out
relevant aspects :
i. In the order dated 11th March 2015 passed in Writ Petition
No. 234 of 2015 learned Single Judge noted the controversy
involved in the matter in paragraph no.3 as under:-
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“3. The issue in the present proceedings relates to
the deletion of the pencil entries in respect of the
properties bearing Survey Nos.131 to 141 of Village
Marol and Survey No.7, Hissa No.1 (Part) of Village
Bapnala, Taluka Andheri, Mumbai Suburban District,
admeasuring about 28.52 acres (hereinafter referred as
to 'the said properties'). The Petitioner claims that he
was in actual use, occupation, cultivation and
possession of the said properties since the year 1944 as
'Kul' and 'Khand' and in 'other rights' column. According
to the Petitioner, he was illegally dispossessed by the
Respondent No.5 from a portion admeasuring 18.52
acres after 17 July, 2009. It is contended that the
possession and cultivation of the said properties has
been recorded by the Office of the Tehsildar, Andheri in
Panchnamas made during the visits to the said
properties by the Officers from the office of the
Tehsildar and that Respondent No.6 – Airport Authority
of India had in their internal correspondence
consistently accepted his occupation, possession and
cultivation in substantial part of the said properties.
The Petitioner claims that his name had been shown as
the person in actual possession and cultivation of the
said properties in the Revenue Records since 1962.”
ii. It is the claim of the Respondent No.5-Mumbai
International Airport Ltd. that the said entire land is their
land.
iii. On 2nd January, 2012, Respondent No.6 - Airport
Authority of India (AAI) filed Eviction Application No.1 of
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2012 before the Eviction Officer constituted under Section
28-B of the Airports Authority of India Act, 1994.
iv. The said Eviction Proceedings resulted into eviction
order dated 10th July 2013 passed by the Chairperson of the
Airport Appellate Tribunal, New Delhi, in Execution Case
being Eviction Order No. 1 of 2012.
v. The said Eviction Order dated 10th July 2013 was the
subject matter of Writ Petition (L) No. 2522 of 2015 and the
said Writ Petition was dismissed by the Division Bench of
this Court by order dated 30th October 2015.
vi. The SLP challenging the said order dated 30 th October
2015 was also dismissed on 11th January 2016.
vii. It is admitted position that on or about 11 th January
2016, the original Petitioner lost possession of the subject
land.
viii. In the meanwhile, following events took place with
respect to the pencil entries, which was the subject matter
of Writ Petition No. 234 of 2015, as noted by the learned
Single Judge in paragraph Nos. 9, 10 and 11 of the order
dated 11th March, 2015, which is reproduced hereinbelow:
“9. According to the Petitioner, the facts which led
to the deletion of the pencil entries in the 7/12
extract are as follows :
On 9 April, 2010, a show cause notice was
issued by the Respondent No.2 against one Shri S.D.
Dete, Clerk, working in the office of Talathi, Marol,
alleging that upon inspection of record of office of
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Talathi, Marol, it was found that he had intentionally
made changes in the Government records by making
pencil entries under the columns “crops inspection”
and “other rights” in the name of the Petitioner after
2004 without any date and without any approval of
alteration and to submit an explanation why criminal
proceedings should not be lodged against him. On 26
April 2010, a further notice was issued to Shri Dete.
On 3 May, 2010, notice was issued by Respondent
No.3 to Shri Dete calling upon him to explain why
action should not be taken against him under the
Maharashtra Civil Services (Discipline and Appeal)
Rules, 1979. On 6 May, 2010, Shri Dete replied to the
aforesaid notices. On 10 June, 2010, a further letter
was addressed by Shri Dete to Respondent No.3 inter
alia stating that the pencil entries were made by
mistake and the same be cancelled.
10. On 14 July, 2010, the Respondent No.3
addressed a letter to the Petitioner calling upon him
to produce the documents which had been submitted
by the Petitioner to Shri Dete. On 27 July, 2010, the
Petitioner submitted written submissions to
Respondent No.3 inter alia stating that he was in
possession of the said properties since 1944 and prior
to the acquisition of the same by the Respondent No.6
and that during the period 1950 to 1960, the Office
of the Tehsildar/Talathi had visited the property and
found the Petitioner in possession of the said
properties and on the basis of his continuous and long
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standing possession, has entered the Petitioner's name
as Cultivator in the records of the said properties.
