Bombay High Court
Chhaban Bhau Fulari vs Suresh V.Fulari & Others on 5 January, 2018
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3500 OF 1997
(Writ petition No. 2635 of 1987 Bombay)
WITH
CIVIL APPLICATION NO. 1948 OF 2014
1. Chaban Bhau Phulari
(Since deceased through L.Rs.)
1A) Thjakubai w/o Chaban Phulari,
Age 74 years, Occ. Agriculture
1B) Bahiru s/o Chaban Phulari,
Age 45 years, Occ. Agriculture
1C) Kailash s/o Chaban Phulari
Age 43 years, Occ. Agriculture,
All above R/o. Phulari Mala
Savedi Road, Ahmednagar,
Through G.P.A.
Gorakh s/o Baban Phulari
Age 35 years, Occ. Agriculture
R/o. Phulari Mala, Savedi Road,
Ahmednagar, District Ahmednagar
1D) Bibi w/o Kashinath Raikar,
Age 55 years, Occ. Household
R/o. Phulari Mala, Savedi Road,
Ahmednagar, District Ahmednagar
1E) Kalavati w/o Dattatraya Dhadge,
Age 53 years, Occ. Household
R/o. Nasik Road, Behind Gandhi
Nagar, Nashik, District Nashik
1F) Leelavati w/o Suresh Bhutkar,
Age 53 years, Occ. Household,
R/o. Tryambekeshwar, Nashik
District Nashik
1G) Pramila w/o Vijay Kanade
Age 51 years, Occ. Household
R/o. Phulari Mala, Savedi Road,
Ahmednagar, District Ahmednagar
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1H) Rama w/o Raghunath Zagade
Age 42 years, Occ. Household,
R/o. Karjat, Tq. Karjat
District Ahmednagar
1I) Mandakini w/o Raghunth Mehetre
Age 38 years, Occ. Household
R/o. Phulari Mala, Savedi Road,
Ahmednagar, District Ahmednagar
1J) Pushpa w/o Prakash Hazare
Age 36 years, Occ. Household
R/o. Sanmitra Housing Society,
Balikashram Savedi Road,
Ahmednagar, District Ahmednagar. ...Petitioners
versus
1. Suresh Vithal Phulari
(deleted as per order dt. 9.11.2017)
2. Chandrakant Vithal Phulari
R/o. Tilak Road, Ahmednagar
District Ahmednagar.
3. Khandu Balaji Jare
(since deceased, through L.Rs.)
3A) Gajanan s/o Balaji Jare
Age 70 years, Occ. Nil,
R/o. Krushnadam Road,
Ahmednagar
3B) Laxman s/o Balaji Jare
(Since deceased through L.Rs.)
3B-1) Gulab s/o Laxman Jare
Age 55 years, Occ. Agri.
R/o. Tapovan Road,
Ahmednagar
3B-2) Kisan s/o Laxman Jare
Age 53 years, Occ. Agri.
R/o. Bhutkarwadi, Ahmednagar
3B-3) Suresh s/o Laxman Jare
Age 50 years, Occ. Agri.
R/o. Wadgaonvatta,
Ahmednagar
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3B-4) Vasant s/o Laxman Jare
(since deceased through L.Rs.)
3B-4.1) Janabai w/o Vasant Jare
Age 45 years, Occ. Agri.
R/o. Bhutkarwadi,
Ahmednagar
3B-4.2) Pravin s/o Vasant Jare
Age 25 years, Occ. Nil
R/o. Bhutkarwadi,
Ahmednagar
3B-4.3) Kalpana w/o Santosh Ghodke
Age 26 years, Occ. Household
R/o. Burudgaon, Ahmednagar
3B-4.4) Deepika w/o Santosh Ghodke
Age 25 years, Occ. Household
R/o. Sassewadi Baijabaiche Jeur,
Ahmednagar
3B-4.5) Rupali d/o Vasant Jare
Age 24 years, Occ. Household
R/o. Bhutkarwadi, Ahmednagar
3B-4.6) Mangala w/o Balasaheb Jadhav
Age 22 years, Occ. Household
R/o. Shingve Naik, Nagar Manmad
Road, Ahmednagar
3B-5) Balasaheb s/o Laxman Jare
Age 40 years, Occ. Agri.
R/o. Bhutkarwadi,
Ahmednagar
3B-6) Sanjay s/o Laxman Jare
Age 41 years, Occ. Agri.
R/o. Bhingardivewada,
Bhutkarwadi, Ahmednagar
3C) Parwati Pandurang Jare
Age 62 years, Occ. Nil,
R/o. Anandnagar, Gulmohar
Road, Ahmednagar.
3D) Subhash Pandurang Jare
Age 38 years, Occ. Nil,
R/o. Anandnagar, Gulmohar
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Road, Ahmednagar
3E) Subhash Pandurang Jare
Age 30 years, Occ. Nil,
R/o. Anandnagar, Gulmohar
Road, Ahmednagar.
3F) Dagdu Raghu Jare
(Since deceased through L.Rs.)
3F-1) Mandbai w/o Dagdu Jare
Age 64 years, Occ. Household
R/o. Bhutkarwadi, Ahmednagar
3F-2) Ashok s/o Dagdu Jare
(Since deceased through L.Rs.)
3F-2.1) Sangeeta w/o Ashok Jare
Age 35 years, Occ. Household,
R/o. Bhutkarwadi, Ahmednagar
3F-2.2) Shubhangi d/o Ashok Jare
Age 17 years, Occ. Nil,
(Under Guardianship of
mother)
Sangeeta w/o Ashok Jare)
R/o. Bhutkarwadi, Ahmednagar
3F-2.3) Saurav s/o Ashok Jare
Age 08 years, Occ. Nil,
(Under Guardianship of
mother)
Sangeeta w/o Ashok Jare)
R/o. Bhutkarwadi, Ahmednagar
3F-3) Sandip s/o Dagdu Jare
Age 32 years, Occ. Agri.
