{"id":243072,"date":"2011-09-29T00:00:00","date_gmt":"2011-09-28T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/gorakh-vs-the-sub-divisional-officer-on-29-september-2011"},"modified":"2017-07-31T17:29:06","modified_gmt":"2017-07-31T11:59:06","slug":"gorakh-vs-the-sub-divisional-officer-on-29-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/gorakh-vs-the-sub-divisional-officer-on-29-september-2011","title":{"rendered":"Gorakh vs The Sub-Divisional Officer on 29 September, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Gorakh vs The Sub-Divisional Officer on 29 September, 2011<\/div>\n
Bench: S. S. Shinde<\/div>\n
                           1                                W.P.2377.11\n\n        IN  THE HIGH COURT OF JUDICATURE AT BOMBAY \n                     BENCH AT AURANGABAD\n\n\n\n\n                                                                \n                WRIT PETITION NO. 2377 OF 2011\n\n\n\n\n                                        \n        Gorakh   S\/o   Bhagwan   @   Ganpati \n        Jaybhay,   Age:   36   Years,   Occup.: \n        Agril,,   R\/o   Jayabhayewadi   Tq. \n        Jamkhed, District Ahmednagar.\n\n\n\n\n                                       \n                                                     ..PETITIONER\n                      VERSUS   \n\n\n\n\n                              \n     1. The   Sub-Divisional   Officer, \n        Karjat,   Tq.   Karjat,   District \n                  \n        Ahmednagar.  \n         \n     2. The   Tahsildar,   Karjat,   Tq. \n                 \n        Karjat, District Ahmednagar.  \n\n     3. Rutum   Baburao   Jaybhaye,   Age   68 \n        Years, Occup. Agril.\n      \n\n\n     4. Ramkrishna   Vishnu   Jaybhaye,Age \n   \n\n\n\n        65 Years, Occup.: Agri.\n\n     5. Prabhau Baburao Jaybhaye, Age 60 \n\n\n\n\n\n        Years, Occup. Agril.\n\n     6. Vishnu   Baburao   Jaybhaye,   Age   62 \n        Years, Occup. Agril.\n\n\n\n\n\n     7. Charakdhar Baburao Jaybhaye, Age \n        68 Years, Occup. Agril.\n     8. Respondent   Nos.   3   to   7   R\/o \n        Jaybhayewadi,   Tq.   Jamkhed, \n        District Ahmednagar.\n                                                     .RESPONDENTS\n\n\n\n\n                                        ::: Downloaded on - 09\/06\/2013 17:47:23 :::\n                              2                                 W.P.2377.11\n\n                         ...\n     Mr.N.V.Gavare,Advocate for Petitioner.\n     Mr.D.R.Kale,AGP for respondent Nos. 1 and 2\n\n\n\n\n                                                                   \n     Mr.P.D.Ghorpade,Advocate for respondent Nos. 3 to \n     7.       \n                          ...\n\n\n\n\n                                           \n         \n                   CORAM: S.S. SHINDE, J.\n\n                   RESERVED ON: 21ST SEPTEMBER, 2011\n\n\n\n\n                                          \n                                       \n                   PRONOUNCED ON: 29TH SEPTEMBER, 2011\n\n     JUDGMENT :\n<\/pre>\n
     1.         Rule.   Rule   made   returnable   forthwith.   By <\/p>\n
     consent   of   the   learned   counsel   appearing   for   the <\/p>\n
     parties, the present matter is taken up for final <\/p>\n
     hearing   and   disposal   at   the   stage   of   admission <\/p>\n
     itself.\n<\/p>\n
     2.     This Writ Petition is filed challenging the <\/p>\n
     judgment and order dated 01.11.2010, passed by the <\/p>\n
     learned   Member,   Maharashtra   Revenue   Tribunal, <\/p>\n
     Aurangabad, in Revision Petition NO. 6\/B\/2010\/AN.\n<\/p>\n
     3.       The   particulars   and   events   which   are <\/p>\n
     disclosed   by   the   petitioner   in   this   petition   are <\/p>\n
     as under.\n<\/p>\n
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                               3                                W.P.2377.11\n\n     .           The   agricultural   land   bearing   Gut   No. \n\n<\/pre>\n
     680(Old   Survey   No.   296)   admeasuring   4H.23   R <\/p>\n
     situated   at   village   Telangshi,   Tq.   Jamkhed, <\/p>\n
     District   Ahmendagar,   was   initially   owned   and <\/p>\n
     possessed   by   one   Maruti   Babu   Jaybhaye.     Maruti <\/p>\n
     Babu   Jaybhaye   died   on   13.7.1955   and   the   name   of <\/p>\n
     his   legal   heir,   namely,   Bhagwan   @   Ganpati   S\/o <\/p>\n
     Maruti   Jaybhaye   was   recorded   in   the   7\/12   extract <\/p>\n
     vide mutation entry No.2300.\n<\/p>\n
     .           It   is   further   contended   that   the   said <\/p>\n
     Bhagwan @ Ganpati is the father of petitioner and <\/p>\n
     he was in actual possession of the suit land and <\/p>\n
     accordingly   was   cultivating   the   same.   Nobody   was <\/p>\n
     inducted   as   tenant   for   the   suit   land.   The   false <\/p>\n
     entry   was   recorded   in   other   rights   column   of <\/p>\n
     Maruti Dhondi Jaybhaye as the tenant.\n<\/p>\n
     .      It is further contended that, on 09.03.1995 <\/p>\n
     the said entry was deleted vide Mutation Entry No. <\/p>\n
     2154   and   the   name   of   Bhagwan   @   Ganpati   was <\/p>\n
     recorded   as   “Khudd”   in   possession   column   of   7\/12 <\/p>\n
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\n                               4                                W.P.2377.11<\/p>\n
     extract.  It is further contended that in the year <\/p>\n
     1980   the   respondent   No.7   along   with   one   Haridas <\/p>\n
     Lahanu Jaybhaye initiated a false tenancy Case No. <\/p>\n
     32-0\/1\/80   before   the   learned   Tahsildar,   Karjat <\/p>\n
     against   the   father   of   the   petitioner.   In   that <\/p>\n
     case, they posed themselves as tenants. Father of <\/p>\n
     petitioner   was   illiterate,   poor   and   rustic <\/p>\n
     villager   and   hence   present   respondent   No.7   along <\/p>\n
     with Haridas Lahanu Jaybhaye took undue advantage, <\/p>\n
     and the order came to be passed against the father <\/p>\n
     of the petitioner. Accordingly vide Mutation Entry <\/p>\n
     No.4188   the   name   of   the   predecessor   of   the <\/p>\n
     petitioner, namely, Bhagwan @ Ganpati was recorded <\/p>\n
     in other rights column.\n<\/p>\n
     .         It   is   further   contended   that,   one   Haridas <\/p>\n
     Lahanu Jaybhaye has executed a sale deed in favour <\/p>\n
     of   the   respondent   No.7   on   29.01.1986   and <\/p>\n
     transferred \u00bd share in the said land. Accordingly, <\/p>\n
     Mutation Entry No. 123 was recorded. The said land <\/p>\n
     was   allotted   on   tenure   therefore,   prior   to <\/p>\n
     executing   sale   deed,   the   necessary   permission <\/p>\n
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\n                               5                                W.P.2377.11<\/p>\n
     ought to have obtained from the Revenue Authority.\n<\/p>\n
     Said alienation was illegal and void-ab-initio.\n<\/p>\n
     .           It   is   further   contended   that,   the   suit <\/p>\n
     property   was   sub-divided   and   the   Mutation   Entry <\/p>\n
     No. 691 has been carried out on 21.07.1993.   The <\/p>\n
     said   mutation   entry   is   unlawful   and   hence   the <\/p>\n
     possession   of   respondent   No.3   to   7,   is   illegal.\n<\/p>\n
     The   petitioner   states   that,   father   of   petitioner <\/p>\n
     died   leaving   behind   sister,   namely,   Nilabai <\/p>\n
