Limitation To Be Decided First Case Law (Para 9,10,11,39)
Limitation To Be Decided First Case Law (Para 9,10,11,39)
Limitation To Be Decided First Case Law (Para 9,10,11,39)
under Section 84 of the Act of 1948 for restoration of possession of the suit
lands.
(c) The tenants filed an application under Section 84 of the Act before the Collector,
Satara. The Sub-Divisional Officer, Satara, after holding an enquiry was
persuaded to allow the application holding, inter alia, that though the landlord
was a certificated landlord, the possession of the suit lands was not obtained in
accordance with the provisions contained in Section 33-B of the Act of 1948; the
ALT in a proceedings under Section 70(b) of the Act of 1948 found that the
deceased tenant was in cultivation of the suit lands and the said finding has
attained finality. In this backdrop, the claim of the landlords that they have
obtained possession of the suit lands from the tenants was held to be
unsustainable as the landlords were not entitled to take possession of the
tenanted lands, otherwise than in accordance with the provisions contained in
the Act of 1948. Thus, the Sub-Divisional Officer allowed the application and
directed the landlords to evict themselves from the suit lands and restore the
possession of the suit lands to the tenants.
3. Being aggrieved by and dissatisfied with the aforesaid order of restoration of
possession, the landlords preferred revision before the MRT. It appears that the said
revision application was not preferred within the stipulated period of limitation, and,
thus, was accompanied by an application for condonation of delay. The learned
Member, MRT, after hearing the parties, was persuaded to condone the delay and allow
the revision application by one and the same order dated 20th October, 1994. To arrive
at the finding that the deceased Jaisingh was not in possession of the suit lands on
Tiller's day, the learned Member, MRT, placed reliance on a statement of Hanmant
Ahirekar, petitioner No. 1, to the effect that the landlords were personally cultivating
the suit lands since many years. Thus, the learned Member interfered with the order of
restoration of possession of the suit lands, passed by the Sub-Divisional Officer.
4. Being aggrieved by and dissatisfied with the aforesaid order of MRT, the
petitioners have invoked the writ jurisdiction of this Court.
5. I have heard Shri. Pradeep J. Thorat, the learned counsel for the petitioners and
Mr. Pai, the learned counsel for the respondents at a considerable length. I have also
perused the orders passed by the authorities under the Act, 1948, and the original
record and proceedings.
6. Mr. Thorat mounted a multi-pronged challenge to the impugned order passed by
MRT. First and foremost, according to Mr. Thorat, the learned Member, MRT committed
a grave error in passing a composite order of condonation of delay in preferring the
revision and deciding the revision itself. The said course of action caused serious
prejudice to the petitioners-tenants. The tribunal did not get the jurisdiction to
entertain and decide the revision unless the delay was condoned. This could not have
been done by the tribunal while finally determining the revision, urged Mr. Thorat.
Secondly, the learned Member committed a manifest error in discarding the fact that
the proceedings under section 70(b) had attained finality and the negative declaration
sought by the landlord was refused. The tribunal could not have resorted to a
statement allegedly recorded in the said proceedings to overturn a finding of fact
recorded by the Sub-Divisional Officer in a proceedings under section 84 of the Act.
Thirdly, the learned Member, MRT exceeded the revisional jurisdiction and embarked
upon a fact-finding enquiry, which is impermissible in law. Fourthly, the learned
Member, MRT lost sight of a primary fact that the certificated landlord was enjoined to
institute a proceedings under section 33-B of the Act, within the stipulated period. In
the absence of such proceedings, the landlord was not justified in divesting the
tenants of the possession of the suit land, otherwise than in accordance with the
provisions of the Act, 1948. Thus, the fact that the tenants allegedly surrendered the
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possession of the suit land voluntarily, was of no avail. The MRT, thus, completely
misdirected itself in allowing the revision by the impugned order, submitted Mr.
Thorat.
