Bombay High Court
Limbaji Shankar Munde vs 6 The State Of Maharashtra on 16 December, 2009
Bench: R. M. Borde
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 685 OF 2002
Limbaji Shankar Munde
( Deceased through LRs)
a) Lochanabai w/o Limbaji Munde
age 60 years, occ. household
r/o Revli,Tq. Parli
Dist. Beed.
b) Vithal s/o Limbaji Munde
age 30 years, occ. agril
r/o as above.
c) Bhagwat s/o Limbaji Munde
age 25 years, occ. agril
r/o as above.
d) Kamalabai Vasant Shep
age 50 yers, occ. household
r/o Shepwadi, Tq. Ambajogai
Dist. Beed.
e) Vimalbai Pandharinath Phad
age 45 years, occ. household
r/o Dharmapuri, Tq. Parli
Dist. Beed.
f) Sumanbai Shivaji Tidke
age 40 years, occ. household
r/o Rui, Tq. Dharur
Dist. Beed. .. PETITIONERS
VERSUS
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2
1 Bhaurao Baliram Munde
deceased through LRs
1-A Subhabai Bhaurao Mundhe
age 60 years.
1-B Manik Bhaurao Mundhe
age 50 years,
1-C Vishwabhar Bhaurao Mundhe
age 45 years
1-D Bharat Bhaurao Mundhe
( deceased through LRs)
i Ashabai w/o bhaurao Mundhe
age 30 years
ii Usha d/o Bhaurao Mundhe
age 5 years (minor)
iii Pinki Bharat Mundhe
age minor
No. ii & iii minors under the
guardianship of mother Ashabai
w/o Bharat Mundhe,
r/o at post Khanapur,
Tq. Wadwahe
Dist. Beed.
1-E Chintu Bhaurao Mundhe
age 35 years
1-F Navnit Bhaurao Mundhe
age 20 years.
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3
All major, r/o Ravli,Tq. Majalgaon
Dist. Beed.
2 Bhivsen Namdeo Munde
( deceased through LRs)
A Parubai w/o Bhivsen Munde
( deceased through LRs)
i Shrirang s/o Bhivsen Munde
age 45 years, occ. agril
ii Vaijinath s/o Bhivsen Munde
age 40 years, occ. agril
iii
Gorakhnath s/o Bhivsen Munde
age 30 years, occ. agril
All r/o revli, Tq. Majalgaon
Dist. Beed.
B Shrirang s/o Bhivsen Mundhe
age 45 years, occ. agri.
C Vaijinath s/o Bhivsen Mundhe
age 40 years, occ. agriculture
D Gorakhnath s/o Bhivsen Mundhe
age 30 years, occ. agriculture
All r/o Revli, Tq. Majalgaon
Dist. Beed.
3 The Additional Tahsildar
Sub-Division Office
Ambejogai, Dist. Beed.
4 The Deputy Collector
Land Reforms Beed
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4
Dist. Beed.
5 The Member,
Maharashtra Revenue Tribunal
Aurangabad.
6 The State of Maharashtra
.. RESPONDENTS
Mr. R.T. Nagargoje, Advocate for the petitioners.
Mr. N.N. Jadhav, AGP for respondent nos. 1, 3 to 6.
Mr. D.N. Patki, Advocate for respondent nos. 1-A,. 1-B, 1-C. 1-E & 1-F.
Mr. Vivek Bhavthankar, Advocate for respondent nos. 2B, 2C & 2D.
=====
CORAM : R. M. BORDE, J.
RESERVED ON : 7 November, 2009
th
PRONOUNCED ON : 16 December, 2009
th
ORAL JUDGMENT :
1 Petitioner is raising challenge to the concurrent orders passed by all
the three tenancy authorities below while rendering decision on application
tendered by respondent no. 1 herein.
2 Respondent no. 1 presented an application to the Additional
Tahsildar, Ambajogai on 9-1-1986 claiming recovery of possession of the
tenanted agricultural property. According to respondent n. 1, he was tenant
in respect of land admeasuring 17 gunthas out of survey no. 101 situate at
village Revli, Tq. Majalgaon. He was also declared as owner under section
38 of the Hyderabad Tenancy and Agricultural Lands Act. Ownership
certificate was also issued in his favour and he deposited the purchase price
with Tahsil office on 28-3-1981. It is the contention of the respondent that he
was issued ownership certificate on 16-6-1981 by tenancy authority which
came to be registered with the registering authority by him. He further
contends that he was dispossessed prior to 1-2-1957 and the respondents in
the application before the Tahsildar have enforced their possession.
