1 Writ petition 1682/93 Amk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1682 OF 1993 Sampatrao Yashwantrao Yevale .. Petitioner Vs. Ramrao Babu Yevale .. Respondent Mr. R. S. Apte Senior Counsel a/w Mr. Girish Puryani for the Petitioner. Mr. Bhushan A. Walimbe for Respondent Nos. 1A & 1B CORAM : MRS. R. S. DALVI, J. Date of reserving the order : 2nd February, 2010. Date of pronouncing the order : 10th February, 2010. P.C. 1. The original petitioner (petitioner) has challenged the order of Collector (SDO) dated 30.04.1989 which is confirmed by the Maharashtra Revenue Tribunal under Section 84 of the Bombay Tenancy and Agricultural Lands Act (The Act) on 09.02.1993. 2. The petitioner’s father was the owner of the disputed 2 Writ petition 1682/93 land. He expired in the year 1948 living behind a widow, two daughters and two sons. The petitioner was a minor at that time. The respondent is his distant cousin. The petitioner claims that in 1955-56 the respondent was put in possession of the disputed land for cultivation. On 27.12.1956 a Mutation Entry No. 6940 has been made showing the respondent as tenant. On 01.04.1957 the respondent was, therefore, in possession of the disputed property as tenant cultivating the land. 3. The petitioner claims to have taken possession back orally voluntarily from the respondent upon surrender. This is against the provisions of Section 15 (proviso) of the Act. Pencil entry came to be made in the record of rights showing the petitioner cultivating from 1958. The petitioner has therefore claimed possession of the disputed land as Kabjedar from 1958. This is reflected in the Revenue Record produced in the trial Court and commented upon by the SDO in his order. 4. Under Section 32G of the Act proceedings were initiated by the respondent for fixing the price of the land for its sale. This was challenged by the petitioner. On 27.11.1961 the 3 Writ petition 1682/93 petitioner obtained an order under Section 88C of the Act showing his income below Rs.1500/- to be exempted from 32G proceeding of the Act. 32G proceedings were concluded on 03.07.1961. The price of the disputed land was fixed at Rs.643.85. The respondent is stated to have paid that price by installments. 5. The order under Section 88C was obtained by the petitioner after the passing of the order in the application of the respondent under Section 32G of the Act. The petitioner’s Advocate has shown me the copy of the order which shows the endorsement about the exemption granted to the petitioner under Section 88C at the foot of the order passed under Section 32G. 6. The petitioner applied to the Collector for quashing the order passed under Section 32G on the premise that the inquiry under Section 32G could not have continued after the certificate was granted to the petitioner under Section 88C of the Act. The Collector has remanded the petition under Section 32G for fresh consideration. That has not been proceeded with. 7. The petitioner also issued notice under Section 31A of 4 Writ petition 1682/93 the Act for termination of the tenancy of the respondent for personal cultivation and agricultural use by him. That notice has also not been proceeded with. 8. It is seen that all of these applications lead themselves to the fact that the respondent was in possession of the disputed land. If the respondent was not in possession, he would not have taken out proceeding under Section 32G. The petitioner would not have taken out proceeding under Section 88C as well as Section 31. Since the respondent was in possession the petitioner has claimed that he surrendered the premises. There was no reason for the respondent to have surrendered the premises of which he was declared owner on the Tillers Day and for which he prosecuted his right to be conveyed the property at the specified price. It is precisely to meet such claims of surrender by landlords that is specific statutory provision in Section 15 of the Act enjoins that surrender must be in writing and verified before the Mamlatdar in a prescribed manner. The SDO as well as the Tribunal have considered these aspects upon reasonable interpretation that would necessarily flow from the act of both the parties. 