Bombay HC: SDO's Suo Motu Inquiry Against a Dead Person Under Section 36A Is a Nullity, Delay Condonation Justified

The Bombay High Court dismissed writ petitions challenging condonation of a 34-year delay, holding that a Sub-Divisional Officer's Section 36A order passed against a deceased tribal was void and jurisdictionally infirm, and that courts should not exercise writ jurisdiction to perpetuate an illegal order.

Justice Arun R. Pedneker, sitting singly at the Bombay High Court, on 9 July 2026 dismissed two writ petitions filed by Debashish Devnarayan Ghosh challenging orders that condoned a delay of over 34 years in appealing a 1989 Sub-Divisional Officer ruling and thereafter set it aside on merits. The SDO's order, passed in suo motu Restoration Case No. 28 of 1989, had found that Babu Nana Jadhav — the original tribal occupant of land in Taluka and District Thane — belonged to the “Sonkoli” community and not a Scheduled Tribe, thereby dropping the inquiry. The court held that the order was passed against a person already dead, without a valid basis to initiate the proceedings, and was therefore a jurisdictional nullity. Quashing the orders below would have revived that illegal order, which the court declined to do.

The Land, the Parties, and the Revenue Proceedings

One Ramchandra Dadaji Naik was the original owner of the subject agricultural land in Thane. Devu Ambo Jadhav held protected agriculturist tenancy rights since before 1955. His sole surviving heir, Babu Nana Jadhav, inherited those tenancy rights. On 30 October 1980, the Agricultural Lands Tribunal fixed the purchase price of the land under the Maharashtra Tenancy and Agricultural Lands Act, 1948, and upon payment, issued a certificate under Section 32M in favour of Babu Nana Jadhav.

On 10 June 1982, Devnarayan Ghosh — father of the petitioner — executed a lease agreement over a portion of the property. Revenue authorities refused to effect a mutation entry on the ground that the transaction involved a transfer from a tribal to a non-tribal without prior permission from the competent authority. The Tahsildar had earlier, on 25 July 1981, submitted a report to the SDO regarding an inquiry into agricultural lands held or occupied by Devnarayan Ghosh.

On 25 October 1986, Babu Nana Jadhav reportedly adopted the petitioner by a registered Adoption Deed. Babu Nana Jadhav died on 18 October 1988. Despite his death, in 1989 the SDO, Thane, initiated suo motu proceedings under Sections 36 and 36A of the Maharashtra Land Revenue Code, 1966 (“MLRC”) to determine whether the subject property was affected by those provisions or by the Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974.

The Tahsildar conducted an inquiry, visited the site, recorded statements of Ladkibai (wife of Babu) and Janabai (daughter of Babu), and obtained a certificate from the Adivasi Vikas Seva Mandal. The Tahsildar concluded that Babu Jadhav belonged to the “Sonkoli” caste, which is not a Scheduled Tribe. On 31 July 1989, the SDO passed an order in Restoration Case No. 28 of 1989 recording that finding and effectively dropping the restoration inquiry.

The Long Gap and the Challenge That Followed

The legal heirs of Babu Nana Jadhav filed RTS Appeal No. 293 of 2023 challenging the SDO's 1989 order — approximately 34 years after it was passed. They said they became aware of the order only in 2010, when the petitioner produced and relied upon it in separate proceedings relating to Mutation Entry No. 595. From that date of knowledge, the delay was computed at approximately 13 years.

The Additional Commissioner, Konkan Division, by order dated 15 February 2024, condoned the delay. By a separate order dated 18 April 2024, the Additional Commissioner decided the RTS Appeal on merits and set aside the SDO's 1989 order. The Revenue Minister, by order dated 14 October 2024, upheld both orders in RTS Revision No. 2724/2828/Pra. Kra. 150/J-4.

The petitioner then filed Writ Petition No. 9010 of 2025 challenging the delay condonation and Writ Petition No. 9011 of 2025 challenging the order on merits. Both petitions were heard together.

What Sections 36 and 36A of the MLRC Provide

Section 36(2) of the MLRC prohibits transfer of occupancies belonging to Scheduled Tribes without prior sanction of the Collector. Section 36A(1) bars any transfer of a tribal's occupancy to a non-tribal by way of sale, gift, exchange, mortgage, lease or otherwise except with prior sanction of the Collector. Section 36A(4) empowers the Collector, either suo motu or on application, to hold an inquiry and decide whether any transfer has been made in contravention of Section 36A(1).

The court observed that to initiate an inquiry under Sections 36 or 36A, there must be a transfer of land and the authority must have prima facie material before it that the transfer is from a tribal to a non-tribal. At the time the SDO initiated proceedings in 1989, there was no transfer document before the SDO. Babu Nana Jadhav had already passed away in 1988. The suo motu proceedings were, in the court's view, initiated without any basis.

Petitioner's Arguments on Delay and Merits

Counsel for the petitioner pressed two distinct lines of argument. On delay, he relied on Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy (2013 (12) SCC 694) for the proposition that a distinction exists between inordinate delay and short delay: inordinate delay attracts the doctrine of prejudice and warrants a strict approach. He also cited Pathapati Subba Reddy v. Special Deputy Collector ((2024) 12 SCC 336) to contend that a remedy not availed for a long time must cease to exist, and that the discretion to condone delay ought not to be exercised where there is inordinate delay, negligence, and want of due diligence.

