1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 2561 OF 1991 1] Smt. Ramkuwar W/o Ramkishan Pallod, deceased through L.Rs.: 1-a] Shri Somnath Ramkishan Pallod, Age 47 years, R/o Ganesh Peth, at and post Pathardi, District Ahmednagar. 1-b] Shri Badrinarayan Ramkishan Pallod, Age 52 years, r/o as above 1-c] Shri Gopal Ramkishan Pallod, Age 38 years, r/o as above. 1-d] Mrs. Shamala Bajaranglal Pallod, Age 58 years, R/o Shevale Galli, Tq. Pathardi Dist. Ahmednagar. 1-e] Shri Laxminarayan Ramkishan Pallod, Age 55 years, R/o Suyog Housing Society, Nashik road, Tq. Sangamner, Dist. Ahmedngar 1-f] Mrs. Saroj Jungalkishan Kabra, Age 44 yrs, R/o Juna Malegaon road, Agrawal Building, Dhule. 1-g] Mrs. Prabhawati Surechandra Lahoti, Age 49 years, r/o 8, Vidyanagar, Mantha road, Jalna, Dist. Jalna. (L.Rs. Of petitioner No. 1 are brought on record as per order dated 03-09-07 passed in CA No. 7784/2007) 2] Dwarkabai Onkardas Somani, deceased through L.Rs. 2 2-a] Subhashchandra Onkardas Somani, Age 55 years, Occu. - R/o Plot No. 4, survey No. 110, Vithal Nagar, At Sangamner, Tq. Sangamner, Dist. Ahmednagar. 2-b] Arun Onkardas Somani, Age 47 years, Occu.-, R/o Shivaji Nagar, At and Taluka Sangamner, Dist. Ahmednagar. 2-c] Nandkishor Onkardas Somani, Age 49 years, Occu.-, r/o Near Dere English Medium School, Akole-Nashik By pass, at Sangamner, Tq. Sangamner, Dist. Ahmednagar. 2-d] Prakashchandra Onkardas Somani, Age 51 years, Archana Partment, Behind Bitco Factory, Datta Mandir Paduka, at Nashik road, Dist. Nashik. 2-e] Urmila Praveenkumar Rathi, Age 48 years, r/o Nath Mandir road, at Paithan, Dist. Aurangabad. (L.Rs are brought on record as per order dated 03/09/2007 on CA No. 7783/07) .. PETITIONERS VERSUS 1] Shri Krushnanath Sajan Belhekar 2] Shri Kashinath Sajan Belhekar, Both Major, r/o Sonai, Taluka Newasa, District - Ahmednagar ..RESPONDENTS ... 3 WITH WRIT PETITION No. 2637 OF 1991 1] Smt. Ramkuwar W/o Ramkishan Pallod, deceased through L.Rs.: 1-a] Shri Somnath Ramkishan Pallod, Age 47 years, R/o Ganesh Peth, at and post Pathardi, District Ahmednagar. 1-b] Shri Badrinarayan Ramkishan Pallod, Age 52 years, r/o as above 1-c] Shri Gopal Ramkishan Pallod, Age 38 years, r/o as above. 1-d] Mrs. Shamala Bajaranglal Pallod, Age 58 years, R/o Shevale Galli, Tq. Pathardi Dist. Ahmednagar. 1-e] Shri Laxminarayan Ramkishan Pallod, Age 55 years, R/o Suyog Housing Society, Nashik road, Tq. Sangamner, Dist. Ahmedngar 1-f] Mrs. Saroj Jungalkishan Kabra, Age 44 yrs, R/o Juna Malegaon road, Agrawal Building, Dhule. 1-g] Mrs. Prabhawati Surechandra Lahoti, Age 49 years, r/o 8, Vidyanagar, Mantha road, Jalna, Dist. Jalna. (L.Rs. Of petitioner No. 1 are brought on record as per order dated 03-09-07 passed in CA No. 7786/2007) 2] Dwarkabai Onkardas Somani, deceased through L.Rs. 2-a] Subhashchandra Onkardas Somani, Age 55 years, Occu. - R/o Plot No. 4, survey No. 110, Vithal Nagar, At Sangamner, Tq. Sangamner, Dist. Ahmednagar. 4 2-b] Arun Onkardas Somani, Age 47 years, Occu.-, R/o Shivaji Nagar, At and Taluka Sangamner, Dist. Ahmednagar. 2-c] Nandkishor Onkardas Somani, Age 49 years, Occu.-, r/o Near Dere English Medium School, Akole-Nashik By pass, at Sangamner, Tq. Sangamner, Dist. Ahmednagar. 2-d] Prakashchandra Onkardas Somani, Age 51 years, Archana Partment, Behind Bitco Factory, Datta Mandir Paduka, at Nashik road, Dist. Nashik. 2-e] Urmila Praveenkumar Rathi, Age 48 years, r/o Nath Mandir road, at Paithan, Dist. Aurangabad. (L.Rs are brought on record as per order dated 03/09/2007 on CA No. 7785/07) .. PETITIONERS VERSUS 1] Shri Bhanudas Dada Lohokare deceased through his legal heirs : 1-a] Bhausaheb Bhanudas Lohakare, Age Major, 1-b] Popat Bhanudas Lohakare, Age Major, 1-c] Machhindra Bhanudas Lohakare, Age Major, All R/o Ganeshwadi, Tq. Sonai, Dist. Ahmednagar. ..RESPONDENTS ... WITH WRIT PETITION No. 2639 OF 1991 5 1] Smt. Ramkuwar W/o Ramkishan Pallod, deceased through L.Rs.: 1-a] Shri Somnath Ramkishan Pallod, Age 47 years, R/o Ganesh Peth, at and post Pathardi, District Ahmednagar. 