Kana Bala Patil Since Deceased ... vs Dr. Usha Gopal Hiranandani
2003 Latest Caselaw 1068 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This writ petition under Article 227 of the Constitution of India takes exception to the judgment and order dated January 4, 1990, in revision being No. TEN. A. 165 of 1989 passed by the Maharashtra Revenue Tribunal, Bombay.

2. The lands in question are five pieces of agricultural lands bearing Gut No. 882 at village Wadhiv and Gut Nos. 547, 902, 891 and 416 at village Saravali, in taluka Palghar, district Thane. The petitioner was cultivating the suit lands prior to 1st April, 1957 in the capacity as tenant. At the relevant time, the owner of the suit lands, namely, the predecessor of the respondent, Laxmibai Narayan Hate, being widow on the tillers' day, the tillers' day stood postponed by virtue of Section 32F of the Bombay Tenancy and Agricultural Lands Act. The predecessor of the respondent, however, died on 15th July, 1980. After the death of the said Laxmibai, the respondent has inherited the suit lands as owner, being the legal representative of the deceased landlady. The petitioner, however, filed application under Section 32G of the Act for fixation of purchase price on the assumption that he has become deemed purchaser. That application was filed sometime in 1985. The said application was, however, rejected on 24th July, 1986, on the ground that the petitioner failed to exercise his option within the meaning of Section 32F(l)(a) of the Act within the statutory period, on account of which the purchase has become ineffective. That decision has been allowed to become final, which fact is not disputed. It is on that basis the respondent preferred subject application on 16th September, 1987, which proceedings were treated to be one under Section 32P of the Act for possession of the suit lands. That application was allowed by the first authority on May 25, 1988, on the reasoning that the petitioner having failed to exercise his right to purchase, the purchase has become ineffective and the order as passed by the tenancy authority in the earlier proceedings has become final and would bind the parties. Against this decision and order of possession, the petitioner carried the matter in appeal. The appellate authority allowed the appeal preferred by the petitioner and chose to remand the proceedings to the first authority to re-examine the entire matter afresh. The appellate authority has set aside not only the order passed on the subject application, but also the order passed in the earlier proceedings under Section 32G dated 24th July, 1986, which had already attained finality. This decision was challenged by the respondent before the Maharashtra Revenue Tribunal. The Tribunal, by the impugned judgment and order, has set aside the order of the appellate authority holding that the appellate authority has clearly exceeded its jurisdiction. It has been found that since the decision in Section 32G proceedings dated 24th July, 1986 had become final and remained unchallenged, the question of setting aside that order so as to relegate the parties, was obviously not subject matter for consideration in the appeal. It further found that since it is undisputed that the order dated 24th July, 1986 remained unchallenged, the question of entertaining the claim of the petitioner will not arise, but the purchase having become ineffective, the consequences under Section 32P would follow and, therefore, the order, as passed by the first authority, on 25th May, 1988 came to be restored. The Tribunal accordingly allowed the revision preferred by the respondent and restored the order passed by the Tahsildar by the impugned judgment and order dated 4lh January, 1990.

3. Mr. Railkar, for the petitioner, contends that the application as filed ought to have been dismissed on the ground that the same was barred by limitation and, in any case, because it was not preferred within reasonable time. He submits that it is well settled that insofar as the proceedings under Section 84(c) of the Act are concerned, where no provision is made for limitation to initiate those proceedings, it is consistently held that that would mean that the proceedings should be initiated within reasonable time. He submits that the same principle be applied to the proceedings under Section 32P of the Act, as the language employed in Section 32P is virtually the same as is employed in Section 84(c) of the Act. He further contends that the respondent in the application has clearly asserted that the possession of the suit lands be made over to her for personal and bona fide cultivation; and if that is so, the application was essentially one under Section 31 of the Act and the same is not within limitation.

4. The above submissions are countered by Mr. Sali, for the respondent. He submits that the argument relating to limitation or delay in filing the application is being raised for the first time before this Court, that too across the Bar. He submits that no such contention was ever raised before the Court below, or, for that matter, is articulated in the memorandum of writ petition and, therefore, it is not open to consider that plea for the first time across the Bar, as the respondent is taken by surprise by that argument. Mr. Sali contends that the analogy applied by Mr. Railkar for giving same interpretation to the provisions of Section 32P of the said Act, as has been given in case of Section 84(c) of the Act, is untenable. He submits that both the provisions operate in different fields. According to him, Section 84(c) is a provision for restoration of possession where a transfer or acquisition of land is invalid. In other words, possession of the land is unauthorised; and in such a case, the person questioning the unauthorised possession or the authority initiating action under Section 84(c) is obliged to take recourse to that action within reasonable time; whereas, insofar as the remedy under Section 32P is concerned, the same is available to the landlord, once the purchase has become ineffective. There can be no fetters in invoking such remedy at the instance of the landlord, because even if the purchase has become ineffective, the relationship between the parties of landlord and tenant is not automatically snapped as there is no express provision in that behalf. In other words, if the relationship between the parties was to continue, nothing would prevent the landlord to invoke the remedy under Section 32P of the Act, as, in this case, it was filed soon after the decision in the earlier proceedings under Section 32G between the parties, which concluded on 24th July, 1986 and the subject application was filed on 16th September, 1987. On this reasoning, contends Mr. Sali, there is no substance in the objection raised on behalf of the petitioners. Mr. Sali further contends that although the application, as filed, mentioned that the respondent intended to take possession of the suit lands for personal and bona fide cultivation, all throughout the matter has proceeded and has been considered by the authorities by treating the proceedings as one under Section 32P of the Act and, in that case, there is no question of establishing the bona fide requirements of the landlord, as such. He, therefore, submits that the respondent cannot be non-suited at this stage on the said contention and especially because even this contention is being raised for the first time before this Court.