     Gopinath   Khade,   wife   namely   Gayabai,   son   the <\/p>\n
     present   petitioner   and   daughter   namely   Nandubai <\/p>\n
     Ganesh Gopalghare.   It is further contended that, <\/p>\n
     initially,   the   petitioner   was   not   aware   of   the <\/p>\n
     illegalities   committed,   but   subsequently   after <\/p>\n
     though   the   record   and   documents   the   petitioner <\/p>\n
     demanded   the   possession     of   land   from   respondent <\/p>\n
     Nos.   3   to   7   but   they   refused   to   handover   the <\/p>\n
     possession.\n<\/p>\n
     .    It is further contended that, the petitioner <\/p>\n
     through   his   advocate   send   a   legal   notice   to   the <\/p>\n
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\n                              6                                 W.P.2377.11<\/p>\n
     respondent   Nos. 3 to  7  on 02.08.2007  and  claimed <\/p>\n
     for   possession   of   land   but   the   respondents   have <\/p>\n
     not   paid   any   heed.     In   the   year   2007,   the <\/p>\n
     petitioner   filed  Appeal  No. 3 of  2007 before   the <\/p>\n
     Sub- Divisional Officer, Karjat and challenged the <\/p>\n
     order   passed   by   the   learned   Tahsildar   in   Tenancy <\/p>\n
     Case No. 32-0\/1\/80. The respondent Nos. 2, 5 and 6 <\/p>\n
     appeared before the learned Sub-Divisional Officer <\/p>\n
     on 11.03.2008 and filed their reply.\n<\/p>\n
     .    It is further contended that the learned Sub-\n<\/p>\n
     Divisional   Officer   has   been   partly   allowed   the <\/p>\n
     appeal on 19.08.2009 and directed the Tahsildar to <\/p>\n
     further   inquire   and   verify   the   7\/12   extract   and <\/p>\n
     all   mutation   entries   of   suit   land   under   the <\/p>\n
     provisions of Tenancy law and further directed to <\/p>\n
     decide   the   proceedings   within   a   period   of   six <\/p>\n
     months from the date of order.\n<\/p>\n
     .             It is further contended that the present <\/p>\n
     respondent   Nos.   3   to   6   being   aggrieved   and <\/p>\n
     dissatisfied   by   the   judgment   and   order   dated <\/p>\n
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\n                               7                                W.P.2377.11<\/p>\n
     19.08.2009,   passed   by   the   learned   Sub-Divisional <\/p>\n
     Officer,   preferred   Revision   Application   NO.   6-\n<\/p>\n
     B-2010-AN   along   with   application   for   condonation <\/p>\n
     of   delay   before   the   learned   Member,   Maharashtra <\/p>\n
     Revenue Tribunal Aurangabad, on 31.12.2009.\n<\/p>\n
     .           It   is   further   stated   that   the   learned <\/p>\n
     Member,   Maharashtra   Revenue   Tribunal,   Aurangabad <\/p>\n
     on   01.11.2010   has   been   pleased   to   allow   the <\/p>\n
     Revision   Petition   and   set   aside   the   order   passed <\/p>\n
     by   the   learned   Sub-Divisional   Officer   Karjat   in <\/p>\n
     Tenancy   Appeal   No.   3   of   2007,   observing   that   in <\/p>\n
     the   present   case   the   appeal   was   filed   after   27 <\/p>\n
     years and no application for condonation of  delay <\/p>\n
     was   filed.     Hence,   present   Writ   Petition   is <\/p>\n
     preferred.\n<\/p>\n
     4.      This Court issued notice in Writ Petition.\n<\/p>\n
     Pursuant   to   that,   respondent   Nos.   3   to   6   have <\/p>\n
     filed   affidavit   in-reply,   which   is   part   of <\/p>\n
     compilation of the Writ Petition from page Nos. 42 <\/p>\n
     to 45.\n<\/p>\n
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                               8                                W.P.2377.11<\/p>\n
     5.    Learned counsel appearing for the petitioner <\/p>\n
     submitted that, the agricultural land bearing Gut <\/p>\n
     No.   680(Old   Survey   No.   296)   admeasuring   4H.23   R <\/p>\n
     situated   at   village   Telangshi,   Tq.   Jamkhed, <\/p>\n
     District Ahmendagar,is the disputed property.\n<\/p>\n
     .          Learned counsel further submitted that, <\/p>\n
     the   disputed   property   was   initially   owned   and <\/p>\n
     possessed by Maruti Babu Jaybhay and subsequently <\/p>\n
     was   inherited,   after   is   demise   by   Bhagwan   @ <\/p>\n
     Ganpati   Maruti   Jaybhay,   the   father   of   the <\/p>\n
     petitioner. Nobody was ever inducted as tenant in <\/p>\n
     the   disputed   property,   however,   false   entry   was <\/p>\n
     recorded   in   other   rights   column   of   one   Marutii <\/p>\n
     Dhondi   Jaybhay   as   tenant.   The   said   entry   was <\/p>\n
     further   deleted   vide   mutation   entry   No.   2154   and <\/p>\n
     the   land   was   in   possession   of   Bhagwan   @   Ganpati <\/p>\n
     Jaybhay.     The   respondents   had   no   concerned   with <\/p>\n
     the  disputed   property  either   as tenant  or in  any <\/p>\n
     other capacity.<\/p>\n
\n\n\n\n     .      Learned counsel further submitted that the \n\n\n\n\n                                           ::: Downloaded on - 09\/06\/2013 17:47:23 :::<\/span>\n                              9                                 W.P.2377.11\n\n<\/pre>\n
     father   of   the   petitioner,   namely,   Bhagwan   @ <\/p>\n
     Ganpati   is   simpleton   and   illiterate,   poor   rustic <\/p>\n
     villager.   The   respondents   are   men   of   means   and <\/p>\n
     influential person.   The father of the petitioner <\/p>\n
     was   brutally   assaulted   and   threatened   of   dire <\/p>\n
     consequences by the respondents, and therefore, in <\/p>\n
     order  to  save life,  he  succumbed   to the pressure <\/p>\n
     of the respondents and virtually agreed to certain <\/p>\n
     things   of   which   the   respondents   took   the   undue <\/p>\n
     advantage.   The   father   of   the   petitioner   was <\/p>\n
     subsequently   left   the   village   and   never   returned <\/p>\n
     thereafter.\n<\/p>\n
     .           Learned   counsel   further   submitted   that, <\/p>\n
     respondent   No.7   along   with   one   Haridas   Lahanu <\/p>\n
     Jaybhaye   on   12.08.1980   initiated   false   Tenancy <\/p>\n
     case No. 32-0\/1\/80, U\/S.32-O of Bombay Tenancy and <\/p>\n
     Agricultural Lands Act (Hereinafter referred to as <\/p>\n
     “said   Act”   for   the   sake   of   brevity)   before   the <\/p>\n
     Tahsildar   Karjat   on   the   basis   of   fake   tenancy <\/p>\n
     claim. The father of petitioner has fallen prey to <\/p>\n
     the   pressure   exerted   by   respondent   No.7   and <\/p>\n
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\n                              10                                W.P.2377.11<\/p>\n
     others. The respondent No.7 and others have failed <\/p>\n
     to   tender   intimation   to   the   father   of   the <\/p>\n
     petitioner   of   desire   to   exercise   the   right   of <\/p>\n
     purchase   conferred   by   section   32-O   of   the   said <\/p>\n
     Act,   within   period   of   one   year   from   the <\/p>\n
     commencement   of   alleged   tenancy.   However,   the <\/p>\n
     respondent No.7 has failed to prove that right of <\/p>\n
     purchase   was   exercised   within   one   year   from   the <\/p>\n
     commencement of tenancy and also the fact that the <\/p>\n
     intimation of desire to exercise right of purchase <\/p>\n
     was given as per form “X” as envisaged under Rule <\/p>\n
