1 W.P.2377.11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 2377 OF 2011
Gorakh S/o Bhagwan @ Ganpati
Jaybhay, Age: 36 Years, Occup.:
Agril,, R/o Jayabhayewadi Tq.
Jamkhed, District Ahmednagar.
..PETITIONER
VERSUS
1. The Sub-Divisional Officer,
Karjat, Tq. Karjat, District
Ahmednagar.
2. The Tahsildar, Karjat, Tq.
Karjat, District Ahmednagar.
3. Rutum Baburao Jaybhaye, Age 68
Years, Occup. Agril.
4. Ramkrishna Vishnu Jaybhaye,Age
65 Years, Occup.: Agri.
5. Prabhau Baburao Jaybhaye, Age 60
Years, Occup. Agril.
6. Vishnu Baburao Jaybhaye, Age 62
Years, Occup. Agril.
7. Charakdhar Baburao Jaybhaye, Age
68 Years, Occup. Agril.
8. Respondent Nos. 3 to 7 R/o
Jaybhayewadi, Tq. Jamkhed,
District Ahmednagar.
.RESPONDENTS
::: Downloaded on - 09/06/2013 17:47:23 :::
2 W.P.2377.11
...
Mr.N.V.Gavare,Advocate for Petitioner.
Mr.D.R.Kale,AGP for respondent Nos. 1 and 2
Mr.P.D.Ghorpade,Advocate for respondent Nos. 3 to
7.
...
CORAM: S.S. SHINDE, J.
RESERVED ON: 21ST SEPTEMBER, 2011
PRONOUNCED ON: 29TH SEPTEMBER, 2011
JUDGMENT :
1. Rule. Rule made returnable forthwith. By
consent of the learned counsel appearing for the
parties, the present matter is taken up for final
hearing and disposal at the stage of admission
itself.
2. This Writ Petition is filed challenging the
judgment and order dated 01.11.2010, passed by the
learned Member, Maharashtra Revenue Tribunal,
Aurangabad, in Revision Petition NO. 6/B/2010/AN.
3. The particulars and events which are
disclosed by the petitioner in this petition are
as under.
::: Downloaded on – 09/06/2013 17:47:23 :::
3 W.P.2377.11
. The agricultural land bearing Gut No.
680(Old Survey No. 296) admeasuring 4H.23 R
situated at village Telangshi, Tq. Jamkhed,
District Ahmendagar, was initially owned and
possessed by one Maruti Babu Jaybhaye. Maruti
Babu Jaybhaye died on 13.7.1955 and the name of
his legal heir, namely, Bhagwan @ Ganpati S/o
Maruti Jaybhaye was recorded in the 7/12 extract
vide mutation entry No.2300.
. It is further contended that the said
Bhagwan @ Ganpati is the father of petitioner and
he was in actual possession of the suit land and
accordingly was cultivating the same. Nobody was
inducted as tenant for the suit land. The false
entry was recorded in other rights column of
Maruti Dhondi Jaybhaye as the tenant.
. It is further contended that, on 09.03.1995
the said entry was deleted vide Mutation Entry No.
2154 and the name of Bhagwan @ Ganpati was
recorded as “Khudd” in possession column of 7/12
::: Downloaded on – 09/06/2013 17:47:23 :::
4 W.P.2377.11
extract. It is further contended that in the year
1980 the respondent No.7 along with one Haridas
Lahanu Jaybhaye initiated a false tenancy Case No.
32-0/1/80 before the learned Tahsildar, Karjat
against the father of the petitioner. In that
case, they posed themselves as tenants. Father of
petitioner was illiterate, poor and rustic
villager and hence present respondent No.7 along
with Haridas Lahanu Jaybhaye took undue advantage,
and the order came to be passed against the father
of the petitioner. Accordingly vide Mutation Entry
No.4188 the name of the predecessor of the
petitioner, namely, Bhagwan @ Ganpati was recorded
in other rights column.
. It is further contended that, one Haridas
Lahanu Jaybhaye has executed a sale deed in favour
of the respondent No.7 on 29.01.1986 and
transferred ½ share in the said land. Accordingly,
Mutation Entry No. 123 was recorded. The said land
was allotted on tenure therefore, prior to
executing sale deed, the necessary permission
::: Downloaded on – 09/06/2013 17:47:23 :::
5 W.P.2377.11
ought to have obtained from the Revenue Authority.
Said alienation was illegal and void-ab-initio.
. It is further contended that, the suit
property was sub-divided and the Mutation Entry
No. 691 has been carried out on 21.07.1993. The
said mutation entry is unlawful and hence the
possession of respondent No.3 to 7, is illegal.
