Sidappa Rama Patil vs Sattur Laxman Kole Deceased By His ...
2004 Latest Caselaw 653 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This petition under Article 227 takes exception to the judgment and order dated 11-12-1981 passed by the Maharashtra Revenue Tribunal, Kolhapur, in Revision Nos. MRT KP 243/80 and MRT KP 244/80. Briefly stated the land in question is survey No. 72 admeasuring 4 acres 7 gunthas at Village Saroli, Tal : Gadhinglaj, Dist : Kolhapur. The grandfather of the petitioner and respondent No. 4 were shown in the Revenue Record as cultivating suit land along with Bhairu Shinde during period 1946 to 1950. The petitioners claim that their predecessor was protected tenant and being so proceeding under Section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as said Act) were initiated. It appears from the record that proceeding under Section 32G of the said Act were initiated in respect of said land in which the Agricultural Land Tribunal determined the purchase price to be paid by the tenants. That order was passed on March 26, 1962. It is seen that the petitioners paid requisite amount towards purchase price on March 26, 1962, whereafter mutation entry No. 1646 came to be effected in December 1963, as well as certificate under Section 32M of the said Act was issued in favour of the petitioner's father. Issuance of such certificate was conclusive proof of purchase of the suit land by the petitioner's father and said Bhairu. It is seen that in spite of issuance of certificate under Section 32M of the Act in favour of the petitioner's predecessor and said Bhairu, the Addl. Tahsildar ALT for reasons best known to him initiated proceeding under Section 32G in respect of the same suit land which was however, dropped by judgment and order dated December 31, 1972 holding that the so called tenants were cultivating the suit land in capacity of mortgagees and the amount of loan was completely satisfied and that there was no relation of landlord and tenants existing. The purchasers taking clue from this order, the correctness of which will be addressed later, chose to prefer an appeal on February 16, 1974 - questioning the correctness of the order dated February 20, 1962 passed by the ALT, Gadhinglaj, determining purchase price in favour of the petitioners and said Bhairu. It is common ground that this appeal as was filed almost after more than 10 years, was not accompanied by any formal application for condonation of delay in filing the appeal nor such prayer was made in the memo of appeal. Moreover, there is nothing on record to show that the Appellate Authority has condoned the delay in filing the said appeal before entertaining the same on merits.

2. Be that as it may, as the subsequent order was passed by the ALT on December 31, 1972 which amounted to re-opening the proceedings which had already concluded in favour of the petitioners and said Bhairu, the petitioners questioned the said order of the Tahsildar dated December 31, 1972 by an independent appeal.

3. Both the said appeals came to be disposed of by common judgment and order of the Special Land Acquisition Officer No. 3, Kolhapur dated August 29, 1980. By that order the appellate authority allowed the appeal preferred by the landlord and dismissed the appeal preferred by the petitioners. Against this decision the petitioners carried the matter in revision by filing two separate revision applications before the Maharashtra Revenue Tribunal. Instead of deciding the core issue raised on behalf of the petitioners, the M.R.T. proceeded to re-appreciate the evidence on record and affirmed the view taken by the Appellate Authority and consequently dismissed both the revision applications preferred by the petitioners, this decision is subject matter of challenge in the present writ petition.

4. Mr. Joshi for the petitioner contends that appeal preferred by the landlord against decision of the Tahsildar dated 26-3-1962, after lapse of 10 years was not maintainable because the same was neither accompanied by a formal application for condonation of delay nor a formal prayer was made for condoning delay in filing the appeal in the memo of appeal nor the appellate authority has passed a formal order condoning the delay in filing the appeal before entering upon the merits of the controversy. According to him, the course adopted by the Appellate Authority and which is confirmed the Revisional Authority was not permissible in law; for which reason the decision of the Appellate Authority and of the Tribunal will have to be set aside. To buttress his arguments reliance is placed on the decision of our High Court reported in 1998(3) Mh.LJ. 542 in case of Shrikant Gangaram Teli v. Bhaskar Narayan Kuvalekar and Ors., and another decision as reported in 2001(4) Mh.LJ. 43 in case of Pandharinath Rambhau Kavitke v. Shaikh Hamaja Shaikh Husen. He further submits that once 32G proceedings were already concluded before the Tahsildar and on that basis the petitioner had already deposited requisite purchase price and the authority also proceeded to issue certificate under Section 32M of the Act, it was not open to the Tahsildar to once again initiate proceeding under Section 32G of the Act. In other words, it is contended that the subsequent proceedings under Section 32G of the Act were without jurisdiction and any order passed in such proceeding will have to be set aside. Mr. Joshi also addressed this court on the merits of the controversy and also criticized the findings recorded by the Revisional Authority against the petitioners to contend that the order as passed by the tribunal is unsustainable and the findings so recorded cannot be substantiated from the record.

5. On the other hand, Mr. Dalvi for the contesting respondent landlord has supported the view expressed by the Revisional Tribunal. He further contends that the ground regarding limitation was not argued before the Appellate Authority and no fault can be found with the view expressed by the Revisional Authority that although the appeal filed by the landlord was beyond period of limitation, the same was maintainable because the enquiry which was concluded by the Tahsildar in 1962 was nullity and not binding on the landlord as no notice was given to the landlord of that enquiry. He submits that it will be inappropriate for this court to set aside the orders which are passed in favour of the landlords by the Revenue Authority and to interfere with the findings of facts so recorded in the impugned judgment. He submits that this petition be dismissed being devoid of merits.

6. After hearing counsel for the parties I have no hesitation in taking the view that it is unnecessary for this court to burden the judgment with the merits of the rival claim with regard to the relationship between the parties. I find force in the argument canvassed on behalf of the petitioners that as the appeal preferred by the landlord was barred by limitation, it was obligatory that it was accompanied by an application for condonation of delay, or at least a prayer in the memo of appeal itself for condoning the delay in filing the appeal; and further 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 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 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 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 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. Insofar as the order passed by the Tahsildar dated December 31, 1972 in the subsequently initiated 32G proceeding is concerned, I have no hesitation in taking the view that initiation of fresh 32G proceeding by the Tahsildar was without jurisdiction. Once the proceeding was finally decided by him and on which basis certificate under Section 32M 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, 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.

8. In the circumstances, this writ petition succeeds. The impugned judgment and order dated 11-12-1981 passed in two revision applications preferred by the petitioners is quashed and set aside as well as the order passed by the Appellate Authority, SLA Officer No. 3, Kolhapur dated 29-8-1980 as well as the order passed by the Additional Tahsildar and ALT No. 8 Gadhinglaj, dated 31-12-1972 are set aside. No order as to costs.