Petitioner further stated in the written submissions
that in the year 1990, the Officer made Panchnama in
respect of the said properties and during the period of
acquisition proceedings, the Petitioner was in
possession of the said properties and cultivating the
same. The Petitioner stated that he did not know who
Shri Dete was and who had entered his name in the
record of the said properties in pencil during 1956 to
1960 and that the 'pencil shera' is made on the basis
of site visit by the Authorities, and it was after
receiving a letter dated 14 July, 2010 when the
Petitioner visited the Sub-Divisional Office, that the
Petitioner was informed orally about the enquiry
being held against Shri Dete.
11. On 30 July, 2010, the Respondent No.3 – Sub
Divisional Officer passed an order directing that the
pencil entries recording the name of the Petitioner in
the 7/12 extract in respect of the said properties, be
cancelled. According to the Petitioner, the same was
done without any hearing, evidence and without any
enquiry. On 16 April, 2012, an order was passed by
Respondent No.1- Deputy Collector (Appeals),
dismissing the Appeal filed by the Petitioner
impugning the order dated 30 July 2010. On 16
November, 2012, an order was passed by Respondent
No.4, Additional Commissioner, dismissing the
Revision Application filed by the Petitioner impugning
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aforesaid two orders dated 30 July, 2010 and 16
April, 2012. On 28 August, 2013, the impugned order
was passed by Respondent No.7 – The Minister
(Revenue) dismissing the Revision Application filed
by the Petitioner impugning the said three orders
dated 30 July, 2010, 16 April, 2012 and 16
November, 2012. Hence the present Petition.”
(ix) As far as the further factual aspects are concerned, the
same are set out in the chart tendered by the learned counsel
appearing for the Respondent No. 5, which is set out
hereinbelow for ready reference:
S.N. DATE EVENT REFERENCE
Impugned Order dismissing Writ
Petition No. 234 of 2015 and
upholding the orders passed by the
Exhibit A of the
Sub-Divisional Officer, Tehsildar, the
1. 11.03.2015 Review Petition
Deputy Collector, the Additional
at page no. 30
Commissioner and the State
Government through the Ministry of
Revenue and Forest.
Impugned Order uploaded on the
2. 21.11.2015
website.
Certified copy of the Impugned Order
3. 11.03.2016
was made available.
The Org. Petitioner filed a Special
Leave Petition being SLP (Civil) No
4. 16.03.2016
9701 of 2016 challenging the
Impugned Order.
The Hon’ble Supreme Court passed an Exhibit A of the
order in the SLP (Civil) No 9701 of Reply of
5. 11.07.2017 2016 giving a last opportunity to the Respondent
Org. Petitioner to cure defects failing No.5 at page
which the SLP shall stand dismissed. no. 24.
6. 26/27.06.2018 The Registry of the Hon’ble Supreme Exhibit B of the
Court informed the AOR of the Org. Reply of
Petitioner of the dismissal of the SLP. Respondent
No.5 at page
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S.N. DATE EVENT REFERENCE
no. 25.
Exhibit A of
The Org. Petitioner passed away
Delay
7. 10.04.2021 leaving behind him, the Applicant as
Application at
one of the seven heirs.
page no. 14
Justice A.A. Sayed was appointed as
8. 23.06.2022 the Chief Justice of the Himachal
Pradesh High Court.
The Applicant filed the present
Review Petition alongwith an Interim
9. 23.11.2022 Application seeking condonation of
delay of 1699 days although the
period of delay was 2415 days.
6. A chart is also tendered by the learned Senior Counsel appearing
for the Petitioner setting out the various aspects of delay condonation,
which is reproduced hereinbelow:-
1. 11.03.2015 ORAL PRONOUNCEMENT OF THE IMPUGNED ORDER
On 11.03.2015, the Ld. Single Judge of this Hon’ble
Court orally pronounced in open Court that he was
dismissing Writ Petition No. 234 of 2015. The
endorsement made on the electronic board on the said
date read “disposed” (Pg. 61–63, Review Petition).
