Bombay High Court
Shri. Prashant Haribhau Dalvi And Ors vs Govind Ramchandra Saptarshi And Ors on 20 July, 2026
Author: Amit Borkar
Bench: Amit Borkar
wp3280-2020-J.doc
Sayali
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3280 OF 2020
WITH
SAYALI WRIT PETITION NO.3088 OF 2020
DEEPAK
UPASANI
1. Prashant Haribhau Dalvi
Digitally signed
by SAYALI
DEEPAK
UPASANI
2. Kamal Haribhau Dalvi, (deleted)
Date: 2026.07.20
12:13:09 +0530
3. Nitinkumar Haribhau Dalvi
since deceased through LRs
3a Shweta Nitinkumar Dalvi
3b. Tanishka Nitinkumar Dalvi
3c. Tikshala Nitinkumar Dalvi
3d. Aarav Nitinkumar Dalvi
4. Pratibha Ajit Bhujbal
5. Ujjawala Dattatraya Tilekar
6. Vandana Haribhau Doke
7. Pramod Shankarrao Dalvi
8. Sharad Shankarrao Dalvi
9. Vijay Shankarrao Dalvi
10. Hemlata Vitthalrao Gaikwad
11. Mangal @ Pushpalata
Prakashrao Barke ... Petitioners
Vs.
1. Govind Ramchandra Saptarshi,
since deceased through LRs
1a. Neelima Vidyasagar Patwardhan
1
wp3280-2020-J.doc
1b. Gauri Vikas Kulkarni
1c. Shashank Govind Saptarshi
1d. Meghna Vidyasagar Patwardhan
2. Yogesh Mangalsen Bahal
3. Rahul Maruti Adkar ... Respondents
Mr. Avinash B. Avhad with Mr. Mahesh Rawool & Mr.
Goraksha Avhad for the petitioners in both petitions.
Mr. S.G. Karandikar i/by Mr. Prathamesh Bhargude for
respondent Nos.2 in both petitions.
Mr. Prathamesh Bhargude for respondent No.3 in both
petitions.
CORAM : AMIT BORKAR, J.
RESERVED ON : JULY 13, 2026.
PRONOUNCED ON : JULY 20, 2026
JUDGMENT:
1. By these writ petitions, the Petitioners are challenging the
order dated 6 September 2018 passed by the Maharashtra Revenue
Tribunal, Pune Bench, Pune in Revision Application No.
P/IV/2/2016.
2. The facts giving rise to these petitions are as follows. The
dispute is about agricultural land bearing Survey No. 160/1,
admeasuring 92 R, situated at Village Hadapsar, Pune, which is
referred to as the suit property. According to the Petitioners, their
ancestor, Shri Namdeo Mahadu Dalvi, was cultivating the suit
property as a tenant before 1 April 1957. Therefore, under the
Bombay Tenancy and Agricultural Lands Act, 1948, he became a
2
wp3280-2020-J.doc
protected tenant and was also treated as a deemed purchaser of
the land. It is their case that Mutation Entry No. 4449 dated 12
October 1953 also recorded the name of Shri Namdeo Mahadu
Dalvi as the tenant in the revenue records. In the year 1957, the
original landlord filed Application No. 1267 of 1957 under Section
31 of the Bombay Tenancy and Agricultural Lands Act, 1948
against Shri Namdeo Mahadu Dalvi. By an order dated 24 January
1959, the landlord was allowed to recover possession of half
portion of the suit property. However, this was made subject to the
condition that the land should be put to non-agricultural use
within the prescribed time. According to the Petitioners, the
landlord did not fulfil this condition. Thereafter, on 19 January
1960, Shri Namdeo Mahadu Dalvi passed away. After his death,
Mutation Entry No. 5384 dated 13 February 1960 was recorded.
By this entry, the names of his legal heirs, namely Shankar,
Haribhau, Shevantabai, Anandibai, Jayavantibai and Parubai, were
entered in the “Other Rights” column of the Record of Rights as his
legal heirs, and the same was reflected in the 7/12 extract. Later,
on 3 March 1962, the limits of the Pune Municipal Corporation
were extended, and because of that, the suit property came within
the municipal limits.
3. On 14 February 1964, the Agricultural Lands Tribunal,
Hadapsar, passed an order in Case No. ALT/III/Hadapsar/64
holding that the provisions of the Bombay Tenancy and
Agricultural Lands Act, 1948 were not applicable because the land
had come within the municipal limits. After this order, Mutation
Entry No. 6433 dated 30 March 1964 was made, by which the
3
wp3280-2020-J.doc
names of the tenant’s legal heirs were removed from the revenue
records. According to the Petitioners, this was done without giving
any notice either to the tenant or to his legal heirs. Many years
later, on 29 September 2007, the Petitioners filed Tenancy Appeal
No. 2003 of 2007 before the Sub Divisional Officer, Haveli
Division, Pune under Section 74 of the Act. They challenged the
order passed in the year 1964 and also filed an application
requesting that the delay in filing the appeal be condoned.
