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Judgment
A.M. Khanwilkar, J.—This writ petition, under Article 227 of the Constitution, has been filed by the petitioner-landlady challenging the order passed by the Maharashtra Revenue Tribunal, Pune dated 28.7.1986.
The husband of the Petitioner-landlady, original owner, died on 31.7.1944. On the tiller''s day, i.e. 1.4.1957, the petitioner was a disabled landlady and as per the provisions of Section 32F of the B.T. and A.L. Act, the tiller''s day; and consequently the right of the tenant to purchase the land as deemed tenant, stood postponed. Nevertheless, proceedings u/s 32G of the Act were initiated and public notice in that behalf was given on 1.5.1961 for fixing the purchase price in respect of the suit land bearing S. Nos. 70(2)(B) situated at Khamgaon, Taluka Haveli, District Pune. In the said proceedings, before the Additional Mamlatdar and A.L.T. No. 4. Haveli, one of the issue framed was - as to whether the tiller''s day is postponed, which is evident from the order passed by the said authority on 14.2.1964. Although the said issue was specifically framed, but the same has not been adjudicated upon by the Mamlatdar. The Mamlatdar was pleased to allow the said proceedings in favour of the tenant by fixing the purchase price in respect of the suit land. On the basis of the said order the tenant deposited the purchase price and also obtained certificate u/s 32M.
Being aggrieved by the aforesaid proceedings, the petitioner filed an appeal before the Assistant Collector, Haveli, Sub-Division, Pune, being Appeal No. 117 of 1981, after lapse of about 17 years. In the said appeal it was contended on behalf of the petitioner that since the: petitioner was a widow on the tiller''s day, i. e. 1.4.1957, in view of the provisions of Section 32F of the Act, it was not open to hold inquiry u/s 32G of the Act for fixing the purchase price in respect of the suit land as the tiller''s day as well as the right of the tenant to purchase the suit land as deemed purchaser stood postponed. The petitioner further contended that the petitioner had no knowledge about the 32G proceedings as she became aware of the same only when she got intimation of the decision. The petitioner, therefore, prayed that the delay in filing appeal, if any, be condoned. The Appellate Court however by a judgment and order dated 27.7.1982 was pleased to dismiss the appeal preferred by the petitioner solely on the ground that the same was barred by limitation. According to the Appellate Court the petitioner had knowledge about the 32G proceedings and therefore the appeal was time barred as no sufficient cause for the delay of 17 years was shown by the petitioner. It is relevant to point out that in the meantime the petitioner had filed an application against the respondent u/s 32R on the ground that the Respondents have violated provisions of Section 43 and thus made themselves liable for forfeiture of the suit land, and for restoring the land to the petitioner.
The petitioner preferred revision application before the Maharashtra Revenue Tribunal, Pune, inter alia, contending that the Court below was in error in rejecting the appeal on the ground of delay. The respondents resisted the said revision application preferred by the petitioner and contended that the petitioner had knowledge about the 32G proceedings and as such no indulgence be shown to the petitioner and the appeal as presented by the petitioner after lapse of about 17 years deserved to be dismissed. The respondents further contended that the petitioner had stated before the authorities that she had no objection if the suit lands were purchased by the respondents as tenants and it was not open for the petitioner to resile from the said statement. The respondents thus contended that the petitioner cannot be allowed to approbate and reprobate. The Tribunal however, after considering the rival submissions was pleased to dismiss the revision application filed by the petitioner. The Tribunal mainly held that the petitioner in her statement before the authorities has expressed her willingness for purchase of the suit lands by the respondents and put her thumb mark on the statement so made. The Tribunal, although held that the petitioner was a widow on the tiller''s day and also having noticed that on account of her disability the right to purchase the suit lands of the respondents-tenants stood postponed, however, further held that the petitioner had waived her right and it was therefore not open for the petitioner to contend to the contrary. According to the Tribunal, there was no infirmity in the order passed by the first authority fixing purchase price in respect of suit lands u/s 32G of the Act, in which case the appeal filed by the petitioner was clearly barred by limitation. Accordingly, the revision application was dismissed by the Tribunal.
The learned Counsel for the petitioner while assailing the judgment of the Tribunal argued that the reasoning of the Tribunal was self contradictory. According to the petitioner, the Tribunal having held that due to the disability of the petitioner-landlady the tiller''s day and the right of the tenant to purchase the suit lands stood postponed in law, it was wholly an error on the part of the Tribunal to negative the claim of the petitioner. According to the petitioner, since, the petitioner had no knowledge or intimation about the order passed u/s 32G proceedings, the appeal as presented by the petitioner before the Appellate Authority was well within limitation and at any rate the delay, if any, deserved to be condoned. The learned Counsel however went further and argued that even assuming that there was delay of 17 years in filing the appeal, however, an order passed u/s 32G proceedings being nullity the same could be challenged at any stage or even in collateral proceedings as and when the said order is sought to be put in execution against the petitioner. According to him, the tiller''s day having been postponed the Mamlatdar had no jurisdiction whatsoever to proceed with the 32G proceedings in view of clear bar u/s 32F. The learned Council for the Petitioner emphasized that the Tribunal having held that the Petitioner was a widow on the tiller''s day, further having held that on account of the said disability the tenant did riot become deemed purchaser till the disability was cured, committed grave error in rejecting the petitioner''s claim on the aforesaid supposed ground that the petitioner had waived her right.