R/o. Bhutkarwadi, Ahmednagar
3F-4) Surekha d/o Dagdu Jare
Age 35 years, Occ. Household
R/o. Ganeshnagar, Bhutkarwadi
Ahmednagar
3F-5) Sharda w/o Raghunath Widhote
Age 35 years, Occ. Household,
R/o. Laxmanwadi, Tapovan Road,
Ahmednagar
3F-6) Anjali d/o Rajendra Bote
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Age 32 years, Occ. Household
R/o. Gandhinagar, Bolhegaon,
Ahmednagar
4. Baban Bhau Phulari
Bhutkarwadi (Savedi),
Ahmednagar
5. Sopan Vithal Borhade
(deleted)
6. Sarita Misrilal Bhandari
7. Chandrakant Punamchand Bhandari
8. Mrs. Nirmala Chandrakant Bhandari
R/o. 6 to 8 R/o. 2585, M.G. Road,
Ahmednagar
9. Nathumal Premraj Kataria,
(deleted)
10. V.R. Waval, promoter
(deleted)
11. R.V. Lokhande,
Collectorate, Pune
(W.P. stand dismissed)
12. Rankoji Takaji Wakale,
R/o. Savedi, Ahmednagar
13. Nandkumar Damodhar Ranavikar
R/o. Laltaki, Ahmednagar
14. Damodhar Shankar Renavikar
R/o. Laltaki, Ahmednagar
15. Suresh Vitthal Sant
R/o. Opp. Zopadi Canteen,
Savedi, Ahmednagar
16. Dhanraj Chhoonilal Soni
(since deceased through L.Rs.)
16A) Jagdish s/o Dhanraj Soni
Age 55 years, Occ. Business,
R/o. Civil Hudco, Savedi Road
Ahmednagar
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16B) Manohar s/o Dhanraj Soni
Age 45 years, Occ. Service
R/o. Soni Mangal Karyalaya,
Savedi Road, Ahmednagar
16C) Naresh s/o Dhanraj Soni
Age 40 years, Occ. Business,
R/o. Sarjepura, Ahmednagar
16D) Smt. Shakuntala Manik Sonar
Age 57 years, Occ. Household
R/o. Sarjepura, Ahmednagar
16E) Smt. Shobha Vijaykumar Sharma
Age 43 years, Occ. Household
R/o. D-49, Shastri Nagar,
Badbhada Road, Bhopal (MP)
17. Shri M.R. Deshpande
Designated Member,
Maharashtra Revenue Tribunal,
PUNE ...Respondents
.....
Mr. N.V. Gaware, advocate for the Petitioners
Ms. Pradnya S. Talekar h/f Mr. S.B. Talekar, advocate for respondent Nos.
3C to 3E, 3G to 3I, 3B-1 to 3B-3, 3B-5, 3B-6, 3B-4-1 to 3B-4-6, 3F-1, 3F-3
to 3F-6, 3F-1-1 to 3F-2-3.
Mr. Y.V. Kakade Patil, Advocate for respondent Nos. 6 to 8, 13 and 16A to
16E.
.....
CORAM : V. K. JADHAV, J.
Date of Reserving
the Judgment: 19.12.2017
Date of pronouncing
the Judgment: 05.01.2018
JUDGMENT:-
1. The petitioners are challenging the legality and validity of the
order dated 13.3.1987 passed by the learned Member, Maharashtra
Revenue Tribunal, Pune in Revision application No. MRT-AS-I-12 of
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1985.
2. Brief facts giving rise to the present writ petition are as follows:-
a) This pertains to the agricultural land bearing Survey No. 176/1,
admeasuring 21 Acres and 15 Gunthas and potkharaba 14 gunthas,
situated at village Savedi, Tq. and District Ahmednagar and the
dispute relates to the land admeasuring 6 acres and 5 gunthas, out
of the aforesaid land survey No. 176/1. The said land was originally
owned and possessed by one Laxman Gangaram Dange and six
others. Respondent No.3 Khandu Balaji Jare and one Bandu Sagaji
Bhingardive were tenants on the said land in the village record prior
to tillers day i.e. 1.4.1957.
b) Respondent No.3 Khandu Balaji Jare and Bandu Bhingardive
vide tenancy application No. 20 of 1957 filed before learned
Mamlatdar, Ahmednagar voluntarily surrendered the land from
survey No. 175 and 176 in favour of original landlord viz. Laxman
Gangaram Dange and others and accordingly an order came to be
passed by the learned Mamlatdar regarding surrender. Pursuant to
the said surrender, the tenants vacated the land and possession was
handed over to the original landlords. The said surrender was
verified and accepted by the Mamlatdar in accordance with the
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provisions of Bombay Tenancy and Agricultural Lands Act
(hereinafter for the sake of brevity referred to as "the said Act").
Accordingly, mutation entry No. 1493 regarding surrender came to be
certified by the Revenue authorities and even the names of the
tenants were deleted and the names of landlords i.e. Laxman
Gangaram Dange and six others were duly entered in the village
record in respect of the said agricultural lands. The original landlords
thereafter, cultivated the said land for some period and decided to
alienate the said land.
c) On 29.2.1960, the original landlord Laxman Dange and others
executed registered sale deed in favour of the petitioners in respect
of land survey No. 175/1 and 176/1 admeasuring 9 acres, 12 gunthas
and 14 acres, 8 gunthas, respectively.
d) In the year 1962, land survey No. 176/1 purchased by the
petitioners was included within the municipal limits of Ahmednagar
Municipal Council and numbered as final Plot Nos. 99 and 1000 of
T.P. Scheme No.4. The petitioners from time to time sold out the
part of the said land to respondent Nos. 5 to 16 and others and only
6 acres 5 gunthas of land remained in possession of the petitioners
Chaban Phulari.
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e) In the year 1979, respondent Nos. 1 and 2, who happened to
be nephews of the petitioner, filed an application before learned
Tahsildar and A.L.T. Ahmednagar, alleging therein that the sale
transaction effected by the petitioners be declared as invalid and
possession of suit land be given to the elder brother of the petitioner
viz. Baban Bhau Phulari, as manager of the joint family. The said
application was numbered as T.N.C. Case No. 67 of 1979. The
learned A.L.T. Ahmednagar, had recorded statements of respondent
No.3 Khandu Balaji Jare and Dada Bandu Bhingardive. They have
disclosed that the land survey No. 176 and 21 were taken by the
landlords in possession for personal cultivation and therefore, they
surrendered their tenancy. They have also stated in their respective
statement that instead of personal cultivation of land, the landlord
immediately sold the land and as such, they prayed for restoration of
the possession.
f) By order dated 23.12.1982, the learned Additional Tahsildar,
passed an order that respondent Nos. 1 and 2 if at all having share in
the property may approach the Civil Court and further passed order
that the possession of the petitioners over the agricultural land
admeasuring 6 acres 5 gunthas out of the land survey No. 176 be
withdrawn and the land should be handed over in favour of the
tenants i.e. respondent No.3 Khandu Jare and Bandu Bhingardive in
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terms of provisions of Section 37 r.w. Section 39 of said Act.
g) Being aggrieved by the said order passed by the learned
Tahsildar, Ahmednagar, the petitioners preferred tenancy appeal No.
1 of 1983 and original respondent Nos. 1 and 2 preferred appeal No.