1-b] Shri Badrinarayan Ramkishan Pallod, Age 52 years, r/o as above 1-c] Shri Gopal Ramkishan Pallod, Age 38 years, r/o as above. 1-d] Mrs. Shamala Bajaranglal Pallod, Age 58 years, R/o Shevale Galli, Tq. Pathardi Dist. Ahmednagar. 1-e] Shri Laxminarayan Ramkishan Pallod, Age 55 years, R/o Suyog Housing Society, Nashik road, Tq. Sangamner, Dist. Ahmedngar 1-f] Mrs. Saroj Jungalkishan Kabra, Age 44 yrs, R/o Juna Malegaon road, Agrawal Building, Dhule, Dist. Dhule 1-g] Mrs. Prabhawati Surechandra Lahoti, Age 49 years, r/o 8, Vidyanagar, Mantha road, Jalna, Dist. Jalna. (L.Rs. Of petitioner No. 1 are brought on record as per order dated 03-09-07 passed in CA No. 8088/2007) 2] Dwarkabai Onkardas Somani, deceased through L.Rs. 2-a] Subhashchandra Onkardas Somani, Age 55 years, Occu. - R/o Plot No. 4, survey No. 110, Vithal Nagar, At Sangamner, Tq. Sangamner, Dist. Ahmednagar. 2-b] Arun Onkardas Somani, Age 47 years, Occu.-, R/o Shivaji Nagar, 6 At and Taluka Sangamner, Dist. Ahmednagar. 2-c] Nandkishor Onkardas Somani, Age 49 years, Occu.-, r/o Near Dere English Medium School, Akole-Nashik By pass, at Sangamner, Tq. Sangamner, Dist. Ahmednagar. 2-d] Prakashchandra Onkardas Somani, Age 51 years, Archana apartment, Behind Bitco Factory, Datta Mandir Paduka, at Nashik road, Dist. Nashik. 2-e] Urmila Praveenkumar Rathi, Age 48 years, r/o Nath Mandir road, at Paithan, Dist. Aurangabad. (L.Rs are brought on record as per order dated 03/09/2007 on CA No. 8087/07) .. PETITIONERS VERSUS 1] Shri Vishwanath Sajan Bellhekar, Age Major, R/o Sonai, Tq. Newasa, Dist. Ahmednagar. ..RESPONDENT ... WITH WRIT PETITION No. 2640 OF 1991 1] Smt. Ramkuwar W/o Ramkishan Pallod, deceased through L.Rs.: 1-a] Shri Somnath Ramkishan Pallod, Age 47 years, R/o Ganesh Peth, at and post Pathardi, District Ahmednagar. 1-b] Shri Badrinarayan Ramkishan Pallod, Age 52 years, r/o as above 1-c] Shri Gopal Ramkishan Pallod, Age 38 years, r/o as above. 7 1-d] Mrs. Shamala Bajaranglal Pallod, Age 58 years, R/o Shevale Galli, Tq. Pathardi Dist. Ahmednagar. 1-e] Shri Laxminarayan Ramkishan Pallod, Age 55 years, R/o Suyog Housing Society, Nashik road, Tq. Sangamner, Dist. Ahmedngar 1-f] Mrs. Saroj Jungalkishan Kabra, Age 44 yrs, R/o Juna Malegaon road, Agrawal Building, Dhule, Dist. Dhule 1-g] Mrs. Prabhawati Surechandra Lahoti, Age 49 years, r/o 8, Vidyanagar, Mantha road, Jalna, Dist. Jalna. (L.Rs. Of petitioner No. 1 are brought on record as per order dated 03-09-07 passed in CA No. 7817/2007) 2] Dwarkabai Onkardas Somani, deceased through L.Rs. 2-a] Subhashchandra Onkardas Somani, Age 55 years, Occu. - R/o Plot No. 4, survey No. 110, Vithal Nagar, At Sangamner, Tq. Sangamner, Dist. Ahmednagar. 2-b] Arun Onkardas Somani, Age 47 years, Occu.-, R/o Shivaji Nagar, At and Taluka Sangamner, Dist. Ahmednagar. 2-c] Nandkishor Onkardas Somani, Age 49 years, Occu.-, r/o Near Dere English Medium School, Akole-Nashik By pass, at Sangamner, Tq. Sangamner, Dist. Ahmednagar. 2-d] Prakashchandra Onkardas Somani, Age 51 years, Archana apartment, Behind Bitco Factory, Datta Mandir Paduka, at Nashik road, Dist. Nashik. 8 2-e] Urmila Praveenkumar Rathi, Age 48 years, r/o Nath Mandir road, at Paithan, Dist. Aurangabad. (L.Rs are brought on record as per order dated 03/09/2007 on CA No. 7824/07) .. PETITIONERS VERSUS 1] Shri Mohan Tulshiram Darandale, At & post Sonai, Tq. Newasa, Dist. Ahmednagar. ..RESPONDENT ... Shri S.D. Kulkarni, Advocate for petitioners. Shri V.D. Sapkal, Advocate for respondents. CORAM :- S.V. GANGAPURWALA JJ. Judgment Reserved on : 30th July,2010. Judgment pronounced on : 13th AUGUST, 2010. JUDGMENT: All these four writ petitions involve common question of Law as such are decided together. The present proceedings are prosecuted by the legal heirs of the daughters of the original landlord. Smt. Bhimabai Sitaram Bang was the original land-lady, who was a widow on the tillers day i.e. 01st April, 1957. As she was a widow, the date of deemed