5. After having considered the rival submissions, I have no hesitation in observing that the petition is devoid of merits. Insofar as the argument relating to limitation and delay in filing the subject application is concerned, I find force in the argument of Mr. Sali. As rightly contended by him, this contention is being raised for the first time, that too across the Bar during the course of arguments. Such plea cannot be entertained so as to result in causing prejudice to the respondent. To get over this position, Mr. Railkar contends that the question about limitation can be decided on the facts, which can be discerned from the record. However, as observed earlier, the question is being raised for the first time, that too across the Bar; and that cannot be countenanced. In any case, I am inclined to accept the argument of Mr. Sali that the analogy in respect of purport of Section 84(c) cannot be pressed into service for deciding the proceedings under Section 32P of the Act. The purpose of invoking Section 84(c) is entirely different, where the action is initiated in respect of unauthorised transfer or acquisition, whereas, in the present case, the possession of the tenant cannot be said to be unauthorised as such, but the tenant is only denuded of his right to purchase the suit lands by virtue of the statutory provisions, having failed to send intimation within the prescribed period, expressing his willingness to purchase the suit lands. In such a case, although the tenant is denuded of his right to purchase, that does not mean that his possession is per se unauthorised. In such a case, the question of restricting the remedy under Section 32P of the Act requiring the landlord/landlady, as the case may be, to institute application for possession within specified time does not arise. Understood thus, 1 find no substance in the argument of Mr. Railkar that the application, as filed by the respondent, ought to have been rejected at the threshold, as the same was not filed within the reasonable time. This submission also overlooks the fact that the original landlady died in the year 1980 and thereafter proceedings under Section 32G were commenced by the petitioner, which ultimately culminated on 24th July, 1986 with the decision of the Tahsildar holding that the purchase has become ineffective and the petitioner was not entitled to purchase the suit lands. It is only thereafter the respondent could have taken recourse to the proceedings under Section 32P of the Act and which was so resorted to on 16th September, 1987 by filing a formal application. If that is so, the question of application not being filed within reasonable time does not arise at all. Even on this reasoning, the objection is devoid of merits.

6. The other contention raised on behalf of the petitioner is that the application was essentially filed on the ground available under Section 31 of the Act, whereas the authority proceeded to treat the same under Section 32P of the Act As observed earlier, this contention has been raised for the first time before this Court. If that is so, it is not necessary to address on this matter, because the petitioner not only appeared in the proceedings, but, later on, also filed appeal and, even then, no such grievance was made. If the petitioner has participated in the proceedings, which was clearly treated as one under Section 32P of the Act by the authorities, at this stage in writ petition, the petitioner cannot be permitted to make grievance that the proceedings under Section 32P of the Act were incompetent. It is not the case of the petitioner that the authority, which has decided the application, had no jurisdiction to entertain and try that application. If that is so, no fault can be found with the authority for having treated the application as one under Section 32P of the Act. For the aforesaid reasons, there is no substance even in this objection.

7. Insofar as the merits is concerned, it is seen that the Tribunal has found that the appellate authority exceeded jurisdiction in not only interfering with the order passed in the subject application, but also the order passed in the earlier proceedings under Section 32G dated 27th July, 1986, which was, in fact, allowed to attain finality. No fault can be found with this reason assigned by the Tribunal. The basis on which the appellate authority has proceeded is, therefore, inappropriate and clearly in excess of jurisdiction. If that is so, the Tribunal was well within its jurisdiction to remedy that mischief, which was manifest and would have caused serious miscarriage of justice. The Tribunal has also found that the earlier proceedings under Section 32G having been allowed to become final, the findings recorded therein would bind the parties. No fault can be found even with that reasoning. Once the said findings would bind the petitioner, it would necessarily follow that the proceedings under Section 32P were only consequential on the basis of that finding. In this proceeding, it was not open to the petitioner to once again contend that he has exercised his right within the statutory period provided under Section 32F of the Act. In the circumstances, no fault can be found either with the approach or the conclusion reached by the revisional authority. 8. Mr. Railkar contends that the respondent is doctor by profession and she would not cultivate the lands personally, which is expected from the respondent after taking over possession of the suit lands. This submission clearly overlooks that the proceedings were treated as one under Section 32P of the Act. In such proceedings, the requirement or obligation of the landlord to cultivate personally does not arise and cannot be the basis for denying relief to the landlord. Moreover, it is common ground that during the pendency of this writ petition, the respondent has already taken over possession of the suit lands in terms of the impugned judgment and order passed by the Tribunal; as no stay was operating on account of dismissal of the writ petition in default. Nothing is placed on record before this Court to show that the respondent has not cultivated the lands personally. In any case, that cannot be the basis for deciding proceedings under Section 32P of the Act.

9. Accordingly, I find no substance in this writ petition. Hence the same is dismissed. Rule discharged. No order as to costs.

10. Certified Copy expedited.