The petitioner states that, father of petitioner
died leaving behind sister, namely, Nilabai
Gopinath Khade, wife namely Gayabai, son the
present petitioner and daughter namely Nandubai
Ganesh Gopalghare. It is further contended that,
initially, the petitioner was not aware of the
illegalities committed, but subsequently after
though the record and documents the petitioner
demanded the possession of land from respondent
Nos. 3 to 7 but they refused to handover the
possession.
. It is further contended that, the petitioner
through his advocate send a legal notice to the
::: Downloaded on – 09/06/2013 17:47:23 :::
6 W.P.2377.11
respondent Nos. 3 to 7 on 02.08.2007 and claimed
for possession of land but the respondents have
not paid any heed. In the year 2007, the
petitioner filed Appeal No. 3 of 2007 before the
Sub- Divisional Officer, Karjat and challenged the
order passed by the learned Tahsildar in Tenancy
Case No. 32-0/1/80. The respondent Nos. 2, 5 and 6
appeared before the learned Sub-Divisional Officer
on 11.03.2008 and filed their reply.
. It is further contended that the learned Sub-
Divisional Officer has been partly allowed the
appeal on 19.08.2009 and directed the Tahsildar to
further inquire and verify the 7/12 extract and
all mutation entries of suit land under the
provisions of Tenancy law and further directed to
decide the proceedings within a period of six
months from the date of order.
. It is further contended that the present
respondent Nos. 3 to 6 being aggrieved and
dissatisfied by the judgment and order dated
::: Downloaded on – 09/06/2013 17:47:23 :::
7 W.P.2377.11
19.08.2009, passed by the learned Sub-Divisional
Officer, preferred Revision Application NO. 6-
B-2010-AN along with application for condonation
of delay before the learned Member, Maharashtra
Revenue Tribunal Aurangabad, on 31.12.2009.
. It is further stated that the learned
Member, Maharashtra Revenue Tribunal, Aurangabad
on 01.11.2010 has been pleased to allow the
Revision Petition and set aside the order passed
by the learned Sub-Divisional Officer Karjat in
Tenancy Appeal No. 3 of 2007, observing that in
the present case the appeal was filed after 27
years and no application for condonation of delay
was filed. Hence, present Writ Petition is
preferred.
4. This Court issued notice in Writ Petition.
Pursuant to that, respondent Nos. 3 to 6 have
filed affidavit in-reply, which is part of
compilation of the Writ Petition from page Nos. 42
to 45.
::: Downloaded on – 09/06/2013 17:47:23 :::
8 W.P.2377.11
5. Learned counsel appearing for the petitioner
submitted that, the agricultural land bearing Gut
No. 680(Old Survey No. 296) admeasuring 4H.23 R
situated at village Telangshi, Tq. Jamkhed,
District Ahmendagar,is the disputed property.
. Learned counsel further submitted that,
the disputed property was initially owned and
possessed by Maruti Babu Jaybhay and subsequently
was inherited, after is demise by Bhagwan @
Ganpati Maruti Jaybhay, the father of the
petitioner. Nobody was ever inducted as tenant in
the disputed property, however, false entry was
recorded in other rights column of one Marutii
Dhondi Jaybhay as tenant. The said entry was
further deleted vide mutation entry No. 2154 and
the land was in possession of Bhagwan @ Ganpati
Jaybhay. The respondents had no concerned with
the disputed property either as tenant or in any
other capacity.
. Learned counsel further submitted that the
::: Downloaded on - 09/06/2013 17:47:23 :::
9 W.P.2377.11
father of the petitioner, namely, Bhagwan @
Ganpati is simpleton and illiterate, poor rustic
villager. The respondents are men of means and
influential person. The father of the petitioner
was brutally assaulted and threatened of dire
consequences by the respondents, and therefore, in
order to save life, he succumbed to the pressure
of the respondents and virtually agreed to certain
things of which the respondents took the undue
advantage. The father of the petitioner was
subsequently left the village and never returned
thereafter.
. Learned counsel further submitted that,
respondent No.7 along with one Haridas Lahanu
Jaybhaye on 12.08.1980 initiated false Tenancy
case No. 32-0/1/80, U/S.32-O of Bombay Tenancy and
Agricultural Lands Act (Hereinafter referred to as
“said Act” for the sake of brevity) before the
Tahsildar Karjat on the basis of fake tenancy
claim. The father of petitioner has fallen prey to
the pressure exerted by respondent No.7 and
::: Downloaded on – 09/06/2013 17:47:23 :::
10 W.P.2377.11
others. The respondent No.7 and others have failed
to tender intimation to the father of the
petitioner of desire to exercise the right of
purchase conferred by section 32-O of the said
Act, within period of one year from the
commencement of alleged tenancy. However, the
respondent No.7 has failed to prove that right of
purchase was exercised within one year from the
commencement of tenancy and also the fact that the
intimation of desire to exercise right of purchase
was given as per form “X” as envisaged under Rule
20 of Bombay Tenancy and Agricultural Lands Rule
1956.