2 of 1983 before the Sub Divisional Officer, Nagar division,
Ahmednagar. By order dated 8.9.1984 the Sub Divisional Officer,
Nagar division, Ahmednagar allowed appeal No.1 of 1983 and set
aside the order passed by the Tahsildar and dismissed the appeal
No. 2 of 1983 filed by respondent Nos. 1 and 2.
h) In the year 1985, respondent Nos. 1 to 3 and Bandu
Bhingardive preferred revision application No. 12 of 1985 before the
Maharashtra Revenue Tribunal, Pune challenging the order dated
8.9.1984 passed by learned Sub Divisional Officer, Ahmednagar.
During pendency of said revision, Bandu Bhingardive came to be
deleted from the array of applicants vide order dated 11.3.1987.
i) By order dated 13.3.1987 in Revision application MRT-AS-I-12
of 1985, learned Member of M.R.T. Pune has allowed the Revision
application No. 12 of 1985 and also set aside the order dated
8.9.1984 passed by Sub Divisional Officer, Ahmednagar and
confirmed the order dated 23.12.1982 passed by the learned
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Tahsildar, Ahmednagar. Hence this writ petition.
3. Learned counsel for the petitioners submits that the Tribunal
has committed error of law by allowing the revision application of
respondent Nos. 1 and 3 and by restoring the order of the Tahsildar
A.L.T. Nagar Division, Ahmednagar and the said error is apparent on
the face of record. Learned counsel submits that Sections 37 and 39
of said Act are not at all attracted to the facts and circumstances of
the present case, as the suit land was voluntarily surrendered by the
original tenants. Learned counsel submits that in terms of provisions
of Section 15 of the said Act, the tenant may terminate the tenancy in
respect of his land at any time by surrendering his interest in favour
of landlord, provided that such surrender shall be in writing and has
to be verified before the Mamlatdar in the prescribed manner. After
recording the verification, learned Mamlatdar has accepted the
surrender being voluntary and unconditional and as such,
subsequent proceedings for restoration, purportedly under Sections
37 and 39 of the said Act, are not maintainable. Learned counsel
submits that the proceedings initiated after a lapse of 22 years and 7
months are not maintainable, as the same are not within limitation.
The legal heirs of deceased tenants would not have any right to
inherit the property of so called tenants under Section 37 of the said
Act since name of one of the tenant being deleted from the array of
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applicants, before the Tribunal. Learned counsel submits that even
in absence of any application for condonation of delay caused in
filing Revision before the Tribunal, the said proceedings are also not
maintainable in the eyes of law. Learned counsel submits that by
invoking the provisions of Section 32 of the said Act, the tenants ifso
facto cannot be entitled for ownership of disputed property. Learned
Member of the Tribunal has exceeded the jurisdiction which has
resulted into miscarriage of justice.
4. Learned counsel for the petitioners submits that on 31.1.1957
Taluka Awwal Karkun, Nagar Taluka had recorded statement of
original tenant Khandu Balaji Jare, wherein said Khandu Jare had
stated that the tenants wanted to surrender the land voluntarily, as
the tenants had to cultivate their own land and it was not possible for
them to cultivate the land of the landlord. Learned counsel submits
that on verification, the Taluka Awwal Karkun, Nagar Taluka by order
dated 31.1.1957 had observed that the tenants are willing to
surrender their rights of tenancy and possession voluntarily though
they are aware of the rights of tenants. Learned counsel submits that
Taluka Awwal Karkun had recorded his opinion on verification that
the surrender is purely voluntarily and accordingly passed the orders
that the possession of the suit land should be restored to the landlord
subject to the provisions of sub-sections (2) and (3) of Section 15 of
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the said Act that the names of tenants recorded as protected tenants
should be deleted from the record of rights. Learned counsel
submits that the Town Planner, Ahmednagar has sanctioned the lay
out submitted by the petitioners Chaban Phulari with regard to plot
Nos. 99 and 100 and by virtue of the same, the lands are already
divided into 44 plots and the said property is put to non-agriculture
use. Learned counsel submits that in terms of provisions of Section
29 of the said Act, the procedure for taking possession is
contemplated and as such, the application is required to be made
within a period of two years from the date on which the right to obtain
possession of the land deemed to have been accrued to the tenant.
Learned counsel submits that the provisions of section 37(1) of the
said Act could be invoked only in cases wherein the landlord has
taken possession of the land after termination of tenancy under
Section 31 or Section 33(b) of the said Act and has further failed to
use the land for any of the purpose specified in the notice under
Section 31 and 33(b) of the said Act and the case of the landlord to
get possession of the land under Section 15 of the said Act upon
surrender having been made by the tenant and having been verified
by the Mamlatdar under Section 15 is not covered by Section 37 of
the said Act. Learned counsel submits that in sub-section (2) of
Section 15, a reference has been given to Sections 31 and 31-A in
respect of landlord's rights to retain the land has been subjected to
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certain restrictions mentioned therein viz. the landlord can retain the
land subject to like purposes or the like extent or the like conditions
as are mentioned in Sections 31 and 31-A cannot convert an order
passed under Section 15 into an order passed under Section 31 of
the said Act. Learned counsel submits that the Mamlatdar as well as
learned Member of the Tribunal has ignored the application
submitted by the tenants for termination of tenancy voluntarily and
learned Mamlatdar and Taluka Awwal Karkun had verified the said
surrender and recorded a finding to the effect that the surrender of
interest in the land has been made voluntarily in favour of the
landlord. Learned counsel submits that even in the statement
recorded in Tenancy Case No. 67 of 1979 the tenant Khandu Balaji
Jare and the legal heirs of tenant Bandu Bhingardive had admitted
their verification and surrender in favour of landlords.
5. Learned counsel for the petitioners, in order to substantiate
his contentions, placed reliance on the following cases:-
i) Vithal Rangnath Gaikwad and Ors. vs. Murlidhar Waman Dhavale
and others, reported in 1975 (1) LJSOFT 288.
ii) Krishna @ Kisan Rajaram Karve & Others vs. Dinkar Anaji Kumbhar
and others, reported in 2005 (1) Bom.C.R. 750
iii) Raghosingh vs. Mohansingh, reported in 2000 DGLS (SC) 686
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iv) Santoshkumar Shivgonda Patil & Ors. vs. Balasaheb Tukaram
Shevale, reported in 2009 DGLS (SC) 1277
v) Gulabrao Bhaurao Kakade (Smt) since deceased through L.Rs. vs.
