wp3056­91.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3056 OF 1991 Narayan Subhana Patekar (Deceased) by heirs Smt. Sakhubai W/o. Narayan Subhana Patekar .. Petitioner Versus Gopal Ganesh Joshi .. Respondent Mrs.Vaishali Jagdale for petitioner Mr.S.V.Sadavarte for respondent CORAM : S.C.DHARMADHIKARI, J. DATE : 6th JUNE 2011. P.C.: 1] The petitioner – tenant has filed this petition under Article 227 of the Constitution of India challenging the order passed by the Maharashtra Revenue Tribunal, Mumbai in M.R.T. Revision No.38 of 1988. By this order dated 21st March 1991, the Tribunal has allowed the revision application preferred by the respondent – landlord and quashed and set aside the order of the Sub-divisional Officer, Gadhinglaj. The wp3056­91.doc 2 S.D.O's. Order (appellate order) dated 30th December 1987 allowed the petitioner's appeal. The appellate authority proceeded to set aside the order of Tenancy Aval Karkoon dated 22nd March 1966. 2] The record indicates that the respondent landlord owned the lands in question. They were in possession of the petitioner – tenant. The respondent landlord obtained certificate under section 88(C) of the Bombay Tenancy, Agricultural Lands Act, 1948. It is the case of the respondent landlord that after issuing notice to the tenant terminating his tenancy, he applied for recovery of possession of the lands in question on the ground of bonafide requirement i.e., for personal cultivation by invoking section 33(e) of the Tenancy Act. Thereupon, the Tenancy Aval Karkoon held an enquiry and after recording statements, passed an order on 22nd March 1966 directing the tenants to deliver the possession of the said lands to the landlord. It is this order of the Tenancy Aval Karkoon which was challenged by the petitioner by filing an wp3056­91.doc 3 appeal before S.D.O. The S.D.O., held that the record indicates that the petitioner's husband was a tenant and cultivating the land on the tillers day. However, when the application of the landlord was taken up, the Tenancy Aval Karkoon did not issue any notice of the date of hearing. He recorded the statement of the landlord and proceeded to pass an order on the same date i.e. 22nd March 1966. Thereafter, no intimation of the decision was given till 12th February 1985 to the petitioner tenant, although, the order was passed on 22nd March 1966. Therefore, the petitioner could not invoke the jurisdiction of the appellate authority. The appellate authority, finding that there was no opportunity given to the petitioner before the order dated 22nd March 1966 was passed, interfered with the same. 3] This decision of the appellate authority was questioned before the Revisional Court. The Revisional Court summoned the records and scrutinised the original documents. It heard the petitioner and the respondent at length. Upon wp3056­91.doc 4 scrutiny and verification of the record, it found that the landlord was issued necessary certificate by the Tenancy Aval Karkoon. The application was made by the landlord for possession on 29th March 1962. On receiving this application, the Tenancy Aval Karkoon issued notice to parties and fixed a date of hearing, one of the date of hearing fixed as per the Roznama was 4th March 1966. The record indicates that the petitioner duly received the notice. However, in the appeal memo, it was stated that the petitioner and her husband did not receive any notice of the proceedings before the Tenancy Aval Karkoon. That statement is falsified by the receipt of the notice. The record indicates that both, the petitioner and respondent, did appear before the tenancy Aval Karkoon on 4th March 1966. The respondent landlord applied for adjournment and the case was adjourned to 15th March 1966. Both parties placed their thumb impression with regard to the entry of the adjourned date. On 15th March 1966, the Tenancy Aval Karkoon was busy with some other case and, therefore, he adjourned the hearing till 22nd March 1966. The notice of the adjourned date wp3056­91.doc 5 was given to the parties. On 22nd March 1966, both the petitioner and respondent landlord appeared before the Tenancy Aval Karkoon and the Tenancy Aval Karkoon recorded the statements of landlord and the tenant. In the statement made by the petitioner and recorded in the proceedings, he stated that he is willing to surrender possession of the land in favour of the landlord and that is how, the Tenancy Aval Karkoon passed the order dated 22nd March 1966. 4] It is in such circumstances, that I am unable to accept the arguments of learned Counsel for petitioner that the petitioner had no notice of the proceedings nor of the impugned order dated 22nd March 1966. The Tribunal has given cogent and satisfactory reasons for arriving at the conclusion that petitioner has raised a false plea of want of notice. The record of the case indicates otherwise and I have no reason to differ with the conclusion of the Revisional Authority based as it is, on the materials produced before it. It is also in consonance with wp3056­91.doc 6 the contents of the documents and the original records. The Tribunal's conclusions are thus unassailable. They cannot be said to be perverse or vitiated by any illegality. 5] The Tribunal is also right in its conclusion that the petitioner approached the appellate authority after inordinate delay. The order passed by the Tenancy Aval Karkoon is dated 22nd March 1966. The order of the appellate authority is dated 30th December 1987. The petitioner approached the appellate authority on the basis that she received the intimation from the landlord on 12th February 1985. However, in the light of the conclusion that the Tribunal has reached on merits and finding that the only ground that the petitioner did not receive intimation from 1966 till 1985 from Tenancy Aval Karkoon is false and misleading, that it is not necessary to go into the aspects of delay. It has assigned detailed and cogent reasons for reversing the order of appellate authority. The findings of fact recorded by the Revisional Authority cannot be said to be perverse and are binding on this Court. wp3056­91.doc 7 6] Lastly, it is contended by the learned Counsel that the respondent landlord has not taken any steps to execute and enforce the order passed by the Tenancy Aval Karkoon. That order is delivered on 22nd March 1966 and till the intimation date i.e. 1985 no steps were taken to take possession of the lands in question. Similarly, even during the pendency of the proceedings before the Revisional Authority, no steps were taken in that behalf. The order of the Revisional Authority is dated 21st March 1991. 7] Even till date, the petitioner continues to be in possession and cultivating the land. 8] I do not deem it fit to take cognisance of this submission. The order passed by the Tribunal is dated 21st March 1991. This petition is filed on 9th April 1991. It was placed for admission before learned Single Judge on 16th July 1991 and from that date there is an interim stay in favour of the wp3056­91.doc 8 respondent and restraining respondent landlord from taking possession of the lands in pursuance of the order of the Revisional Authority. The petition has been placed for hearing and final disposal. It may be that the landlord has not appeared after showing initial interest in the matter. That by itself is no ground to allow this petition and all the more when finding of fact is against the petitioner which is well supported by the original record. Further, if the petitioner's case is that there was no apprehension of her dispossession, then, there was no justification for her to approach appellate authority belatedly and even contesting the revisional proceedings. 9] For all these reasons and merely becaise in view of the interim orders of this Court, merely because the petitioner is in possession and cultivating the land is no ground to allow this petition. As a result of above discussion, the petition fails. Rule is discharged. No orders as to costs. (S.C.DHARMADHIKARI, J)