. Learned counsel further submitted that,
however, no such intimation was ever given by the
respondent No.7 within period of one year in Form
‘X’. Even the learned Tahsildar has not considered
the said crucial aspect and thus the entire
proceeding stands vitiated and provisions of Rule
32-O of the said Act could not have been invoked
to perfect the claim of respondent No. 7. Even the
::: Downloaded on – 09/06/2013 17:47:23 :::
11 W.P.2377.11
learned Tahsildar has not considered the said
aspects. Therefore, there is nothing on record to
indicate that, respondent No.7 so called tenant
had intimated his willingness to purchase suit
land within one year from taking lease, therefore,
the matter is required to be remitted to Tahsildar
Karjat as per law laid down by Hon’ble Apex Court
in the matter of Ramesh Ramnarayan Dangare Vs.
Vithabai B. Wakchaure and another, reported in
2004(5) All MR 1151(SC).
. Learned counsel further submitted that,
respondent No.7 has fraudulently posed himself as
tenant by putting the father of the petitioner
under threat. The petitioner at the relevant time
was minor and father was forced to leave the
village on account of terror of respondent No.7
and others. Therefore, the petitioner had no
knowledge regarding the decision rendered by
Tahsildar and could not be subjected to challenged
immediately.
::: Downloaded on – 09/06/2013 17:47:23 :::
12 W.P.2377.11
. It is further submitted that, the petitioner
is illiterate and after getting knowledge
immediately preferred Appeal No. 3 of 2007 before
Sub-Divisional Officer, Karjat challenging the
order passed by the learned Tahsildar. Because of
inadvertence on the part of advocate the separate
application for delay condonation could not be
preferred, but learned Sub-Divisional officer,
Karjat vide order dated 19.08.2009 partly allowed
the appeal and directed the Tahsildar to verify
the record of disputed property since year 1950
and also to consider the same in light of the
provisions of the Bombay Tenancy and Agricultural
Lands Act. It has been observed by the learned
Sub-Divisional Officer that, on the relevant date
one Maruti Dhondi was shown as tenant and the said
entry has been subsequently cancelled vide
Mutation Entry No. 1632. It has been also observed
that the record is not traceable which leads to
suspicion and further alienation of the suit
property is illegal.
::: Downloaded on – 09/06/2013 17:47:23 :::
13 W.P.2377.11
. Learned counsel further submitted that it
is also crystal clear that the respondents i. e.
so called tenants have been successful in proving
and establishing, as to when and how they become
tenant on the suit property. The learned Sub-
Divisional Officer has precisely remanded the
matter to verify the factual aspects, as the basis
claim of the respondents regarding their so called
tenancy was false, baseless and fraudulent.
Therefore, the proceedings u/S.32-O of the said
Act were not maintainable an order passed thereon
is illegal, non-est and nullity in eyes of law.
. Learned counsel appearing for the petitioner
further submitted that, the disputed property is
ancestral property of the petitioner and his
father Bhagwan. Nobody ever was inducted as
tenant. One Maruti Dhondi Jaybhay was illegally
shown as tenant to disputed property, but
subsequently vide Mutation Entry No. 2154 entry
regarding the said tenant was deleted.
::: Downloaded on – 09/06/2013 17:47:23 :::
14 W.P.2377.11
. Learned counsel further submitted that, the
respondent No.7 Chakradhar and others fraudulently
on or about year 1980, filed proceeding U/s.32 of
the said Act, in absence of any tenancy and
without notifying any date as to when and how they
acquired the status of tenant.
. learned counsel further submitted that, no
intimation expressing desire to purchase the
disputed property was ever given by the
respondents to the father of the petitioner within
period of one year from the date of their so
called tenancy, in Form ‘X’ as per Rule 20 of the
Bombay Tenancy and Agricultural Lands Act and
Rules 1956 and as per Section 32-O of the said
Act, therefore, the proceedings filed by the
respondents under Section 32-O of the said Act
were itself not maintainable and misconceived. The
learned Tahsildar has not appreciated the said
fact.
. Learned counsel further submitted that, the
::: Downloaded on - 09/06/2013 17:47:23 :::
15 W.P.2377.11
matter can be remanded to Tahsildar to find out
whether intimation was given or not by the tenant
in prescribed form, within period of one year from
the alleged tenancy. The most suspicious part is
that, the record is shown to be have misplaced and
untraceable, in order to favour the respondents.
The litigants should not suffer for the fault and
inadvertence on the part of advocate.
