( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 2005 OF 1991 1. Sambhaji Shripati Bankar Since deceased, by L.Rs. 1­a. Babai Sambhaji Bankar 1­b. Shivaji Sambhaji Bankar 1­c. Haribhau Sambhaji Bankar 1­d. Narayan Sambhaji Bankar 1­e. Mirabai Mahadeo Shinde, R/o Bhatodi Pargaon, Tal. and Dist. Ahmednagar. 1­f. Maruti Sambhaji Bankar 1­g. Popat Sambhaji Bankar 1­h. Rajaram Sambhaji Bankar No. 1­a to 1­d and 1­f to 1­h are r/o Walunj, Tq. and Dist. Ahmednagar. 2. Ganpat Shripati Bankar, Since deceased, byL.Rs. 2­a. Jankabai Ganpat Bankar 2­b. Suryabhan Ganpat Bankar Both r/o Walunj, Tal. and Dist. Ahmednagar. 2­c. Sau. Tarabai Sukhdeo Sapre, R/o Nagapur, Tq. & District Ahmednagar. 2­d. Sau. Hirabai Geetaram Walke, R/o Loni Sayyed Meer, Tal. Ashti, District Beed. 2­e. Bhimraj Ganpat Bankar Since deceased by L.Rs. 2­e­i. Sitabai Bhimraj Bankar R/o Walunj, Tq. and Dist. Ahmednagar. 2­e­ii. Sau. Ashabai Somnath Khandagale, R/o Wanjoli, Taluka Newasa, ( 2 ) District Ahmednagar. 2­e­iii. Ankush Bhimraj Bankar Being minor, through his guardian i.e. real mother petitioner No. 2­e­i. 2­f. Sau. Ashabai Balu Mokate, R/o Kedgaon Deviche, Tal. and District Ahmednagar. PETITIONERS VERSUS Keshav Rangnath Ekbote Since deceased by L.Rs. 1. Ramesh Keshav Ekbote 2. Saraswatibai Keshav Ekbote 3. Madhusudan Keshav Ekbote Since deceased by L.Rs. 3­a. Smt. Usha Vaibhav Madhusudan Deshpande. 3­b. Anil s/o Madhusudan Ekbote 3­c. Sunil s/o Madhusudan Ekbote All r/o 301, Gauri Nandan Aptt., (Siddeshwar), Parnaka, Kalyan, Tq. Kalyan, Dist. Thane. 3­d. Ajay s/o Madhusudan Ekbote 3­e. Rani d/o Madhusudan Ekbote Both r/o as above. (Petition is dismissed as against respondents No. 3­a to 3­e as per Registrar’s order dt. 22­09­2008. 4. Mangala Gajanan Deshpande. 5. Sunetra Madhukar Deshpande Respondents No. 1 and 2 are residents of Bhingar, Tal. and Dist. Ahmednagar. Respondent No. 4 is r/o Pravaranagar, Taluka Shrirampur, Dist. Ahmednagar. Respondent No. 5 is r/o Pochama Lane, Tadwalkar House, Latur, Dist. Latur. RESPONDENTS ( 3 ) ..... Mr. R.R. Mantri, advocate holding for Mr. N.C. Garud, advocate for the petitioner. Mr. N.V. Gaware, advocate for respondent No. 1. None for other respondents. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 25th February, 2010] ORAL JUDGEMENT : 1. By this petition, the petitioners impugn judgement and order rendered by learned Member of Maharashtra Revenue Tribunal, in Revision Application No. 4/1989, confirming the judgement and order rendered by Sub­Divisional Officer, Ahmednagar in T.N.C. Appeal No. 4/1988. 2. Original petitioners were real brothers interse. Their father, namely, Shripati Kanhu Bankar was the original tenant of two (2) parcels of lands viz. Survey No. 125, admeasuring 11 hectares 89 Ares and Survey No. 124­B, admeasuring 00 Hectares 24 Ares, situated at village Walunj under Ahmednagar district. ( 4 ) The deceased respondent No. 1 was original owner of the above referred lands. In the year 1959, Shripati Kanhu Bankar had filed proceedings for exercising right to purchase the lands in question. The proceedings were terminated against him for the reason that he was then in possession of land more than the permissible limits under the provisions of the Maharashtra Ceiling on Holdings Act, 1961 (for short, “the Ceiling Act”). The Tribunal directed thereafter that appropriate action under section 32P of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short, “the BT&AL Act”) may be taken. The deceased respondent No. 1 (landlord) did not take any action for a long­drawn period after the said decision which was rendered on 19th October, 1959. He, however, instituted tenancy case No. 2/1987 under section 32P of the BT&AL Act for restoration of possession on the ground that he was entitled to get back the possession in as much as the tenant was having more land than permissible under the Ceiling Act. The application was resisted by the original petitioners on the ground that the Ceiling Act was amended and the standard area prescribed as on the date of such ( 5 ) application filed by the deceased respondent No. 1 was of 60 acres which was previously of 48 acres and as such, the tenant could not be regarded as holder of excess land more than the standard unit prescribed under the Ceiling Act. The original petitioners submitted that after 28 years of the previous direction to initiate proceedings under section 32P of the BT&AL Act, such application filed by the deceased respondent No.1 (landlord) was not maintainable and was barred by limitation. The petitioners further contended that the landlord was not residing in the village and was not an agriculturist. They submitted that the landlord was ineligible to claim restoration of the lands in question because he had changed the vocation and was employed as a servant at another place. Consequently, the original petitioners urged for dismissal of the proceedings which were initiated by the deceased respondent No. 1 (landlord). 