     20   of   Bombay   Tenancy   and   Agricultural   Lands   Rule <\/p>\n
     1956.\n<\/p>\n
     .         Learned   counsel   further   submitted   that, <\/p>\n
     however, no such intimation was ever given by the <\/p>\n
     respondent No.7 within period of one year in Form <\/p>\n
     ‘X’. Even the learned Tahsildar has not considered <\/p>\n
     the   said   crucial   aspect   and   thus   the   entire <\/p>\n
     proceeding stands vitiated and provisions of Rule <\/p>\n
     32-O of the said Act could not have been invoked <\/p>\n
     to perfect the claim of respondent No. 7. Even the <\/p>\n
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\n                             11                                W.P.2377.11<\/p>\n
     learned   Tahsildar   has   not   considered   the   said <\/p>\n
     aspects. Therefore, there is nothing on record to <\/p>\n
     indicate   that,   respondent   No.7   so   called   tenant <\/p>\n
     had   intimated   his   willingness   to   purchase   suit <\/p>\n
     land within one year from taking lease, therefore, <\/p>\n
     the matter is required to be remitted to Tahsildar <\/p>\n
     Karjat as per law laid down by Hon’ble Apex Court <\/p>\n
     in   the   matter   of  Ramesh   Ramnarayan   Dangare   Vs.  <\/p>\n
     Vithabai   B.   Wakchaure   and   another,  reported   in <\/p>\n
     2004(5) All MR 1151(SC).\n<\/p>\n
     .             Learned   counsel   further   submitted   that, <\/p>\n
     respondent No.7 has fraudulently posed himself as <\/p>\n
     tenant   by   putting   the   father   of   the   petitioner <\/p>\n
     under threat. The petitioner at the relevant time <\/p>\n
     was   minor   and   father   was   forced   to   leave   the <\/p>\n
     village   on   account   of   terror   of   respondent   No.7 <\/p>\n
     and   others.   Therefore,   the   petitioner   had   no <\/p>\n
     knowledge   regarding   the   decision   rendered   by <\/p>\n
     Tahsildar and could not be subjected to challenged <\/p>\n
     immediately.\n<\/p>\n
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                              12                                W.P.2377.11\n\n     .     It is further submitted that, the petitioner \n\n<\/pre>\n
     is   illiterate   and   after   getting   knowledge <\/p>\n
     immediately preferred Appeal No. 3 of 2007 before <\/p>\n
     Sub-Divisional   Officer,   Karjat   challenging   the <\/p>\n
     order passed by the learned Tahsildar.  Because of <\/p>\n
     inadvertence on the part of advocate the separate <\/p>\n
     application   for   delay   condonation   could   not   be <\/p>\n
     preferred,   but   learned   Sub-Divisional   officer, <\/p>\n
     Karjat vide order dated 19.08.2009 partly allowed <\/p>\n
     the   appeal   and   directed   the   Tahsildar   to   verify <\/p>\n
     the   record   of   disputed   property   since   year   1950 <\/p>\n
     and   also   to   consider   the   same   in   light   of   the <\/p>\n
     provisions of the  Bombay Tenancy and Agricultural <\/p>\n
     Lands   Act.   It   has   been   observed   by   the   learned <\/p>\n
     Sub-Divisional Officer that, on the relevant date <\/p>\n
     one Maruti Dhondi was shown as tenant and the said <\/p>\n
     entry   has   been   subsequently   cancelled   vide <\/p>\n
     Mutation Entry No. 1632. It has been also observed <\/p>\n
     that   the   record   is   not   traceable   which   leads   to <\/p>\n
     suspicion   and   further   alienation   of   the   suit <\/p>\n
     property is illegal.\n<\/p>\n
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                             13                                W.P.2377.11\n\n     .        Learned counsel further submitted that it \n\n<\/pre>\n
     is  also crystal  clear  that  the respondents   i. e.\n<\/p>\n
     so called tenants have been successful in proving <\/p>\n
     and  establishing,  as to when  and  how they  become <\/p>\n
     tenant   on   the   suit   property.   The   learned   Sub-\n<\/p>\n
     Divisional   Officer   has   precisely   remanded   the <\/p>\n
     matter to verify the factual aspects, as the basis <\/p>\n
     claim of the respondents regarding their so called <\/p>\n
     tenancy   was   false,   baseless   and   fraudulent.\n<\/p>\n
     Therefore,   the   proceedings   u\/S.32-O   of   the   said <\/p>\n
     Act were not maintainable an order passed thereon <\/p>\n
     is illegal, non-est and nullity in eyes of law.\n<\/p>\n
     .       Learned counsel appearing for the petitioner <\/p>\n
     further submitted that,   the disputed property is <\/p>\n
     ancestral   property   of   the   petitioner   and   his <\/p>\n
     father   Bhagwan.   Nobody   ever   was   inducted   as <\/p>\n
     tenant.     One   Maruti   Dhondi   Jaybhay   was   illegally <\/p>\n
     shown   as   tenant   to   disputed   property,   but <\/p>\n
     subsequently   vide   Mutation   Entry   No.   2154   entry <\/p>\n
     regarding the said tenant was deleted.\n<\/p>\n
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                               14                                W.P.2377.11\n\n     .     Learned counsel further submitted that, the \n\n<\/pre>\n
     respondent No.7 Chakradhar and others fraudulently <\/p>\n
     on or about year 1980, filed proceeding U\/s.32 of <\/p>\n
     the   said   Act,   in   absence   of   any   tenancy   and <\/p>\n
     without notifying any date as to when and how they <\/p>\n
     acquired the status of tenant.\n<\/p>\n
     .         learned counsel further submitted that, no <\/p>\n
     intimation   expressing   desire   to   purchase   the <\/p>\n
     disputed   property   was   ever   given   by   the <\/p>\n
     respondents to the father of the petitioner within <\/p>\n
     period   of   one   year   from   the   date   of   their   so <\/p>\n
     called tenancy, in Form ‘X’ as per Rule 20 of the <\/p>\n
     Bombay   Tenancy   and   Agricultural   Lands   Act   and <\/p>\n
     Rules   1956   and   as   per   Section   32-O   of   the   said <\/p>\n
     Act,   therefore,   the   proceedings   filed   by   the <\/p>\n
     respondents   under   Section   32-O   of   the   said   Act <\/p>\n
     were itself not maintainable and misconceived. The <\/p>\n
     learned   Tahsildar   has   not   appreciated   the   said <\/p>\n
     fact.<\/p>\n
\n\n\n\n     .      Learned counsel further submitted that, the \n\n\n\n\n                                            ::: Downloaded on - 09\/06\/2013 17:47:23 :::<\/span>\n                              15                                W.P.2377.11\n\n<\/pre>\n
     matter   can   be   remanded   to   Tahsildar   to   find   out <\/p>\n
     whether intimation was given or not by the tenant <\/p>\n
     in prescribed form, within period of one year from <\/p>\n
     the alleged tenancy.   The most suspicious part is <\/p>\n
     that, the record is shown to be have misplaced and <\/p>\n
     untraceable,   in   order   to   favour   the   respondents.\n<\/p>\n
     The litigants should not suffer for the fault and <\/p>\n
     inadvertence on the part of advocate.\n<\/p>\n
     .           Learned   counsel   appearing   for   petitioner <\/p>\n
     invited   my   attention   to   the   reported   judgment   of <\/p>\n
     Supreme   Court   in   the   case   of  Ramesh   Ramnarayan  <\/p>\n
     Dangare   Vs.   Vithabai   B.   Wakchaure   and   another, <\/p>\n
     reported   in      2004(5)   All   MR   1151(SC),                      in <\/p>\n