. Learned counsel appearing for petitioner
invited my attention to the reported judgment of
Supreme Court in the case of Ramesh Ramnarayan
Dangare Vs. Vithabai B. Wakchaure and another,
reported in 2004(5) All MR 1151(SC), in
particular, para No.5 of the said judgment and
submitted that, in the present case nothing is
brought on record showing that tenant had
intimated his willingness to purchase suit land
within one year from taking lease. Therefore, he
submits that it is necessary to remit this matter
back by giving opportunity to the petitioner to
file application for condonation of delay to find
::: Downloaded on – 09/06/2013 17:47:23 :::
16 W.P.2377.11
out whether intimation was given by tenant or
not?.
. Learned counsel further invited my attention
to the reported judgment of Supreme Court in the
matter of Pandurang Dnyanoba Lad Vs. Dada Rama
Methe reported in 1976(2)SCC 236 and submitted
that, Section 32-O of the said Act applies only to
tenancies created after the tillers’ day. It
provides that in respect of such tenancies, a
tenant desirous of exercising the right of
purchase must give an intimation to the landlord
and the Tribunal within one year from the
commencement of his tenancy. However, in the
present case, there is nothing on record showing
that such intimation was given to the landlord by
the tenant. Therefore, the learned counsel
appearing for petitioner would submit that the
petition deserves to be allowed.
6. On the other hand, learned counsel appearing
for respondent Nos. 3 to 6 submits that, the
::: Downloaded on – 09/06/2013 17:47:23 :::
17 W.P.2377.11
prayer of the petitioner for remanding back the
matter will not survive any purpose, because
purchase certificate U/Sec. 32(M) of the said Act
is already issued by the Tahsildar, Jamkhed in
favour of Tenant on 27.07.1981 and the said
Certificate is not challenged by the original
landlord and present petitioner before Sub-
Divisional Officer nor before this Hon’ble Court
in this Writ Petition. As per section 32(M) of
the said Act 1948, “Purchase Certificate” shall be
conclusive evidence of purchase”. Here the
petitioner is challenging proceeding U/Sec. 32-O
of the said Act, the order passed by Tahsildar on
31.08.1980, but the tenant had already complied
with the legal proceeding U/Sec.32-O of the said
Act, and deposited the compromise amount of Rs.
3,500/- before the Tahsildar. Learned counsel
further submitted that, purchase certificate has
been issued by Tahsildar in favour of the tenant,
which is not challenged by the landlord and the
petitioner till today. Hereafter, it becomes
conclusive and final against the landlord and the
::: Downloaded on – 09/06/2013 17:47:23 :::
18 W.P.2377.11
petitioner. Though, the matter will get remanded
and appeal is allowed, thereafter, also the
tenant’s right will not get affected, because
“Purchase Certificate” became conclusive and final
against the landlord and the petitioner. This
Certificate is intentionally suppressed by the
petitioner on this ground, the petitioner is not
entitled to any relief.
. In support of his submission, the learned
counsel placed reliance on the judgment of this
Court in the matter of Smt. Ramkuwar W/o Ramkisha
Pallod (Deceased through L.Rs.) Vs. Shri
Krushnanath Sajan Belhekar and another reported in
2010(5)ALL MR,529. In this case, the learned
Single Judge has taken a view that “Purchase
Certificate” is issued in favour of Tenant U/Sec.
32(M)of the said Act, therefore, right stood
crystallized in favour of tenant. The Certificate
is not challenged, it’s become final against
original landlord. Fact of issue of Certificate
was suppressed in Writ Petition. Held, petitioner
::: Downloaded on – 09/06/2013 17:47:23 :::
19 W.P.2377.11
is not entitled to any relief.
. Learned counsel further submitted that, the
petitioner stated in his petition that the
original landlord is dead, but he has not given
specific date of death and he has not produced any
document on record to support his submission that,
his father(Original landlord) is dead and his
legal heirs on record. It is further submitted
that, the original landlord is alive and presently
residing at village Ujjaini, Tq. Indpaur, District
Pune. This fact is also intentionally suppressed
by the petitioner, also in his rejoinder, in para
No.6 and page No.61, the petitioner is silent on
this point. Therefore, the petitioner has no
locus-standi to file any appeal. Learned counsel
further submitted that, the petitioner has
suppressed the material fact and mislead the
Court, hence, this Writ Petition is liable to be
dismissed.
. Learned counsel further submitted that,
::: Downloaded on - 09/06/2013 17:47:23 :::
20 W.P.2377.11
tenancy had commenced from 1980-1981, so far
further requirement of proceeding, respondents
filed application within one year under section
32-O of the said Act, in Tenancy Case No. 32-
O-1/80 on 12.08.1980, before Tahsildar, Jamkhed
for claiming the right of tenancy before the
Tahsildar. The Tahsildar recorded findings in the
affirmative at page No.53.