3. The Tahsildar carried out certain enquiry. The Tahsildar noticed that the original order issued in the previous tenancy proceedings No. 19/1959 initiated by ( 6 ) deceased Shripati Kanhu Bankar was not placed on record and, therefore, it was difficult to execute such order. The Tahsildar further held that due to increase in the limit of standard holdings under the Ceiling Act, the tenants i.e. petitioners could not be regarded as surplus land holders and were not proved to be ineligible to continue their possession. The Tahsildar further took notice of the fact that the petitioners (tenants) had submitted the return under the Ceiling Act in Format No. XII and the same was approved by the competent authority. Therefore, they were not held as holders of surplus lands and as such, as on the date of application, it was not proved that they were having the land in excess of the limit provided under the Ceiling Act and as such, the restoration under section 32P of the BT&AL Act was not legally permissible. The Tahsildar further held that the application under section 32P was barred by limitation because it was filed after 28 years of earlier proceedings. It was also held that the deceased respondent No. 1 was not eligible to claim restoration because he had left the occupation as an agriculturist. In keeping with such findings, the ( 7 ) learned Tahsildar dismissed the application of the deceased respondent No. 1 and further directed to initiate proceedings under section 32G of the BT&AL Act vide order dated 30­12­1987. The respondents No. 1 and 2 challenged the said order of the learned Tahsildar by filing T.N.C. appeal No. 4/1988. Their appeal was allowed. The learned Sub­Divisional Officer held that the proceedings under section 32P were initiated by way of execution of the previous order because the tenant was found ineligible to purchase the tenanted land under section 32G of the BT&AL Act. The learned Sub­ Divisional Officer held that the purchase had become ineffective and, therefore, the land could be restored in favour of the landlord. The judgement and order rendered by the learned Sub­Divisional Officer was challenged by filing revision application No. 4/1989 by the original petitioners. The Maharashtra Revenue Tribunal dismissed the revision application. Hence, the petition. 4. Heard learned counsel for the parties. ( 8 ) 5. Questions involved in this petition are as enumerated below. (i) Whether proceedings under section 32P of the BT&AL Act could be entertained and allowed after lapse of more than 28 years because of the reason that it was to be treated as continuation of the previous proceedings and that it was by way of execution of the order rendered in the proceedings under section 32G of the BT&AL Act ? (ii) Whether ineligibility of the tenant to purchase the tenanted land or to continue possession can be considered in the proceedings under section 32P of the BT&AL Act, having regard to his holdings of land more than the standard area provided under the Maharashtra Ceiling on Holdings Act, with reference to the date on which his previous application under section 32G of the BT&AL Act was dismissed or that it has to be considered with reference to ( 9 ) the juxtaposition as available on the commencement of the proceedings under section 32P of the BT&AL Act ? 6. Before I proceed to consider the rival submissions of the counsel, it is worthy to be noticed that section 32G of the BT&AL Act provides for the manner in which the competent Tribunal shall determine the price of the land which is required to be paid by the tenant for the purpose of effecting the statutory purchase. The Tenancy Tribunal is required to issue public notice in the prescribed form soon after the Tillers’ Day. The Tillers’ Day as contemplated under section 32 (1) is the 1st day of April, 1957. The fact that the lands in question were in possession of Shripati Kanhu Bankar as a tenant from the Tillers’ Day is not in dispute. Obviously, ordinarily, he was entitled to purchase the lands in question as provided under section 32G. The fact that he was ready and willing to purchase the lands in question is explicit in view of his commencement of the proceeding under section 32G vide tenancy case No. 19/1959. Sub­section (3) of ( 10 ) Section 32G of the BT&AL Act reads as follows : “32G. Tribunal to issue notice and determine price of land to be paid by tenants.