4. On 1 October 2007, some of the Petitioners also filed Special
Civil Suit No. 1734 of 2007 before the Civil Judge, Senior Division,
Pune. In that suit, they sought declaration of their rights,
cancellation of certain documents and a permanent injunction.
Thereafter, on 14 March 2008, the Sub Divisional Officer directed
the Petitioners to produce a copy of the order passed by the
Agricultural Lands Tribunal in the year 1964. Thereafter, on 28
March 2008, the Sub Divisional Officer held that the appeal was
not maintainable on the ground that it had been filed against
Mutation Entry No. 6433. However, according to the Petitioners,
even after this order was passed, the matter continued to remain
on the board of the authority. Fresh dates were given from time to
time, and the parties continued to appear before the authority on
different dates, including 7 July 2008 and 6 August 2008.
5. On 25 August 2008, the Sub Divisional Officer made a note
in the Roznama stating that since the earlier officer had already
passed an order, no further order was required. According to the
Petitioners, no formal order was ever supplied to them. They
therefore sought information under the Right to Information Act,
4
wp3280-2020-J.doc
2005. By a reply dated 12 January 2010, the Information Officer
informed them that no separate order had been passed and that
only the Roznama entry was available. Thereafter, on 10 February
2010, the Petitioners filed Revision Application No.
TNC/REV/26/2010/P before the Maharashtra Revenue Tribunal
along with an application seeking condonation of delay. In the year
2012, the Tahsildar, Haveli, started proceedings in Tenancy Case
No. 32G/SR/3/2012 on the basis of a reference made by the Civil
Court under Section 32G of the Bombay Tenancy and Agricultural
Lands Act, 1948. By an order dated 11 January 2012, the Tahsildar
held that the Petitioners’ ancestor was the tenant of the suit
property as on 1 April 1957. The Tahsildar also recorded that the
Petitioners continued to remain in possession of the land. On that
basis, the purchase price of the suit property was fixed under
Section 32G of the Act.
6. Being dissatisfied with this decision, the Respondents, who
are the landlords, filed Tenancy Appeal No. 17 of 2012 before the
Sub Divisional Officer and Deputy Collector, Pune. By an order
dated 8 February 2016, the appeal was allowed. The Tahsildar was
directed to decide Tenancy Case No. SR/64/2011 and to
communicate to the Civil Court the decision relating to the order
dated 14 February 1964 and also the order passed by the Sub
Divisional Officer in the year 2008. Aggrieved by this order, the
Petitioners filed Revision Application No. P/IV/2/2016 before the
Maharashtra Revenue Tribunal. By two separate orders dated 6
September 2018, the Tribunal dismissed both revision applications.
While dismissing Revision Application No. TNC/REV/26/2010/P,
5
wp3280-2020-J.doc
the Tribunal held that the Petitioners had not given a satisfactory
explanation for the delay in filing the revision. By another order
passed on the same day in Revision Application No. P/IV/2/2016,
the Tribunal held that the order passed by the Agricultural Lands
Tribunal in the year 1964 was binding on the subsequent Tahsildar.
On that basis, the revision application was also dismissed.
7. Being aggrieved by both the orders dated 6 September 2018
passed by the Maharashtra Revenue Tribunal, and also by the
consequential orders passed by the authorities under the Bombay
Tenancy and Agricultural Lands Act, 1948, the Petitioners have
filed the present writ petitions before this Court.
8. Learned Advocate Mr. Avinash B. Avhad appearing for the
Petitioners submitted that the Maharashtra Revenue Tribunal was
not justified in rejecting the Revision Application only on the
ground of delay. According to him, the original order dated 14
February 1964, by which the proceedings under the Bombay
Tenancy and Agricultural Lands Act, 1948 were closed on the
ground that the land had come within the municipal limits, was
itself without legal authority and was a nullity. He submitted that if
an order is void from the beginning, the question of limitation does
not arise while challenging such an order. He further submitted
that the Sub Divisional Officer had initially recorded on 28 March
2008 that the appeal was withdrawn or rejected. However, even
after making such a recording, the authority continued to give
dates in the same proceedings, and finally, on 25 August 2008,
dismissed the appeal. According to him, the Petitioners were never
informed about the order dated 25 August 2008 and came to know
6
wp3280-2020-J.doc
about it only later. Immediately thereafter, they took legal steps
and filed the Revision Application.