APPLICATION FOR CERTIFIED COPY OF THE
2. 12.03.2015
IMPUGNED ORDER
Application for obtaining a certified copy of the Order
dated 11.03.2015 came to be filed on behalf of the
Original Petitioner. On enquiries being made in the office
of this Hon’ble Court, the Original Petitioner was
informed that the Order dated 11.03.2015 was not yet
ready, and that the certified copy would be prepared once
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the Order was ready and uploaded on the website.
21.11.2015
Pg. 64 to 93 IMPUGNED ORDER UPLOADED ON THE WEBSITE OF
3.
Review THIS HON’BLE COURT
Petition
The Impugned Order – which bears the date 11.03.2015
– came to be uploaded on the website of this Hon’ble
Court on 21.11.2015.
4. 11.03.2016 CERTIFIED COPY OF THE IMPUGNED ORDER READY
The endorsement made on the certified copy of the
Impugned Order records that the Certified Copy was
ready on 11.03.2016 – a period of one year after the date
the Order purports to bear.
SLP (C) DIARY NO. 9701 OF 2016 FILED BEFORE THE
5. 16.03.2016
HON’BLE SUPREME COURT
Special Leave Petition (Civil) Diary No. 9701 of 2016
[Edward alias Edward Paul Machado v. The Deputy
Collector & Ors.] came to be filed by the Original
Petitioner before the Hon’ble Supreme Court of India
through Mr. Naveen Kumar, Advocate-on-Record,
impugning the Order dated 11.03.2015. The matter was
thereafter listed for removal of office objections.
11.07.2017
ORDER OF THE HON’BLE SUPREME COURT –
6. Pg. 24 /
DISMISSAL OF SLP FOR NON-CURING OF DEFECTS
Reply of R-5
On 11.07.2017, the Hon’ble Supreme Court passed the
following Order in SLP (C) No. 9701 of 2016: “As a last
opportunity, two weeks’ time is granted to the learned
counsel appearing for the petitioner to cure the defects as
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pointed out by the Registry, failing which the special
leave petition shall stand dismissed without further
reference to the Court.” On failure to cure the defects, the
SLP was dismissed.
15.03.2020
PERIOD OF COVID-19 EXCLUSION FROM LIMITATION –
7. to
716 DAYS
28.02.2022
The period from 15.03.2020 to 28.02.2022 (716 days)
constitutes the period of the Covid-19 pandemic in
respect of which the Hon’ble Supreme Court of India, by
its Order dated 10.01.2022 in Suo Motu Writ Petition (C)
No. 3 of 2020 [In Re: Cognizance for Extension of
Limitation], directed exclusion for the purposes of
computing periods of limitation.
8. 10.04.2021 DEMISE OF THE ORIGINAL PETITIONER
The Original Petitioner – Edward alias Edward Paul
Machado – expired on 10.04.2021 during the second
wave of the Covid-19 pandemic, then aged about 86
years.
September –
October,
2022 Pg. 62–
9. PETITIONER FIRST INFORMED OF DISMISSAL OF SLP
64 Further
Affidavit in
Rejoinder
Upon recovering from amongst the papers of the late
Original Petitioner certain documents pertaining to the
Special Leave Petition, the Petitioner contacted the
Supreme Court Advocate, Ms. Roohe-Hina Dua, in
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September 2022 and the start of October 2022. The
Petitioner was thereupon informed for the first time that
the Special Leave Petition filed by his late father had
stood dismissed on 11.07.2017 for non-curing of defects.
FILING OF REVIEW PETITION AND INTERIM
10. 21.11.2022
APPLICATION FOR CONDONATION OF DELAY
The Petitioner instituted before this Hon’ble Court:
(i) Review Petition (L) No. 36411 of 2022 in Writ Petition
No. 234 of 2015 under Section 114 read with Order XLVII
Rule 1 of the Code of Civil Procedure, 1908, and the
Bombay High Court (Original Side) Rules, 1980, seeking
review of the Order dated 11.03.2015; and
(ii) Interim Application No. 5023 of 2022 seeking
condonation of delay of 1699 days in filing the Review
Petition (computed after deduction of 716 days of Covid-
19 exclusion).