purchase is postponed 9 and she continued to be land-lady of the suit land. The said land-lady on or about in the year 1974, filed four applications against four different set of tenants for possession under Section 31, 14, 25 and 29 of the Bombay Tenancy and Agricultural Lands Act. The tenancy Awal Karkoon, Newasa vide its judgment and order dated 15th June, 1978 dismissed the said tenancy cases. The land-lady being aggrieved by the decision of the tenancy Awal Karkoon, filed four separate appeals before the Sub Divisional Officer, Rahuri Division, Ahemdnagar. The Sub Divisional Officer, Rahuri dismissed the appeals and confirmed the order passed by the lower authority. The land-lady thereafter, preferred revisions before the Maharashtra Revenue Tribunal, Pune. During the pendency of the said revisions before the Maharashtra Revenue Tribunal, Pune, the original land-lady died and her two daughters namely Smt. Ramkunwar Ramkishan Pallod and Smt. Dwarkabai Onkardas Somani were brought on record, as legal heirs. The Maharashtra Revenue Tribunal, Pune remanded the matters back to the Trial Court for decision 10 afresh, as the legal heirs were also required to prove their personal requirement and on other grounds also. 2. After the remand, the matters were heard by the Additional Tahasildar,Newasa, who again dismissed all the four tenancy applications. The said legal heirs did not adduce any evidence. In the mean time, as the original land-lady had died tenants issued notice to the heirs i.e. daughters of the original land-lady, under section 32F of the tenancy Act. The tenants also filed an application under Section 32F of the Tenancy Act for declaring them as purchasers. They also fled application to the effect that the proceeding which are remanded back and their proceedings under section 32F of the tenancy Act be heard jointly. The application filed by the tenant for conducting both the proceedings jointly was rejected. The tenant therefore, filed revision before the Collector, Ahmednagar, who set aside the order, and directed the Trial Court i.e. Tahasildar, to hear the application of the tenants under section 32F along with the case 11 remanded by the Maharashtra Revenue Tribunal, Pune under section 31 of the Act together. 3. The heirs of the original land-lady did not adduce any evidence before the Tahasildar, eventually the statements of the tenants were recorded, the petitioners even did not cross- examine the tenants, the heirs did not submit any application within one year on the death of the original land-lady, in absence of any evidence on behalf of land-lady, the Additional Tahasildar and A.L.T., Newasa dismissed the application of the land-lady and allowed the application filed by the tenant under Section 32F. The said orders were challenged by the legal heirs of the landlady, by filing four appeals before the Sub Divisional Officer, Rahuri, who also dismissed the said appeals. Aggrieved by the said Judgment, the legal heirs of land-lady preferred revisions before the Maharashtra Revenue Tribunal, Pune. The Maharashtra Revenue Tribunal, Pune also dismissed the revisions. The Revision bearing Nos.2/86, which is subject matter of Writ Petition No.2561 of 1991 was dismissed on merits, 12 vide order dated 26th February, 1990. The other three revisions which are subject matter of Writ Petition Nos. 2637 of 1991,2640 of 1991 and 2639 of 1991 were dismissed summarily by the Maharashtra Revenue Tribunal vide order dated 16th September, 1987, on the ground that revisions were barred by limitation. The legal heirs of the original landlady filed present writ petitions before this Court. During the pendency of the writ petitions, the legal heirs i.e. daughters of the original landlady also expired and the writ petition is further prosecuted by the legal heirs of the daughters of the original land-lady. 4. Shri S.D. Kukkarni, the learned counsel for the petitioners vehemently put-forth following propositions. i] In view of the fact that, legal