None appears for the Respondent though they have been duly served. Shri A.V. Anturkar, learned Counsel for the Petitioner contended that since proceedings u/s 32G were null and void and without jurisdiction, the appeal filed by the petitioner beyond limitation ought to have been entertained irrespective of the amount of delay and even if no sufficient cause was shown for condonation of delay. According to the Petitioner in the present case, it would be seen that there was in fact no delay in filing of the appeal. Shri Anturkar placed reliance on the decision of the Full Bench of this Court in support of his contention in Abdullamiyan Abdulrehman Vs. The Government of Bombay, . In all fairness, he has placed before this Court the other decisions which have taken a contrary view, since no one was appearing on behalf of the Respondents. Reference has been made to the decision in Narhar Shamrao Deshpande Vs. Lakhu Raghu Dalvi (since decd.) through his heir, Yeshwant Laxman and Another, and Madhavdas Damodardas Gujar and Others Vs. Mahadu Keru Raut, . It is further contended that in view of the decision of the Full Bench of this Court it will have to be held that the appeal as filed by the Petitioner was competent and ought to have been decided on merits in favour of the Petitioner. He referred to the decision of the Learned Single Judge Shri Justice Tulpule, as he then was, reported in Narhar Shamrao Deshpande Vs. Lakhu Raghu Dalvi (since decd.) through his heir, Yeshwant Laxman and Another, . He contends that this decision does not in terms hold that when the order under challenge is attacked on the ground of nullity, even to such appeals, limitation would apply. It is further contended that decision reported in Madhavdas Damodardas Gujar and Others Vs. Mahadu Keru Raut, has followed the aforesaid decision of Justice Tulpule. It is contended that in the later decision the point in issue was very limited and the observations therein that even whether the order is challenged on the ground of nullity it is necessary to file an appeal that too within limitation is merely obiter. It is further contended that in any case the observations in the later case are per in curium as the same have been made in ignores of the decision of this Court''s Full Bench judgment reported in 44 Bom. L.R. 577.
The aforesaid submissions advanced on behalf of the Petitioner, initially appeared to be attractive, however, the same are totally untenable. I have had an occasion to decide another matter in which identical issue was raised. In the said matter, being Writ Petition No. 3246 of 1987, after referring to the decision of the Apex Court reported in AIR 1991 SC 2219 and other decisions of this Court of different Benches I have rejected the contention that it is not necessary for the aggrieved party to file an appeal against the order which is challenged on the ground of nullity even though the statutory appeal is provided against the said order. In the said matter it is further held that it is not only obligatory to challenge the order by way of appeal before the Competent Court but the appeal should be filed within the prescribed period or at least sufficient cause should be shown for condonation of delay. For the reasons recorded in the said judgment, I am disposed to reject the aforesaid arguments pressed into service on behalf of the Petitioner in this case. Moreover, after going through the decisions of the Courts below I find that the Appellate Court as well as the Revisional Court was right in rejecting the stand taken by the Petitioner and the Court below have rightly held that appeal preferred by the Petitioner after lapse of about 17 years was hopelessly barred by limitation and, that there was no sufficient cause shown by the Petitioner for condonation of delay. It is not possible for me to take a different view in the matter.
The other submission made by the learned Counsel for the Petitioner as to the effect of the statement given by the landlady in 32G proceedings, relying on the decision of the Apex Court reported in Amrit Bhikaji Kale and Others Vs. Kashinath Janardhan and Another, and unreported judgment of this Court of Justice V.S. Kotwal, as he then was, in the case of Babu Bantu Patil v. Chandrappa Babanna Dugani Special Civil Application No. 824 of 1978 decided on 2nd July, 1981. However, this submission need not detain us any longer for the simple reason that if the appeal is held to be barred by limitation, it is wholly unnecessary to examine the said contention as it would tantamount to deciding the mater on merits which were not to be the scope of the proceedings before the Appeal Court.
In the circumstances, writ petition deserves to be dismissed with costs all throughout. Rule stands discharged and the impugned order dated 27.7.1982 passed by the Assistant Collector, Haveli Sub-Division, Pune in Appeal No. 117 of 1981 and order passed by the M.R.T. Pune dated 28.7.1986 in Revision No. 13 of 1982 are affirmed.
Certified copy expedited.
Parties to act on the copy of this order duly authenticated by Sheristedar of this Court.