9. In support of his contention that the order dated 14 February
1964 was a nullity, Mr. Avhad placed reliance upon the decision of
the Supreme Court in Tribhovandas Haribhai Tamboli v. Gujarat
Revenue Tribunal, AIR 1991 SC 1538. He submitted that while
interpreting the provisions introduced by the Gujarat Amendment
Act, the Supreme Court held that the rights already acquired by a
tenant as a deemed purchaser cannot be taken away
retrospectively. He further submitted that while deciding the said
case, the Supreme Court also considered its earlier decision in
Parvati v. Fatehsinhrao Pratapsinhrao Gaekwad, AIR 1986 SC
2204, which dealt with Section 88(1)(b) of the Bombay Tenancy
and Agricultural Lands Act as applicable in Maharashtra.
According to him, although the Supreme Court in Parvati held that
a notification issued under Section 88(1)(b) operates
retrospectively, the rights already acquired by a tenant as a
deemed purchaser before issuance of such notification continue to
remain protected. On that basis, he contended that the Petitioners’
predecessor had already become a deemed purchaser and those
rights could not have been taken away by the subsequent
notification.
10. Mr. Avhad also relied upon the judgment of the Division
Bench of this Court in Pralhad Ganaba Kapare v. Sadaba Rambhau
Bhonsale and Another, AIR 1973 Bom 172. He submitted that the
Division Bench held that the rights acquired by a tenant under
Section 32 of the Bombay Tenancy and Agricultural Lands Act
7
wp3280-2020-J.doc
cannot be taken away merely because a notification is later issued
under Section 88(1)(b) excluding the applicability of Sections 32
to 32R. He further relied upon another Division Bench judgment in
Ankush Hiraman Magar and Others v. Thakubai Maruti Tupe and
Others, AIR 1981 Bom 350, where it was held that once a tenant
acquires ownership under Section 32(1), such ownership is not
lost merely because the land is later brought within the municipal
limits. Relying upon these judgments of this Court and the
Supreme Court, he submitted that the order dated 14 February
1964, by which the proceedings under Section 32G were dropped,
was without legal effect. According to him, the delay in filing the
Appeal and the Revision deserved to be condoned and the
impugned orders required to be set aside.
11. By way of rejoinder, Mr. Avhad submitted that the judgment
in Jasin Tomu Damel v. Harischandra Pandurang Muranjan, 1959
SCC OnLine Bom 100 was not applicable to the facts of the present
case. According to him, the question whether a tenant governed by
the Bombay Tenancy and Agricultural Lands Act, 1948 would
continue to enjoy the rights available under that Act was not
considered in that decision. He also sought to distinguish the
judgment in Parvati by submitting that the Supreme Court in that
case was considering the provisions of the Bombay Tenancy Act,
1939. He further submitted that the decision in V.S. Charati v.
Hussein Nhanu Jamadar, (1999) 1 SCC 273 was also
distinguishable because, in that case, the Tribunal had already
dropped the proceedings on 31 May 1961 on the ground that the
landlord was a minor, and the tenant had never challenged that
8
wp3280-2020-J.doc
order. According to him, those facts are entirely different from the
facts of the present case.
12. Mr. Avhad further submitted that the Petitioners’ predecessor
had already expired in the year 1960. Therefore, according to him,
when the Agricultural Lands Tribunal passed the order on 14
February 1964, the proceedings were continued against a person
who was no longer alive. He submitted that such an order cannot
be sustained in law.
13. On the other hand, learned Advocate Mr. Karandikar
appearing for Respondent No. 2 opposed the petitions. Inviting
attention to Section 32(1) of the Bombay Tenancy and Agricultural
Lands Act, he submitted that although the section declares a
tenant to be a deemed purchaser, it specifically states that such
declaration is subject to the other provisions contained in that
section and the succeeding provisions of the Act. According to him,
this includes clauses (a) and (b) of the section, their provisos, as
well as other provisions such as Sections 88B, 88C, Chapter III AA
and Sections 43.1B and 43.1E. Therefore, according to him, the
rights of a deemed purchaser are always subject to these statutory
provisions.
14. Mr. Karandikar further relied upon the judgment of the
Supreme Court in V.S. Charati. He submitted that the Supreme
Court explained that the expression “purchase” occurring in
Section 43.1E means a completed purchase and not merely the
status of a deemed purchaser. Therefore, according to him, a
tenant who has only become a deemed purchaser cannot claim
9
wp3280-2020-J.doc
protection under Section 43.1E so as to prevent the landlord from
exercising rights under Section 43.1B. He also submitted that the
Supreme Court held that once an order passed by the competent
Tribunal is not challenged, it becomes final and binding upon the
parties. Merely because such an order may be legally incorrect, it
does not automatically become a nullity.
15. Mr. Karandikar also referred to Section 88B(1) of the Act. He
submitted that this provision was inserted by Maharashtra Act 38
of 1957 and specifically provides that several provisions of the
Bombay Tenancy and Agricultural Lands Act would not apply to
the lands covered by that section, except the provisions expressly
saved therein. According to him, this itself shows that the
legislature intended to create statutory exceptions to the general
rights available under the Act.