AFFIDAVIT IN REPLY OF RESPONDENT NO. 5 – MUMBAI
11. 02.02.2023
INTERNATIONAL AIRPORT LIMITED
Affidavit in Reply dated 02.02.2023 came filed on behalf
of Respondent No. 5.
AFFIDAVIT IN REPLY OF RESPONDENT NO. 6 –
12. 16.02.2023
AIRPORTS AUTHORITY OF INDIA
Affidavit in Reply dated 16.02.2023 filed on behalf of
Respondent No. 6.
13. 15.03.2023 AFFIDAVIT IN REJOINDER FILED BY THE PETITIONER
The Petitioner filed his Affidavit in Rejoinder dated
15.03.2023 to the Affidavits in Reply of Respondent Nos.
5 and 6 placing on record:
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(i) the Petitioner’s Aadhar Card / Passport reflecting his
name as son of the Original Petitioner Edward Machado
(Exhibit “A”);
(ii) the Power of Attorney dated 04.05.2021 executed by
the six other heirs of the Original Petitioner (Exhibit “B”);
(iii) the fact that Interim Application (L) No. 7051 of
2023 had been filed seeking amendment of the Review
Petition and the present Interim Application so as to
formally array all the other heirs of the Original
Petitioner as proposed Petitioners; and
(iv) a contention that the period of 482 days during
which the Special Leave Petition was pending before the
Hon’ble Supreme Court (16.03.2016 to 11.07.2017) is
liable to be excluded under Section 14 of the Limitation
Act, 1963, reducing the delay to 1217 days.
08.04.2023
Pg. 62–64 /
14. Further LETTER OF MS. ROOHE-HINA DUA
Affidavit in
Rejoinder
Letter dated 08.04.2023 came to be addressed by Ms.
Roohe-Hina Dua, Advocate-on-Record, Hon’ble Supreme
Court of India to the Petitioner placing on record the
events surrounding the dismissal of the Special Leave
Petition, including: (i) the dispatch by the Original
Petitioner of his Supporting Affidavit on 14.03.2016; (ii)
the inability of the Supreme Court Advocate to contact
the Original Petitioner thereafter on the landline number
provided; (iii) the consequent inability to remove the
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office objections; (iv) the Order dated 11.07.2017 of the
Hon’ble Supreme Court; (v) the Petitioner’s approaching
her in September / October 2022; and (vi) the relocation
of the Supreme Court Advocate’s office thrice between
2015 and 2021.
FURTHER AFFIDAVIT IN REJOINDER FILED BY THE
15. 12.04.2023
PETITIONER
The Petitioner filed his Further Affidavit in Rejoinder
dated 12.04.2023 placing on record the said letter dated
08.04.2023 of Ms. Roohe-Hina Dua, Advocate-on-Record.
AFFIDAVIT IN SUR-REJOINDER FILED BY RESPONDENT
16. 28.07.2025
NO. 5
Affidavit in Sur-Rejoinder dated 28.07.2025 came filed
on behalf of Respondent No. 5.
7. Perusal of the record shows that the Writ Petition was dismissed
by a learned Single Judge [Coram: A.A. Sayed, J.] by Order dated 11 th
March 2015. The impugned Order was uploaded on the website on 21 st
November 2015. On 11th March 2016, the certified copy of the
impugned Order was made available to the Petitioner. Thereafter, on
16th March 2016, the Original Petitioner filed SLP challenging the
impugned Order. The Supreme Court on 11 th July 2017 passed the
following Order:
“As a last opportunity, two weeks’ time is granted to the
learned counsel appearing for the petitioner to cure the
defects as pointed out by the Registry, failing which the
special leave petition shall stand dismissed without
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further reference to the Court.”