5 Writ petition 1682/93 9. It was because the petitioner forcibly occupied the land to which he was not entitled that the respondent started proceeding under Section 84 of the Act for summary eviction of the petitioner as the person unauthorizedly occupying and wrongfully in possession of the disputed land. The petitioner’s case falls squarely within the mischief of that section. The summary proceeding was correctly adopted by the respondent. It has been the petitioner’s argument in this Court as well as before the Tribunal that the respondent should have taken recourse to Section 29 of the Act for taking possession. That recourse would be taken by the respondent if he applied under the provisions of the Act before the Mamlatdar. The respondent did not seek possession by summary eviction under any provision of the Act. He therefore could not and rightly did not follow the procedure for taking possession under Section 29 (1) of the Act. 10. It may be appreciated that the respondent would have had to apply to the Mamlatdar for taking possession under the provisions of the Act within two years from the date on which his right to obtain possession accrued to him as a tenant under the Act. The respondent did not want to take possession under any such 6 Writ petition 1682/93 right. Hence, the limitation period of two years did not apply to the respondent. The petitioner contends that the respondent applied for summary eviction years after he surrendered possession and his application under Section 29 would have been time barred. It is true that there is no limitation period prescribed under Section 84 of the Act for claiming summary eviction of an unauthorized occupant. The respondent is not seen to have waited to evict the petitioner years after his unauthorized occupation also. The surrender claimed by the petitioner is itself non est. We cannot therefore go on a footing that the respondent was not in possession for many years before he claimed to summarily evict the petitioner. Since the intrinsic evidence by way of aforesaid application made by both the parties under the provisions of the Act itself rules out the case of surrender, the limitation as alleged by the petitioner also falls. The respondent required to evict the petitioner only because the petitioner was an unauthorized occupant in wrongful possession under the general law. It was not an application made under the provision of the Act. The application was rightly made under Section 84 of the Act. The period of limitation does not even come up for consideration. 7 Writ petition 1682/93 11. In the cases of Maruti Ramji Patil Vs. Babu Dhondi Mohite & Ors (2006 (4) Bom. C. R. 498) & Rangnath Vishnu Mulluck and another Vs. Vithoba Rama Rahane and others ((1999) 1 Supreme Court Cases 69) the co-relation between the remedies under Sections 29 & 84 of the Act has been considered. It is held that, an application under Section 29 would be necessary where surrender of the land by the tenant was voluntary but where the tenant was forcibly evicted, the application would be filed under Section 84 of the Act. 12. Mr. Puryani argued that the respondent should have adopted the procedure under Section 29 of the Act for recovery of possession and that even though he adopted instead the remedy under Section 84 of the Act, it should have been adopted within a reasonable time from the respondent’s dispossession. The respondent’s dispossession has not been shown by the petitioner to have been for an unreasonable period before filing his application under Section 84 of the Act since the case of surrender cannot be considered at all. Hence, the case of Mohd. Kavi Mohamad Amin Vs. Fatmabai Ibrahim (1997 (6) SCC 71) followed in the case of Radhu Gokul Gawali Vs. Mohan Kishan Gawali (CDJ 2007 BHC 8 Writ petition 1682/93 2041) laying down a reasonable period as the period of limitation do not even apply. It is impossible to accept that the respondent was out of possession for as long as the petitioner would suggest. 13. In the case of Vithoba Ram Rahane and another Vs. Bhalchandra Sadashiv Joshi and others (1993(3) Bom. C. R. 95) it has been held that since no limitation is provided for an application under Section 84 of the Act the period of limitation is not applicable to those proceedings and there is no obstacle in filing an application. In the case of Maruti Ramji Patil Vs. Babu Dhondi Mohite & Ors (Supra) the application rightly filed under Section 84 of the Act was allowed without considering the period of limitation. 14. The impugned order has correctly observed these aspects taking into account the judgments of this Court for the right to claim summary eviction under Section 84 as against the right to claim possession under Section 29(1) of the Act. There is no perversity seen in the order of the SDO or the Maharashtra Revenue Tribunal despite the tenacious effort of Mr. Puryani to bring before this Court all the relevant facts and the enunciation of 9 Writ petition 1682/93 the law. 15. The order is correct. No interference is called for. The writ petition is dismissed. The interim protection shall continue for 4 weeks. (R. S. DALVI, J.)