16. Proceeding further, Mr. Karandikar submitted that wherever
the provisions of the saved Chapters are applicable, they continue
to govern the matter. According to him, if the Petitioners’ argument
is accepted that no amendment made after Tiller’s Day can affect
the rights of a deemed purchaser, then every subsequent
amendment introduced by the Legislature, including Sections
88(1)(b), 88C, 43.1B, 43.1E and 43C, would become meaningless.
He submitted that such an interpretation cannot be accepted.
17. Referring to the judgment in Tribhovandas Haribhai Tamboli,
relied upon by the Petitioners themselves, Mr. Karandikar
submitted that the Supreme Court in that case was considering
two special provisos introduced by the State of Gujarat. According
10
wp3280-2020-J.doc
to him, no such provisos exist in the Maharashtra enactment.
Therefore, the reasoning adopted in that case cannot be applied in
the same manner to the present dispute. He further submitted that
the Supreme Court, while deciding Tribhovandas Haribhai
Tamboli, had approved its earlier judgment in Parvati. According
to him, the Supreme Court specifically observed that Parvati was
decided in the absence of the Gujarat provisos and that the
interpretation given therein would continue to apply while
considering notifications issued under Section 88(1)(b).
18. Mr. Karandikar also relied upon the judgment of the
Supreme Court in Parvati. He submitted that the Supreme Court
clearly held that once the Government issues a notification under
Section 88(1)(b) declaring certain lands to be reserved for non-
agricultural, or industrial development, the provisions of the
Bombay Tenancy and Agricultural Lands Act cease to apply to
those lands. According to him, the Supreme Court also rejected the
argument that such notifications cannot operate retrospectively
and expressly held that Section 88(1)(b) has retrospective effect.
He submitted that the effect of the notification dated 21 May 1958
was that all rights, obligations, and liabilities created under the Act
in respect of the notified lands came to an end. He further relied
upon the Division Bench judgment of this Court in Jasin Tomu
Damel, wherein it was held that the right of a deemed purchaser
under Section 32 is only a statutory right and not an absolute
vested right.
19. Replying to the contention that the original tenant had
already expired before the order dated 14 February 1964 was
11
wp3280-2020-J.doc
passed, Mr. Karandikar submitted that the Petitioners themselves
failed to produce a copy of the impugned order though Rule 251 of
the Maharashtra Land Revenue Code required them to annex it
with the appeal. According to him, because the complete order and
its cause title were not produced, neither the Appellate Authority
nor this Court could verify whether the legal representatives of the
deceased tenant had already been brought on record in those
proceedings. He pointed out that on 14 March 2008, the Appellate
Authority had specifically directed the Petitioners to produce a
copy of the order dated 14 February 1964. Even then, they failed
to comply with that direction. According to him, after allowing
several decades to pass without challenging the order and without
producing the relevant record, the Petitioners cannot take
advantage of their own omission. He therefore submitted that the
writ petitions deserve to be dismissed.
20. Mr. Karandikar also sought to distinguish the judgment of
this Court in Ankush Hiraman Magar. According to him, that case
arose under Section 88C and not under Section 88(1)(b), which is
involved in the present proceedings. He submitted that Section
88C begins with language which specifically excludes the
operation of Sections 32 to 32R, subject to certain exceptions. He
further pointed out that Section 33C opens with a non obstante
clause overriding Section 88C(1), and sub section (5) of Section
33C expressly provides that Sections 32 to 32R would apply, as far
as possible, to the purchase of land by an excluded tenant. On that
basis, he submitted that the statutory scheme considered in
Ankush Hiraman Magar is materially different and the said
12
wp3280-2020-J.doc
judgment cannot govern the present case.
REASONS AND ANALYSIS:
21. Main dispute between both sides is about how Chapter III of
the Bombay Tenancy and Agricultural Lands Act, 1948 and
exemption given under Section 88(1)(b) are required to be read
together. According to the Petitioners, their predecessor became
deemed purchaser on Tillers’ Day under Section 32. Because of
this, later inclusion of the land inside municipal limits could not
take away the statutory rights which had vested in his favour. On
the other side, the Respondents contend that Section 88(1)(b)
removes application of the earlier provisions of the Act. Therefore,
according to them, once a valid notification under Section 88(1)
(b) becomes applicable, the statutory rights flowing from Chapter
III cannot continue.
22. Section 32(1) of the Act provides:
“On the first day of April 1957 … every tenant shall, subject
to the other provisions of this section and the provisions of
the next succeeding sections, be deemed to have purchased
from his landlord…”
23. The starting words, namely, “subject to the other provisions
of this section and the provisions of the next succeeding sections”,
become important because both parties are reading these same
words in different way. The Petitioners say these words show those
situations which are written in Sections 32G and 32M where the
statutory purchase can later become ineffective. According to
them, outside those situations, the purchase remains untouched.
The Respondents submit that these opening words show that the
13
wp3280-2020-J.doc
purchase under Section 32 is never complete in every respect.