     particular,   para   No.5   of   the   said   judgment   and <\/p>\n
     submitted   that,   in   the   present   case   nothing   is <\/p>\n
     brought   on   record   showing   that   tenant   had <\/p>\n
     intimated   his   willingness   to   purchase   suit   land <\/p>\n
     within   one   year   from   taking   lease.   Therefore,   he <\/p>\n
     submits that it is necessary to remit this matter <\/p>\n
     back   by   giving   opportunity   to   the   petitioner   to <\/p>\n
     file application for condonation of delay to find <\/p>\n
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\n                              16                                W.P.2377.11<\/p>\n
     out   whether   intimation   was   given   by   tenant   or <\/p>\n
     not?.\n<\/p>\n
     .       Learned counsel further invited my attention <\/p>\n
     to  the reported  judgment   of Supreme  Court  in  the <\/p>\n
     matter   of  Pandurang     Dnyanoba   Lad   Vs.   Dada   Rama  <\/p>\n
     Methe  reported   in  1976(2)SCC   236  and   submitted <\/p>\n
     that, Section 32-O of the said Act applies only to <\/p>\n
     tenancies   created   after   the   tillers’   day.   It <\/p>\n
     provides   that   in   respect   of   such   tenancies,   a <\/p>\n
     tenant   desirous   of   exercising   the   right   of <\/p>\n
     purchase   must   give   an   intimation   to   the   landlord <\/p>\n
     and   the   Tribunal   within  one   year   from   the <\/p>\n
     commencement   of   his   tenancy.     However,   in   the <\/p>\n
     present   case,   there   is   nothing   on   record   showing <\/p>\n
     that such intimation was given to the landlord by <\/p>\n
     the   tenant.   Therefore,   the   learned   counsel <\/p>\n
     appearing   for   petitioner   would   submit   that   the <\/p>\n
     petition deserves to be allowed.\n<\/p>\n
     6.    On the other hand, learned counsel appearing <\/p>\n
     for   respondent   Nos.   3   to   6   submits   that,   the <\/p>\n
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\n                               17                                W.P.2377.11<\/p>\n
     prayer   of   the   petitioner   for   remanding   back   the <\/p>\n
     matter   will   not   survive   any   purpose,   because <\/p>\n
     purchase certificate U\/Sec. 32(M) of the said Act <\/p>\n
     is   already   issued   by   the   Tahsildar,   Jamkhed   in <\/p>\n
     favour   of   Tenant   on   27.07.1981   and   the   said <\/p>\n
     Certificate   is   not   challenged   by   the   original <\/p>\n
     landlord   and   present   petitioner   before   Sub-\n<\/p>\n
     Divisional   Officer   nor   before   this   Hon’ble   Court <\/p>\n
     in   this   Writ   Petition.     As   per   section   32(M)   of <\/p>\n
     the said Act 1948, “Purchase Certificate” shall be <\/p>\n
     conclusive   evidence   of   purchase”.   Here   the <\/p>\n
     petitioner   is   challenging   proceeding   U\/Sec.   32-O <\/p>\n
     of the said Act, the order passed by Tahsildar on <\/p>\n
     31.08.1980,   but   the   tenant   had   already   complied <\/p>\n
     with   the   legal   proceeding   U\/Sec.32-O   of   the   said <\/p>\n
     Act,   and   deposited   the   compromise   amount   of   Rs.\n<\/p>\n
     3,500\/-   before   the   Tahsildar.   Learned   counsel <\/p>\n
     further   submitted   that,   purchase   certificate   has <\/p>\n
     been issued by Tahsildar in favour of the tenant, <\/p>\n
     which   is   not   challenged   by   the   landlord   and   the <\/p>\n
     petitioner   till   today.   Hereafter,   it   becomes <\/p>\n
     conclusive and final against the landlord and the <\/p>\n
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\n                              18                                W.P.2377.11<\/p>\n
     petitioner.   Though,   the   matter   will   get   remanded <\/p>\n
     and   appeal   is   allowed,   thereafter,   also   the <\/p>\n
     tenant’s   right   will   not   get   affected,   because <\/p>\n
     “Purchase Certificate” became conclusive and final <\/p>\n
     against   the   landlord   and   the   petitioner.     This <\/p>\n
     Certificate   is   intentionally   suppressed   by   the <\/p>\n
     petitioner   on   this   ground,   the   petitioner   is   not <\/p>\n
     entitled to any relief.\n<\/p>\n
     .           In support of his submission, the learned <\/p>\n
     counsel   placed   reliance   on   the   judgment   of   this <\/p>\n
     Court in the matter of Smt. Ramkuwar W\/o Ramkisha  <\/p>\n
     Pallod   (Deceased   through   L.Rs.)   Vs.   Shri  <\/p>\n
     Krushnanath Sajan Belhekar and another reported in <\/p>\n
     2010(5)ALL   MR,529.   In   this   case,   the   learned <\/p>\n
     Single   Judge   has   taken   a   view   that   “Purchase <\/p>\n
     Certificate” is issued in favour of Tenant U\/Sec.\n<\/p>\n
     32(M)of   the   said   Act,   therefore,   right   stood <\/p>\n
     crystallized in favour of tenant. The Certificate <\/p>\n
     is   not   challenged,   it’s   become   final   against <\/p>\n
     original   landlord.   Fact   of   issue   of   Certificate <\/p>\n
     was suppressed in Writ Petition. Held, petitioner <\/p>\n
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\n                              19                                W.P.2377.11<\/p>\n
     is not entitled to any relief.\n<\/p>\n
     .      Learned counsel further submitted that, the <\/p>\n
     petitioner   stated   in   his   petition   that   the <\/p>\n
     original   landlord   is   dead,   but   he   has   not   given <\/p>\n
     specific date of death and he has not produced any <\/p>\n
     document on record to support his submission that, <\/p>\n
     his   father(Original   landlord)   is   dead   and   his <\/p>\n
     legal   heirs   on   record.     It   is   further   submitted <\/p>\n
     that, the original landlord is alive and presently <\/p>\n
     residing at village Ujjaini, Tq. Indpaur, District <\/p>\n
     Pune.   This fact is also intentionally suppressed <\/p>\n
     by the petitioner, also in his rejoinder, in para <\/p>\n
     No.6  and  page No.61,   the petitioner  is  silent  on <\/p>\n
     this   point.   Therefore,   the   petitioner   has   no <\/p>\n
     locus-standi   to   file   any   appeal.   Learned   counsel <\/p>\n
     further     submitted   that,   the   petitioner   has <\/p>\n
     suppressed   the   material   fact   and   mislead   the <\/p>\n
     Court,   hence,  this  Writ Petition  is liable   to be <\/p>\n
     dismissed.  <\/p>\n
\n\n\n\n     .           Learned   counsel   further   submitted   that, \n\n\n\n\n                                           ::: Downloaded on - 09\/06\/2013 17:47:23 :::<\/span>\n                              20                                 W.P.2377.11\n\n<\/pre>\n
     tenancy   had   commenced   from   1980-1981,   so   far <\/p>\n
     further   requirement   of   proceeding,   respondents <\/p>\n
     filed   application   within   one   year   under   section <\/p>\n
     32-O   of   the   said   Act,   in   Tenancy   Case   No.   32-\n<\/p>\n
     O-1\/80   on   12.08.1980,   before   Tahsildar,   Jamkhed <\/p>\n
     for   claiming   the   right   of   tenancy   before   the <\/p>\n
     Tahsildar. The Tahsildar recorded findings in the <\/p>\n
     affirmative at page No.53.\n<\/p>\n
     .         Learned   counsel   further   submitted   that   in <\/p>\n
     this  proceeding  U\/S.32-O of the  said  Act   before <\/p>\n
