( 1 ) wp625.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 625 OF 2011 Yusuf Kadar Shaikh .. Petitioner Age. 45 years, Occ. Agri., R/o. Eklahare, Tq. Shrirampur, Dist. Ahmednagar. Versus 1. Hanumant Pandurang Take .. Respondents Age. 65 years, Occ. Agri., R/o. Eklahare, Tq. Shrirampur, Dist. Ahmednagar. 2. M/s. Maharashtra Sugar Mills, Tilaknagar, Tq. Shrirampur, Dist. Ahmednagar. Mr. R.R. Mantri i/b. Mr. Mazhar A. Jahagirdar a/w Mr. A.S. Bajaj, Advocate for the petitioner. Mr. S.S. Kulkarni, Advocate for respondent No.1. CORAM : A.V. NIRGUDE, J. DATED : 22.09.2011 ORAL JUDGMENT :- 1. This writ petition filed under Articles 226 & 227 of the Constitution of India is challenging the judgment & order dated 27.10.2010, passed by the learned Member, Maharashtra Revenue Tribunal, Aurangabad, in Revision Petition No.15-B-2006-AN, in which respondent No.1 was the petitioner. 2. The facts leading to this litigation in short can be stated as under :- ( 2 ) wp625.11 3. The petitioner was owner of land block No. 58/4, admeasuring 1 H 20 R of village Eklahare, Tal. Shrirampur, Dist. Ahmednagar. He leased out his land to respondent No.2-Sugar Mill on or around 1960, for the purpose of cultivation of sugar-cane. Respondent No.1 was an employee of respondent No.2-Sugar Mill. In 1987-88, respondent No.2-Sugar Mill closed down its operation and it decided to release the land which was taken on lease from the individual farmers. At that time, respondent No.1 claimed independent right of tenancy of the disputed land qua the petitioner and there occurred dispute between the parties over such claim. On one hand the petitioner was trying to assert that he was put in possession by respondent No.2 terminating contract of tenancy etc. On the other hand, respondent No.1 asserted that he was in possession as tenant and cannot be dispossessed without following due process of law. Accordingly, he filed Regular Civil Suit No.252 of 1998 in the Civil Court against the petitioner for perpetual injunction. In this suit the petitioner took up a stand that he was in possession since 1988 as respondent No.2- Sugar Mill had given him possession. In the said suit, on facts the Trial Court held that in view of consistent revenue record, it could not be held that the petitioner was in possession. It held that respondent No.1 was in possession since prior to 1988. The petitioner then ( 3 ) wp625.11 filed an appeal against this judgment before the First Appeal Court and the learned District Judge held in his favour, allowed appeal and dismissed the suit of respondent No.1. As against this, respondent No.1 came before this Court in Second Appeal, which is still pending. 4. At the time when this Court considered the interim application for stay etc. it observed that if the petitioner was not in possession, he may take possession by following due process. This observation was made sometime in 2006. But this suggestion was already followed in principle by the petitioner. It is common ground that after the suit of respondent No.1 was decreed, in 2004 the petitioner went before the Tenancy Court with his application under Section 84 of the Bombay Tenancy and Agricultural Lands Act, 1948 (henceforth the Act). 5. Respondent No.1 also took certain evasive action in 2006. In 2006 he initiated, for the first time, a proceeding before the Revenue Court for fixing the purchase price etc. under Section 43A of the Act. Both these proceedings for quite sometime were going on parallel to each other. On one hand the Tenancy Court held that the application under Section 84 was maintainable and that the respondent No.1 could not prima facie show that he was tenant. They, therefore, held ( 4 ) wp625.11 that the petitioner was entitled to possession and respondent No.1 is required to be summarily evicted. On the other hand the proceeding initiated by respondent No. 1 under Section 43A failed before the Tenancy Court and even the appeal filed by him to the S.D.O. failed. It is said that respondent No.1 has now filed revision before the Revenue Tribunal and it is pending. 6. On the other hand, respondent No.1 challenged the Tenancy Court’s finding on the petitioner’s application under Section 84 by filing a revision and as said above the revision was allowed. The learned Member of the Revision Court held on facts that the action under Section 84 was not initiated within reasonable time. He noticed respondent No.1’s case that he was cultivating the suit land. He questioned the petitioner as to why he did not take suitable action against the entries in cultivation column till 1998. He held further that the Tenancy Court’s finding that the petitioner was in possession of the suit land after 1988 was arbitrary and incorrect. He further held that even assuming that the petitioner was dispossessed in 2000, the action under Section 84 in 2004 was grossly belated. He placed reliance on the decision of this Court in the case of Gokulsing Jalamsing Patil & Ors. Vs. Julalsingh Fattesing Patil & Ors., 2009 (1) Bom.C.R.856 & Radhu Gokul Gawali Vs. Mohan Kishan Gawali, 2007 (6) Mh.L.J.117 and held ( 5 ) wp625.11 that when there is no fixed period of limitation for taking action, the action has to be brought within reasonable time. He further held that the action initiated by the petitioner was hopelessly time barred. This judgment is challenged here by filing this writ petition. 