According to them, it always remains controlled by the later
provisions contained in the Act and cannot be read separately.
24. Section 88(1)(b) provides:
“Save as otherwise provided in sub-section (2), nothing in
the foregoing provisions of this Act shall apply … to any area
which the State Government may, from time to time, by
notification in the Official Gazette, specify as being reserved
for non-agricultural or industrial development.”
25. The issue is about the meaning and effect of the words
“nothing in the foregoing provisions of this Act shall apply”. Both
sides accept the existence of this provision, but each side gives
different meaning to these words. Therefore, proper understanding
of this expression becomes necessary for deciding the present
petitions.
26. In view of these rival submissions, following questions
require consideration in the present petitions:
(i) What is the true nature of the statutory purchase under
Section 32 of the Act?
(ii) Whether Section 88(1)(b) operates so as to exclude the
application of Chapter III in respect of lands covered by a
valid notification?
(iii) Whether the order dated 14 February 1964 can be
regarded as void for want of jurisdiction or whether it is, at
the highest, an order alleged to be legally erroneous?
14
wp3280-2020-J.doc
(iv) Whether the Petitioners have satisfactorily explained
the delay in questioning the said order before the appellate
and revisional authorities?
27. These questions are required to be examined by reading the
statutory provisions together with the decisions relied upon by
both sides, so that the effect of the Act and the authorities can be
properly understood.
Statutory Scheme and Consideration of the Rival
Submissions:
28. I have considered the submissions made from both sides. I
have gone through the provisions of the Bombay Tenancy and
Agricultural Lands Act, 1948 and the judgments relied upon by
both parties. At first reading, submissions made by both sides
appear to carry some force. Still, the dispute cannot be decided by
picking only one section of the Act or by reading only one
judgment. The provisions of the Act and the judgments cited
before the Court are required to be read together so that proper
meaning can be gathered from the entire statutory scheme.
29. The Petitioners have placed reliance upon Section 32 of the
Act. Section 32(1) provides:
“On the first day of April 1957 … every tenant shall, subject
to the other provisions of this section and the provisions of
the next succeeding sections, be deemed to have purchased
from his landlord…”
30. According to the Petitioners, once the tenant became a
deemed purchaser on the Tillers’ Day, ownership came in his
15
wp3280-2020-J.doc
favour by operation of law. They submit that after this stage, such
title could be defeated only in those situations which are
mentioned in the Act. According to them, the Act recognises
limited circumstances where such purchase can become
ineffective. Therefore, no other provision should be understood in
a manner which takes away the statutory purchase created under
Section 32.
31. For supporting this submission, reliance has been placed
upon the judgment of the Supreme Court in Sri Ram Ram Narain
Medhi v. State of Bombay, AIR 1959 SC 459. The Supreme Court in
paragraph 39 observed:
“The title of the landlord to the land passes immediately to
the tenant on the tiller’s day… The tenant gets a vested
interest in the land, defeasible only in either of these
cases…”
32. Similarly, the Bombay High Court in Ankush Hiraman Magar,
while following the above judgment, observed in paragraph 7:
“The purchase is complete on the tillers’ day and the land
becomes vested in the tenant as from that date.”
33. Again, in paragraph 9, it was observed:
“The subsequent inclusion of land within the limits of the
Poona Municipal Corporation cannot have the effect of
divesting the land which had once vested in the tenant under
Section 32(1).”
34. Prima facie, these observations appear to support the
Petitioners’ submission that the purchase under Section 32 is not
incomplete. According to these authorities, statutory rights come
16
wp3280-2020-J.doc
in favour of the tenant on the Tillers’ Day.
35. However, the matter does not stop only there. Section 32
starts with the words “subject to the other provisions of this section
and the provisions of the next succeeding sections”. These opening
words cannot be ignored. They appear to indicate that the
purchase created under Section 32 was never intended by the
Legislature to operate independent from the remaining provisions
of the Act. Rather, the Legislature made the operation of Section
32 subject to the later provisions contained in the statute.
36. The later provisions show that though the purchase may take
place on the Tillers’ Day, in situations recognised by law, such
purchase may later become ineffective. Section 32G(3) provides
that where the tenant is not willing to purchase the land, the
Tribunal shall declare that the purchase is ineffective. Section 32M
further provides that if the purchase price is not paid, the purchase
shall become ineffective and thereafter the land has to be dealt
with under Section 32P. Sections 32N and 32P further regulate
what consequences will follow after such purchase becomes
ineffective. Thus, the Act itself recognises that a purchase brought
into existence under Section 32 may cease to operate in situations
recognised by the statute.
37. The Respondents submit that the present case stands on a
different footing altogether because it is governed by Section 88(1)
(b). Section 88(1)(b) provides:
“Save as otherwise provided in sub-section (2), nothing in
the foregoing provisions of this Act shall apply… to any area17
wp3280-2020-J.docwhich the State Government may… specify as being reserved
for non-agricultural or industrial development.”