     the   Tahsildar,   original   landlord   Bhagwant   @ <\/p>\n
     Ganpati   Maruti   Jaybhay   appeared   and   given   his <\/p>\n
     written   statement,   in   which   he   admitted <\/p>\n
     respondents   rights   as   tenant   on   the   land.   The <\/p>\n
     Tahsildar   recorded   his   statement   and   finding, <\/p>\n
     which is at Page No.52, in the order passed by the <\/p>\n
     Tahsildar   on   31.08.1980,   compromise   of   the <\/p>\n
     purchase amount of         Rs. 3,500\/- between the <\/p>\n
     landlord   and   the   tenant.   This   finding   is   also <\/p>\n
     recorded by the Tahsildar at Page No. 54 and 55, <\/p>\n
     in   the   said   order   passed   by   the   Tahsildar   on <\/p>\n
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\n                             21                                W.P.2377.11<\/p>\n
     31.08.1980.\n<\/p>\n
     .         Learned counsel further submitted that, it <\/p>\n
     is  admitted  by  the original  landlord   and same  is <\/p>\n
     recorded   by   the   competent   authority,   and <\/p>\n
     therefore, estoppal is attract on that point. This <\/p>\n
     petitioner   has   no   locus-standi   to   file   appeal <\/p>\n
     after   27   years.   Original   landlord   had   knowledge <\/p>\n
     about   the   order   passed   by   the   Tahsildar   on <\/p>\n
     31.08.1980,   but   he   has   not   challenged   the   order <\/p>\n
     till today and   it becomes final against him. The <\/p>\n
     learned   counsel,   in   support   of   this   submission <\/p>\n
     placed reliance upon the reported judgment of Apex <\/p>\n
     Court   in   the   matter   of  State   of   Punjab   Vs. <\/p>\n
     Gurudevsingh   and   Ashok   Kumar   (AIR   1992   S.C.111)<\/p>\n
     (Para   No.8).  In   this   judgment,   the   Apex   Court <\/p>\n
     observed   that,   “if   the   statutory   time   limit   is <\/p>\n
     expired,   the   Court   cannot   give   the   declaration <\/p>\n
     sought for.”\n<\/p>\n
     .         Learned   counsel   further   submits   that,   the <\/p>\n
     present   petitioner   preferred   an   appeal   in   2007 <\/p>\n
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\n                              22                                W.P.2377.11<\/p>\n
     before   Sub-Divisional   Officer,   Karjat   as   Appeal <\/p>\n
     No.   3   of   2007   against   the   order   passed   by   the <\/p>\n
     Tahsildar   on   31.08.1980,   and   that   appeal   was <\/p>\n
     allowed in absence of application for condonation <\/p>\n
     of   delay   and   without   condoning   the   delay.     The <\/p>\n
     learned  Sub-Divisional  Officer  allowed  the appeal <\/p>\n
     without   jurisdiction,   tenant   challenging   that <\/p>\n
     order   before   Maharashtra   Revenue   Tribunal,   in <\/p>\n
     Revision   Petition   No.   6\/B\/2010\/AN.     The   Tribunal <\/p>\n
     allowed the Appeal on 01.11.2010 and set aside the <\/p>\n
     order   passed   by   Sub-Division   Officer,   Karjat   in <\/p>\n
     Tenancy   Appeal   No.   03   of   2007,   which   is   illegal <\/p>\n
     and   without   jurisdiction.   The   learned   counsel <\/p>\n
     further   submitted   that,   Whether   in   absence   of <\/p>\n
     proper   application   of   condonation   of   delay   or <\/p>\n
     without   condoning   the   delay,   the   Sub-Divisional <\/p>\n
     officer   have   jurisdiction   to   allow   the   Appeal <\/p>\n
     filed   by   the   petitioner   after   27   years?.     In <\/p>\n
     support   of   this   submission   he   placed   reliance   on <\/p>\n
     the reported judgment of Apex Court in the matter <\/p>\n
     of Ragho Singh Vs. Mohan Singh and others reported <\/p>\n
     in AIR 2011 SCW\/2351(Para No.6).\n<\/p>\n
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                              23                                W.P.2377.11\n\n     .     Learned counsel further submitted that, once \n\n<\/pre>\n
     the proceedings Under section 32-O of the said Act <\/p>\n
     is over and the tenant had deposited the purchase <\/p>\n
     amount   and   the   Tahsildar   issued   “Purchase <\/p>\n
     Certificate” U\/Sec.32(M)of the said Act, it is the <\/p>\n
     conclusive   evidence,   the   Tahsildar   has   no <\/p>\n
     jurisdiction  to initiate  fresh proceedings  U\/Sec.\n<\/p>\n
     32-O   of   the   said   Act.     In   support   of   this <\/p>\n
     submission, learned counsel placed reliance on the <\/p>\n
     reported   judgment   of   this   Court   in   the   case   of <\/p>\n
     Sidappa Rama Patil Vs. Sattur Laman Kole(Deceased  <\/p>\n
     by L.Rs.) reported in 2005(1) ALL MR 123(Para Nos.\n<\/p>\n
     6 and 7).\n<\/p>\n
     .    The learned counsel appearing for respondents <\/p>\n
     submitted   that,   Haridas   Lahanu   Jaybhay   is   one   of <\/p>\n
     the   protected   tenant   in   tenancy   Case   No. <\/p>\n
     32(O)\/1\/80, but he was not made a party in Appeal <\/p>\n
     before   the   Sub-Divisional   Officer   and   this   Writ <\/p>\n
     Petition   also   Hence,   this   Writ   Petition   is   not <\/p>\n
     maintainable   for   non   joinder   of   the   necessary <\/p>\n
     parties and same is liable to be dismissed.\n<\/p>\n
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                              24                                W.P.2377.11<\/p>\n
     7.     I have given due consideration to the rival <\/p>\n
     submissions   of   the   parties.   It   appears   that,   on <\/p>\n
     02.08.2007,   the   petitioner   herein   through   his <\/p>\n
     Advocate sent a legal notice to respondent Nos. 3 <\/p>\n
     to 7 and claimed the possession of the land, but <\/p>\n
     the   respondents   have   not   paid   any   heed.   In   the <\/p>\n
     year   2007,   the   petitioner   filed   Appeal   No.   3   of <\/p>\n
     2007   before   Sub-Divisional   Officer,   Karjat, <\/p>\n
     challenging   the   order   passed   by   the   learned <\/p>\n
     Tahsildar,   Karjat   in   Tenancy   Case   No.   32-O\/1\/80, <\/p>\n
     therefore, it is clear that the petitioner herein <\/p>\n
     challenged   the   order   passed   by   the   Tahsildar, <\/p>\n
     Karjat   in   tenancy   Case   No.   32-O\/1\/80,   after   27 <\/p>\n
     years.  It further appears that respondent Nos. 3, <\/p>\n
     5 and 6 contested the Appeal before Sub-Divisional <\/p>\n
     Officer,   and   Sub-Divisional   Officer   by   his   order <\/p>\n
     dated   19.08.2009   allowed   the   Appeal   and   directed <\/p>\n
     the   Tahsildar   to   further   inquire   and   verify   the <\/p>\n
     7\/12 extract and all Mutation Entries of suit land <\/p>\n
     under   the   provisions   of   Tenancy   Law   and   further <\/p>\n
     directed to decide the proceedings within a period <\/p>\n
     of six months from the date of order.\n<\/p>\n
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                                25                                 W.P.2377.11<\/p>\n
     8.         Being aggrieved by the Judgment and order <\/p>\n
     of Sub-Divisional officer, respondent Nos. 3 to 6 <\/p>\n
     herein,   challenged   the   said   judgment   and   order <\/p>\n
     before   the   learned   Member,   Maharashtra   Revenue <\/p>\n
     Tribunal Aurangabad by filing Revision Application <\/p>\n
     NO. 6-B-2010-AN.   The learned Member, Maharashtra <\/p>\n
     Revenue   Tribunal,   Aurangabad   on   01.11.2010   was <\/p>\n