7. Before I decide as to whether the view taken by the learned Member of the Revenue Tribunal based on the above two mentioned judgments is correct or not, I must make factual aspects of this case quite clear. The dispute between the parties started first time in 1988. At that time respondent No.1 felt threatened of unauthorized dispossession at the hands of the petitioner and therefore he filed a suit for perpetual injunction. It was his case then that he was in possession as a tenant and that his tenancy took birth because respondent No.2 sub-leased the suit land to him. On the other hand, the petitioner initially took stand that since 1988 he was in possession and thereafter he conceded that he was dispossessed in the year 2000 by respondent No.1. I may not be able to deal with this factual aspect in this case because the Second Appeal arising from the suit filed by respondent No.1 is still pending before this Court. 8. In these background facts one must examine as to whether the action initiated by the petitioner in 2004 was within reasonable time or whether there was no ( 6 ) wp625.11 limitation for initiating such action. On one hand, in the two judgments cited above took a view that even when an aggrieved party approached the statutory authority for seeking remedy under Section 84, such action must be taken within reasonable time and he held further that three years is reasonable time. This view is taken mainly because there are several judgments of several Courts in which it is held that when statutory authority is permitted to take a legal action against a party similar to the action contemplated under Section 84, such action is not permissible after lapse of reasonable time. The Supreme Court has taken this view consistently through the following cases. i) Mohamad Kavi Mohamad Amin Vs. Fatemabai Ibrahim, 1997 (6) SCC 71. ii) Santoshkumar Shivgonda Patil & Ors. Vs. Balasaheb Tukaram Shevale & Ors., (2009) 9 SCC 352. iii) Shalimar Works Limited Vs. Their Workmen, AIR 1959 SC 1217. 9. What is pertinent to note in these judgments is that the Supreme Court was dealing every time with a case where the statutory authority had initiated suo-moto action and the Supreme Court held that after reasonable time such action is not expected to be started because the party against whom such action started is in settled possession and such possession cannot be unsettled etc. ( 7 ) wp625.11 10. The Supreme Court in the case of Uttam Namdeo Mahale Vs. Vithal Deo And Others, (1997) 6 SCC 73, held that when the limitation period is not prescribed for initiating any action, the law of limitation would stands excluded. The following observations of said judgment are quite eloquent :- “4. Mr. Bhasme, learned counsel for the appellant, contends that in the absence of fixation of rule of limitation, the power can be exercised within a reasonable time and in the absence of such prescription of limitation, the power to enforce the order is vitiated by error of law. He places reliance on the decisions in State of Gujarat vs. Patel Raghav Natha &Ors. [(1970) 1 SCR 335]; Ram Chand & Ors. vs Union of India& Ors.[(1994)1 SCC 44 ]; and Mohamad Kavi Mohamad Amin vs. Fatmabai Ibrahim [CA No. 5023/85 decided on August 22, 1996]. We find no force in the contention. It is seen that the order of ejectment against the applicant has become final. Section 21 of the Mamalatdar's Court Act does not prescribe any limitation within which the order needs to be executed. In the absence of any specific limitation provided thereunder, necessary implication is that the general law of limitation provided in Limitation Act (Act 2 of 1963) stands excluded. The Division Bench, Therefore, has rightly held that no limitation has been prescribed and it can be executed at any time,especially when the law of limitation for the purpose of this appeal is not there.” 11. In this backdrop of authorities, the Division Bench of this Court faced a similar question in the case of Dattu Appa Patil & Ors. Vs. State of Maharashtra & Ors., 2006 (6) Bom.C.R.246. The facts of that case in short can be stated as under :- 12. During the implementation of scheme under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, in the village of parties to the ( 8 ) wp625.11 suit, certain settlement between two parties took place for exchange of lands while consolidating small pieces of land into large pieces. This settlement took place sometime in 1962 or so. The petitioner after many years approached the authorities under the above mentioned Act for challenging the correctness of the settlement which was recorded as said above between his father and respondent’s father. Unfortunately, the Authorities under the said Act upheld his contention and ordered setting aside of the settlement that was recorded in 1962. The petitioner was contending that the delay in making representation to the Consolidation Officer cannot come in his way because no period of limitation is prescribed under the relevant provisions for initiating such action. He tried to take advantage of the judgment of the Supreme