38. According to the Respondents, the words “nothing in the
foregoing provisions of this Act shall apply” have been used in
wide language. They submit that unlike Section 88C, which
excludes only Sections 32 to 32R, Section 88(1)(b) excludes the
operation of all the foregoing provisions of the Act. Therefore,
according to them, once a valid notification under Section 88(1)
(b) becomes applicable, Chapter III no longer governs those
notified lands.
39. For supporting this submission, reliance has been placed
upon the judgment of the Supreme Court in Parvati. The Supreme
Court observed in paragraph 3:
“On a plain reading of the provisions of Section 88(1) it is
crystal clear that… the provisions of the Tenancy Act were
made inapplicable retrospectively…”
40. The Court further held in paragraph 5 :
“The consequence that falls is that the provisions of Bombay
Tenancy and Agricultural Lands Act, 1948 are not applicable
to the land in question… and as a result these rights acquired
under the said Act automatically becomes non est.”
41. The Supreme Court also rejected the submission based upon
Section 89(2)(b) by observing in paragraph 5 :
“The argument… is totally devoid of any merit.”
42. These observations appear to give support to the
Respondents’ contention that Section 88(1)(b) was intended by
the Legislature to operate as an overriding provision in relation to
18
wp3280-2020-J.doc
notified lands.
43. The Petitioners attempted to answer this submission by
placing reliance upon the judgment in Tribhovandas Haribhai
Tamboli. According to them, the Supreme Court recognised that
the rights of a deemed purchaser cannot be taken away
retrospectively.
44. However, on careful reading of the said judgment, it appears
that the controversy before the Supreme Court arose because of
the two provisos inserted by the Gujarat Amendment Act, 1965. In
paragraph 9, the Supreme Court noticed the judgment in Parvati
and recorded:
“…this Court held that the notification had retrospective
operation and… all rights, title, obligations etc. accrued or
acquired under the said Act ceased to exist.”
45. The Court thereafter further observed:
“It would be seen that the effect of the second proviso was
not considered therein.”
46. Thus, the distinction made in Tribhovandas appears to be
because of the special Gujarat provisos and not because the
interpretation adopted earlier in Parvati was held to be incorrect. It
is also not disputed that the amendments considered in
Tribhovandas are not part of the Maharashtra enactment.
47. The Respondents have further relied upon the Division
Bench judgment in Jasin Tomu Damel. In that case, the Division
Bench rejected the contention that a notification under Section 88
could not affect the existing tenancy rights and observed in
19
wp3280-2020-J.doc
paragraph 14 :
“…the notification issued by the State Government… cannot
affect the defendant’s rights.”
48. The Court also observed that the earlier view treating such
rights as vested rights “cannot now be regarded” as correct.
Though this judgment was delivered before the decision in Parvati,
its broad approach appears broadly consistent with the
interpretation which was later accepted by the Supreme Court.
49. The Petitioners have placed reliance upon Ankush Hiraman
Magar. There can be no dispute that the said judgment explains
the legal fiction created by Section 32 and the vesting which takes
place on the Tillers’ Day. At the same time, it also appears that the
controversy before the learned Single Judge was arising under
Sections 88C and 43C. The legal effect of Section 88(1)(b) was not
under examination in that case. Naturally, the Court had no
occasion to consider the pronouncement of the Supreme Court in
Parvati. Therefore, though the principles stated regarding statutory
purchase continue to have importance, their application to a
matter governed by Section 88(1)(b) still requires examination
keeping in view the judgments of the Supreme Court.
50. Another submission made by the Respondents relates to the
nature of the order dated 14 February 1964. According to the
Petitioners, that order is a nullity because it was passed against a
person who had already expired and also because it proceeds on
an incorrect understanding of the provisions of the Act.
51. In this connection, reliance has been placed upon the
20
wp3280-2020-J.doc
judgment in V.S. Charati. The Supreme Court observed in
paragraph 9:
“A decision, simply because it may be wrong, would not
thereupon become a nullity. It would continue to bind the
parties unless set aside.”
52. This principle makes distinction between an order which is
wrong and an order which is without jurisdiction. Whether the
order dated 14 February 1964 falls in one category or the other
cannot be decided only by making an allegation. That question will
necessarily depend upon the facts available on record and the
nature of jurisdiction exercised by the Agricultural Lands Tribunal.
The Petitioners have asserted that the proceedings continued
against a dead tenant. On the other hand, the Respondents have
pointed out that despite directions, the Petitioners themselves did
not produce the complete order dated 14 February 1964.
Therefore, it cannot even be verified whether the legal
representatives had been brought on record. These rival
submissions therefore require examination on the basis of the
available material.