. Learned counsel further submitted that in
this proceeding U/S.32-O of the said Act before
the Tahsildar, original landlord Bhagwant @
Ganpati Maruti Jaybhay appeared and given his
written statement, in which he admitted
respondents rights as tenant on the land. The
Tahsildar recorded his statement and finding,
which is at Page No.52, in the order passed by the
Tahsildar on 31.08.1980, compromise of the
purchase amount of Rs. 3,500/- between the
landlord and the tenant. This finding is also
recorded by the Tahsildar at Page No. 54 and 55,
in the said order passed by the Tahsildar on
::: Downloaded on – 09/06/2013 17:47:23 :::
21 W.P.2377.11
31.08.1980.
. Learned counsel further submitted that, it
is admitted by the original landlord and same is
recorded by the competent authority, and
therefore, estoppal is attract on that point. This
petitioner has no locus-standi to file appeal
after 27 years. Original landlord had knowledge
about the order passed by the Tahsildar on
31.08.1980, but he has not challenged the order
till today and it becomes final against him. The
learned counsel, in support of this submission
placed reliance upon the reported judgment of Apex
Court in the matter of State of Punjab Vs.
Gurudevsingh and Ashok Kumar (AIR 1992 S.C.111)
(Para No.8). In this judgment, the Apex Court
observed that, “if the statutory time limit is
expired, the Court cannot give the declaration
sought for.”
. Learned counsel further submits that, the
present petitioner preferred an appeal in 2007
::: Downloaded on – 09/06/2013 17:47:23 :::
22 W.P.2377.11
before Sub-Divisional Officer, Karjat as Appeal
No. 3 of 2007 against the order passed by the
Tahsildar on 31.08.1980, and that appeal was
allowed in absence of application for condonation
of delay and without condoning the delay. The
learned Sub-Divisional Officer allowed the appeal
without jurisdiction, tenant challenging that
order before Maharashtra Revenue Tribunal, in
Revision Petition No. 6/B/2010/AN. The Tribunal
allowed the Appeal on 01.11.2010 and set aside the
order passed by Sub-Division Officer, Karjat in
Tenancy Appeal No. 03 of 2007, which is illegal
and without jurisdiction. The learned counsel
further submitted that, Whether in absence of
proper application of condonation of delay or
without condoning the delay, the Sub-Divisional
officer have jurisdiction to allow the Appeal
filed by the petitioner after 27 years?. In
support of this submission he placed reliance on
the reported judgment of Apex Court in the matter
of Ragho Singh Vs. Mohan Singh and others reported
in AIR 2011 SCW/2351(Para No.6).
::: Downloaded on – 09/06/2013 17:47:23 :::
23 W.P.2377.11
. Learned counsel further submitted that, once
the proceedings Under section 32-O of the said Act
is over and the tenant had deposited the purchase
amount and the Tahsildar issued “Purchase
Certificate” U/Sec.32(M)of the said Act, it is the
conclusive evidence, the Tahsildar has no
jurisdiction to initiate fresh proceedings U/Sec.
32-O of the said Act. In support of this
submission, learned counsel placed reliance on the
reported judgment of this Court in the case of
Sidappa Rama Patil Vs. Sattur Laman Kole(Deceased
by L.Rs.) reported in 2005(1) ALL MR 123(Para Nos.
6 and 7).
. The learned counsel appearing for respondents
submitted that, Haridas Lahanu Jaybhay is one of
the protected tenant in tenancy Case No.
32(O)/1/80, but he was not made a party in Appeal
before the Sub-Divisional Officer and this Writ
Petition also Hence, this Writ Petition is not
maintainable for non joinder of the necessary
parties and same is liable to be dismissed.
::: Downloaded on – 09/06/2013 17:47:23 :::
24 W.P.2377.11
7. I have given due consideration to the rival
submissions of the parties. It appears that, on
02.08.2007, the petitioner herein through his
Advocate sent a legal notice to respondent Nos. 3
to 7 and claimed the possession of the land, but
the respondents have not paid any heed. In the
year 2007, the petitioner filed Appeal No. 3 of
2007 before Sub-Divisional Officer, Karjat,
challenging the order passed by the learned
Tahsildar, Karjat in Tenancy Case No. 32-O/1/80,
therefore, it is clear that the petitioner herein
challenged the order passed by the Tahsildar,
Karjat in tenancy Case No. 32-O/1/80, after 27
years. It further appears that respondent Nos. 3,
5 and 6 contested the Appeal before Sub-Divisional
Officer, and Sub-Divisional Officer by his order
dated 19.08.2009 allowed the Appeal and directed
the Tahsildar to further inquire and verify the
7/12 extract and all Mutation Entries of suit land
under the provisions of Tenancy Law and further
directed to decide the proceedings within a period
of six months from the date of order.