­ (1) ***** (2) ***** (3) Where any tenant fails to appear or makes a statement that he is not willing to purchase the land, the Tribunal shall by an order in writing declare that such tenant is not willing to purchase the land and that the purchase is ineffective; Provided that if such order is passed in default of the appearance of any party, the Tribunal shall communicate such order to the parties and any party on whose default the order was passed may within 60 days from the date on which the order was communicated to him apply for the review of the same.” The purport of section 32G is that immediately after the commencement of the BT&AL Act, protective action ought to be taken by the Tenancy Tribunal in order to examine whether the tenant’s right to purchase the land can be exercised without any delay. In other words, section ( 11 ) 32G provides for scheme to accelerate realization of the statutory rights by the tenants. It does not intend to discontinue the tenancy rights in default of the tenant. 7. Mr. Mantri, holding for Mr. Garud, would submit that the Maharashtra Revenue Tribunal failed to appreciate the legal implications of the non­declaration of the Tribunal that the purchase has become ineffective. He would submit that the proceedings under section 32M of the BT&AL Act are distinct in nature and, therefore, mere fact that the previous application of the tenant Shripati Kanhu Bankar was dismissed, will not be of any material impact and the juxtaposition available as on the date of the application under section 32P was more relevant. He contended that the petitioners were not holders of surplus land and their Return filed under the Ceiling Act was approved by the competent authority. He would submit that even if it was found that they were holders of some excess land after the amalgamation of the lands in question, then also, they were entitled to retain possession of the land which would be upto the limit provided under the ( 12 ) Ceiling Act. He contends that the petitioners would be eligible to purchase the lands in question to the extent it is proportionate to the ceiling area after adding their own holdings. He submitted that the purchase could not have been determined to have become ineffective as contemplated under section 32M. He argued that after delay of more than 28 years, the application under section 32P was liable to be rejected on the ground of latches and because it was barred by limitation. Per contra, Mr. Gaware would submit that the application under section 32P of the BT&AL Act was not required to be filed because the Tribunal itself should have suo motu exercised such power when the sale had become ineffective in view of section 32G. He contended that in absence of any provision of limitation, the application under section 32P could not be regarded as barred by limitation. He argued that such proceedings ought to be treated as continuation of the previous proceedings in which the Tenancy Tribunal had directed the action under section 32P. He argued that inaction on the part of the Tenancy Tribunal for such period of about 28 years could not cause any legal ( 13 ) impediment in realisation of the rights of the deceased respondent No. 1 and the same could be translated into action without any difficulty. He would submit that the purchase of the lands in question had become ineffective under section 32G in 1959 itself and the juxtaposition of the relevant year was material. It is argued that the provisions of section 32G, 32M and 32P are integral parts of the scheme provided under same Chapter­II which is captioned as “purchase of land by tenants”. Mr. Gaware would submit, therefore, that these provisions are required to be harmoniously construed and are inter­ linked. He, therefore, urged for dismissal of the petition. 8. As stated earlier, there is nothing on record to infer that the Tribunal by an order in writing had declared that Shripati Kanhu Bankar (tenant) was not willing to purchase the land and, therefore, the purchase had become ineffective. The relevant declaration as contemplated under section 32G (3) was not made by the Tribunal and, therefore, the sale could not be treated as ineffective under the provisions of ( 14 ) section 32G. As far as section 32M is concerned, the sale would become ineffective only when the tenant­ purchaser would fail to pay the purchase price determined by the Tribunal. The only impediment in the way of deceased tenant (Shripati Kanhu Bankar) was that he was the surplus land holder at the time when he had applied for statutory sale under section 32G in the year 1959. 