2010 Supreme(Bom) 289

IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
V. R. KINGAONKAR, J.
Sambhaji Shripati Bankar (Deceased through L. Rs.)
Vs.
Keshav Rangnath Ekbote (Deceased through L. Rs.)
Writ Petition No.2005 of 1991
Decided On : 25th February, 2010.

Headnote:Bombay Tenancy and Agricultural Lands Act, 1948 - Section 328 - Restoration of land - Sought by landlord as tenant had excess land - Application for filed 28 years after deemed purchase of land by tenant - Rejected by Tahsildar holding, tenant, in view of raised ceiling not holding excess land and can retain possession and application filed after lapse of 28 years barred by limitation - SDO reversed it - Revision against dismissed by Tribunal (MRT) - Writ petition against by tenant - Held - Section 32-P of Act not permits surrender of land to landlord - Rights of tenants on tiller’s day cannot be lightly taken away - Application after 28 years is barred by limitation - Impugned judgments of MRT and SDO unjustified - Set aside - Order of tahsildar restored - Petition allowed. - Mr. Gaware further invited Court’s attention to certain observations in Uttam Namdeo Mahale v. Uttam Deo and others, 1998 (1) Bom CR 786 : 1997 DGLS (Soft) 790 : AIR 1997 SC 2695. The Apex Court held that there is no specific limitation provided under Section 21 of the Bombay Mamlatdar’s Court Act, 1906. It is held that the eviction order could have been executed at any time. This authority is hardly of any relevance in the context of present case. The rejection of the previous application under Section 32G could not be treated as an executable order for the purpose of Section 32-P and as such, it could not be assumed that at any time, the Tribunal may take the action required under Section 32-P because there was no limitation provided for such kind of execution. Reliance is also placed on certain observations in (Madhukar Damodar Pawar, deceased through his heirs and legal representatives and others v. Madan Purshottam Pandkar and another,) 2003 (3) Bom CR 291. A learned Single Judge of this Court held that the limitation was not provided for execution of eviction order under Section 21 of the Mamlatdar’s Courts Act, 1906 in relation to orders under Sections 31, 73 and 73-A of the BT & AL Act. The argument of Mr. Gaware is that the proceedings under Section 32-P are in the form of the execution of the order because, previously, such direction was given while dropping proceedings under Section 32-G of the BT & AL Act. It is unfortunate that the copy of the order rendered by the Mamlatdar is not on record and more over only because of disposal of the proceedings under Section 32-G, the power under Section 32-P could not have been invoked on assumption that it was to be exercised by way of execution of the order rendered under Section 32-G of the BT & AL Act. Both the sections operate in different fields. If such interpretation is not adopted, it is probable that in a given case, the proceedings under Section 32-G may be dropped on the premise that the tenant was unwilling to purchase the land. Yet, the right to purchase the land may not become ineffective if he later on shows willingness to deposit the determined price under Section 32-M. The basic requirement of Section 32-P is to clearly determine the issue whether the right of the tenant has become ineffective and frustrated due to his apathy to go ahead with the proposal to purchase the tenanted land or due to his default in making payment of the determined price. The rights of tenants, who were found in possession on the Tillers’ Day, cannot be lightly taken away.

       By analogy, the same view can be taken in the context of the action provided under Section 32-P of the BT & AL Act. This Court in (Gulabrao Bhaurao Kakade since deceased by LRs and others v. Nivrutti Krishna Bhilare and others, 2001 (Supp) Bom CR 688 : 2001 (4) Mh LJ 31, held that the powers under Section 32(1) of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 are required to be exercised within reasonable period though no specific limitation is provided for. The absence of specific period of limitation will not give a licence to the Competent Authority to initiate action at any point of time though it has become too stale. The law does not expect keeping dominical’s sword hanging on head of any litigant for perennial period. For all these reasons, no hesitation in holding that institution of such proceedings under Section 32-P after about 28 years was improper and barred by limitation.

       

       For the reasons stated here in above, the impugned judgments of the learned Member of the Maharashtra Revenue Tribunal and the Sub-Divisional Officer are patently erroneous. Hence, the petition is allowed. The impugned judgments are set aside and that of the Tahsildar is restored. Rule made absolute accordingly. No costs.