53. Thus, after considering the statutory provisions and the
authorities relied upon by both sides, it appears that the present
controversy is not confined to the concept of deemed purchase
under Section 32. The issue appears to be whether such statutory
purchase continues without interruption even after the Legislature
has enacted an provision like Section 88(1)(b), and whether the
order passed in the year 1964 can be ignored as a nullity or
whether it continues to bind the parties until it is set aside in
21
wp3280-2020-J.doc
accordance with law.
54. The stand taken by the Petitioners is that their predecessor
became a deemed purchaser on the Tillers’ Day under Section 32.
According to them, once the statute treated the tenant as
purchaser, ownership came into existence by operation of law.
They submit that a later event, namely inclusion of the land within
municipal limits, could not remove rights which had come into
existence. For this proposition, reliance has been placed upon the
decisions in Ankush Hiraman Magar and Pralhad Ganaba Kapare.
Those judgments proceed on the footing that Section 32 creates a
statutory fiction and that the purchase is deemed to have taken
place on the Tillers’ Day. They proceed on the basis that such
purchase can fail only in those situations which the Act recognises.
55. While considering the above submission, this Court cannot
ignore the language used by the Legislature in Section 32. The
section does not create an unconditional purchase. It states that
the deemed purchase is “subject to the other provisions of this
section and the provisions of the next succeeding sections.” These
qualifying words form part of the enactment and therefore cannot
be ignored while interpreting the scope of Section 32. The
statutory purchase created by Section 32 has to be considered
together with the remaining provisions of the statute.
56. The Respondents have relied upon Section 88(1)(b). Their
submission is that where the State Government has issued a
notification reserving an area for non-agricultural or industrial
development, the Legislature has declared that the earlier
22
wp3280-2020-J.doc
provisions of the Act shall not apply. They contend that the
language used in Section 88(1)(b) was intended to operate as an
overriding provision. Therefore, once the notification is made
applicable to a particular area, the rights claimed under Chapter III
cannot continue only because the tenant had become a deemed
purchaser.
57. The above submission gets support from the judgment of the
Supreme Court in Parvati. In that judgment, the Supreme Court
examined Section 88(1)(b) under the Maharashtra enactment and
interpreted the effect of the notification issued thereunder. The
Court held that the notification operated retrospectively and that,
subject to the statutory exceptions, rights claimed under the Act
did not continue in respect of notified lands. The Supreme Court
rejected the contention that Section 89(2)(b) preserved such rights
notwithstanding the notification. Since the controversy before this
Court also concerns Section 88(1)(b) of the Maharashtra Act, the
interpretation placed by the Supreme Court cannot be ignored.
58. The Petitioners attempted to distinguish the above decision
by relying upon Tribhovandas Haribhai Tamboli. However, after
examining the said judgment, it appears that the controversy there
arose because of two provisos introduced by the Gujarat
Amendment Act, 1965. The Supreme Court noticed the earlier
decision in Parvati and explained the context in which the
controversy had arisen. Those statutory amendments do not exist
in the Maharashtra legislation. Therefore, the observations made
in Tribhovandas have to be understood in the background of the
Gujarat amendments and cannot govern disputes arising under the
23
wp3280-2020-J.doc
Maharashtra Act.
59. The same position applies while examining the reliance
placed upon Ankush Hiraman Magar. The observations made
therein regarding the legal fiction created by Section 32 continue
to have significance. However, the controversy before the learned
Judge in that matter arose under a different statutory setting
involving Sections 88C and 43C. The consequences flowing from
Section 88(1)(b), after the later decision of the Supreme Court in
Parvati, did not arise for consideration. Therefore, though the
principles stated therein remain relevant, they cannot answer the
issue arising in the present petitions.
60. The Petitioners have next submitted that the order dated 14
February 1964 deserves to be ignored altogether because it was
passed against a deceased tenant and therefore suffers from a
complete lack of jurisdiction. This Court finds difficulty in
accepting the submission. The Petitioners were called upon before
the authorities to produce the complete order dated 14 February
1964. Despite such opportunity, the original order together with its
complete cause title has not been produced. In the absence of that
record, it is not possible to arrive at a conclusion whether the legal
representatives had or had not been brought on record before the
order was passed. Since the Petitioners seek to establish that the
order is a nullity, the burden to establish such plea rests upon
them. Mere assertion unsupported by the original proceedings
would not be sufficient to establish that the entire adjudication
was conducted against a dead person.
24
wp3280-2020-J.doc
61. In this connection, the principle explained by the Supreme
Court in V.S. Charati assumes considerable importance. The
Supreme Court has recognised that an order passed by a
competent authority does not become a nullity merely because
another legal interpretation may be possible. Unless such order is
set aside by a competent forum, it continues to bind the parties.
This distinction between an erroneous order and an order without
jurisdiction cannot be ignored while examining the controversy.