heirs of daughters of the original land-lady have expired, the matter will have to be again remitted to the Tahasildar and A.L.T. for determining afresh, the personal requirement of the legal representatives of the 13 daughters of the original land-lady, and for the said purpose relied on the Judgment of the Full Bench of this Court, in a case of “ Harikishan and others V/s. Krishna Dhanaji Shelki and another, reported in AIR 1977 Bombay, 330” and Judgment of the Division Bench of this Court in the case of “ Hariba Keshav Barbole and others V/s. Smt. Motibai Deepchand shah and others, reported in AIR 1975 Bom. 137”. So also an unreported Judgment of the learned Single Judge of this Court, in a case of “Dagadu Shivrao Tilekar V/s. Kacharushah Mohammad Shah died his L.Rs. & anr”. ii] The Courts below committed an error in deciding the proceeding under section 32F filed by the tenants with the proceedings under Section 31 filed by the land-lady. As till the proceeding under Section 32F are pending, the tenant does not get a right to file an application under section 32F, for the said purpose relied on the Judgment of the Apex Court in a case of “ Babu Vithu 14 Gaikwad[[Dead] by L.Rs. V/s. Chintaman Sadashiv & others, reported in 2007(5) BCR 70”. iii] The Courts have not framed any issue, on the point of default, nor any finding is given. There was also no discussion on sub letting. The Judgment of the Appellate Court is also vague and there is no discussion of evidence and no points for determination are framed. iv] The three revisions dismissed summarily on the ground of limitation are erroneously dismissed,without application of mind. The petitioners were under bonafide impression that all four revisions would be heard together. Even if the three revisions are dismissed on the ground of limitation. This Court can look into the merits of the matter. 5. Per contra Shri V.D. Sapkal, the 15 learned counsel for the respondent, contended that a] On the death of the land-lady, the tenant was bound to give a notice, as contemplated under section 32F within one year, as the tillers day is not postponed for the second time, for the said purpose relied on the Judgment of the Division Bench of this Court, in a case of “Harshavardhan Shrinivas Potnis V/s. Mahadu Pundalik Gangurde, reported in 1980 (0), B.C.I. 47”. b] The certificate under Section 32-M has already been issued in favour of the tenant on 12th February, 1987. The price is also deposited by the tenant and as the same has not been challenged it has become final. c] Even if, the present proceedings are remanded, still it will not serve any purpose, as the certificate issued under section 32-M, has attained finality as it has not been challenged. Unless the 16 certificate is set aside, the rights crystallized in favour of the tenant cannot be taken away. According to him, the proceedings have become infructuous. d] When initially, proceedings were conducted by the original land-lady, she could not prove personal requirement, thereafter, during the proceedings before the Maharashtra Revenue Tribunal original land-lady died and her legal heirs were brought on record. For the purpose of proving their personal requirement, the matter was remanded back to the Court of first instance. They did not adduce any evidence, thereafter,proceedings were concluded, though ample opportunity was given to them, they not to lead any evidence. After the Judgment of the Maharashtra Revenue Tribunal, the legal heirs of the original land-lady, filed a writ petition No. 2561 of 1991 after near about 14 months and other three revisions after four years, by suppressing the fact 17 that the certificate under section 32-M is already issued in favour of the tenant. Even assuming the said order was erroneous and could not have been decided during the pendency of the proceedings under section 31. Still the said certificate would be binding unless set aside, for the said purpose, relied on the Judgment of the Apex Court, in a case of “ State of Punjab and others V/s. Gurdev Singh and Ashok kumar, AIR 1992 SC 111”. e] The three revisions which were dismissed on the ground of limitation were rightly dismissed. No application for condonation of delay was filed along with revision applications, without application for condonation of delay, the Tribunal had no jurisdiction to entertain the revision. To substantiate his submission, the learned Advocate relied on the Judgment of Apex Court in the case of “Ragho Sing V. Mohan Sing and others, reported in 2001 AIR, SCW 2351”. 