Nivrutti Krishna Bhilare and others, reported in 2001 (Suppl.1)
Bom.C.R. 688.
vi) Dattu Appa Patil and others vs. State of Maharashtra and others,
reported in 2006 (6) Bomb.C.R. 246
vii) V.S. Charati vs. Husein Nhanu Jamadar (Died) by L.Rs. Reported in
1999 (3) Bom.C.R. 131
viii) Maruti Bala Raut vs. Dashrath Babu Wathare, reported in 1974
DGLS (SC) 256
ix) Maruti Ramaji Patil since deceased by his L.Rs. Ananda Maruti Patil
and others vs. Babu Dhondi Mohite and others, reported in 2006 (5)
Mh.L.J. 785
x) Unreported judgment of this Court in writ petition No. 1707 of 1992
dated 14.08.2014 in the case of Onkar Kashiram Mahajan (Died
L.Rs.) vs. Rajaram Shamu Mahajan and others.
6. Ms. Talekar, learned counsel appearing for the concerned
respondents submits that Laxman Dange alongwith his five brothers
were the owners of land bearing survey No. 176/1 to the extent of 21
acres and 15 gunthas and 14 gunthas potkharaba situated at village
Savedi, Tq. and District Ahmednagar. Respondent No.3 Khandu Jare
and Bandu Bhingardive were the tenants of the suit land prior to
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tillers day i.e. 1.4.1957. The tenants vide Tenancy application No. 20
of 1957 filed before the learned Mamlatdar, Ahmednagar
surrendered the land in favour of the landlords for the purpose of
personal cultivation and accordingly names of tenants were deleted
and the names of landlords came to be entered in the village record.
However, the landlords did not cultivate the suit land and entire land
of 21 acres and some gunthas was sold to the petitioner Chaban
Phulari. Even the petitioner Chaban Phulari from time to time sold
out the said land and also converted some portion of land into non
agricultural land. In the year 1979, only 6 acres and 5 gunthas of
agricultural land remained in his possession. In the year 1979, two
nephews of the petitioner Chaban Phulari, filed an application before
learned Tahsildar and A.L.T., Ahmednagar contending therein that
the property was purchased as a joint family property and the said
sale transactions effected by petitioner Chaban Phulari are invalid
and possession of the suit land was given to the elder brother Baban.
The nephews of said Phulari have also made respondent No.3 herein
and said Bandu Bhingardive original tenants as respondents in the
said application. Learned counsel submits that even the tenants,
including respondent No.3 also filed separate application before the
Tahsildar for restoration of possession of suit land by invoking the
provisions under Sections 37 r.w. 39 and 15 of the said Act. It has
been contended in the said application that the said tenants who
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have surrendered the land to the landlords for their personal
cultivation and since the landlords have committed breach of the said
condition, the tenants are entitled for restoration of possession of the
suit land. The learned Tahsildar, disposed of the application of
Phulari's nephew with liberty to approach the civil court, however,
allowed the application of the tenants and directed restoration of
possession of the suit land to the extent of 6 acres and 5 gunthas.
Learned counsel submits that though the Sub Divisional Officer,
Ahmednagar has quashed and set aside the order passed by the
Tahsildar, the learned Member of the Tribunal, has rightly allowed
the revision application and upheld the order passed by the
Additional Tahsildar, dated 23.12.1982.
7. Learned counsel for the respondents submits that the landlord
instead of personally cultivating the suit land, immediately sold it to
the petitioners and one Baban Bhau Phulari. Learned counsel
submits that learned Additional Tahsildar while deciding TNC Case
No. 67 of 1979 had an occasion to peruse the entire record of
surrender and accordingly learned Tahsildar has given a reference to
the statement of landlord Laxman Dange, who appeared before the
Tahsildar as Mukhtyar for all his brothers and his statement is
recorded by Taluka Awwal Karkun, Ahmednagar on 31.1.1957.
Learned Tahsildar has observed that on perusal of said record, it
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appears that the landlord Laxman has specifically stated that he
wants to cultivate the suit land personally and the tenants are willing
to surrender the same. Learned counsel submits that the tenants
have filed separate application dated 3.12.1979 in the same
proceedings bearing TNC Case No. 67 of 1979 and contended
therein that the landlord ceases to cultivate the land personally
within 12 years from the date on which they took possession and as
per the provisions contained in Section 37 of the said Act, the
landlord is bound to restore the possession of the land to the tenants.
In the said application, the tenants have specifically contended that
the landlords have sold the suit land to the third party within 12 years
and as such, they are entitled for restoration of possession of suit
land for breach of condition.
8. Learned counsel for the respondents submits that Section
15(2) of the said Act incorporate the conditions as provided under
Sections 31 and 31-A of the said Act for termination of tenancy.
Thus, the remedy of restoration of land in case of breach of
conditions is available under Sections 37 and 39 of the said Act.
Learned counsel submits that it is well settled that remedy under
Section 39 of the said Act for restoration of land to the tenant is
available to the cases of surrender, if the same is made conditional to
the personal cultivation by the landlord. Learned counsel submits
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that such an application under Section 39 of the said Act for recovery
of possession by the tenants can be filed at any time. In the instant
case, after taking possession of suit land, the landlord ceases to use
the suit land for his personal cultivation within 12 years from the date
on which the landlord took such possession and as such, there is
clear cut breach of provision of Section 37 of the said Act for which
remedy lies under Section 39 of the said Act. Learned counsel
submits that order of surrender under Section 15 of the said Act is
made subject to the condition as contemplated under Section 15 (2)
of the said Act. Learned counsel submits that once the surrender is
conditional, there is no other remedy except under Section 37 read
with Section 39 of the said Act. Learned counsel submits that
surrender by the tenant was not unconditional but rather limited by
the condition of personal cultivation. Learned Tahsildar after
perusing application and the statements of the landlord and the
tenants and the order of Awwal Karkun, recorded a finding that
surrender by the tenant was for personal cultivation. Even the
brother of the present petitioner has also accepted said conditional
surrender by the tenants for personal cultivation of the landlord.
Statement of subsequent purchaser Chaban Phulari and statement
of respondent No.3 tenant Balaji Jare also support the case of
conditional surrender for personal cultivation by the landlord.
Learned counsel submits that the fact of the conditional surrender
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occurred in the year 1959 was accepted by the petitioner in all three
previous proceedings and no point can be raised in this regard for
the first time before this Court. There is no factual foundation for
raising such new ground before this Court in the Writ petition.
Learned counsel submits that the voluntariness of surrender is not in
question but condition of surrender is in question. Merely because
surrender is voluntary, the same does not become unconditional.