7. Mr. Pai, the learned counsel for the landlord, on the other hand, submitted that
not much mileage can be drawn from the fact that the application for condonation of
delay in preferring the revision and the revision itself were determined by one and the
same order, impugned herein. Mr. Pai took the Court through the impugned order in
support of the submission that the learned Member ascribed adequate reasons to
condone the delay. In the circumstances, the composite order cannot be called in
question. On the merits of the matter, Mr. Pai would urge that the tenants had
resorted to the proceedings under section 84 of the Act with a clever design to
overcome the possible challenge on the count of limitation, which the tenants would
have encountered if the proceedings under section 29 of the Act was instituted. Since
it was a case of voluntary surrender, pursuant to an order under section 88-C of the
Act, 1948, the recourse to the provisions under section 84 of the Act was wholly
impermissible. To obviate a possible challenge on the count of limitation and also with
a view to deprive the landlord an avenue of appeal, the tenants invoked the
jurisdiction of the Collector under section 84 of the Act. Moreover, since the
proceedings under section 32G of the Act have been dropped by the authorities under
the Act, at this juncture, no interference is warranted in the impugned order,
canvassed Mr. Pai.
8. The aforesaid submissions now fall for consideration. To begin with, the aspect of
limitation. Indubitably, the learned Member, MRT, proceeded to condone the delay and
determine the revision, simultaneously, by the impugned order. The justifiability of
such a course of action is put in contest by the tenants. In order to lend support to the
submission that such a course of action is impermissible, the learned counsel for the
petitioners placed reliance upon two judgments of a learned Single Judge of this
Court. In the case of National Buildings Construction Corporation Ltd. v. Regional
Labour Commissioner (Central), Nagpur1 , wherein the authority had condoned the
delay in the matter and had also allowed the application on merits by a common order,
the learned Single Judge, observed that in view of an earlier order passed by the
Division Bench of this Court in the case of Achutrao v. Topaji2 judgment in Writ
Petition No. 1796 of 2004, such course of action was not open and the order impugned
therein was required to be quashed and set aside on that ground alone. Ultimately, the
matter was remitted back to the respondent-Regional Labour Commissioner, for a
fresh determination.
9. The aforesaid judgment was followed in the case of Shankar Ramrao Rangnekar
v. Narayan Sakharam Sawant3 , wherein the MRT had condoned the delay in preferring
the revision and decided the revision also by one and the same order. This Court had
observed in paragraph 8 as under:
“8 The law in this respect is well settled. When there is delay, the Tribunal has to
first proceed to consider its condonation. It gets jurisdiction to consider the
controversy on merits only after such delay is condoned, Here consideration of
merits as also consideration of the prayer for condonation of delay is simultaneous.
View of this Court in M.M. College of Science v. R.T. Borkar, 1997 (2) Mh.L.J. 168
and National Building Construction v. Regional Labour Commissioner, 2006 (1)
Mh.L.J. 669 clinch the issue in favour of Petitioner.”
10. With the aforesaid observations, the matter was remitted back to MRT, to first
consider the prayer for condonation of delay and, in the event delay is condoned, by
passing appropriate order, then, the MRT shall look into the controversy in the revision
on merits.
11. The insistence upon the determination of application for condonation of delay,
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in the first instance, stems from two objectives. One, in the absence of the order of
condonation of delay, the tribunal is denuded of the jurisdiction to entertain the
proceedings on merits. Two, the determination of application for condonation of delay,
one way or the other, provides an opportunity of hearing to the parties, and, a further
opportunity to assail the legality, propriety and correctness of the said order, before an
appropriate forum, in the event, any of the parties is aggrieved by the said
determination.
12. The learned counsel for the respondents endeavoured to impress upon the
Court that, in the instant case, the consideration of the application for condonation of
delay and the determination of the revision on merits, neither constitutes a serious
procedural defect nor caused any prejudice to the petitioners. Laying emphasis upon
the observations of the Supreme Court in the case of N. Balakrishnan v. M.
Krishnamurthy4 , inter-alia, to the effect that the words “sufficient cause” under section
5 of the Limitation Act, 1963 should receive a liberal construction so as to advance
substantial justice, it was submitted that the MRT has ascribed justifiable reasons and,
on that count, this Court should be loathe to interfere with the order of MRT.
13. Drawing the attention of the Court to the observations in paragraph 7 of the
judgment of this Court in the case of Shankar Ramrao Rangnekar (Supra), wherein the
Court has recorded that no just and sufficient cause to condone the delay was
apparent, it was urged that the instant case stands on a different footing as the
learned Member, MRT has given elaborate reasons to condone the delay. Alternatively,
it was submitted that the matter needs to be remitted back to the learned Member,
MRT for a fresh determination.
