Bombay High Court
Jayashri Shrish Chaubal vs Savalaram Kalu Tamhane Since Decd Thr ... on 8 January, 2024
Author: Amit Borkar
Bench: Amit Borkar
2024:BHC-AS:1521
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VRJ
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12918 OF 2022
Digitally
signed by
VAIBHAV
VAIBHAV RAMESH
RAMESH JADHAV
JADHAV Date:
2024.01.12
18:30:53
+0530
Jayashri Shirish Chaubal ... Petitioner
V/s.
Savalaram Kalu Tamhane
Since Deceased Through Legal Heirs ... Respondents
Mr. Bhushan Walimbe with Mr. Mayank Tripathi for the
petitioner.
Mr. Shashank Mangle i/bv Mr. Yogesh D. Keny for the
respondents.
CORAM : AMIT BORKAR, J.
DATED : JANUARY 8, 2024
P.C.:
1. The petitioner (Landlord) is challenging order passed by the
Maharashtra Revenue Tribunal, Mumbai confirming order passed
by the Appellate Authority refusing to condone delay of 14 years 4
months in challenging order passed by the Tenancy Authorities
under section 70(B) and section 32(G) of the Bombay Tenancy and
Agricultural Lands Act, 1948.
2. The Additional Tehsildar and Agricultural Lands Tribunal,
Kalyan in proceedings bearing Tenancy Case No.88 of 1995 on 1 st
July 1998 passed an order under section 70(B) of the Bombay
Tenancy and Agricultural Lands Act, 1948. In proceedings No.4 of
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1998, certificate under section 32(G) of the Bombay Tenancy and
Agricultural Lands Act, 1948 was issued in favour of the
respondents on 4th December 1998.
3. Challenging both orders, the petitioner filed appeal on 4 th
December 2012. Along with appeal the petitioner filed application
for condonation of delay. The reason furnished by the petitioner
for condonation of delay of 14 years 4 months is that the notice of
proceedings was never served on the petitioner. Immediately after
getting knowledge of the orders, the petitioner had filed the appeal
along with the application for condonation of delay.
4. The Appellate Authority, by order dated 5th August 2013,
allowed the appeal holding that necessary procedure for rendering
the findings under section 70(B) and section 32(G) of the Bombay
Tenancy and Agricultural Lands Act, 1948 was not followed.
5. The respondents challenged the order before the
Maharashtra Revenue Tribunal, Mumbai. The Tribunal, by order
dated 5th February 2015, partly allowed the revision by directing
that the Appellate Authority should first decide the application for
condonation of delay and then shall decide the appeal on merits.
6. The Appellate Authority, therefore, on 21st March 2017
passed an order refusing to condone the delay as the Appellate
Authority recorded a finding that necessary procedure for service
of notice was followed though individual notice was not served on
the petitioner's address.
7. The petitioner, therefore, challenged the order of Appellate
Authority before the Maharashtra Revenue Tribunal. The Tribunal,
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by judgment and order dated 25th November 2021, dismissed the
revision. Hence, the petitioner has filed present writ petition.
8. Learned advocate for the petitioner submitted that the
erstwhile tenant in the property had surrendered his tenancy in
favour of the petitioner. The entry in the revenue record as on 1 st
April 1957 indicates that name of the respondents was not entered
in the revenue record on tillers day. Therefore, the orders passed
by the Agricultural Lands Tribunal declaring the respondent as
tenant under section 70(B) and passing order of granting
certificate under section 32(G) of the Bombay Tenancy and
Agricultural Lands Act, 1948 were without jurisdiction. He
submitted that the respondents-tenants admitted in their
examination-in-chief that they had never paid rent to the
petitioner and they are not aware about the date or period when
they came in possession of the property in dispute. Therefore,
according to him, in such case, the provisions of the Limitation Act,
1963 would not apply as the orders are void .
9. Per contra, learned advocate for the respondents-tenants
invited my attention to the mutation entries effected on 17 th July
1998 recording orders passed by the Agricultural Lands Tribunal
on 1st July 1998 under section 70(B) of the Bombay Tenancy and
Agricultural Lands Act, 1948. He also invited my attention to
mutation entry dated 28th February 2000 incorporates order dated
4th December 1998 passed under section 32(G) of the Bombay
Tenancy and Agricultural Lands Act, 1948. According to him,
therefore, the revenue record from 1998 and 2000 refers to
passing of orders under section 70(B) and section 32(G) of the
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Bombay Tenancy and Agricultural Lands Act, 1948 and therefore,
it cannot be said that the petitioner had no knowledge of passing
of said orders. He submitted that the application for condonation
of delay is devoid of merits.
10. Having considered the submission, in my opinion, the order
passed under section 70(B) and section 32(G) of the Bombay
Tenancy and Agricultural Lands Act, 1948 cannot be termed as
void. The fact as to whether a person whose name is entered in
revenue record on 1st April 1957 can be declared as tenant under
section 70(B) of the Bombay Tenancy and Agricultural Lands Act,
1948 or certificate can be issued under section 32(G) of the said
Act cannot be termed as jurisdictional fact as opposed to
adjudicatory fact. The difference between the adjudicatory fact and
jurisdictional fact has been explained by the judgment of the Apex
Court in the case of Carona Limited vs. M/s. Parvathy
Swaminathan & Sons reported in (2007) 8 SCC 559. The Apex
Court, in paragraphs 29 to 36, held as under:
"Jurisdictional fact and adjudicatory fact
29. But there is distinction between "jurisdictional fact"
and "adjudicatory fact" which cannot be ignored. An
"adjudicatory fact" is a "fact in issue" and can be determined
by a Court, Tribunal or Authority on "merits", on the basis of
evidence adduced by the parties. It is no doubt true that it is
very difficult to distinguish "jurisdictional fact" and "fact in
issue" or "adjudicatory fact". Nonetheless the difference
between the two cannot be overlooked.
11. Therefore, whether the respondents were tenants on tillers
day or not was required was an adjudicatory fact. Absence of
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sufficient evidence to arrive at conclusion that the respondents are
the tenants in the properties in dispute cannot render such
adjudication or order, void or nullity.
12. Having perused the mutation entries of 17th July 1998 and
28th February 2000, it is clear that both mutation entries clearly
refer to order dated 1st July 1998 under section 70(B) Bombay
Tenancy and Agricultural Lands Act, 1948 and order dated 4 th
December 1998 passed under section 32(G) of the Bombay
Tenancy and Agricultural Lands Act, 1948. If according to the
petitioner, erstwhile tenant had surrendered possession in favour
of the petitioner, it implies that the petitioner is in possession of
property in dispute. If that be so, the petitioner cannot be heard to
say that he was not aware of mutation entry of his land from the
year 1998 and 2000 till filing of appeal in the year 2012.
13. Therefore, the reasons assigned in the application for
condonation of delay that the petitioner was not aware of the
entry of respondent as tenant or mutation entries dated 17 th July
1998 and 28th February 2000 till the filing of appeal cannot be
accepted.
14. Hence, the exercise of discretion by the authorities below
rejecting application for condonation of delay cannot be termed as
perverse.
15. The writ petition is, therefore, dismissed. No costs.
(AMIT BORKAR, J.)