There is no question of limitation, as there is no provision of limitation
under the said Act for remedy under Sections 37 and 39 of the said
Act. Though, the appeal before the Maharashtra Revenue Tribunal
was filed after two years and four months after the judgment and
order passed by the Sub-Divisional Officer, however, issue of delay
was not raised by the petitioner before the Tribunal and same cannot
now be raised before this Court. Learned counsel submits that so far
as the land admeasuring 6 Acres and 5 Gunthas out of the land
Survey No. 176/1 is concerned, the learned Tahsildar has recorded a
clear cut finding that the said land did not fall within the Municipal
limits, nor the Town Planning Scheme was made applicable to the
said land. Learned counsel submits that there is no merit in the writ
petition and the writ petition thus liable to be dismissed.
9. Learned counsel for respondents in order to substantiate her
contentions placed reliance on the following judgments.
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i) Improvement Trust, Ludhaina vs. Ujagar Singh and others, reported
in (2010) 6 SCC 786.
ii) Bachhaj Nahar vs. Nilima Mandal and another, reported in (2008) 17
SCC 491,
iii) Bhanwar Lal vs. T.K.A. Abdul Karim, reported in 1993 Supp (1) SCC
626,
iv) Samarth Ramdas Math vs. Atmaram Damu Rane and others,
reported in (1983) 1 Bom.C.R. 333
v) Anna Tatoba Todkar vs. Bhau Balu Makane, reported in 2003 (2)
Mh.L.J. 300
vi) Jankibai Rajhans vs. Suryabhan Thorat and another, reported in
1996 SC Online Bom. 328
vii) Bhagwat Sadashjiv Sarode vs. Somnath Salunke and ors. In writ
petition No. 3252 of 1989 (Aurangabad).
viii) Krishnabai and others vs. Raghunath and others, reported in 1994
Suppl (2) SCC 566,
ix) Uttam Namdeo Mahale vs. Vithal Deo and others, reported in (1997)
6 SCC 73
x) Ghanashyamprasad Natwarlal Bhatt vs. Gendalsingh Vakhatsingh
and others, in Special Civil Application No. 764 of 1955.
xi) Vithoba Ram Rahane and another vs. Bhalchandra Sadashiv Joshi,
reported in 1993 Mh.L.J. 419.
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xii) Vishwanath vs. Prabhu and others, reported in (1999) 1 SCC 56
xiii) Kisan Sayaji Shelke vs. Madhukar Mohan Deshpande, reported in
2010 (7) Mh.L.J. 347,
xiv) Hasan Bi Salam vs. Madhavrao Rangnathrao Shinde, reported in
2015 (2) Mh.L.J. 483
xv) Eknath Raghoba and others vs Somla Lalu Lamani, reported in
1992 Mh.L.J. 541.
xvi) Laxman Shankar Bandgar (Died) vs. Venkat Rama Bandgar (writ
petition No. 623 of 2001, Bombay High Court)
10. Mr. Kakde, learned counsel appearing for respondent Nos. 6 to
8, 13 and 16A to 16E has adopted the arguments advanced by learned
counsel for the petitioners.
11. In the light of rival submissions canvassed by the learned
counsel for the respective parties, it would be appropriate to
reproduce here-in-below the provision of Section 15 of the said Act.
"Section 15 -Termination of tenancy by surrender thereof.
(1) A tenant may terminate the tenancy in respect of any land at
any time by surrendering his interest therein in favour of the
landlords.
Provided that such surrender shall be in writing, and verified
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before the Mamlatdar in the prescribed manner.
(2) Where a tenant surrenders his tenancy, the landlord shall be
entitled to retain the land so surrendered for the like purposes, and
to the like extent, and in so far as the conditions are applicable
subject to the like conditions, as are provided in sections 31 and
31A for the termination of tenancies.
(2A) The Mamlatdar shall in respect of the surrender verified
under sub-section (1), hold an inquiry and decide whether the
landlord is entitled under sub-section (2) to retain the whole or any
portion of the land so surrendered, and specify the extent and
particulars in that behalf.
(3) The land, or any portion thereof, which the landlord is not
entitled to retain under sub-section (2), shall be liable to be
disposed of in the manner provided under clause (c) of sub-section
(2) of section 32P."
12. In the instant case, on 31.1.1957 the tenants Khandu Balaji
Jare and Bandu Sagaji Bhingardive vide Tenancy application No. 20
of 1957 filed before the learned Mamlatdar, Ahmednagar under
Section 15 of the said Act voluntarily surrendered their interest in
respect of the suit land in favour of landlord. On perusal of the
record of tenancy application No. 20 of 1957, I find that the Taluka
Awwal Karkun, Nagar Taluka, has recorded statement of landlord
Laxman Gangaram Dange and also tenant Khandu Balaji Jare. On
careful perusal of statement of tenant Khandu Balaji Jare, it appears
that, in unequivocal words, the tenant Mr. Jare has surrendered his
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interest in the suit land in favour of landlord for the reason that due to
burden of cultivation of his own land, he is not in a position to
cultivate the suit land belonging to the landlord and as such, he is
going to surrender voluntarily his interest in the suit land in favour of
the landlord. On perusal of statement of landlord Laxman, it appears
that he has given statement on behalf of his all brothers and for
himself and stated that the tenants are surrendering their interest in
the suit land voluntarily in favour of himself and his brothers and he
did not pressurize them in any manner. The landlord Laxman has
also given a reference in his statement that he would cultivate the
suit land personally. On the basis of these statements, the Taluka
Awwal Karkun, Nagar Taluka on 31.01.1957 has passed the
following order:-
"The applicant has filed this application for restoration of possession
of S.R. No. 175 and 176 of Sawedi in the ground of voluntary
surrender by the opponents. The opponents have declared that,
they do not require the suit land for their cultivation and that they are
willing to surrender the rights of tenancy and possession voluntarily
that they are aware of the rights of a tenant but that they do not
require the same. I consider that the surrender is purely voluntary
and accordingly I order that the possession of the suit lands should
be restored to the applicant subject to the provisions of Sub-Section
(2) and (3) of Section 15 of the Tenancy Act, 1955 and that the
names of the opponents recorded as protected tenants should be
deleted to the record of rights. The village Officer should be
informed of the order."
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13. On careful perusal of order passed by the Taluka Awwal
Karkun, Nagar Taluka, as mentioned above, I do not find that on
verification, the Taluka Awwal Karkun has recorded a finding about
conditional surrender. In the year 1979, when nephew of the present
petitioners filed TNC application No. 67 of 1979, the tenants for the
first time have filed an application for restoration of possession of the
suit land under the provisions of Sections 37 and 39 of the said Act.
The tenants never challenged the said order passed by the Taluka
Awwal Karkun on 31.1.1957 and after inordinate delay of 22 years
and seven months, in the different proceeding not initiated by them,
filed an application for restoration of possession under Sections 37
and 39 of the said Act. According to the tenants, the surrender was
conditional to the extent of personal cultivation of the suit land and
the landlord ceases to use the suit land for his personal cultivation,
within 12 years from the date on which the possession was taken.