14. It is true that the learned Member, MRT has assigned reasons to condone the
delay in paragraph 6 of the impugned order. It was, in terms, observed that there was
no carelessness and gross negligence on the part of the applicant and, thus, the
tribunal was inclined to lean in favour of condonation of delay. Had there been no
other factor, this Court would have preferred to proceed to determine the controversy
raised in the instant matter, on merits, rather than finding fault with the course of
action adopted by the learned Member, MRT. However, as it would become evident
from the following discussion that the learned Member, MRT has misdirected himself
both, on jurisdictional aspect and the core controversy between the parties, the
irregularity in condoning the delay, while finally determining the revision, cannot be
simply brushed aside.
15. As observed earlier, the learned Member, MRT was persuaded to overturn the
finding recorded by the Sub-Divisional Officer, by taking into account a statement
made by Hanmant Ahirekar, Petitioner No. 1, to the effect that the landlord was
personally cultivating the suit land since last many years. On the strength of aforesaid
statement, a further inference was drawn that the tenant was not in possession of the
suit land on the Tiller's day. The learned Member, MRT, thus, found that the claim of
the landlord that the deceased original tenant had voluntarily surrendered the
possession of the suit land, after the grant of a certificate under section 88-C of the
Act, was reasonable and appropriate.
16. Evidently, the learned Member, MRT interfered with a finding of fact recorded
by the Sub-Divisional Officer to the effect that the landlord had not taken possession
of the suit land in accordance with the provisions of the Act, 1948. Interestingly, the
learned Member, MRT did not advert to the fact that the ALT had recorded a finding, in
a proceeding under section 70(b) of the Act, 1948, that the tenant was in possession
of the suit lands on 1st April 1957 and, th0us, the landlord's application seeking a
negative declaration was dismissed.
17. Whether this approach of MRT is justifiable? For an answer, it is necessary to
appreciate the nature of the revisional jurisdiction exercised by MRT under section 76
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of the Act. To retain emphasis, and appreciate contours of the jurisdictional limitations
of MRT, section 76 is extracted below:—
“S. 76 Revision: (1) Notwithstanding anything contained in the Bombay
Revenue Tribunal Act, 1939, 1 an application for revision may be made to the
[Maharashtra Revenue Tribunal] constituted under the said Act against any order of
the Collector on the following grounds only:
(a) that the order of the Collector was contrary to law;
(b) that the Collector failed to determine some material issue of law; or
(c) that there was a substantial defect in following the procedure provided by
this Act, which has resulted in the miscarriage of justice.
(2) In deciding applications under this section the [Maharashtra Revenue
Tribunal] shall follow the procedure which may be prescribed by rules made
under this Act after consultation with the [Maharashtra Revenue Tribunal].”
18. From the phraseology of Section 76(1) it becomes abundantly clear that the
MRT is a Tribunal of limited jurisdiction. The grounds on which MRT may entertain a
challenge to, and, if found necessary, interfere with, an order passed by the Collector
have been specifically spelled out by Clauses (a) to (c). The jurisdiction of MRT is thus
circumscribed by the text of sub-section (1) of Section 76.
19. The distinction between revisional and appellate jurisdiction is well recognised.
The limited nature of revisional jurisdiction in contradistinction to the appellate power
was illuminatingly pointed out by a three-Judge Bench of the Supreme Court in the
case of the The State of Kerala v. K. M. Charia Abdulla and Co.5 , in the following
words:
“There is an essential distinction between an appeal and a revision. The
distinction is based on differences implicit in the said two expressions. An appeal is
a continuation of the proceedings; in effect the entire proceedings are before the
appellate authority and it has power to review the evidence subject to the statutory
limitations prescribed. But in the case of a revision, whatever powers the revisional
authority may or may not have, it has not the power to review the evidence unless
the statute expressly confers on it that power. That limitation is implicit in the
concept of revision.”
(emphasis supplied)
20. A profitable reference can also be made to a recent Constitution Bench
judgment in Hindustan Petroleum Corporation Ltd. v. Dilbahar Singh6 , wherein while
construing the revisional power of the High Court, under the State Rent Control
legislations, the Supreme Court adverted to, and explained, the distinction between
appellate and revisional jurisdiction. The relevant part of paragraph 28 reads as under:
—
“28. ……Conceptually, revisional jurisdiction is a part of appellate jurisdiction but
it is not vice versa. Both, appellate jurisdiction and revisional jurisdiction are
creatures of statutes. No party to the proceeding has an inherent right of appeal or
revision. An appeal is continuation of suit or original proceedings, as the case may
be. The power of the appellate court is coextensive with that of the trial court.