Court in the judgment of Uttam Namdeo Mahale referred to above. On the other hand the respondent tried to take shelter of the Supreme Court in the case of Mohamad Kavi Mohamad Amin referred to above. While resolving this conflict the Division Bench observed as under :- “20. We must also note that in Mohamad Kavi's case supra) the Supreme Court was dealing with suo moto powers of Mamlatdar under section 84-C of the Bombay Tenancy and Agricultural Lands Act, 1976. In the present case, the impugned order of the Additional Chief Secretary, Government of Maharashtra is passed under section 35 of the said Act. Section 35 of the said Act refers to the power of the State Government or the Commissioner to call for and examine the record of any case for the purpose of satisfying itself or himself as to the legality or propriety of any order passed by any officer under the said Act. In Uttam Mahale's case (supra), ( 9 ) wp625.11 however, the Supreme Court was dealing with execution proceedings initiated under section 21 of the Mamlatdar's Courts Act, 1906. Section 21 makes statutory provision for execution of Mamlatdar's decision. In our opinion, in Mohamad Kavi's case (supra) the Supreme Court was dealing with a provision which is somewhat similar to the provision with which we are concerned and, therefore, we are of the opinion that the present case is covered by the ratio of that judgment. In the ultimate analysis, therefore, in view of the judgment of the Supreme Court Mohamad Kavi's case (supra) and also the judgment of this court in Gulabrao's case (supra), we feel that exercise of powers by the Consolidation Officer after about 27 years, is totally unjustified and on that ground alone the impugned orders need to be set aside.” 13. In other words, the Division Bench suggested that if the facts of a case are akin to the facts of Md. Kavi’s case, the law laid down by the Supreme Court in that case would prevail and on the other hand if the facts of a particular case are akin to the facts of Mahale’s case, the law laid down there would prevail. But the controversy in respect of limitation for initiating action under Section 84, it seems, has been settled long back through the judgment of Division Bench of this Court in the case of Ghanshyamprasad Natwarlal Bhatt Vs. Gendalsingh Vakhat sing & Ors., in Special Civil Application No. 764 of 1955 (This is an unreported judgment). In this judgment the Division Bench was considering the question as to whether any limitation is provided for tendering application under Section 84 of the Bombay Tenancy and Agricultural Land Act. The Division Bench held as under :- “You cannot apply limitation by analogy. Limitation either bars a remedy or extinguishes a right of a party and it is unthinkable that any ( 10 ) wp625.11 Court would bar a remedy or extinguish a right when the Legislature has not done so by importing the principles of some other statute and drawing analogy from some other provision of law. If there is no limitation provided by the legislature then the only thing that the Tribunal has to do is to permit the application to be made irrespective of passage of time.” 14. The learned Single Judge of this Court Shri Justice R.M. Borde in the case of Limbaji Shankar Munde (Deceased through LRs) & Ors. Vs. Bhaurao Baliram Munde (Deceased through LRs) & Ors., 2010 (2) Bom.C.R.739 followed the ratio of the above mentioned judgment of the Division Bench of this Court and squarely held that no limitation can be prescribed for initiating action under Section 84. It can also be mentioned that the learned Single Judge also placed reliance on the judgment of this Court in the case of Shankar M. Pawar Vs. Anusayabai @ Ambabai Punja Avhad, 2002 (2) Bom.C.R. 184 and held that the ratio laid down in that judgment also compelled him to hold that the period of limitation is not applicable for entertaining application under Section 84. 15. The last of such judgments is probably judgment of this Court in the case of Mesaji s/o. Laxman Ubare Vs. Dr. Ramchandra s/o. Laxminarayan Toshniwal in Writ Petition No. 473 of 2000. This judgment is probably not reported yet, but it was delivered on 4th May, 2011. My learned Brother Shri Justice B.P. Dharmadhikari similarly held that for filing application under Section 84, there is no period of limitation prescribed. ( 11 ) wp625.11 16. In view of this, the writ petition should succeed. Hence, the writ petition is allowed. The impugned order is set aside. Rule made absolute accordingly. 17. In the light of above mentioned judgments of this Court, there appears no conflict between the views taken by the learned two Single Judges of this Court and so the request of learned Counsel appearing for the respondent No.1 based on Supreme Court’s judgment in the case of Sundarjas Kanyalal Bhathija & Ors. Vs. The Collector, Thane AND Pralhad Hiranand Advani & Ors. Vs. The Collector, Thane, AIR 1990 SC 261 for referring this case to Larger Bench is rejected. 18. At the request of learned Counsel appearing for respondent No.1, the effect of this judgment shall remain stayed for 12 weeks from the date of the signature. [A.V. NIRGUDE, J.] snk/2011/AUG11/wp625.11ok “AUTHENTICATED COPY” (S.N. KULKARNI) P.A. TO HON’BLE JUDGE