18 6. I have heard respective counsels for the parties at length, and with their assistance also perused the judgments. It is not disputed that the certificate under section 32-M has been issued in favour of the tenant i.e. respondent on 12th February, 1987. The petitioner has not challenged the said certificate. According to Shri Kulkarni, issue of certificate was a ministerial act and even if, the landlord has not challenged the said certificate, that would not effect merits of the present proceedings. According to him, when the proceedings under section 31 were pending, the authorities could not have proceeded to determine the proceedings under section 32F or even under Section 32-G and Section 32-M, as is laid down by the Apex Court, in a case of “Babu Vithu Gaikwad[[Dead] by L.Rs. V/s. Chintaman Sadashiv & others, reported in 2007(5) BCR 70” referred supra, which laid down in para No. 21 as under :- “ As per our discussions above, we, therefore, hold that when a landlord applies for recovery of possession 19 under section 29 read with section 31 of the Bombay Tenancy and agricultural Land Act, 1948, the provision of Section 32-F(1-A) of said Act become inapplicable, thereby making them mutually exclusive to the extent that if one is applicable, the other could not be evoked.” 7. It is settled law that the Judgment of the Apex Court cannot be read as Euclid therom. In the said case, before the Apex Court i.e. “Babu Vithu Gaikwad[Dead] by L.Rs. V/s. Chintaman Sadashiv & others” referred supra. The issue was regarding the rights between the parties, wherein the landlord was a minor on the tillers day, and the obligation of the tenant to give intimation of his intention to purchase the land within the stipulated period, so also the effect of non- compliance of the procedure i.e. non issuance of notice to the landlord for fixation of price was concerned. In the said case, the proceeding under Section 32-G were not properly conducted, in that context it has been held that “ when landlord who was a minor subsequently has applied for possession under Section 29 read with Section 31 20 of the Tenancy Act, which deals with seeking possession on the ground of personal cultivation or for any non-agricultural purpose, then provisions of section 32F(1) (a) can not be invoked. In the present case,the landlord is a widow who had initiated the proceedings under Section 29 read with Section 31, 15 etc., and who had died when the proceedings were pending before the revisional Court. On the death of the widow landlord her right to claim possession for personal cultivation and for any non-agricultural purpose came to an end. Section 32F(1) (a) casts an obligation on the tenant to give a notice of intention to purchase the land, within a period of one year of the death of widow or else, his right is lost. The useful reference can be made to the Judgment of the Apex Court, in a case of “Appa Narsappa Magdum (D) Thrugh Lrs. Vs. Akubai Ganpati Nimbalkar & others, reported in 1994 (4), SCC 443”. The Apex Court in the said Judgment has observed thus :- “ Even if we agree with the contention raised on behalf of the appellant that in spite of the earlier decision of the High Court, it was open 21 to the appellant to contend that he was a tenant and had a right to purchase the land under Section 32-F of the Act, it is difficult to appreciate as to how the impugned order passed by the High Court is wrong. Section 