     pleased to allow the Revision Application and set <\/p>\n
     aside   the   judgment   and   order   of   Sub-Divisional <\/p>\n
     Officer, Karjat, in Tenancy Appeal No. 03 of 2007.\n<\/p>\n
     9.   I have carefully perused the reasons recorded <\/p>\n
     by   the     learned   Member,   Maharashtra   Revenue <\/p>\n
     Tribunal, Aurangabad, the Tribunal in its judgment <\/p>\n
     in   para   No.   6   to   9   has   assigned   the   reasons   for <\/p>\n
     allowing   Revision   Application.     learned   Member, <\/p>\n
     Maharashtra   Revenue   Tribunal,   Aurangabad   has <\/p>\n
     adverted   to   observations   made   by   learned   Sub-\n<\/p>\n
     Divisional Officer, Karjat, where he has observed <\/p>\n
     that   the   Appeal   was   not   within   period   of <\/p>\n
     limitation, however, further it is observed that, <\/p>\n
     it   is   necessary   to   examine   the   merits   of   the <\/p>\n
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\n                              26                                W.P.2377.11<\/p>\n
     Appeal.   Therefore,     learned   Member,   Maharashtra <\/p>\n
     Revenue   Tribunal,   Aurangabad   relying   upon   the <\/p>\n
     judgment of this Case in the case of Ballumala Vs. <\/p>\n
     M\/s J.J. Builders, 2003 MH.L.J., 238 held that the <\/p>\n
     Court has no jurisdiction to condone the delay, in <\/p>\n
     absence   of   proper   application   under   section   5   of <\/p>\n
     the Limitation Act, 1963.\n<\/p>\n
     .           In the present case, the appeal was filed <\/p>\n
     after   27   years,     before   Sub-Divisional   Officer, <\/p>\n
     Karjat,   from   the   order   under   appeal   came   to   be <\/p>\n
     passed.  The appeal was filed after the prescribed <\/p>\n
     period   of   limitation.   No   application   for <\/p>\n
     condonation of delay was filed. Therefore, learned <\/p>\n
     Member,   Maharashtra   Revenue   Tribunal,   Aurangabad <\/p>\n
     held  that,  “the  Authority  below  have  no power  or <\/p>\n
     jurisdiction to entertain or decide the Appeal, in <\/p>\n
     absence   of   application   for   condonation   of   delay.\n<\/p>\n
     In   absence   of   application   for   condonation   of <\/p>\n
     delay,   appeal   would   not   have   been   admitted   and <\/p>\n
     taken up for hearing. Therefore,   learned Member, <\/p>\n
     Maharashtra Revenue Tribunal, Aurangabad held that <\/p>\n
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\n                              27                                W.P.2377.11<\/p>\n
     Sub-Divisional   Officer   has   exceeded   its <\/p>\n
     jurisdiction  in as  much as  it decided  the  Appeal <\/p>\n
     in   absence   of   any   application   for   condonation   of <\/p>\n
     delay.   Therefore,   learned   Member,   Maharashtra <\/p>\n
     Revenue Tribunal, Aurangabad quashed and set aside <\/p>\n
     the judgment and order of Sub-Divisional Officer.\n<\/p>\n
     10.       I have independently scrutinized the facts <\/p>\n
     and law involved in the case and I find that view <\/p>\n
     taken   by   the   learned   Member,   Maharashtra   Revenue <\/p>\n
     Tribunal,   Aurangabad   is   reasonable   and   also   in-\n<\/p>\n
     consonance with the evidence brought on record. I <\/p>\n
     do not find any infirmity in the view taken by the <\/p>\n
     learned   Member,   Maharashtra   Revenue   Tribunal, <\/p>\n
     Aurangabad.\n<\/p>\n
     .     It is admitted position that, the petitioner <\/p>\n
     herein   challenged   the   order   passed   by   the <\/p>\n
     Tahsildar in the year 1980, after 27 years, before <\/p>\n
     the   Sub-Divisional   Officer.   The   Appeal   was   filed <\/p>\n
     by   the   petitioner   in   the   year   2007.   During   the <\/p>\n
     course of argument, the learned counsel appearing <\/p>\n
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\n                              28                                W.P.2377.11<\/p>\n
     for   the   petitioner   was   called   upon   to   explain <\/p>\n
     inordinate   delay   in   filing   the   Appeal.   He <\/p>\n
     submitted   that   the   petitioner   was   minor   at   the <\/p>\n
     relevant time.   The petitioner was present in the <\/p>\n
     Court and on enquiry from the petitioner himself, <\/p>\n
     counsel   for   the   petitioner   informed   this   Court <\/p>\n
     that   the   petitioner   is   born   in   the   year   1979.\n<\/p>\n
     Even,   if   it   is   presumed   that   the   petitioner   was <\/p>\n
     minor till 1997, after attending age of 18 years, <\/p>\n
     at  the most  Appeal  should  have  been  preferred  in <\/p>\n
     the   year   1997-1998.   However,   admittedly,   in   the <\/p>\n
     present case the Appeal is filed in the year 2007.\n<\/p>\n
     It   is   admitted   position   that,   no   application   for <\/p>\n
     condonation   of   delay   was   filed   along   with   Appeal <\/p>\n
     before the Sub-Divisional Officer. This Court had <\/p>\n
     occasion   to   consider   some   what   similar   point   in <\/p>\n
     the   case   of  Sidappa   Rama   Patil   Vs.   Suttar   Laman  <\/p>\n
     Kole(Deceased   by   L   Rs.)   and   others   supra,   this <\/p>\n
     Court in para No.6 and 7 held that:\n<\/p>\n
               “6.   After hearing counsel for the
\n             parties   I   have   no   hesitation   in
\n             taking   the   view   that   it   is   un-\n<\/p><\/blockquote>\n
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                        29                                 W.P.2377.11<\/p>\n
      necessary   for   this   Court   to   burden
\n      the judgment with the merits of the  <\/p>\n
      rival   claim   with   regard   to   the
\n      relationship   between   the   parties.   I <\/p>\n
      find force in the argument canvassed
\n      on behalf of the petitioners that as
\n      the appeal preferred by the landlord  <\/p>\n
      was   barred   by   limitation,   it   was
\n      obligatory   that   it   was   accompanied
\n      by   an   application   for   condition   of <\/p>\n
      delay,   or   at   least   a   prayer   in   the  <\/p>\n
      memo   of  appeal   itself   for  condoning
\n      the delay in filing the appeal; and  <\/p>\n
      further   that   Appellate   Authority
\n      ought   to   have   condoned   the   delay
\n      before   deciding  the   case   on  merits.\n<\/p><\/blockquote>\n
      It   is   well   settled   that   if   the
\n      appeal   is  barred   by  limitation,   the  <\/p>\n
      appellate   court   would   assume
\n      jurisdiction   only   if   the   delay   in  <\/p>\n
      filing   such   an   appeal   was   to   be
\n      condoned   in   the   first   place.   The
\n      delay can be condoned only if such a
\n      prayer   is   formally   made   by   the  <\/p>\n
      appellant.   The   court   on   its   own
\n      cannot find out some reason to grant
\n      the   relief   which   is   not   prayed   by
\n      the   appellant.   In  the   present  case,
\n      it   is   common   ground   that   no   formal  <\/p>\n
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\n                       30                               W.P.2377.11<\/p>\n
      application for condonation of delay
\n      in filing the appeal was filed nor a <\/p>\n
      formal   prayer   for   condoning   the
\n      delay   in   filing   the   appeal   was  <\/p>\n
      incorporated   in   the   appeal   memo.