14. Learned counsel for the respondents vehemently submits that
in the light of provisions of Section 15(2) of the said Act, the landlord
is entitled to retain the possession of the land subject to the like
conditions mentioned under Sections 31 and 31-A of the said Act as
well as in the like purposes and to the like extent. Learned counsel
submits that it means that for all practical purposes the order under
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Section 15 of the said Act must be considered as an order under
Sections 31 and 31-A of the said Act.
15. In order to appreciate the above submissions, the provisions of
Sections 31 and 31A of the said Act are reproduced herein below:-
"Section 31 Landlords right to terminate tenancy for personal
cultivation and non-agricultural purpose:
(1) Notwithstanding anything contained in section 14 and section 30
but subject to section 31A to 31D (both inclusive), a [landlord (not
being a landlord within the meaning of Chapter III-AA) may], after
giving notice and making an application for possession as provided
in sub-section (2), terminate the tenancy of any land (except a
permanent tenancy), if the landlord bona-fide requires the land for
any of the following purposes:-
(a) for cultivating personally, or
(b) for any non-agricultural purpose.
(2) the notice required to be given under sub-section (1) shall be in
writing, shall state the purpose for which the landlord requires the
land and shall be served on the tenant on or before the 31st day of
December 1956. A copy of such notice shall, at the same time, be
sent to the Mamlatdar. An application for possession under section
29 shall be made to the Mamlatdar on or before the 31st day of
March 1957.
(3) Where a landlord is a minor, or a widow, or a person subject to
mental or physical disability then such notice may be given [and an
application for possession under section 29 may be made,]:-
(i) by the minor within one year from the date on which he attains
majority;
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(ii) by the successor-in-title of a widow within one year from the date
on which her interest in the land ceases to exists;
(iii) within one year from the date on which mental or physical
disability ceases to exits; and
Provided that, where a person of such category is a member of a
joint family, the provisions of this sub-section shall not apply if at
least one member of the joint family is outside the categories
mentioned in this sub-section unless before the 31st day of March
1958 the share of such person in the joint family has been separated
by metes and bounds and the Mamlatdar on inquiry, is satisfied that
the share of such person in the land is separated having regard to
the area, assessment, classification and the value of the land, in the
same proportion as the share of that person in the entire joint family
property, and not in a larger proportion
Section 31A Conditions of termination of tenancy:-
The right of a landlord to terminate a tenancy for cultivating the land
personally under section 31 shall be subject to the following
conditions:-
(a) If the landlord at the date on which the notice is given and on the
date on which it expires has no other land of his own or has not been
cultivating personally any other land, he shall be entitled to take
possession of the land leased to the extent of a ceiling area.
(b) If the land cultivated by him personally is less than a ceiling area,
the landlord shall be entitled to take possession of so much area of
the land leased as will be sufficient to make up the area in his
possession to the extent of a ceiling area.
(c) The income by the cultivation of the land of which he is entitled to
take possession is the principal source of income for his
maintenance.
(d) The land leased stands in the record of rights or in any public
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record or similar revenue record on the 1st day of January 1952 and
thereafter during the period between the said date and the appointed
day in the name of the landlord himself, or of any of his ancestors
[but not of any person from whom title is derived, whether by
assignment or Court sale or otherwise] or if the landlord is a member
of a joint family, in the name of a member of such family.
(e) If more tenancies than one are held under the same landlord,
then the landlord shall be competent to terminate only the tenancy or
tenancies which are the shortest in point of duration."
16. In the case of Vithal Rangnath Gaikwad and others vs.
Murlidhar Vaman Dhavale and another, reported in 1975 AIR
(Bom) 358, the Division Bench of this Court had an occasion to deal
with the question pertains to applicability of Section 37 of the said Act
to the proceedings taken and order passed under Section 15 r.w.
Section 29 of the said Act. This particular question has been referred
to the Division Bench, since there was conflict of decisions. In the
cited case, the submissions were advanced on behalf of tenants that
even to a case covered by Section 15 of the said Act, Section 37 was
attracted in terms of provisions of sub-section (2) of Section 15 in
which a reference has been made to Sections 31 and 31-A of the
said Act. It has been also contended that in terms of provisions of
sub-section (2) of section 15, where the tenant surrendered his
tenancy and landlord shall be entitled to retain the land so
surrendered for the like purposes and to the like extent and in so far
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as the conditions are applicable subject to the like conditions, as are
provided in Sections 31 and 31-A for termination of tenancy. It has
been also contended that for all practical purposes, an order under
Section 15, under which the landlord obtains possession of the land
for personal cultivation should be regarded as an order having been
passed under Section 31 of the said Act, in which case the provisions
of Section 37 would get immediately attracted. In support of the
submissions advanced in the case cited above, the counsel therein
relied upon the decision in the case of Sarubai vs. Vinayak Govind,
reported in AIR 1973 Bom. 71 and also an unreported decision of this
Court in the case of Asaram Hari Pawar vs. Lata Raghunath Joshi, in
Special Civil Application No. 824 of 1969, decided on 8.8.1972
(Bom.). On the basis of above two cases, the counsel submitted that
surrender in the case, under Section 15 of the said Act was rightly
held to be conditional surrender by the lower authorities and since
surrender was conditional one and since the landlord committed
breach of the conditions on which possession was delivered to him
under the order passed by the Additional Tahsildar, the lower
authorities were right in resorting to Section 37 of the said Act and
restoring the possession of the land to the tenants. The Division
Bench of this Court, after going through those two cases, referred
above, in para 7 and 8 has made the following observations:-
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"7. The next question that arises for our determination is whether the
provisions of Section 37 of the Tenancy Act are attracted to a case
falling under Section 15 of the said Act or not. Section 37(1) in terms
merely refers to cases of a landlord taking possession of the land after
termination of tenancy under Section 31, 33-B and 34 of the said Act
as it stood before the commencement of the Amending Act, 1956, and
then failing to use the land for any of the purposes for which he has
recovered possession and does not make any mention of Section 15
at all. Section 37 (1) runs as follows:
"If after the landlord takes possession of the land after the termination
of the tenancy under Section 31, 33-B or Section of this Act as it stood
immediately before the commencement of the Amending Act, 1956 he
fails to use it for any of the purposes specified in the notice given
under Section 31, 33-B or Section 34 of this Act as it stood
immediately before the commencement of the Amending Act, 1956
within one year from the date on which he took possession or ceases
to use it at any time for any of the aforesaid purpose within twelve
years from the date on which he took such possession, the landlord
shall forthwith restore possession of the land to the tenant whose
tenancy was terminated by him, unless he has obtained from the
tenant his refusal in writing to accept the tenancy on the same terms
and conditions or has offered in writing to give possession of the land
to the tenant on the same terms and conditions and the tenant has
failed to accept the offer within three months of the receipt thereof."