::: Downloaded on – 09/06/2013 17:47:23 :::
25 W.P.2377.11
8. Being aggrieved by the Judgment and order
of Sub-Divisional officer, respondent Nos. 3 to 6
herein, challenged the said judgment and order
before the learned Member, Maharashtra Revenue
Tribunal Aurangabad by filing Revision Application
NO. 6-B-2010-AN. The learned Member, Maharashtra
Revenue Tribunal, Aurangabad on 01.11.2010 was
pleased to allow the Revision Application and set
aside the judgment and order of Sub-Divisional
Officer, Karjat, in Tenancy Appeal No. 03 of 2007.
9. I have carefully perused the reasons recorded
by the learned Member, Maharashtra Revenue
Tribunal, Aurangabad, the Tribunal in its judgment
in para No. 6 to 9 has assigned the reasons for
allowing Revision Application. learned Member,
Maharashtra Revenue Tribunal, Aurangabad has
adverted to observations made by learned Sub-
Divisional Officer, Karjat, where he has observed
that the Appeal was not within period of
limitation, however, further it is observed that,
it is necessary to examine the merits of the
::: Downloaded on – 09/06/2013 17:47:23 :::
26 W.P.2377.11
Appeal. Therefore, learned Member, Maharashtra
Revenue Tribunal, Aurangabad relying upon the
judgment of this Case in the case of Ballumala Vs.
M/s J.J. Builders, 2003 MH.L.J., 238 held that the
Court has no jurisdiction to condone the delay, in
absence of proper application under section 5 of
the Limitation Act, 1963.
. In the present case, the appeal was filed
after 27 years, before Sub-Divisional Officer,
Karjat, from the order under appeal came to be
passed. The appeal was filed after the prescribed
period of limitation. No application for
condonation of delay was filed. Therefore, learned
Member, Maharashtra Revenue Tribunal, Aurangabad
held that, “the Authority below have no power or
jurisdiction to entertain or decide the Appeal, in
absence of application for condonation of delay.
In absence of application for condonation of
delay, appeal would not have been admitted and
taken up for hearing. Therefore, learned Member,
Maharashtra Revenue Tribunal, Aurangabad held that
::: Downloaded on – 09/06/2013 17:47:23 :::
27 W.P.2377.11
Sub-Divisional Officer has exceeded its
jurisdiction in as much as it decided the Appeal
in absence of any application for condonation of
delay. Therefore, learned Member, Maharashtra
Revenue Tribunal, Aurangabad quashed and set aside
the judgment and order of Sub-Divisional Officer.
10. I have independently scrutinized the facts
and law involved in the case and I find that view
taken by the learned Member, Maharashtra Revenue
Tribunal, Aurangabad is reasonable and also in-
consonance with the evidence brought on record. I
do not find any infirmity in the view taken by the
learned Member, Maharashtra Revenue Tribunal,
Aurangabad.
. It is admitted position that, the petitioner
herein challenged the order passed by the
Tahsildar in the year 1980, after 27 years, before
the Sub-Divisional Officer. The Appeal was filed
by the petitioner in the year 2007. During the
course of argument, the learned counsel appearing
::: Downloaded on – 09/06/2013 17:47:23 :::
28 W.P.2377.11
for the petitioner was called upon to explain
inordinate delay in filing the Appeal. He
submitted that the petitioner was minor at the
relevant time. The petitioner was present in the
Court and on enquiry from the petitioner himself,
counsel for the petitioner informed this Court
that the petitioner is born in the year 1979.
Even, if it is presumed that the petitioner was
minor till 1997, after attending age of 18 years,
at the most Appeal should have been preferred in
the year 1997-1998. However, admittedly, in the
present case the Appeal is filed in the year 2007.
It is admitted position that, no application for
condonation of delay was filed along with Appeal
before the Sub-Divisional Officer. This Court had
occasion to consider some what similar point in
the case of Sidappa Rama Patil Vs. Suttar Laman
Kole(Deceased by L Rs.) and others supra, this
Court in para No.6 and 7 held that:
“6. After hearing counsel for the
parties I have no hesitation in
taking the view that it is un-
::: Downloaded on – 09/06/2013 17:47:23 :::
29 W.P.2377.11
necessary for this Court to burden
the judgment with the merits of therival claim with regard to the
relationship between the parties. Ifind force in the argument canvassed
on behalf of the petitioners that as
the appeal preferred by the landlordwas barred by limitation, it was
obligatory that it was accompanied
by an application for condition ofdelay, or at least a prayer in the
memo of appeal itself for condoning
the delay in filing the appeal; andfurther that Appellate Authority
ought to have condoned the delay
before deciding the case on merits.