9. It appears that the embargo is put on the rights of tenants to purchase the land beyond the ceiling limit vide section 32A. Section 32A of the BT&AL Act reads as follows : “32A. A tenant shall be deemed to have purchased land under section 32 ­­ (1) in the case of a tenant who does not hold any land as owner but holds land as tenant in excess of the ceiling area, upto the ceiling area; (2) in the case of a tenant who holds land as owner below the ceiling area, such part of the land only as will raise his holding to the ( 15 ) extent of the ceiling area.” On plain reading of section 32A, it is manifestly clear that the tenant may not necessarily become owner of all the land in his possession on the Tillers’ Day. He could become owner of the land below the ceiling area, such part of the land only as will raise his holding to the extent of one ceiling area. In such a case, the excess of the land, which is more than the ceiling area was required to be surrendered by the tenant to the landlord. This is a case in which the deceased tenant (Shripati Kanhu Bankar) did not surrender the tenanted land nor was called upon to surrender any portion of the tenanted land. The application filed by him for determination of the purchase price and issuance of certificate under section 32G was, apparently, dismissed though the relevant order is not placed on record. The clinching question is whether the Tribunal was legally competent to invoke the remedy under section 32P of the BT&AL Act only on basis of the finding that the tenant was holding the land in excess of the ceiling area and was not entitled to purchase the same by virtue of ( 16 ) section 32A of the BT&AL Act. 10. This takes me to analyse section 32P of the BT&AL Act. The caption of section 32P will make it clear that it deals with the power of the Tribunal to resume and dispose of the land not purchased by the tenant. Sub­section (1) of section 32P provides that the Tribunal may suo motu or on an application made by the concerned party, resume and dispose of the tenanted land where the purchase has become ineffective by reason of section 32G or 32M, after holding the preliminary enquiry in this behalf. Needless to say, it ought to be determined, as a condition precedent before invoking powers under section 32P, that the purchase has become ineffective either due to the reason that the tenant was unwilling to purchase the land and, therefore, the declaration was made under section 32G (3) in this context or due to failure of the tenant to deposit/pay the purchase price determined by the Tribunal as contemplated under section 32M. The sale would become ineffective in default of the tenant to pay the purchase price, yet, the tenant may continue in possession and ( 17 ) the sale cannot be deemed to be ineffective until the Tribunal fails to recover the amount of purchase price under sub­section (3) of section 32K. In other words, merely because the tenant was unable to pay the price, the sale cannot be ipso facto regarded as ineffective under section 32M. In the present case, it cannot be said that the sale had become ineffective under section 32M because the price was not determined. Obviously, it only remains to be seen whether the sale had become ineffective as provided under section 32G of the BT&AL Act. It need not be reiterated that the Tribunal had not declared under sub­section (3) of section 32G that the sale had become ineffective. Nor any such order was placed on record to show that the sale had become ineffective due to unwillingness of the deceased tenant. Considering the plain language of section 32P, it is difficult to assume that ineligibility of the tenant to exercise the right to purchase land due to legal disability contemplated under section 32A of the BT&AL Act could be the ground to initiate action under section 32P of the BT&AL Act. It is amply clear that section 32A only provides for manner to exercise rights of a ( 18 ) tenant to make him deemed purchaser to the extent of the ceiling area. The provision of section 32A does not denude the tenant from his right to continue with the possession for the reason that he is in possession of surplus land beyond the ceiling limits. The tenant in such a case may not be deemed to have purchased the tenanted land. The holding of the excessive land will only disallow him from purchasing the land in excess of the ceiling area. In my humble opinion, it would not automatically result in the action contemplated under section 32P for the purpose of resumption of the land not purchased by the tenant. The resumption of land which is not purchased by the tenant due to his voluntary act or due to default in payment of the price, is contemplated under section 32P and it does not provide for remedy to effect surrender of such excessive land in favour of the landlord. The remedy of the landlord seems to be elsewhere. 