On a fair reading of Section 37(1), therefore, it appear clear that the
provisions of that section could be invoked only in cases where the
landlord has taken possession of the land after termination of tenancy
under section 31, or Section 33-B or the old Section 34 and has
further failed to use the land for any of the purposes specified in the
notice given under Sections 31, 33-B or old Section 34, and prima
facie, the case of a landlord taking possession of land under Section
15 of the said Act upon a surrender having been made by the tenant
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and having been verified by the Mamlatdar under Section 15 is not
covered by Section 37. The only manner in which Section 37 was
sought to be attracted to a case governed by Section 15 of the said
Act was by reason of the provisions of sub-section (2) of Section 15 in
which reference to Sections 31 and 31-A has been made. It would be
therefore necessary to set out the provisions of Section 15 of the said
Act. Section 15 runs as follows:
"(1) A tenant may terminate the tenancy in respect of any land at any
time by surrendering his interest therein in favour of the landlord.
Provided that such surrender shall be in writing and verified before the
Mamlatdar in the prescribed manner.
(2) Where a tenant surrenders his tenancy, the landlord shall be
entitled to retain the land so surrendered for the like purposes, and to
the like extent and in so far as the conditions are applicable subject to
the like conditions, as are provided in Sections 31 and 31-A for the
termination of tenancies.
(2-A) The Mamlatdar shall in respect of the surrender verified under
sub-section (1), hold an inquiry and decide whether the landlord is
entitled under sub-section (2) to retain the whole or any portion of the
land so surrendered, and specify the extent and particulars in that
behalf.
(3) The land or any portion thereof, which the landlord is not entitled to
retain under sub-section (2), shall be liable to be disposed of in the
manner provided under clauses(c) of sub-section (2) of Section 32-P."
It was urged on behalf of the tenant that since sub-section (2) of
Section 15 provides that whenever a tenant surrenders his tenancy
the landlord shall be entitled to retain the land so surrendered "for the
like purposes, and to the like extent, and in so far as the conditions are
applicable subject to the like conditions as are provided in sections 31
and 31-A" for all practical purposes, the landlord's obtaining
possession for personal cultivation upon termination of a tenancy by
way of surrender under Section 15 should be regarded on the same
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footing as under Section 31, and therefore an order passed under
Section 15 for all practical purposes should be regarded as an order
passed under Section 31 of the said Act and thus Section 37 gets
clearly attracted. It was pointed out that such a contention has been
accepted by Mr. Justice Vaidya in Sarubai's case reported in AIR 1973
Bom 71. It is not possible to accept this contention for the reasons
which we shall presently indicate. It is true that sub-section (2) makes
a reference to Ss. 31 and 31-A but the mere reference to Sections 31
and 31-A or the further fact that the landlord's right to retain land has
been subjected to certain restrictions mentioned therein, viz, he can
retain the land subject to the like purposes or the like extent or the like
conditions as are mentioned in Section 31 and 31-A cannot convert an
order passed under Section 15 into an order passed under Sections
31 of the said Act. In our view, all that sub-section (2) of Section 15
does is to incorporate by reference the conditions of termination of
tenancy embodied in Sections 31 and 31-A of the said Act, but
because of that the order under Sections 15 cannot be regarded as
one having been passed under Section 31 or Section 31-A of the said
Act. The provisions in terms speaks of termination of tenancy brought
about by surrender and not by a notice by a landlord as required by
Section 31. It is only the consequences of a surrender of tenancy
made by a tenant that are enjoined to be worked out having regard to
such of the conditions as may be applicable as mentioned in Sections
31 and 31-A. That is the only effect of sub-section (2) making a
reference to Section 31 and 31-A. The view expressed in Sarubai's
case therefore cannot be regarded as correct.
8. It was, however, urged on behalf of the tenant before us that
after all, the ultimate result to a large extent was one and the same
whether the parties went before the Mamlatdar either under Section
15 or under Section 31, for the ultimate result was that the landlord
obtained and retained possession of the land either for personal
cultivation or his N.A. use, and if the landlord failed to make use of the
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land for the purpose for which he obtained it, there was no reason why
the tenant should not get back possession from such defaulting
landlord. It was pointed out that it was possible that undue advantage
of a tenants illiteracy might be taken by an unscrupulous landlord
when he desired to achieve his objective by resorting to Section 15
rather that Section 31 of the said Act, and therefore, irrespective of the
question as to whether the proceedings, which result in the landlord
obtaining possession, have been taken under Section 15 or under
Section 31, any landlord who has obtained and retained possession of
the land in question should be subjected to the provisions of Section
37 of the said Act. In the first place, this aspect concerns policy and it
is for the Legislature to make suitable provision and the simplest way
would have been to include cases covered by Section 15 within the
scope and ambit of Section 37, but as stated earlier Section 37 does
not make any reference to Section 15 at all. Secondly, there is vast
difference between the termination of tenancy on the part of the tenant
by surrendering the land in favour of the landlord, and the termination
of the tenancy by the landlord for the purposes of obtaining the land
for personal cultivation or for his N.A. use, and it is only the latter type
of termination that has been specifically included in Section 37 of the
said Act. Mainly under Section 31, the termination of tenancy is by the
landlord in exercise of his right to obtain possession of the land for
personal cultivation while under Section 15 it is the tenant who initiates
the said Action by surrendering his tenancy and upon such surrender
being verified as voluntary, the land is given to the landlord and cases
are not inconceivable where sheer inability to cultivate the land on
account of largeness of the tenants own holding might prompt the
tenant to make voluntary surrender in which event there may be no
occasion to restore the surrendered land to him on landlords failure
to use it for the purpose for which he had obtained it. No useful
purpose would have been served by bringing such cases within the
purview of Section 37. Moreover it is not correct to say that even the
ultimate result is one and the same whether proceedings are initiated
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under Section 15 or Section 31. A landlord initiating proceedings
under Section 31 r.w. Section 29 would ordinarily be entitled to
recover possession of half the land and the other half would always
remain with the tenant and on the tiller's day he becomes absolute
purchaser of that portion, whereas if tenancy is terminated by
surrender as contemplated by Section 15, then, in proceeding taken
thereunder, the landlord, depending upon his own holding at the
material time may be entitled to the entire land or such portion thereof
as would make his total holding equal to the ceiling area. There is yet
one more difference. In proceedings instituted under Section 31, if the
landlord were to fail to prove his bona fide requirement for personal
cultivation, his application for possession would fail, and the tenant
would become the owner of the entire land on the tiller's day. But in
proceedings instituted under S. 15 of the said Act upon the surrender
being found voluntary, even if the landlord were to fail to establish his
requirement for personal cultivation or any requirement for non-
agricultural use, and for that matter, even if the landlord were to say
that he did not want the land for himself, such land would not revert
back to the tenant but it would form part of the pool distributable under
Section 32-P of the said Act. In other words, the two modes of
termination of tenancy are different the two procedures are different
and even the consequences flowing therefrom including ultimate
results are different, and, therefore it would be difficult to ascribe any
intention to the Legislature that even to cases falling under Section 15
of the said Act, the provisions of Section 37 were to be applied,
especially when Section 37 in terms merely refers to termination of the
tenancy by the landlord under Sections 31, 33-B or the old Section 34.