Respondent / original applicant therefore claims recovery of possession of
the property by dispossessing the persons who have enforced possession
over the property.
3 Application was opposed by the respondents before the Tahsildar
including the petitioner herein by filing written say. It is the contention of the
non-applicants that the property belonged to Bhivsen Mundhe and his two
other brothers by name Arjun and Narayan. They agreed to sell the same in
favour of original non-applicant no. 2 / petitioner herein and put him in
possession. It is also contended by the non-applicants before the Tahsildar
that the applicant has lost possession since more than 30 years back and as
such he cannot claim recovery of possession. Non-applicants also dispute
correctness of the ownership certificate issued in favour of applicant /
respondent no. 1 herein.
4 After considering the rival contentions, the learned Tahsildar was
pleased to allow the application presented by the applicant / respondent
no. 1 herein and directed delivery of possession in view of the order passed
on 27-10-1987. Order passed by the Tahsildar was made subject matter of
challenge before the Deputy Collector, Land Reforms, Beed at the instance
of petitioner herein in appeal bearing no. 20/1990. Appeal came to be
dismissed by the Deputy Collector, Land Reforms, Beed by his order dt.
16-4-1990. Aggrieved petitioner carried the matter to Maharashtra Revenue
Tribunal in revision bearing case no. 160/B/91/B. The tribunal also after
considering rival contentions was pleased to dismiss the revision application
and confirm the order passed by the Tahsildar in respect of delivery of
possession of the disputed property in favour of tenant / respondent no. 1
herein.
5 I have perused the orders passed by all the three tenancy authorities
and heard arguments advanced by learned counsel for the respective
parties. Learned counsel for the petitioner raised twofold objections to the
impugned order passed by the trial court. According to the petitioner,
application tendered by respondent no. 1 before the Tahsildar is not
entertainable under section 38(E)(1) explanation of the Hyderabad Tenancy
and Agricultural Lands Act, 1050 and the remedy available to the
dispossessed tenant is by way of presenting application under section 98 of
the Act. The another objection raised by the petitioner is in respect of bar of
limitation. According to him, the application which is tendered by the
tenant after more than 30 years of his alleged dispossession is not
entertainable even under the provisions of section 38(E)(1) explanation of
the Act. Learned counsel for the petitioner submits that wherever the
relevant provision is silent in respect of limitation, remedy is required to be
availed within reasonable period. According to learned counsel for the
petitioner, the applicant has approached the tenancy authority after 30
years of alleged dispossession and as such it cannot be contended that the
tenant has knocked the doors of the authority within reasonable period.
Learned counsel for the petitioner therefore contends that the tenancy
authority ought not to have entertained the application tendered by the
dispossessed tenant after about 30 years of his alleged dispossession.
6 Reliance is placed by the petitioner on the reported judgment in the
matter of Eknath Raghoba and others vs. Somla Lalu Lamani and others
reported in 1992 Mh.L.J. 541 in support of his contention in respect of
entertainability of application under section 38-E(1) explanation of the Act.
Learned counsel for the petitioner relying upon the reported judgment
contends that the remedy under section 38-E(1) explanation is not available
to the tenant and he shall have to approach the tenancy authority under
section 98 of the Act and there is bar for entertaining application under
section 98 on account of lapsing of limitation. Thus, according to him,
tenancy authority ought to have dismissed the application tendered by the
tenant. However, reliance placed on the reported judgment is misplaced.