11. Mr. Gaware invited my attention to certain observations in “Yellawwabai Malkappa Mali and others v. ( 19 ) Yesu Sada Dhane and another” 2005 (1) Bom. C.R. 698. A Single Bench of this Court held that the right to purchase land by the tenant is limited and if the tenant is found to be in excess of holding provided in section 5, such right can be restricted. The relevant observations may be reproduced as follows : “6. After having referred to the relevant provisions and on conjoint reading of the same, the position that emerges is that the Tribunal is obliged to take action under section 32­P of the Act in respect of land where the purchase has become ineffective or on the finding that the tenant is ineligible to purchase any portion of the land on account of having exceeded the permissible holding in terms of section 5 of the Act. A priori, such a provision, to my mind, can be and ought to be invoked where, from the facts established on record, it is possible to take the view that the tenant is not eligible to purchase the land, as the same is being held in excess of the ceiling area provided under section 5 of the Act. To get over this position, the argument canvassed on behalf of the respondents is that on account of section 32­F ( 20 ) of the Act, the tillers’ day stood postponed. This argument clearly overlooks the settled position that section 32­F of the Act is not a provision of disabling the landlord to resume the land. Whereas, it is only a provision entitling or empowering the tenant to purchase the land at a future date. The fact remains that the date on which the subject application was filed, the holding of the tenant has been established to be in excess of ceiling area and that finding has not been disturbed either by the Tribunal nor has been questioned before this Court at the instance of the respondents. Counsel for the respondents fairly submits that, that finding reached by the two authorities below cannot be taken exception to, but he has supported the reason recorded by the Tribunal that the application as filed, was premature for the reasons already recorded hereinbefore. However, there is no express provision in the Act, which would disentitle the Tribunal to invoke remedy under section 32­P of the Act inspite of the finding reached that the tenant was holding land in excess of the ceiling area and was therefore, not eligible to purchase the same by virtue of section 32­A of the Act.” 12. It may be mentioned that the application in the ( 21 ) given case was filed by the landlady under section 29 read with section 32G, 33P and 35A of the BT&AL Act. There were concurrent findings of the Tribunals and the High Court held that there was no express provision in the BT&AL Act which would disentitle the Tribunal to invoke power under section 32P of the said Act inspite of the finding reached that the tenant was holding land in excess of the ceiling area and was not eligible to purchase the same by virtue of section 32A of the said Act. The learned Single Judge (Khanwilkar, J.) had no occasion, however, to consider the import of section 32P in relation to section 32G of the BT&AL Act. The question whether the juxtaposition regarding holding of the tenant as on the day of commencement of the proceedings under section 32P was required to be seen or that his holding of land as on the Tillers’ Day was important, was not subject matter for consideration before the learned Single Judge. In the present case, however, the legal disability under section 32A of the BT&AL Act as was available in 1959 but it was removed fully or partly due to the amendment in the Ceiling Act because the original permissible limit of 48 acres was ( 22 ) enhanced to 60 acres. It was, therefore, necessary to examine whether as on date of such application, the tenants were ineligible to purchase the tenanted land in view of section 32A of the BT&AL Act. That was not done by the learned Sub­Divisional Officer and the learned Member of the Maharashtra Revenue Tribunal. 13. Mr. Gaware further seeks to rely on observations in “V.S. Charati v. Hussein Nhanu Jamadar (Dead) by L.Rs.” 1999 (3) Bom.C.R. 131. The ratio of the given authority is that protection against eviction under section 43­1B would be available to the tenants whose rights had