32-F provides that in the case where landlord is a widow, the tenants shall have the right to purchase such land under Section 32 within one year from the expiry of the period during which such a landlord is entitled to terminate the tenancy under Section 31. The landlady died on 8-12-1965. Her successors-in-interest could have filed an application for termination of the tenancy within one year from 8-12-1965 as her interest in the land ceased to exist from that date. Therefore, the tenant ought to have exercised his right under Section 32-F before 8-12-1966. Admittedly, the appellant did not comply with this requirement of Section 32-F. The intimation contemplated by Section 32- F(1) (a) was given by him long after one year had passed. It was given for the first time on 15-6-1968. It was after his right to purchase the land had come to an end”. “ It was submitted by the learned counsel that this being a welfare 22 legislation enacted for the benefit of tenants should be construed in a liberal manner. He also submitted that the heirs of the landlady had not given any intimation to the appellant about her death and therefore he could not have known who were the heirs of the landlady and given intimation to them. He submitted that the period of one year should be counted from the date of the knowledge of the tenant. We cannot accept this submission because the language of Sections 32-F and 31 is quite clear and the period of one year will have to be counted in accordance with the said provisions and not form the date of knowledge of the tenant. The provision of law being clear, we cannot in such a case grant relief on the basis of equity”. 8. In the said case, Apex Court has held that, if the intimation contemplated by Section 32F(1) (a) was not given by the tenant within one year on the death of the widow, the right of the tenant to purchase the land comes to an end. Perusal of the Judgment of the Apex Court, which also deals with a case, wherein landlord was a widow shows that time would not stop running and 23 the tenant has to exercise the right within the stipulated period as per Section 32F(1) (a). In the present case, the tenant had exercised the said right within the stipulated period and the proceeding under section 32F also proceeded. The proceeding under Section 32F,and thereafter, the proceedings under Section 32-G were also concluded, after following the procedure. Pursuant to the conclusion of the proceedings under Section 32-G purchase price was fixed, thereafter fresh notices were issued to the landlord i.e. the legal heirs of the original landlord in proceedings under Section 32-M, and thereafter, certificate under Section 32-M is also issued in favour of the tenants after they have paid the purchase price and same is not challenged till this date. Even assuming that the proceedings could not have been continued, and also even assuming that said order was erroneously passed i.e. issuing certificate under section 32-M, still unless the same is set aside. It is binding on the parties. Since the year 1987 the petitioners have not initiated any 24 proceedings to challenge the said certificate. Even the Apex Court in the case of ““State of Punjab and others V/s. Gurdev Singh and Ashok kumar, AIR 1992 SC 111” has observed thus :- “ It will be clear from these principles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for. 9. Even this Court in a case of “ Bhaskar Naryan Kuvalekar & others Vs. Bhaskar Narayan Kuvalekar & others, reported in 1999 (4) BCR 711” has observed thus :- “ It is apparent from the aforesaid provision of Section 32-M that the certificate issued under this section is conclusive evidence of purchase. The said certificate was not challenged by the petitioner in appeal. The certificate under section 32-M was issued in favour of respondent No. 1 in 25 the year 1960 and that conclusively establishes that respondent No. 1 was purchaser of the land which would mean that respondent No. 1 was in possession of