1 wp.2280.94.doc ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2280 OF 1994 Ajij Babalal Mulla D/H. 1. Isak Ajij Mulla and others. ... Petitioners Versus Jayawantrao Ramchandra Mane and others. ... Respondents ­­­­­­­­ Mr. M.J.Patil, for the Petitioners. Mr. V.B.Rajure for the Respondents. ­­­­­­­­ CORAM : A.S.OKA, J. DATE ON WHICH SUBMISSIONS ARE HEARD : 19 th November, 2010. DATE ON WHICH JUDGMENT IS PRONOUNCED : 18 th January, 2011. JUDGMENT : 1 By this writ petition under Article 227 of the Constitution of India, the Petitioners have challenged the judgment and order dated 30 th July, 1990 passed by the Sub­Divisional Officer, Karvir Sub­Division, Kolhapur as well as judgment and order dated 3 rd December, 1992 passed by the learned Member of the Maharashtra Revenue Tribunal, Kolhapur. 2 wp.2280.94.doc 2 The 3 rd respondent in this petition filed an application dated 19 th January, 1987 before the learned Additional Tahasildar and the Agricultural Lands Tribunal contending that he was the tenant in respect of the suit lands described in paragraph No.1 of the petition and that the 1 st and 2 nd respondents were landlords. The 3 rd respondent claimed that he was entitled to purchase the suit lands under Section 32 (O) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as “the said Act”). By judgment and order dated 23 rd March, 1987, the learned Additional Tahasildar accepted the case made out by the 3 rd respondent and held him eligible for purchase of suit lands under Section 32 (O) of the said Act. The 3 rd respondent granted time to deposit the purchase price within a period of one year. A direction was issued that certificate under Section 32 (M) of the said Act shall be issued to the 3 rd respondent. 3 An appeal was preferred by the Petitioners against the said order dated 23 rd March, 1987. The appeal was dismissed by order dated 3 wp.2280.94.doc 30 th July, 1990 on the ground that though the Petitioners had knowledge on 2 nd November, 1987 of the order dated 23 rd March, 1987, the appeal was not preferred within the stipulated period of limitation of 60 days. Thus, it was held that the appeal was barred by limitation. The Petitioners preferred revision application before the Maharashtra Revenue Tribunal. By the impugned judgment and order, the Maharashtra Revenue Tribunal confirmed the order of the Appellate Authority holding that the appeal was barred by limitation. The learned Member of the Tribunal also held that though the Petitioners were claiming on the basis of the agreement dated 20 th May, 1972, the said document was not produced by the Petitioners. 4 The learned counsel appearing for the Petitioners submitted that the 1 st and 2 nd respondents entered into an agreement in favour of the predecessor of the Petitioners for sale of the suit lands. He submitted that according to the case of the Petitioners, after execution of the said agreement, the 1 st and 2 nd respondents inducted the 3 rd respondent. He submitted that the predecessor of the Petitioners was not aware of the 4 wp.2280.94.doc order of the learned Additional Tahasildar. He pointed out that after the Petitioners’ predecessor became aware of the said order, an application was made by him on 3 rd November, 1987 before the Additional Tahasildar making a grievance about the order. He pointed out that only on 27 th November, 1987, the Additional Tahasildar issued a communication to the predecessor of the Petitioners informing him of the order dated 23 rd March, 1987 and advising him to approach the higher Court. The learned counsel pointed out that the said letter was received by the Petitioners on 3 rd December, 1987 and thereafter, they sought legal advice. He stated that after receiving the legal advice on 22 nd January, 1988, the Petitioners approached the office of the Sub­Divisional Officer for preferring an appeal, but the said office was closed on account of the demise of a political leader. It is stated that on 23 rd and 24 th January, 1988 were holidays being fourth Saturday and Sunday. The appeal was preferred on 25 th January, 1988. He pointed out that from the date of receiving intimation i.e. on 3 rd December, 1987, the appeal was preferred within the stipulated period of limitation. He submitted that all these aspects were completely ignored by the Sub­Divisional Officer as well as by the 5 wp.2280.94.doc learned Member of the Maharashtra Revenue Tribunal. He submitted that in any case, a liberal approach ought to have been adopted by the Sub­Divisional Officer. He submitted that the Sub­Divisional Officer could have always granted time to the Petitioners to apply for condonation of delay. He submitted that as a result of technical approach adopted by the authorities, a meritorious case has been thrown out. The learned counsel appearing for the Respondents supported the impugned judgment and order. 