Hariram Pandurang Gaikwad And ... vs Balbhimrao Krishnajirao Kadam ...
2002 Latest Caselaw 721 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This writ petition, under Article 227 of the Constitution of India, takes exception to the order passed by the Maharashtra Revenue Tribunal, Pune, dated July 15, 1988 in M.R.T. S.H. I 18/86 (TNC. B 42/86).

2. Briefly stated the land in question is bearing Gat No. 813 admeasuring 3.75 H. situated at village Kadlas, Taluka Sangola, District Solapur. The petitioners were tenants in the suit land since the time of original landlady Smt. Satvashiladevi Vijayraje Pawar. The said landlady was widow on the tillers day i.e. 1-4-1957. As a consequence of that the petitioners' right to purchase stood postponed. However, the said landlady died on 4-7-1971. According to the petitioners they were not aware of the death of the landlady as she died at Athni in the State of Karnataka and they had no intimation in that behalf. It is only when the mutation entry in respect of the suit land was changed on 10-12-1979 and the heirs of the original landlady were brought on record, the petitioners acquired knowledge of the death of their landlady. According to the petitioners, therefore, they issued notice giving intimation of their intention to purchase the suit land on 29-11-1980. The petitioners contend that this intimation has been given within the statutory period of two years from the date of knowledge of death of the landlady and therefore the same was valid and could be effectuated in declaring the petitioners as deemed to have purchased the suit land. Subsequently, proceedings under section 32-G were initiated in which the respondents resisted the claim of the petitioners that they have right to purchase the suit land. According to the respondents, the petitioners ought to have exercised the right within the statutory period and they have failed to do so. In so far as the notice given by the petitioners to Shri B.P. Misal on 29-11-1980, it was contended that at the relevant time Shri B.P. Misal was not authorised and appointed as Power of Attorney, however, he was appointed only on 3-4-1982. It was therefore contended that the notice given to Shri B.P. Misal on 29-11-1980 was of no consequence and that notice cannot be said to be intimation given to the respondents landlord, as required by provisions of the Act. The Tahsildar by order dated 31-12-1983 rejected the claim of the respondents and held that notice given by the petitioners was valid. The Tahsildar has observed thus:

"It is clear that notice was served to landlord. The acknowledgment of registered post is among the case papers. The same notice tenant also send to the Tribunal by R.P.A.D. and it is also served. After receipt of the notice the landlord or Tribunal was not informed to the tenant that the notice was to valid so it is clear that the notice was correct and valid."

On this premise the Tahsildar proceeded to hold that the petitioners have exercised their right to purchase the suit land and therefore determined the purchase price of the land and passed the following order:

"I, S.K. Dange, Additional Tahsildar order that the price of land Rs. 1890/- should be paid before 31-12-1984. After receipt of the purchase price from tenant, 32-M certificate should be issued to the tenant."

3. Against this decision the respondents carried the matter in appeal. It is seen from the judgment of the Appellate Authority that specific contention was raised even before the Appellate Authority on behalf of the respondents that notice given by the tenant on 29-11-1980 was invalid on the ground that the said notice was addressed to B.P. Misal, who was authorised as Power of Attorney only on 3-4-1982. The Appellate Authority, however, answered the said objection on the following reasons:

"Both the tenants have not known as to who is the landlord after Smt. Satwasheeladevi. They have exercised his right accordingly to Tenancy Act. Shri B.P. Misal, Advocate was received the notice from the tenant on behalf of the landlord on 2-12-1980. It is clear that notice was served to landlord. After receipt of the notice the landlord or Tribunal was not informed to the tenant that the notice was not valued so it is clear that the notice was correct and valued."

Accordingly the appeal preferred by the respondents was dismissed by the Assistant Collector, Pandharpur by order dated September 30, 1985.

4. Against this decision the respondents carried the matter in revision before the Maharashtra Revenue Tribunal, Pune. The Tribunal on the other hand, by the impugned judgment and order dated July 15, 1988 has allowed the revision application and set aside the orders passed by the authorities below. The Tribunal has observed in para 7 of its decision that the tenants paid rent to the landlord for the year 1970-71 to 1980-81. The Tribunal has further observed that if the tenants were cultivating the suit land from the time of their father and they were paying rent to the landlords they ought to have produced evidence to justify their contention regarding possession till the landlady died sometimes in the year 1971. No doubt this observation made by the Tribunal is inappropriate, albeit unwarranted. However, the Tribunal then observed that, admittedly, the petitioners tenants sent notice to Shri Misal on 29-11-1980 which was duly received. However, what is seen from the record, as observed by the Tribunal, is that Shri Misal was authorised as Power of Attorney only on 3-4-1982. The Tribunal therefore held that notice sent to Shri Misal on 29-11-1980 cannot be said to be notice served to the landlord, for Shri Misal was not authorised to receive any intimation on behalf of the landlord at the relevant time. It is mainly on this premises the Tribunal held that notice was invalid and not binding on the landlords. Since the notice was invalid, the Tribunal observed that, the tenants failed to send intimation of their intention to purchase the suit land within the statutory period and having failed to do so, they have lost their right to purchase the suit land. Accordingly, revision application came to be allowed.

5. This decision of the Tribunal is assailed before this Court. The learned Counsel for the petitioners contends that the Tribunal ought not to have ventured to dwell upon question of fact for the first time in exercise of its revisional jurisdiction when two authorities below had already returned clear finding that the landlord has no objection of validity of notice and therefore the intimation given by the petitioners to Shri Misal, Advocate on 29-11-1980 should be held to be valid and binding on the landlord. Although respondents have been served and appearing through Counsel, none appears for them.

6. Having considered the submission canvassed on behalf of the petitioners to my mind, this is not a case for interference under Article 227 of the Constitution of India. No doubt the Tribunal proceeded to record finding that the notice was sent by the petitioners tenants to Shri Misal on 29-11-1980 and that Shri Misal was authorised as Power of Attorney only on 3-4-1982, however, that finding is based on the materials which are already on record. This very contention was pressed into service on behalf of respondents before the Appellate Authority, as is recorded in its orders referred to above, for challenging the validity of the notice. However, the Appellate Authority without answering the said aspect held that after receipt of notice no grievance was made by the landlords about the validity of the notice. This observation of the Appellate Authority as well as of the first authority, to my mind, would be begging the question. The grievance made by the respondents was that notice given to Shri Misal on 29-11-1980 was of no avail because Shri Misal at the relevant time was not authorised to receive such notice on behalf of the landlord. There is nothing on record that Shri Misal was authorised to receive the notice on behalf of the landlords on 29-11-1980 or even thereafter. It is relevant to note that said Shri Misal was examined as witness and in his cross-examination he has clearly stated that he was authorised as Power of Attorney only on 3-4-1982. If that be so, the Tribunal was right in observing that the notice sent to Misal being in anterior point of time would be of no consequence and surely not binding on landlords, for he was not authorised to receive such notice. There is nothing on record to indicate that on what basis the petitioners tenants thought it appropriate to give notice to Shri Misal on 29-11-1980. In such a situation, the Tribunal has rightly exercised revisional jurisdiction to remedy the manifest error committed by the two courts below. Inasmuch as, on facts as established from the record referred to above, no other view was possible. The inescapable conclusion is that no valid intimation was given by the petitioners tenants to the landlords within the statutory period; and if that fact was to be answered against the petitioners tenants, no fault can be found with the ultimate decision of the Tribunal in allowing the revision application and setting aside the orders passed by the two authorities below.

7. Hence this petition fails. The same is dismissed. No order as to costs.

Petition dismissed.