Ordinarily, appellate jurisdiction involves rehearing on facts and law but such
jurisdiction may be limited by the statute itself that provides for the appellate
jurisdiction. On the other hand, revisional jurisdiction, though, is a part of appellate
jurisdiction but ordinarily it cannot be equated with that of a full-fledged appeal. In
other words, revision is not continuation of suit or of original proceeding. When the
aid of Revisional Court is invoked on the revisional side, it can interfere within the
permissible parameters provided in the statute. It goes without saying that if a
revision is provided against an order passed by the Tribunal/appellate authority, the
decision of the Revisional Court is the operative decision in law. In our view, as
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34. The Supreme Court considered a further question as to whether a tenant who
has a remedy under Section 29 (1) can still apply to the Collector under Section 84. In
other words, whether the Legislature has provided alternative remedies under both the
sections to such a tenant, the Court answered the question observing, inter-alia, as
under:—
“6 The words “any person unauthorisedly occupying or wrongfully in possession
of any land” in Section 84, no doubt, are words of wide import and would include a
landlord who is in unauthorised occupation or is wrongfully in possession. A landlord
who under an invalid surrender is in possession of the land is, no doubt, a person in
unauthorised occupation or is wrongfully in possession. But then Section 84 in
express terms limits its application to three types of cases only, namely of a person
unauthorisedly occupying or Wrongfully in possession of the land (a) the transfer or
acquisition of which etc. is invalid under the Act, or (b) the management of which
has been assumed under the Act, or (c) to the use and occupation of which he is
not entitled under the provisions of the Act and the said provisions do not provide
for the eviction of such person.
7 ………………Clause (a) therefore, applies to transfers or acquisitions which are in
breach of the provisions of Ch. V and possession or occupation whereof has been
obtained under such invalid transfers or acquisitions. That being the position, the
instant case would fall only under Clause (c) and not under Clause (a) as contended
by Mr. Bhandare, and therefore, the condition that Section 84 would only apply to
cases for which there is no other remedy under any of the provisions of the Act
must apply to the present case. This condition shows that while giving drastic
powers of summary eviction to an administrative officer the legislature was careful
to restrict this power firstly because the result otherwise would be to deprive the
person evicted under Section 84 of his remedy of appeal before the Collector which
he would have if the order were to be passed under Section 29(1) and secondly,
because it would enable a tenant to by-pass a judicial inquiry by the Mamlatdar
under Section 29(1) by directly applying to the Collector under Section 84. Such a
result could not have been intended by the legislature. Therefore, the contention
that Sections 29(1) and 84 provide alternative remedies and a choice to the tenant
cannot possibly be correct.”
(emphasis supplied)
35. Per contra, Mr. Thorat, the learned counsel for the petitioners urged that the
provisions contained in section 29 do not govern a case wherein an erstwhile tenant
becomes a deemed purchaser on Tiller's day. In case of dispossession of such a tenant
an application under section 84 of the Act, is tenable. Since the jural relationship
between the landlord and tenant ceases, the only remedy available to such tenant is to
invoke the provisions contained in section 84 of the Act, submitted Mr. Thorat.
36. In order to lend support to this submission, Mr. Thorat banked upon the
judgments of this Court in the cases of Vithoba Ram Rahane v. Bhalchandra Sadashiv
Joshi since deceased by heir.12 , Shankar Savala Gurav v. Bala Govinda Patil13 , and
Maruti Ramaji Patil v. Babu Dhondi Mohite14 .
37. As observed earlier, the questions as to whether the jural relationship between
the deceased landlord and the deceased tenant came to an end on the Tiller's day and
the tenant could have invoked the powers of the Collector under section 84 of the Act
on the premise that he was not claiming under the provisions of the Act, have not
been examined by the learned Member, MRT. The consequences of grant of the
certificate under section 88-C and non-termination of tenancy under section 33-B of
the Act were also not adverted to. These issues constituted the core controversy. On
the contrary, instead of posing unto himself the pertinent questions which arose for
consideration, the learned Member, MRT proceeded to decide the matter by delving
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