- (1.)THIS writ petition filed under Article 227 of the Constitution of India is directed against the order passed by Maharashtra Revenue Tribunal on 31-7-1984 whereby the Tribunal set aside the order of the Assistant Collector, Niphad Division, Nasik dated 8-9-1981.
(2.)THE short controversy involved in the writ petition is whether the Tribunal was justified in setting aside the order of Assistant Collector dated 8-9-1981 in Appeal filed under section 74 of the Bombay Tenancy and Agricultural Lands Act, 1948 (Tenancy Act) whereby the Assistant Collector dismissed the appeal challenging the order dated 15-7-1957 on the ground that appeal was preferred after 24 years. The facts on summation are : One Damu Sakharam Gavate was the owner of the agricultural land bearing Survey No. 316/2, admeasuring 6 Acres 12 gunthas situated at village Niphad, in Nasik district. The said Damu Gavate died on 19-11-1954 leaving behind the present petitioners as owners of the said agricultural land (hereinafter for brevity referred to as the landlords ). One Damu Balu Kapse (hereinafter referred to as the tenant) was the tenant in the said land and after his death is represented by the present respondent. The landlord made an application against the tenant on 25-3-1957 before the Tenancy Mahalkari under section 31 read with section 29 of the Tenancy Act for possession of the said land. It was the case of the landlords that they have no other land and were not cultivating any other land either as owner or tenant. The tenant appeared before the Tenancy Mahalkari and made statement that since the landlords were not having any land and desired to cultivate the land personally, he was willing to surrender the said land in favour of the landlords. The tenant in his statement also said that the landlords should not sell or lease out the said land to anyone and if they desired then he (tenant) should be given preference. In view of the statement made by the tenant, the Tenancy Mahalkari by an order dated 15-7-1957 ordered the possession of the said land to be handed over by the tenant to the landlords. The landlords were actually put in possession on 14-3-1958 pursuant to the order passed by the Tenancy Mahalkari on 15-7-1957. It transpires from the record that proceedings under section 32-G of the Tenancy Act were also initiated and in the said proceedings the tenant made the statement that possession of the land in question has been handed over to the landlords under section 31 read with section 29 of the Tenancy Act. After the lapse of about 24 years of the passing of the order dated 15-7-1957, the tenant challenged the said order in appeal under section 74 of the Tenancy Act. The Assistant Collector dismissed the appeal vide its order dated 8-9-1981. The present respondent who is legal heir of the original tenant, filed revision before the Maharashtra Revenue Tribunal successfully and by the order dated 31-7-1984 the Maharashtra Revenue Tribunal set aside the order passed by the Assistant Collector, Niphad Division, Nasik dated 8-9-1981 and the order passed by the Tenancy Mahalkari dated 15-7-1957.
(3.)MR. Karandikar, the learned Counsel appearing for the landlords-petitioners argued that the Tribunal was not justified in holding that the order passed by the Tenancy Mahalkari dated 15-7-1957 was nullity and, therefore, law of limitation for challenging the said order in appeal did not arise and such null and void order could be challenged even after many years. According to Mr. Karandikar, the order dated 15-7-1957 was a consent order and even if it is assumed to be erroneous it could have only been challenged in appeal within limitation. According to him, the said order was challenged in appeal after limitation and the appeal could have only been entertained after sufficient cause was shown for not filing the appeal in time. The learned Counsel for the landlords submitted that the order dated 15-7-1957 was challenged in appeal after about 24 years which was rightly dismissed by the appeal Court in the absence of any explanation and such order could not have been set aside by the Maharashtra Revenue Tribunal. In support of his contentions, he relied upon (Madhavdas Damodardas Gujar and others v. Mahadu Keru Raut), 1994 (1) Bom. C. R. 509 and (State of Punjab and others v. Gurdev Singh, Ashok Kumar), A. I. R. 1991 S. C. 2219. Contending contrary, Mr. Purandare, the learned Counsel for the respondent submitted that the surrender of the tenancy could have only been in accordance with section 15 of the Tenancy Act and in terms of the said section, the landlord was only entitled to half of the tenanted agricultural land but since the Tenancy Mahalkari, Niphad, ordered the tenant to surrender possession of the entire tenanted agricultural land which was not permissible under law, the said order was nullity. He urged that the order dated 15-7-1957 being nullity was not even required to be challenged and if challenged could be entertained at any time without constraints of Limitation Act. In support of his contention Mr. Purandare relied upon a decision of this Court reported in (Husein Miya Dosumiya v. Chandubhai Jethabhai Desai), LV Bombay Law Reporter, page 946.