\n      Moreover,   there   is   nothing   on
\n      record(at least brought to my notice  <\/p>\n
      by   the   counsel   for   the   respondent)
\n      that   the   Appellate   Authority   had
\n      condoned        the       delay          before  <\/p>\n
      entertaining   the   appeal   which   was  <\/p>\n
      filed by the landlord after lapse of
\n      10   years.     The   argument   that   the  <\/p>\n
      appellant   landlord   had   no   notice
\n      about   the   earlier   proceeding   cannot
\n      be   the   basis   to   ignore   the   order  <\/p>\n
      which   was   operating   against   the
\n      landlord-appellants.   That   order   can <\/p>\n
      only   put   in   the   issue   on   filing
\n      appeal   which   is   in   accordance   with  <\/p>\n
      law. Mere filing of appeal, which is
\n      barred   by  limitation,  is   not  enough
\n      but   it   was   necessary   to   be
\n      accompanied   with   an   application   for  <\/p>\n
      condonation   of   delay   and   the   delay
\n      should   be   first   excused   only   when
\n      the   Appellate   Court   can   assume
\n      jurisdiction   to   enter   upon   the
\n      merits   of   the   case.   This   view   is  <\/p>\n
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\n                       31                                W.P.2377.11<\/p>\n
      supported by the decisions relied on
\n      behalf   of   the   petitioners   as <\/p>\n
      referred to above.   In this view of
\n      the   matter   it   necessarily   follows  <\/p>\n
      that   the   Appellate   Authority   had  no
\n      jurisdiction   to   proceed   to   decide
\n      the   matter   on   merits   in   favour   of  <\/p>\n
      the   landlord.   This   crucial   aspect
\n      has   been   completely   overlooked   by
\n      the   Tribunal   while   deciding   the  <\/p>\n
      revision   application,   which   is   the  <\/p>\n
      manifest   error   resulting   in   serious
\n      miscarriage   of   justice.   The  <\/p>\n
      Tribunal,   on   the   other   hand,   found
\n      that even though the appeal was not
\n      filed   within   limitation,   but   since  <\/p>\n
      the landlord was not served with the
\n      notice, of the earlier order  passed  <\/p>\n
      in the earlier proceeding, there was
\n      no   question   of   delay   as   that  <\/p>\n
      decision   was   nullity.   This   is   not
\n      the   correct   legal   position.   The
\n      order   does   not   become   nullity
\n      because of non-service of notice but  <\/p>\n
      it   would   be   at   best   a   case   of
\n      irregularity which can be questioned
\n      in   appeal   before   the   appropriate
\n      authority.   On   the   above   reasoning,
\n      the order of the appellate authority  <\/p>\n
                                    ::: Downloaded on – 09\/06\/2013 17:47:23 :::<\/span>
\n                       32                                W.P.2377.11<\/p>\n
      as   well  as   the  revisional  authority
\n      will   have   to   be   reversed   without  <\/p>\n
      going   into   the   merits   of   the   rival
\n      controversy,   as  there  was   no  prayer  <\/p>\n
      for   condonation   of   delay   in   filing
\n      the   appeal   nor   such   an   order   has
\n      been   factually   passed   by   the <\/p>\n
      appellate authority.\n<\/p>\n
      7.  In so far as the order passed by  <\/p>\n
      the   Tahsildar   dated   December   31,  <\/p>\n
      1972   in   the   subsequently   initiated
\n      32G proceedings is concerned, I have  <\/p>\n
      no   hesitation   in   taking   the   view
\n      that   initiation   of   fresh   32   G
\n      proceeding   by   the   Tahsildar   was  <\/p>\n
      without   jurisdiction.   Once   the
\n      proceeding   was   finally   decided   by  <\/p>\n
      him   and   on   which   basis   certificate
\n      under   section   32(M)   of   the   Act   has  <\/p>\n
      already been issued in favour of the
\n      tenant,   on   passing   order   in   the
\n      earlier proceeding the Tahsildar had
\n      become   functus   officio     and   it   was  <\/p>\n
      not   open   to   him   to   once   again
\n      initiate   fresh   proceeding   under
\n      section   32G   of   the   Act.   Viewed   in
\n      this   perspective,   the   order   passed
\n      by   the  Tahsildar   dated   December   31,  <\/p>\n
                                    ::: Downloaded on – 09\/06\/2013 17:47:23 :::<\/span>
\n                              33                                W.P.2377.11<\/p>\n
             1972 deserves to be set aside being
\n             without   jurisdiction.     This   crucial  <\/p>\n
             aspect is once again glossed over by
\n             the   Appellate   Authority   as   well   as <\/p>\n
             the   Revisional   Authority,   in   spite
\n             of   such   a   grievance   being   made   by
\n             the petitioners.”\n<\/p>\n
     11.   The Supreme Court in the case of Ragho Singh  <\/p>\n
     Vs.  Mohansingh  and  others  cited  supra  has  take a <\/p>\n
     view that if the Appeal is filed beyond time and <\/p>\n
     if   application   for   condonation   of   delay   is   not <\/p>\n
     filed,   the   delay   cannot   be   deemed   to   have   been <\/p>\n
     condoned and Appeal is liable to be dismissed.\n<\/p>\n
     12.   In another case, State of Punjab and others  <\/p>\n
     Vs. Gurudev Singh and Ashok Kumar cited supra, the <\/p>\n
     Supreme Court held that:\n<\/p>\n
             “The   party   aggrieved   by   the
\n             invalidity   of   the   order   has   to
\n             approach   the   Court   for   relief   of  <\/p>\n
             declaration   that   the   order   against
\n             him   is   inoperative   and   not   binding
\n             upon   him.  He  must  approach  the  Court
\n             within   the   prescribed   period   of  <\/p>\n
                                           ::: Downloaded on – 09\/06\/2013 17:47:23 :::<\/span>
\n                       34                                W.P.2377.11<\/p>\n
      limitation.   If   the   statutory   time
\n      limit   expires   the   Court   cannot   give  <\/p>\n
      the   declaration   sought   for.   Further
\n      the words   “right to sue” under Art.\n<\/p><\/blockquote>\n
      113 ordinarily mean the right to seek
\n      relief by means of legal proceedings.