8. As already noted hereinabove, in the meanwhile, the eviction
proceedings against the Petitioner with respect to the subject land
attained finality upon dismissal of SLP by order dated 11 th January 2016
by the Supreme Court and the possession from the original Petitioner
was received by the Respondent No. 5. There is substance in the
contention raised by the Petitioner as the original Petitioner lost the
possession, although the SLP challenging the order under review was
filed immediately after the possession is lost, however, the original
Petitioner was not interested in pursuing the said SLP (Civil) No. 9701
of 2016.
9. Although the contention is raised that the original Petitioner was
very old and therefore could not take steps to pursue the said SLP
(Civil) No. 9701 of 2016 and also could not file Review Petition, is
without any basis, for the following reasons:—
i. The Division Bench, in the order dated 30th October 2015 passed
in W.P. (Lodg.) No. 2522 of 2015 has recorded the contention of
the original Petitioner that he was an 85 years old agriculturist.
ii. The said order dated 30th October 2015 was challenged by the
original Petitioner in the Supreme Court immediately by filing
SLP, which was dismissed on 11th January, 2016.
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iii. In fact, the original Petitioner filed SLP challenging the order
under review before the Supreme Court on 16th March 2016.
Thus, the contention raised that the Petitioner could not file Review
Petition due to his old age is without any basis. The material on record
clearly shows that the original Petitioner has taken prompt steps to
protect his rights. In fact, there is great substance, in the facts and
circumstances of the case, in the contentions raised by the Respondent
No. 5 that as the original Petitioner has lost possession of the subject
land, the said SLP although filed immediately after the original
Petitioner lost possession, the same was not pursued.
10. It is also significant to note that the Original Petitioner passed
away on 10th April 2021, leaving behind the Applicant as one of the
legal heir. On 23rd June 2022, a learned Single Judge [Coram: A.A.
Sayed, J.] was appointed as the Chief Justice of the High Court of
Himachal Pradesh and the present Review Petition along with Interim
Application seeking condonation of delay, was filed on 21 st November
2022.
11. In these circumstances, the reasons which have been set out in
the delay condonation Application are required to be examined, which
reads as follows:
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“2. It is submitted that the Original Petitioner at that time was
86 years of age and was not keeping good health. Despite
the same, the Petitioner engaged lawyers and filed a
Special Leave Petition (“SLP”) in the Hon'ble Supreme
Court challenging the said Order dated 11th March 2015.
The SLP was filed on 16th March, 2016. In so far as the
Applicant is aware, the Petitioner was throughout his life
under the impression that the SLP was pending before the
Hon'ble Supreme Court as he was never informed by his
Advocates that the SLP filed by the Petitioner had been
dismissed on 11th July, 2017 by the Registry on account of
failure to cure the defects raised therein.”
“3. It is further submitted that as mentioned above, the
Petitioner was old and keeping unwell and was unable to
actively participate in and attend to the legal proceedings.
The Advocates of the Original Petitioner would therefore,
on the basis of oral instructions received and on the basis of
record, prepare the pleadings and a Notary Public would
visit the residence of the Original Petitioner to notarise all
affidavits and pleadings as required. In addition to his age
and ill health, the Original Petitioner's wife also passed
away in September, 2015 which affected the Original
Petitioner. The Original Petitioner was also dispossessed of
the Suit Property in January, 2016. All the aforesaid
circumstances occurring around the same time took a
further toll on the health of the Original Petitioner and his
condition deteriorated further. The Original Petitioner
ultimately expired on 10th April, 2021. A copy of the Death
certificate is hereto annexed and marked EXHIBIT 'A'.”
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“4. The Applicant, who is the son of the Original Petitioner was
not aware of the proceedings in the Writ Petition and the
Order passed in the Writ Petition and the consequent filing
of the SLP. After the death of the Original Petitioner, when
the Applicant was going through the papers of the Original
Petition he found some papers including the SLP papers.