It is well settled that if the
appeal is barred by limitation, the
appellate court would assume
jurisdiction only if the delay in
filing such an appeal was to be
condoned in the first place. The
delay can be condoned only if such a
prayer is formally made by the
appellant. The court on its own
cannot find out some reason to grant
the relief which is not prayed by
the appellant. In the present case,
it is common ground that no formal
::: Downloaded on – 09/06/2013 17:47:23 :::
30 W.P.2377.11
application for condonation of delay
in filing the appeal was filed nor a
formal prayer for condoning the
delay in filing the appeal was
incorporated in the appeal memo.
Moreover, there is nothing on
record(at least brought to my notice
by the counsel for the respondent)
that the Appellate Authority had
condoned the delay before
entertaining the appeal which was
filed by the landlord after lapse of
10 years. The argument that the
appellant landlord had no notice
about the earlier proceeding cannot
be the basis to ignore the order
which was operating against the
landlord-appellants. That order can
only put in the issue on filing
appeal which is in accordance with
law. Mere filing of appeal, which is
barred by limitation, is not enough
but it was necessary to be
accompanied with an application for
condonation of delay and the delay
should be first excused only when
the Appellate Court can assume
jurisdiction to enter upon the
merits of the case. This view is
::: Downloaded on – 09/06/2013 17:47:23 :::
31 W.P.2377.11
supported by the decisions relied on
behalf of the petitioners as
referred to above. In this view of
the matter it necessarily follows
that the Appellate Authority had no
jurisdiction to proceed to decide
the matter on merits in favour of
the landlord. This crucial aspect
has been completely overlooked by
the Tribunal while deciding the
revision application, which is the
manifest error resulting in serious
miscarriage of justice. The
Tribunal, on the other hand, found
that even though the appeal was not
filed within limitation, but since
the landlord was not served with the
notice, of the earlier order passed
in the earlier proceeding, there was
no question of delay as that
decision was nullity. This is not
the correct legal position. The
order does not become nullity
because of non-service of notice but
it would be at best a case of
irregularity which can be questioned
in appeal before the appropriate
authority. On the above reasoning,
the order of the appellate authority
::: Downloaded on – 09/06/2013 17:47:23 :::
32 W.P.2377.11
as well as the revisional authority
will have to be reversed without
going into the merits of the rival
controversy, as there was no prayer
for condonation of delay in filing
the appeal nor such an order has
been factually passed by the
appellate authority.
7. In so far as the order passed by
the Tahsildar dated December 31,
1972 in the subsequently initiated
32G proceedings is concerned, I have
no hesitation in taking the view
that initiation of fresh 32 G
proceeding by the Tahsildar was
without jurisdiction. Once the
proceeding was finally decided by
him and on which basis certificate
under section 32(M) of the Act has
already been issued in favour of the
tenant, on passing order in the
earlier proceeding the Tahsildar had
become functus officio and it was
not open to him to once again
initiate fresh proceeding under
section 32G of the Act. Viewed in
this perspective, the order passed
by the Tahsildar dated December 31,
::: Downloaded on – 09/06/2013 17:47:23 :::
33 W.P.2377.11
1972 deserves to be set aside being
without jurisdiction. This crucial
aspect is once again glossed over by
the Appellate Authority as well as
the Revisional Authority, in spite
of such a grievance being made by
the petitioners.”
11. The Supreme Court in the case of Ragho Singh
Vs. Mohansingh and others cited supra has take a
view that if the Appeal is filed beyond time and
if application for condonation of delay is not
filed, the delay cannot be deemed to have been
condoned and Appeal is liable to be dismissed.
12. In another case, State of Punjab and others
Vs. Gurudev Singh and Ashok Kumar cited supra, the
Supreme Court held that:
“The party aggrieved by the
invalidity of the order has to
approach the Court for relief ofdeclaration that the order against
him is inoperative and not binding
upon him. He must approach the Court
within the prescribed period of::: Downloaded on – 09/06/2013 17:47:23 :::
34 W.P.2377.11limitation. If the statutory time
limit expires the Court cannot givethe declaration sought for. Further
the words “right to sue” under Art.
113 ordinarily mean the right to seek
relief by means of legal proceedings.
Generally, the right to sue accrues
only when the cause of action arises,
that is, the right to prosecute to
obtain relief by legal means. The
suit must be instituted when the
right asserted in the suit is
infringed or when there is clear and
unequivocal threat to infringe that
right by the defendant against whom
the suit is instituted. When the
employee is dismissed from service
his right to continue in the service
is infringed. If an Act is void or
ultra vires it is enough for the
Court to declare it so and it
collapses automatically. It need not
be set aside. The aggrieved party can
simply seek a declaration that it is
void and not binding upon him. A
declaration merely declares the
existing state of affairs and does
not ‘quash’ so as to produce a new
state of affairs. But nonetheless the
::: Downloaded on – 09/06/2013 17:47:23 :::
35 W.P.2377.11
impugned dismissal order has at least
a de facto operation unless and until
it is declared to be void or nullity
by a competent body or Court.”