5 I have given careful consideration to the submissions. The appeal was preferred by the Petitioners for challenging the order dated 23 rd March, 1987 passed by the learned Additional Tahasildar. In view of sub­section (2) of Section 74 of the said Act, the appeal will be governed by the provisions of the Maharashtra lands Revenue Code, 1966 under which the period of limitation for 60 days has been provided for preferring an appeal. As noted earlier, the appeal was preferred on 25 th January, 1988 for challenging the order dated 23 rd March, 1987. In amended paragraph No. III­D of the petition, the Petitioners have stated that they 6 wp.2280.94.doc got knowledge of the order dated 23 rd March, 1987 on 3 rd November, 1987 and therefore, on the same day, they made an application before the Additional Tahasildar pointing out that by agreement dated 20 th May, 1972, the 1 st and 2 nd defendants have agreed to sell the suit lands to the Petitioners. It is pointed out that the Petitioners applied for a certified copy on 10 th November, 1987 and the same was received by them on 24 th November, 1987. The Petitioners are relying upon the letter dated 27 th November, 1987 sent by the learned Additional Tahasildar to their predecessor, which was received on 3 rd December, 1987. By the said letter, the learned Additional Tahasildar informed the Petitioners’ predecessor to seek appropriate remedy against the order dated 23 rd March, 1987 by approaching higher forum. It is pertinent to note that the Appellate Authority has recorded a finding that it is evident from the application dated 3 rd November, 1987 made by the Petitioner’s predecessor that he was aware of the order of the learned Additional Tahasildar on 2 nd November, 1987. Therefore, even assuming that 2 nd November, 1987 is the date of knowledge of the impugned order and assuming that the date of knowledge is the starting point of the 7 wp.2280.94.doc limitation, the appeal was not preferred within 60 days. The learned member of the Maharashtra Revenue Tribunal has confirmed the finding of the Appellate Authority as regards bar of limitation of appeal. 6 In fact the period of limitation started running from the said date on which the order impugned was passed. If the case of the Petitioners’ predecessor was that till 2 nd November, 1987, he was not aware of the impugned order, that would have been at the most a ground to seek condonation of delay. However, the Petitioners did not apply for condonation of delay though a specific objection regarding barred of limitation was raised before the Appellate Authority. Perusal of the judgment of the Maharashtra Revenue Tribunal shows that even before the said Tribunal, there was no prayer made by the Petitioners for passing of an order of remand to enable the Petitioners to apply before the Appellate Authority for condonation of delay. Now in the year 2010 – 2011, an opportunity cannot be granted to the Petitioners to file application for condonation of delay in the appeal of the year 1988. 8 wp.2280.94.doc 7 There is another important aspect, which is noted by the learned Member of the Maharashtra Revenue Tribunal. The Petitioners have not disputed that the 1 st and 2 nd respondents were the original owners and landlords of the suit lands. The Petitioners are claiming right on the basis of the alleged agreement of sale dated 20 th May, 1972 executed by and between the 1 st and 2 nd respondents and the predecessor of the Petitioners. The finding recorded by the Maharashtra Revenue Tribunal is that even the said agreement was not produced before the Appellate Authority. Moreover, it must be noted that there is no conveyance executed by the 1 st and 2 nd respondents in favour of the Petitioners. In view of Section 54 of the Transfer of Properties Act, 1882, no interest is created in favour of the purchasers under an agreement for sale in the immovable property subject matter of said Agreement. 8 Considering the aforesaid factors, this is not the case where interference can be made in exercise of powers of Superintendence of this Court under Article 227 of the Constitution of India. 9 wp.2280.94.doc 9 Hence, there is no merit in the writ petition and the same is accordingly, dismissed. Rule is discharged with no order as to costs. [ A.S.OKA, J ]