The Applicant made attempts to collect the papers,
however in view of the COVID-19 imposed restrictions, it
took him substantial time to do so and contact the
Advocates. Finally, the Applicant was able to collect all the
relevant papers. It was only then that the Applicant was
informed that the aforesaid SLP had been dismissed. He
thereafter consulted other lawyers and was advised that the
appropriate remedy for the Applicant would be to file an
application for review of the Order dated 11th March,
2015. Accordingly steps were taken by the Applicant for
having the Review Petition drafted and it is now being filed
before this Hon'ble Court. As a result of the aforesaid, the
delay in filing the Review Petition. The delay as explained
above was not deliberately caused but was caused due to
the reasons explained above which in the humble
submission of the Applicant amount to sufficient cause
within the meaning of Section 5 of the Limitation Act. It is
submitted that the petition involves substantial proprietary
rights of the Applicant he could not approach this Hon'ble
Court for the reasons beyond his control, and therefore it is
in the interest of justice that this Hon'ble Court be pleased
to condone the delay in filing the Review Petition. It is
submitted that if the delay is condoned none of the
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Respondents are likely to suffer any irreparable injury and
no prejudice is likely to be suffered by them. The Principle
ground for review of Order is that there is an error
apparent on the face of the record which has resulted in
miscarriage of justice. In this situation if the Applicant is
not heard on this aspect of the matter, the Applicant will
suffer irreparable injury and it will defeat the ends of
justice.”
12. In view of the reasons assigned for the inordinate delay of 1699
days (2419 days as per the contention of the Respondent No. 5) is
required to be noted that the Original Petitioner filed Writ Petition (L)
No.2522 of 2015 challenging the Order passed by the Chairperson of
the Airport Appellate Tribunal, New Delhi, dated 10th July, 2013, in an
eviction case being Eviction Order No.1 of 2012. A Division Bench of
this Court, by Order dated 30th October 2015, upheld the eviction Order
and dismissed the Writ Petition. The said Order dated 30th October 2015
passed by the Division Bench of this Court in Writ Petition (L) No.2522
of 2015 has been confirmed by the Supreme Court by Order dated 11 th
January 2016, and pursuant to the said Order the Original Petitioner
was evicted immediately on the very same day i.e. 11 th January 2016.
Thus, in these circumstances, it is clear that the filing of this Review
Petition on 21st November 2022, i.e., after about 6 years and 10 months
is total abuse of the process of law.
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13. In fact, it is required to be noted that the Order under review is
dated 11th March 2015 passed by a learned Single Judge [Coram: A.A.
Sayed, J.], and the Review Petition has been filed on 21 st November
2022, after Justice A.A. Sayed was appointed as the Chief Justice of the
High Court of Himachal Pradesh on 23rd June 2022. Thus, it is very
clear that an attempt is made to see that the Review Petition is not
heard by Justice A.A. Sayed, who had passed the Original Order. The
litigant who is involved in forum shopping is not entitled for any relief
including the relief of condonation of delay which is discretionary relief.
14. The subject matter of the dispute is a land admeasuring 28.52
acres situated at Village Bapnala, Taluka Andheri, District Mumbai
Suburban, which is the airport land. The land is situated in very prime
locality of Mumbai.
15. It is the contention of Ms. Parikh, learned Counsel for Respondent
No.5, that the entire land belongs to the Airport Authority of India and
was encroached.
16. If the contention raised by the learned Senior Counsel that as the
reasons were uploaded after a period of 9 months and therefore the
order under review is nullity is to be accepted for condonation of huge
delay of 1699 days (as per the contention of the petitioner) and of 2419
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days (as per the contentions of the Respondent no.5) then that will be
contrary to the principle of finality of litigation and will have disastrous
consequences.
17. There is substance in the contention raised that for malafide
purpose, the Review Petition is filed so that huge land admeasuring
about 28.52 Acre in very prime locality of Mumbai remains under
litigation.
18. Accordingly, in the facts and circumstances, Interim Application
No. 5023 of 2022 seeking condonation of delay of 1699 days is
dismissed with cost of Rs. 10,00,000/- (Rupees Ten Lacs only), to be
paid by the Review Petitioner to Respondent No. 5 within a period of six
weeks.
19. As the Interim Application is dismissed, the Review Petition also
stands disposed of.
[MADHAV J. JAMDAR, J.]
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