\n      Generally,   the   right   to   sue   accrues  <\/p>\n
      only when the cause of action arises,
\n      that   is,   the   right   to   prosecute   to
\n      obtain   relief   by   legal   means.   The  <\/p>\n
      suit   must   be   instituted   when   the  <\/p>\n
      right   asserted   in   the   suit   is
\n      infringed  or  when  there  is  clear   and <\/p>\n
      unequivocal   threat   to   infringe   that
\n      right   by   the   defendant   against   whom
\n      the   suit   is   instituted.   When   the  <\/p>\n
      employee   is   dismissed   from   service
\n      his  right  to  continue  in  the  service  <\/p>\n
      is   infringed.   If   an   Act   is   void   or
\n      ultra   vires   it   is   enough   for   the <\/p>\n
      Court   to   declare   it   so   and   it
\n      collapses   automatically.   It   need   not
\n      be set aside. The aggrieved party can
\n      simply  seek  a  declaration  that  it  is <\/p>\n
      void   and   not   binding   upon   him.   A
\n      declaration   merely   declares   the
\n      existing   state   of   affairs   and   does
\n      not   ‘quash’   so   as   to   produce   a   new
\n      state of affairs. But nonetheless the  <\/p>\n
                                    ::: Downloaded on – 09\/06\/2013 17:47:23 :::<\/span>
\n                              35                                 W.P.2377.11<\/p>\n
             impugned dismissal order has at least
\n             a de facto operation unless and until  <\/p>\n
             it is declared to be void or nullity
\n             by a competent body or Court.”\n<\/p>\n
     13.   In the present Writ Petition, the petitioner <\/p>\n
     has   not   disclosed   that   Certificate   under   Section <\/p>\n
     32(M) of the said Act has been issued in favour of <\/p>\n
     respondent   Nos.   3   to   6.   It   is   admitted   position <\/p>\n
     that there is no challenge to such certificate by <\/p>\n
     the petitioner.   I find considerable force in the <\/p>\n
     argument   of   learned   counsel   appearing   for <\/p>\n
     respondent Nos. 3 to 6 that in some what similar <\/p>\n
     situation,   this   Court   in   the   case   of  Smt.\n<\/p>\n
     Ramkunwar W\/o Ramkishan Pallod Vs.Shri Krushnanath  <\/p>\n
     Sajjan Belhekar and other cited supra held in para <\/p>\n
     Nos. 9 10, and 11, which read thus:.\n<\/p>\n
             “9.   Even this Court in a case of ”\n<\/p><\/blockquote>\n
             Bhaskar   Naryan       Kuvalekar       & \n             others       Vs.       Bhaskar   Narayan  \n\n\n\n\n\n<\/pre>\n
             Kuvalekar & others, reported in 1999
\n             (4) BCR 711:1998(4) ALL MR 403]”  has
\n             observed thus :- <\/p><\/blockquote>\n
             ”   It   is   apparent   from   the   aforesaid  <\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 17:47:23 :::<\/span>
\n                        36                                 W.P.2377.11<\/p>\n
      provision       of         Section         32-M
\n      that     the   certificate   issued   under  <\/p>\n
      this       section         is        conclusive
\n      evidence   of   purchase.   The said  <\/p>\n
      certificate was not challenged by the
\n      petitioner          in         appeal.   The
\n      certificate  under    section     32-\n<\/p>\n
      M  was issued in favour of respondent
\n      No.   1   in   the     year       1960       and
\n      that     conclusively establishes that  <\/p>\n
      respondent No. 1 was purchaser of the <\/p>\n
      land which would mean that respondent
\n      No.   1   was   in   possession   of   the   land  <\/p>\n
      in   question   as   tenant   on   1st   April,
\n      1957.       The       certificate   issued
\n      under     section     32-M       having  <\/p>\n
      attained   finality       in       all
\n      respects,       it     was     not   open     to  <\/p>\n
      the   Tahsildar    to   declare  the
\n      said       certificate     as       nullity  <\/p>\n
      in   the proceedings initiated by the
\n      petitioner  under section 32-G of the
\n      Bombay Tenancy Act.   Even   if    it
\n      is       assumed     that   petitioner  <\/p>\n
      had         no       notice         of     the
\n      proceedings   initiated   by   the
\n      respondent   No.   1   under   section   32-G
\n      and   pursuant   thereto                         the
\n      certificate      under   section 32-M  <\/p>\n
                                      ::: Downloaded on – 09\/06\/2013 17:47:23 :::<\/span>
\n                        37                                W.P.2377.11<\/p>\n
      was   issued   in   favour   of   respondent
\n      No.   1,   upon   acquiring   the   knowledge  <\/p>\n
      of   such   certificate   having   been
\n      issued in favour of   respondent   No.  <\/p>\n
      1, the petitioner could     have   only
\n      challenged its legality in appeal and
\n      not by way proceedings  under section  <\/p>\n
      32-G   of   the   Bombay   Tenancy   Act.   The
\n      Tahsildar   acted   without   jurisdiction
\n      in declaring the certificate   issued  <\/p>\n
      in     favour of respondent No. 1, as  <\/p>\n
      nullity   and   grossly   erred   in
\n      declaring     the       petitioner       as  <\/p>\n
      deemed   purchaser       on       the       face
\n      of     the   certificate   issued   under
\n      section   32-M   in   favour   of  <\/p>\n
      respondent       No.     1.       The     said
\n      order passed   by   the     Tahsildar  <\/p>\n
      being   patently   erroneous   has   rightly
\n      been   set   aside   by   the   Collector,  <\/p>\n
      Sindhudurg.   The     Maharashtra   Revenue
\n      Tribunal       also     did     not       commit
\n      an   error in  affirming  the correct
\n      order         of          the         Collector,  <\/p>\n
      Sindhudurg”.\n<\/p>\n
      10.    In   the   present case,   the
\n      certificate   under   Section   32-M   has
\n      already   been   issued   in   the   year  <\/p>\n
                                     ::: Downloaded on – 09\/06\/2013 17:47:23 :::<\/span>
\n                       38                                 W.P.2377.11<\/p>\n
      1987,   such       certificate   is     the
\n      conclusive   evidence     of   purchase  <\/p>\n
      price.    It   is   also not disputed
\n      that   the   purchase   price   has   been  <\/p>\n
      paid.   The   rights   having   been
\n      crystallized in favour of the tenants
\n      i.e.   the   respondents   the   same   could  <\/p>\n
      not   have   been   challenged   only   by
\n      filing   appeal   as   provided   under   the
\n      statute.       The   said   certificate   is  <\/p>\n
      conclusive   against   the   landlords.   In  <\/p>\n
      view   of   the,   law   laid   down   by   the
\n      Apex   Court   and   our   High   Court  <\/p>\n
      referred   supra.   I   am   of   the   view,
\n      that the said     certificate     has
\n      become   final,             in               such  <\/p>\n
      circumstances,       even       if       the
\n      arguments   of     Shri   Kulkarni   are  <\/p>\n
      accepted that the legal heirs  should
\n      be  allowed    to  further     adduce  <\/p>\n
      the       evidence     in   respect       of
\n      personal     cultivation    and   for
\n      that   purpose   remand   the   matters,
\n      still   it   will   not   serve     any <\/p>\n
      purpose,         as       the       certificate
\n      under   Section   32-M   as   against   these
\n      petitioners have become final.\n<\/p>\n
      11.     The       conduct       of       the  \n      petitioners       also   needs     to       be \n\n\n\n\n                                     ::: Downloaded on - 09\/06\/2013 17:47:24 :::<\/span>\n                              39                                 W.P.2377.11\n\n            taken  into   consideration,    while  \n<\/pre>\n
            exercising   the   jurisdiction   under  <\/p>\n
            Article   227   of   the   Constitution   of
\n            India.        The         petitioners             have  <\/p>\n
            suppressed   the   material   fact   about
\n            issuance of certificate in favour  of
\n            the       respondents\/tenants                    under  <\/p>\n
            Section    32-M,   though   the  same
\n            has       been   issued     in       the     year
\n            1987       and       the     present       writ  <\/p>\n
            petitions     are       filed     in     the  <\/p>\n
            year       1991.       The   petitioners   are
\n            guilty   of   suppression   of   material  <\/p>\n
            facts,   on   this   count   also   the
\n            petitioners   would   be   dis-entitled   to
\n            claim any relief. ”\n<\/p>\n
     14.   In that view of the matter, in my considered <\/p>\n
     opinion,   the   view   taken   by   the   learned   Member, <\/p>\n
     Maharashtra  Revenue  Tribunal  is inconsonance  with <\/p>\n
     law laid down by the Supreme Court as well as this <\/p>\n
     Court. So, I do not find any substance in the Writ <\/p>\n
     Petition   and   same   stands   dismissed.   Rule   stands <\/p>\n
     discharged.                             Sd\/-\n<\/p>\n
                                      [S.S. SHINDE, J.] <\/p>\n
     MTK<\/p>\n
                                            ::: Downloaded on – 09\/06\/2013 17:47:24 :::<\/span>
\n                         40                          W.P.2377.11<\/p>\n
                                ::: Downloaded on – 09\/06\/2013 17:47:24 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Gorakh vs The Sub-Divisional Officer on 29 September, 2011 Bench: S. S. Shinde 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-243072","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nGorakh vs The Sub-Divisional Officer on 29 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/gorakh-vs-the-sub-divisional-officer-on-29-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Gorakh vs The Sub-Divisional Officer on 29 September, 2011 - 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