For the reasons indicated above, we are clearly of the view that
Section 37 of the said Act is not attracted to a case falling under
Section 15 of the said Act unless of course in a given case on facts it
is found that the surrender itself was conditional and the order passed
by the Mamlatdar under Section 15 directed delivery of possession
upon condition that the landlord shall cultivate the land personally or
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make use of it for his own non-agricultural purposes as was the case
in Special Civil Appln. No. 548 of 1962 (Bom)."
17. In view of the observations made by the Division Bench, it is
clear that sub-section (2) of Section 15 though incorporate the
conditions of termination of tenancy, embodied in Sections 31 and
31-A of the said Act, but because of that, the order under Section 15
cannot be regarded as one having been passed under Sections 31 or
31-A of the said Act. It is only the consequences of surrender of
tenancy made by the tenant that are enjoined to be worked out
having regard to such of the conditions, as may be applicable, as
mentioned in Sections 31 and 31-A of the said Act that is only effect
of sub-Section (2) of Section 15 making a reference of Sections 31
and 31-A of the said Act. The Division Bench has not subscribed the
views taken in the referred cases and further observed that even in
the proceedings instituted under Section 15 of the said Act upon
surrender being found voluntary, even if the landlord were to fail to
establish his requirements for personal cultivation or any requirement
for non agriculture use and for that matter even if the landlord were to
say that he did not want the land for himself, such land would not
revert back to the tenant but it would form part of the pool
distributable under Section 32-P of the said Act. The Division Bench
has observed in unequivocal words that two modes of termination of
tenancy are different, the two procedures are different and even the
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consequences flowing therefrom including ultimate results are
different and therefore, it would be difficult to ascribe any intention to
the Legislature that even to cases falling under Section 15 of the said
Act, the provisions of Section 37 were to be applied, especially when
Section 37 in terms merely refers to termination of tenancy by the
landlord under Sections 31, 33-B or the old Section 34. Section 37 of
the said Act is not attracted to a case falling under Section 15 of the
said Act unless of course in a given case, on facts, it is found that
surrender itself was conditional and the order passed by the
Mamlatdar under Section 15 of the said Act directed delivery of
possession upon condition that the landlord shall cultivate the land
personally or make use of it for his own non agricultural purposes.
18. In the instant case, the Taluka Awwal Karkun, Nagar Taluka
has not observed in the order that surrender was conditional and has
directed delivery of possession under Section 15 of the said Act upon
condition that the landlord shall cultivate the land personally. In terms
of provisions of section 29 of the said Act, the tenant is entitled to the
possession of any land, may apply in writing for such possession to
the Mamlatdar, within a period of two years from the date on which
right to obtain possession of the land is deemed to have accrued to
the tenants. In the instant case, when the provisions of Sections 37
and 39 of the said Act are not attracted then it is part of record that
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the tenants have not submitted any application within two years, as
contemplated under Section 29 of the said Act, leave apart that the
legal representatives of second tenant Bhingardive are not at all
taken on record in the proceedings and his name simply came to be
deleted from the array of respondents.
19. It further appears from the record that the learned Member of
the Tribunal has entertained the revision which is delayed by two
years and four months from the date of judgment and order passed
by the Sub Divisional Officer. In terms of provisions of Section 315(2)
of Maharashtra Land Revenue Code 1966, the application for
revision under clause (b) of section (1) would lie to the Tribunal and
in terms of sub-section (6) of section 315 such revision is required to
be filed within a period of 60 days from the date of order or direction
of the Collector and the provisions of Section 4, 5, 12 and 14 of the
Limitation Act 1963 shall apply for filing of such application or
revision. It is well settled that in the delayed case, unless the same
is decided on an application, the delay is not liable to be condoned.
In the facts of the present case, it clearly emerges that there has
been no application for condonation of delay in filing revision
application before the Tribunal. It is also well settled that where
statute does not stipulate any limitation, the right has to be exercised
within reasonable time.
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20. In the case of Improvement Trust, Ludhaina vs. Ujagar
Singh and others, reported in (2010) 6 SCC 786, relied upon by
learned counsel for the respondents tenants, the Supreme Court has
observed that while considering the application for condonation of
delay, no straight jacket formula is prescribed to come to the
conclusion that if sufficient and good grounds have been made out or
not. Each case has to be weighed from its facts and the
circumstances in which the party acts and behaves. From the
conduct, behaviour and attitude of the appellant, it cannot be said
that it had been absolutely callus and negligent in prosecuting the
matter, for after it became aware of non appearance of its counsel, it
prosecuted the matter with due diligence. The Supreme Court has
also observed that the delay is not so huge so as to warrant
dismissal on such hyper-technical ground or which could not have
been condoned.
21. In the instant case, though there is provision under the statute
prescribing the limitation of 60 days in filing application or revision
from the date of order or decision of the Collector and further made
the provisions of Sections 4, 5, 12 and 14 of Limitation Act
applicable, the learned Member of the Tribunal has entertained the
revision without there being any application seeking condonation of
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delay and without condoning the delay. It further appears from the
impugned order passed by the Tribunal that the Tribunal has
reproduced the observations made by the learned Tahsildar in
verbatim.
22. In view of the discussion made in the foregoing paragraphs,
this writ petition deserves to be allowed. Hence, the following order:-
ORDER
I. Writ petition is hereby allowed in terms of prayer clause "B".
II. The order dated 08.09.1984 passed by the Sub Divisional
Officer, Nagar Division, Ahmednagar in T.N.C. Appeal No. 1 of
1983 stands confirmed.
III. Rule is made absolute in the above terms.
IV. Pending civil application is also disposed of.
( V. K. JADHAV, J.)
rlj/