Judgment in the matter of Eknath Raghoba and others vs. Somla lalu Lamani
and others reported in 1992 Mh.L.J. 541 (cited supra) infact supports the case
put up by the respondent and does not in any way help the petitioner. In
the reported matter, the land in question was purchased from the land
owners on 16-7-1957 by securing registered sale-deed after issuance of
permission under section 47 of the Act. Before the sale-deed was executed
section 38-E of the Act came into operation in Beed district in view of
notification dt. 14-2-1957 and the ownership of the land stood transferred in
the name of tenant with effect from 1-2-1957. Though the tenant was in
possession of the land on the appointed date, he lost possession
subsequently and as such he presented application under section 98 of the
Act. The Deputy Collector allowed the application and, appeal against the
order passed by the Deputy Collector came to be dismissed by the
Maharashtra Revenue Tribunal. It thus transpires that the tenant was in
possession of the land on 1-2-1957 i.e. the appointed date and lost
possession thereafter. It was contended by purchaser that the availability of
remedy under section 98 was not available to the tenant and in view of the
alternate remedy under section 38-E(1) explanation. The court considering
the facts of the case in the reported matter, took a view that the case put
up by the tenant is covered by both the clauses (a) and (c) of section 98
and the alternate remedy under section 38-E(1) explanation was not
available to the tenant as the tenant was in possession on 1-2-1957, the
notified date. However, in the instant matter, the tenant claims that he has
been dispossessed prior to 1-2-1957 and as such the case put up by the
tenant / respondent no.1 herein is covered by section 38-E(1) explanation of
the Act. Relevant provision of section 38-E(1) explanation is quoted as
below :
38 E. Ownership of lands held by protected tenants to
stand transferred to them from a notified date :-
1 Notwithstanding anything in this Chapter or any law
for the time being in force or any custom, usage, decree,
contract or grant to the contrary, the Government may, by
notification in the [Official Gazette,] declare in respect of
any area and from such date as may be specified therein
that ownership of all lands held by protected tenants which
they are entitled to purchase from their landholders in such
are under any provision of this chapter shall stand
transferred to and vest in the protected tenants holding
them and from such date the protected tenants shall be
deemed to be the full owners of such land :
[ Provided that the transfer under this Sub-Section shall be
subject to condition (a) and (b) mentioned in Sub-Section
(7) of section 38 and the further condition that the extent of
the land remaining with the landholder after the purchase
of the land by the protected tenant, whether to cultivate it
personally or otherwise, shall not be less than twice the are
of a family holding :
. Provided further that where in respect of any such
land, any proceedings under section 19, 19 A or 32 is
pending on the date so notified, the transfer of ownership
of such land shall take effect on the date on which such
proceedings is finally decided and the tenant retains
possession of the land in accordance with the decision in
such proceeding.]
[ Explanation :- If a protected tenant, on account of his
being dispossessed otherwise than in the manner and by
order of the Tahsildar as provided in section 32 is not in
possession of the land on the date of the notification issued
here under then for the purpose of this sub-section, such
protected tenant shall notwithstanding any judgment,
decree, or order, of any Court, or the order of a Revenue
Board or Revenue Tribunal or other authority be deemed to
have been holding the land on the date of the notification;
and accordingly the Tahsildar shall notwithstanding
anything contained in the said section 32, either suo motu
or on the application of the protected tenant hold
summary enquiry and direct that such land in possession of
the land holder or any persons claiming through or under
him in that area, shall be taken from the possession of the
land holder of such person, as the case may be, and shall
be restored to the protected tenant and the provisions of
this section shall apply thereto in every respect as if the
protected tenant had held the land on the date of such
notification with the modification that in sub-section (3), for
the words, figures, and brackets "within ninety days from
the date specified in the Notification under sub-section (1)"
the words, figures and brackets "within ninety days from the
date of restoration of possession under the Explanation to
sub-section(1)" shall be substituted.
. The first ground of attack as contended by the petitioner therefore is
not sustainable and it has to be concluded that the application presented
by the tenant under section 38-E(1) Explanation was entertainable.
7 It is true that section 38-E(1) explanation does not provide for any
limitation for presenting an application by a tenant who is declared as
owner seeking recovery of possession. Mr. Nagargoje, learned counsel for
the petitioner vehemently contends that where a Statute is silent in respect
of limitation for availing the remedy, the litigant concerned has to approach
the court or the appropriate forum within reasonable time. According to
him, the tenant has approached the the tenancy authority after 30 years of
his dispossession and the period of 30 years cannot be construed as a
reasonable period. Reliance is placed on a judgment in the matter of
Mohan Pandurang Kashid and others vs. Anusayabai Rajaram Mane and
others reported in 2000(2) Mh.L.J. 532. The matter arose before the court in
pursuance to application tendered by owner of the land under section 29(2)
r/w section 33(b) of the Bombay Tenancy and Agricultural Lands Act for
restoration of possession. The owner had obtained certificate under section
88C of the act prior to presentation of application in question. Application
was tendered after 18 years of accrual of cause of action in the reported
matter. The learned Single Judge of this court considering the question of
delay in approaching the court has recorded in paragraph no. 13 and 16 of
the judgment that where no limitation is prescribed, steps must be taken
within reasonable time. Reliance is placed by the learned Single Judge on
the judgment of the Apex court in the matter of Mohamad Kavi Mohamad
Amin vs. Patmabai Ibrahim reported in (1997) 6 SCC 71. The matter before
the Division Bench was under the provisions of Bombay Prevention of
fragmentation and Consolidation of Holdings Act in respect of variation of
the scheme. While dealing with the matter, the Devision Bench has
recorded thus :
. Though there is no time limit prescribed under
section 32(1) for the Settlement Commissioner to vary the
scheme which has come into force, but obviously even in
the absence of any period prescribed under section 32,
the said power can only be exercised within reasonable
period in any case. What would be the reasonable period
for exercise of power under section 32(1) by the settlement
Commissioner may depend on facts and circumstances of
each case. Ordinarily exercise of such power after three
years of finalisation of scheme under section 22 may not
be justified. In the facts and circumstances of the present
case, the exercise of power by Settlement Commissioner
for variation of scheme which had come into force in the
year 1973, by initiating proceedings in the year 1988 cannot
be said to be within reasonable time.