62. Taking an overall view of the matter, this Court is satisfied
that the Petitioners have raised questions concerning the operation
of Section 32, the effect of the notification issued under Section
88(1)(b), and the manner in which the proceedings were
conducted. However, they have not established that the order
dated 14 February 1964 is so void that it can be ignored. The
interpretation placed by the Supreme Court in Parvati continues to
bind this Court while construing Section 88(1)(b) of the
Maharashtra Act. Likewise, the principle stated in V.S. Charati
makes it clear that an order does not become non est merely
because it is alleged to be incorrect.
63. For these reasons, this Court is unable to decide the
controversy only on the assumption that the order dated 14
February 1964 was void. The correctness of that order has to be
examined within the provisions of the Bombay Tenancy and
Agricultural Lands Act, 1948, particularly Section 88(1)(b), and in
the light of the decisions of the Supreme Court. The authorities
relied upon by both sides arose in different contexts and,
therefore, each of them has to be understood in the facts of each
25
wp3280-2020-J.doc
case. The determination must depend upon the reading of the
statutory provisions, the notification issued under Section 88(1)
(b), the effect of the order dated 14 February 1964, and the
material which is established on record.
64. On perusal of the record, it appears that the Petitioners
questioned the order dated 14th February 1964 by filing an appeal
under Section 74 of the Bombay Tenancy and Agricultural Lands
Act, 1948 only in the year 2008. Thus, the challenge was brought
after decades from the date on which the order came to be passed.
Such long lapse of time required the Petitioners to place before the
appellate authority a convincing explanation for not approaching
the authority within limitation.
65. The record further shows that the appeal was initially
dismissed on 28th March 2008 on the ground that it was not
maintainable. However, the matter continued to appear on the
board and further dates were assigned. According to the
Petitioners, on 25th August 2008 the appellate authority merely
recorded that since the appeal had been dismissed by the earlier
order dated 28th March 2008, there was no necessity of passing
any order. According to the Petitioners, this sequence of events
created confusion regarding the actual status of the proceedings.
Even if such submission is taken into consideration, it still
remained necessary for the Petitioners to explain the subsequent
period because the conduct of the parties after the alleged
confusion also assumes importance.
66. The Maharashtra Revenue Tribunal, while considering the
26
wp3280-2020-J.doc
application for condonation of delay, examined the explanation
offered by the Petitioners regarding the period subsequent to 25th
August 2008. The Tribunal noticed that even after the alleged
order or Roznama entry dated 25th August 2008, the Petitioners
did not immediately apply for obtaining a certified copy. Instead,
the application for certified copy came to be made only on 11th
November 2009. The Tribunal found that there was no explanation
for this period between 25th August 2008 and 11th November
2009. According to the Tribunal, mere assertion that the
Petitioners were unaware of the position was not sufficient in the
absence of any material showing diligence. On that reasoning, the
Tribunal concluded that sufficient cause had not been established.
67. The Tribunal did not stop at examining the delay occurring
after the proceedings before the appellate authority. It also
considered the question relating to the delay in filing the appeal
against the original order dated 14th February 1964. The Tribunal
examined the Petitioners’ contention that the said order was a
nullity and therefore could be challenged at any point of time.
After considering the material placed before it, the Tribunal did
not accept that contention. It formed the opinion that the order
dated 14th February 1964 could not be treated as a nullity merely
because such allegation had been made by the Petitioners. Once
the Tribunal reached that conclusion, it proceeded on the footing
that the normal principles of limitation and condonation of delay
will apply.
68. In my opinion, the approach adopted by the Tribunal cannot
be said to be either arbitrary or contrary to law. The Tribunal has
27
wp3280-2020-J.doc
examined both aspects of the matter. Firstly, it considered whether
sufficient explanation had been offered for the delay occurring
after the proceedings of August 2008. Secondly, it also examined
whether the original order dated 14th February 1964 could be
regarded as a nullity so as to render the question of limitation
irrelevant. After recording reasons on both issues, the Tribunal
concluded that the Petitioners had failed to establish sufficient
cause. Merely because another view may also be possible on the
facts would not justify interference under Article 226 of the
Constitution of India.
69. Once the Tribunal held that the order dated 14th February
1964 was not a nullity, the Petitioners could not avoid explaining
the enormous delay in approaching the appellate authority. In my
considered opinion, therefore, the order passed by the
Maharashtra Revenue Tribunal does not warrant interference in
exercise of writ jurisdiction. Once the Revisional Authority has
examined the issue of delay on the basis of the material available
and has arrived at a plausible conclusion, this Court would not
substitute its own view merely because another conclusion could
also have been reached.
70. Accordingly, I am of the opinion that no case is made out for
interference with the impugned order. The writ petitions, being
devoid of merit, are therefore dismissed.
71. In the facts and circumstances of the case, there shall be no
order as to costs.
28
wp3280-2020-J.doc
72. Pending interim application(s), if any, shall stand disposed
of.
(AMIT BORKAR, J.)
29