The petitioner contended that the authorities were swayed by the merits of the matter while condoning the delay, which is impermissible. He further argued that the respondents' claim of becoming aware of the order only in 2010 was untenable, because Babu Jadhav's wife and daughter had themselves given statements to the Tahsildar during the inquiry and were plainly aware of the proceedings.

On merits, the petitioner argued that the SDO's order was passed after proper inquiry and on the basis of admissions by the wife and daughter that they belonged to the Sonkoli caste and not the Warli tribe. School leaving certificates of the daughters also showed Sonkoli community membership. The petitioner also pressed that Section 13(4) of the MLRC empowers the SDO to exercise all powers of the Collector, and that Section 36A expressly vests jurisdiction in the Collector for such inquiries, which the SDO could perform.

Respondents' Position: A Void Order Cannot Bind

Counsel for Respondent Nos. 5 to 15, Senior Advocate Mr. Vineet Naik, argued that the respondents are illiterate rural tribal heirs who came to know of the Section 36A order only in 2010 when the petitioner relied upon it in mutation entry proceedings. From that date, limitation must run. During the intervening years, they were continuously pursuing RTS proceedings, appeals, and revisions.

The respondents further pressed that the SDO's order was a nullity for multiple independent reasons. The order was passed against a deceased person. The SDO lacked jurisdiction to exercise Section 36A powers, which vest exclusively in the Collector. The power under Section 36A(1A) cannot be invoked against a person who is not a Scheduled Tribe. The caste status of the occupant cannot be determined by revenue authorities but only by the Caste Scrutiny Committee.

The respondents also raised fraud: the Tahsildar's report dated 25 July 1989 relied upon a certificate of the Adivasi Vikas Seva Mandal dated 26 July 1989 — a document dated the day after the report itself. The purported statements of Ladkibai and Jaibai are both dated 24 July 1985 and record that Babu Jadhav had died nine to ten months earlier, though Babu was alive on 24 July 1985 and died only on 18 October 1988. The word “Sonkoli” was interpolated in manuscript Devanagari script into an otherwise entirely typewritten English order at every occurrence. The caption of the Tahsildar's report itself reads “enquiry regarding agricultural land of tribal / non-tribal Shri D.A. Ghosh”, suggesting the proceedings were set in motion in the interest of the petitioner's father within months of Babu Jadhav's death.

The Court's Reasoning

Justice Pedneker identified two core defects that rendered the SDO's 1989 order a nullity.

First, the order was passed against a dead person. Babu Nana Jadhav had died on 18 October 1988. The suo motu proceedings were initiated in 1989, after his death, and the order was passed against him in Restoration Case No. 28 of 1989. The Supreme Court's ruling in Ashok Transport Agency v. Awadhesh Kumar and Ors. ((1998) 5 SCC 567) was cited for the settled position that an order passed against a dead person is a nullity.

Second, the court held that there was no occasion to initiate the suo motu inquiry in the first place. There was no transfer document before the SDO. Without prima facie material showing a transfer from tribal to non-tribal, the very basis for initiating proceedings under Section 36 or Section 36A did not exist. The proceedings were therefore without jurisdiction.

The court then addressed the question of caste determination. It held that the SDO's claim to have determined that Babu Jadhav belonged to the Sonkoli community — not a Scheduled Tribe — runs contrary to settled law. The High Court referred to its own earlier ruling in Shri Shivram Namdeo Kathoke v. Shri Bhalchandra Ablu Koli & Ors. (Writ Petition No. 8485 of 2024), which held that caste or tribe status must be verified by the Caste Scrutiny Committee and that revenue authorities including the Additional Commissioner cannot render findings on whether a person belongs to a Scheduled Tribe category. The Supreme Court's observation in Terraform Magnum Limited v. State of Maharashtra & Ors. ((2024) 9 SCC 94) was also cited: unless a claim is validated by the Caste Scrutiny Committee, a person cannot be treated as belonging to a Scheduled Tribe. The SDO's determination of tribal status in the course of a suo motu revenue inquiry was, therefore, contrary to settled legal principle.

On delay condonation, the court held that where a challenge is to an order that is a nullity, a liberal approach to condoning delay is justified. A void order, if kept unchallenged, would remain in force and affect the rights of the appellant. The authorities below had correctly condoned the delay and adjudicated on merits.

The court then addressed whether it should nonetheless interfere in the exercise of writ jurisdiction. It answered in the negative. Relying on AL-3 CAN Export Pvt. Ltd. v. Prestige H.M. Polycontainers Ltd. and Ors. ((2024) 9 SCC 94), the court reiterated that a writ court should not quash an order if doing so would revive a wrong or illegal order. Quashing the orders condoning delay and setting aside the SDO's ruling would restore the 1989 order to life. The court declined to do that.

The court also noted that the State had independently made mutation entries for lands in the region, treating them as falling within tribal areas. Those mutation entries are separately challenged by the petitioner and those proceedings are still pending before the High Court. The respondents were impleaded in those proceedings in 2010, which is when they became aware of the SDO's 1989 order and thereafter filed the RTS appeal.

Outcome

Both Writ Petition No. 9010 of 2025 and Writ Petition No. 9011 of 2025 were dismissed by Justice Arun R. Pedneker on 9 July 2026. The order of the Additional Commissioner, Konkan Division, condoning the delay in filing RTS Appeal No. 293 of 2023, and the order dated 18 April 2024 setting aside the SDO's 31 July 1989 ruling in Restoration Case No. 28 of 1989, both as upheld by the Revenue Minister on 14 October 2024, stand confirmed.