8 In order to controvert the contentions raised by the petitioner, it is
urged by learned counsel for the respondent that where the Statute does
not prescribe period of limitation, the remedy available to the litigant cannot
be taken away by reading something which is not there in the Statute. It is
contended that the Legislation has conferred benefits on certain class of
agriculturists i.e. tenants and the Legislature in its wisdom has intentionally not
provided limitation for securing relief by the class of persons i.e. tenants. The
concerned provision is a part of beneficial legislation for advancement of
the cause of tenants and a such the remedy bestowed upon the class of
tenants cannot be taken away by prescribing bar of limitation which infact is
not provided in the Statute. It is contended that the authority relied upon by
the petitioner are not applicable to the instant case and that provisions of
the Tenancy Act are required to be interpreted differently. Reliance can be
placed on reported judgment of the Apex court in the matter of Uttam
Namdeo Mahale vs. Vithal Deo and others reported in (1997) 6 SCC 73.
Objection was raised in the proceeding initiated for execution of the order
passed under the Mamlatdar Courts Act on the ground that the remedy is
unavailed after lapse of unreasonable period. Section 21 of the Mamlatdar
Courts Act has not prescribed any limitation for execution of orders. It was
contended before the Apex court that the power can be exercised within
reasonable period and in the absence of such prescription of limitation, the
power to enforce the order is vitiated by error of law. Reliance was also
placed on the earlier judgment of the Apex court in the matter of Mohd.
Kavi Mohamad Amin vs. Fatmabhai Ibrahim repported in (1994) 1 SCC 44.
However, the Apex court turned down the contention holding thus :
. In the absence of any specific limitation provided
thereunder, necessary implication is that the general law
of limitation provided in the Limitation Act (Ac 2 of 1963)
stands excluded. The Division bench, therefore, has rightly
held that no limitation has been prescribed and it can be
executed at any time, especially when the law of
limitation for the purpose of this appeal is not there.
Where there is statutory rule operating in the field, the
implied power of exercise of the right within reasonable
limitation does not arise. The cited decisions deal with
that area and bear no relevance to the facts.
9 While dealing with the provisions of section 32(1B) of the Bombay
Tenancy and Agricultural Lands Act, 1948. The learned Single Judge has
adopted a similar view. Provisions of section 32(1B) of the Bombay Tenancy
and Agricultural Lands Act is in substance strikingly similar with the provision
of section 38-E(1) explanation of the Act. Section 32(1B) of the Act is
quoted as below :
32 Tenants deemed to have purchased land on tillers'
day :
.
[(1B) Where a tenant who was in possession on the
appointed day and who on account of his being
st
dispossessed before the 1 day of April 1957 otherwise than
in the manner rand by an order of the Tahsildar as provided
in section 29, is not in possession of the land on the said date
and the land is in the possession of the landlord or his
st
successor-in-interest on the 31 day of July 1969 and the
land is not put to a non-agricultural use on or before the last
mentioned date, then, the Tahsildar shall, notwithstanding
anything contained in the said section 29, either suo motu or
on the application of the tenant, hold an inquiry and direct
that such land shall be taken from the possession of the
landlord or, as the case may be, his successor-in-interest,
and shall be restored to the tenant; and therefore, the
provisions of this section and sections 32A to 32R (both
inclusive) shall, in so far as they may be applicable, apply
thereto, subject to the modification that the tenant shall be
deemed to have purchased the land on the date on which
the land is restored to him;
. Provided that, the tenant shall be entitled to
restoration of the land under this sub-section only if he
undertakes to cultivate the land personally and of so much
thereof as together with the other land held by him as
owner or tenant shall not exceed the ceiling area.