13. In the present Writ Petition, the petitioner
has not disclosed that Certificate under Section
32(M) of the said Act has been issued in favour of
respondent Nos. 3 to 6. It is admitted position
that there is no challenge to such certificate by
the petitioner. I find considerable force in the
argument of learned counsel appearing for
respondent Nos. 3 to 6 that in some what similar
situation, this Court in the case of Smt.
Ramkunwar W/o Ramkishan Pallod Vs.Shri Krushnanath
Sajjan Belhekar and other cited supra held in para
Nos. 9 10, and 11, which read thus:.
“9. Even this Court in a case of ”
Bhaskar Naryan Kuvalekar &
others Vs. Bhaskar Narayan
Kuvalekar & others, reported in 1999
(4) BCR 711:1998(4) ALL MR 403]” has
observed thus :-
” It is apparent from the aforesaid
::: Downloaded on – 09/06/2013 17:47:23 :::
36 W.P.2377.11
provision of Section 32-M
that the certificate issued under
this section is conclusive
evidence of purchase. The said
certificate was not challenged by the
petitioner in appeal. The
certificate under section 32-
M was issued in favour of respondent
No. 1 in the year 1960 and
that conclusively establishes that
respondent No. 1 was purchaser of the
land which would mean that respondent
No. 1 was in possession of the land
in question as tenant on 1st April,
1957. The certificate issued
under section 32-M having
attained finality in all
respects, it was not open to
the Tahsildar to declare the
said certificate as nullity
in the proceedings initiated by the
petitioner under section 32-G of the
Bombay Tenancy Act. Even if it
is assumed that petitioner
had no notice of the
proceedings initiated by the
respondent No. 1 under section 32-G
and pursuant thereto the
certificate under section 32-M
::: Downloaded on – 09/06/2013 17:47:23 :::
37 W.P.2377.11
was issued in favour of respondent
No. 1, upon acquiring the knowledge
of such certificate having been
issued in favour of respondent No.
1, the petitioner could have only
challenged its legality in appeal and
not by way proceedings under section
32-G of the Bombay Tenancy Act. The
Tahsildar acted without jurisdiction
in declaring the certificate issued
in favour of respondent No. 1, as
nullity and grossly erred in
declaring the petitioner as
deemed purchaser on the face
of the certificate issued under
section 32-M in favour of
respondent No. 1. The said
order passed by the Tahsildar
being patently erroneous has rightly
been set aside by the Collector,
Sindhudurg. The Maharashtra Revenue
Tribunal also did not commit
an error in affirming the correct
order of the Collector,
Sindhudurg”.
10. In the present case, the
certificate under Section 32-M has
already been issued in the year
::: Downloaded on – 09/06/2013 17:47:23 :::
38 W.P.2377.11
1987, such certificate is the
conclusive evidence of purchase
price. It is also not disputed
that the purchase price has been
paid. The rights having been
crystallized in favour of the tenants
i.e. the respondents the same could
not have been challenged only by
filing appeal as provided under the
statute. The said certificate is
conclusive against the landlords. In
view of the, law laid down by the
Apex Court and our High Court
referred supra. I am of the view,
that the said certificate has
become final, in such
circumstances, even if the
arguments of Shri Kulkarni are
accepted that the legal heirs should
be allowed to further adduce
the evidence in respect of
personal cultivation and for
that purpose remand the matters,
still it will not serve any
purpose, as the certificate
under Section 32-M as against these
petitioners have become final.
11. The conduct of the
petitioners also needs to be
::: Downloaded on - 09/06/2013 17:47:24 :::
39 W.P.2377.11
taken into consideration, while
exercising the jurisdiction under
Article 227 of the Constitution of
India. The petitioners have
suppressed the material fact about
issuance of certificate in favour of
the respondents/tenants under
Section 32-M, though the same
has been issued in the year
1987 and the present writ
petitions are filed in the
year 1991. The petitioners are
guilty of suppression of material
facts, on this count also the
petitioners would be dis-entitled to
claim any relief. ”
14. In that view of the matter, in my considered
opinion, the view taken by the learned Member,
Maharashtra Revenue Tribunal is inconsonance with
law laid down by the Supreme Court as well as this
Court. So, I do not find any substance in the Writ
Petition and same stands dismissed. Rule stands
discharged. Sd/-
[S.S. SHINDE, J.]
MTK
::: Downloaded on – 09/06/2013 17:47:24 :::
40 W.P.2377.11
::: Downloaded on – 09/06/2013 17:47:24 :::