. Explanation - In this sub-section, "successor-in-
interest" means a person who acquires the interest by
testamentary disposition or devolution on death.]
. It was argued before the learned Single Judge that although the
provision of section 32(1B) does not provide for any limitation, the remedy
has to be exhausted within reasonable time. The learned Single Judge of
this court while dealing with the matter of Shankar M. Pawar vs. Anusayabai
@ Ambabai w/o Punja Avhad reported in 2002(1) BCJ 231 while considering
the beneficial rights conferred in favour of the class of tenants has turned
down similar objection and recorded in paragraph no. 11 of the judgment
thus :
11 Section 32(1B) deals with the beneficial rights in favour
of the tenants and provides remedy for enforcement of such
rights. The legislature in its wisdom, has introduced the said
provision in the statute with the object to give necessary
protection to the weaker section of the society. It cannot be
forgotten that the law of limitation merely bars the remedy
but, it does not destroy the right. AT the same time, it is to be
borne in mind that the courts cannot act on principle that
every procedure is to be taken as prohibited unless it is
expressly provided but should proceed on the converse
principles that every procedure is understood to be
permissible till it is prohibited by law. In other words, unless
remedy provided for enforcement of right is circumscribed by
the period of limitation, it is not permissible to import the
boundaries upon such remedial measures by way of
interpreting the provisions of law as it would amount to
legislate upon the statutory provision by the Court which, in
fact, is the exclusive jurisdiction of the legislature. Even while
interpreting the provisions under the Limitation Act itself, the
scope of Limitation Act cannot be extended by implication,
and party's right to approach the Court cannot be throttled
unless the Limitation Act expressly provides that the right is
barred. Any decision in that regard, if required, one can
safely refer to the decision of the Division Bench of this Court
in the matter of Madhavprasad Kalkaprasad Nagam v. S.G.
Chandavarkar, Certainly it is no part of the duties of the
Court to deprive a litigant of the benefit of any exemption
from the period of limitation for enforcement of right by
importing the words of limitation not found in the statute. It is
to be noted that the section 32(1B) was introduced in the
statute in the year 1969 and the legislature being fully
conscious about the limitation provided under section 29(1)
and yet, after expiry of period of 12 years, the right of
restoration of the land was still guaranteed to the tenant
under the said provision of law. This clearly discloses the
intention of the legislature to ensure the benefit under the
said Act to the aggrieved tenants and who were not vigilant
in exercising their rights. In other words, while considering the
provisions of section 32(1B), the principle that law comes to
the assistance of the vigilant, not to the sleepy has to be
ignored.
. Ratio laid down in the reported judgment squarely applies to the case
in hand. Moreover, the interpretation put to provisions of section 32(1)(b) of
the Act also can be adopted while interpreting the provisions of section 38-
E(1) explanation as both provisions are in substance strikingly similar.
10 Similar question arose as to whether there is any limitation provided for
tendering application under section 84 of the Bombay Tenancy and
Agricultural Lands Act 1948 and the same was considered by the Division
Bench of this court in the case of Ghanshyamprasad natwarlal Bhatt vs.
gendalsingh Vakhatsing and others in Special Civil Application no. 764/1955.
The Division Bench has observed thus :
. "You cannot apply limitation by analogy. Limitation
either bars a remedy or extinguishes a right of a party and it is
unthinkable that any Court would bar a remedy or extinguish
a right when the Legislature has not done so by importing the
principles of some other statute and drawing analogy from
some other provision of law. If there is no limitation provided
by the legislature then the only thing that the Tribunal has to
do is to permit the application to be made irrespective of
passage of time."
11 In view of the reasons set out above, it can be said that the Tahsildar
who decided the application was justified in entertaining the application
presented under section 38E(1) explanation of the Act by the tenant and
directing delivery of possession of land in question in favour of the tenant.
The bar of limitation as contended by the petitioner herein cannot be
imported and read in the provisions of section38-E(1) explanation which
infact is not provided by the legislature purposefully. In the absence of any
specific provision debarring the remedy after lapse of certain period, the
only alternative available to the tenancy authority was to entertain the
application and pass appropriate orders in consonance with law. I do not
find that tenancy authorities have committed any error in entertaining
application and passing orders directing delivery of possession of tenanted
property in favour of respondent / tenant. Writ petition is devoid of merit and
does not call for any interference. Writ petition therefore stands dismissed.
Rule is discharged. In the facts and circumstances of the case, there shall
be no order as to costs.
( R. M. BORDE, J.)
dyb/office/wp685.02.odt
