Writ Petition No.473 of 2000

4th May, 2011

Petitioner Counsel: Mr. V. D. SAPKAL
Respondent Counsel: Mr. S. M. KULKARNI,Mr. V. D. SALUNKE

Cases Cited:
Kisan Sayaji Shelke Vs. Madhukar Mohan Deshpande, 2010(6) ALL MR 81=2010(6) Bom.C.R. 124 [Para 6,20,21]
Limbaji Shankar Mundhe (Deceased) Through L.Rs. Vs. Bhaurao Baliram Munde (Deceased Through L.Rs.), 2010(2) ALL MR 179=2010(2) Bom.C.R. 739 [Para 6]
Uttam Namdeo Mahale Vs. Vithal Deo, 1997(4) ALL MR 447 (S.C.)=1998(1) Bom.C.R. 786 [Para 6,23]
Eknath s/o. Raghoba Vs. Somla s/o. Lalu Lamani, 1991 Law Suit (Bom.) 234 : 1992 Mh.L.J. 541 [Para 6,21]
Mahabir Singh Vs. Subhash, 2007 ALL SCR 2958=2007(9) SRJ 545 [Para 8,24]
Waman Atmaram Lavand Vs. Dattatraya @ Dattu Baba Lavand, 2009(5) Mh.L.J. 442 [Para 8,24]
Santoshkumar Shivgonda Patil Vs. Balasaheb Tukaram Shevale, 2010(2) Mh.L.J. 150 [Para 8,24]
Radhu Gokul Gawali Vs. Mohan Kishan Gawali, 2007(4) ALL MR 339=2007(6) Mh.L.J. 117 [Para 8,19,20,21]
Mohamad Kavi Mohamad Amin Vs. Fatmabai Ibrahim, (1997)6 SCC 71 [Para 8,20,21,24]
Jai Singh Vs. Municipal Corporation of Delhi, 2010(6) ALL MR 410 (S.C.)=2010(9) SCC 385 [Para 9,25]
Radhey Shyam Vs. Chhabi Nath, 2009 ALL SCR 1765=2009(5) SCC 616 [Para 9,25]
Ganpat Sakharam Deshmukh Vs. Yeshwant Digambar Deshmukh, 2000(2) ALL MR 338=2000(1) Mh.L.J. 126 1 [Para 4,21]

JUDGMENT

JUDGMENT :- By this Petition filed under Article 227 of the Constitution of India, the petitioner-original tenant has questioned the Judgment dated 15.09.1999 delivered by Maharashtra Revenue Tribunal at Aurangabad in Appeal under Section 90 of the Hyderabad Tenancy and Agricultural Lands Act, 1950. (Hereinafter referred to as "1950 Act").

2. The petitioner filed application on 12.01.1988 against the respondent no.1 and other respondents for recovery of possession of land survey no.9/A admeasuring 10 Acres, 14 Gunthas i.e. 4 H, 18 R and also survey no.9/2 admeasuring 3 H, 53 R under Section 98 of the above mentioned 1950 Act. The lands are situated in Village-Khandarban, Tq.-Basmath, Dist.-Hingoli (earlier Dist.-Parbhani). He contended that land survey no.9/A was owned by one Gyanoba and survey no.9/2 was owned by Digambar. Gyanoba expired in 1990-91 and respondent no.1-Ramchandra purchased land gut no.9/A by registered sale-deed dated 10.10.1974. Similarly, respondent no.2-Ashok purchased land survey no.9/2 from Digambar. The petitioner pointed out that his father Laxya was recorded as protected tenant over these lands since the year 1950 and after death of Laxya, he inherited those rights. He contended that he was dispossessed from survey no.9/A by respondent no.1-Ramchandra along with respondent nos.2 and 3 in July of 1978-79. He further pointed out that his name was removed from the possession column in 7/12 extracts by Tahsildar under mutation entry no.124 on 05.09.1974 without any notice. Original owner Gyanoba has not made any offer to petitioner/his father before sale of land survey no.9/A to Ramchandra. It was therefore contended that possession of respondents over the said lands was unauthorised and illegal. Ramchandra and other respondents came out with a defence that petitioner being legal heirs of Laxya left land survey nos.9/A and 9/2 on his own accord between the year 1959-60 and his name was removed from column of cultivation in the year 1960-61. The alleged protected tenant according to them lost possession in the year 1959-60 and hence, application as filed in the year 1988 was not tenable under Section 32(1) of the 1950 Act. They pointed out that application under Section 32(1) ought to have been moved within two years and application under Section 98 therefore could not have been filed. Ramchandra stated that he purchased land survey no.9/A on 10.10.1974 and respondent nos.2 and 3 pointed out that they purchased land survey no.9/2 on 29.03.1969. Accordingly, they also pointed out consequential mutation entries.

3. Application under Section 98 was considered by the Deputy Collector, Parbhani and vide order dated 22.02.1994, same was allowed. The possession of lands was directed to be delivered to him. This order was then questioned in appeal under Section 90 as mentioned above which came to be registered as Tenancy 13/A/94/P on the file of Maharashtra Revenue Tribunal. Maharashtra Revenue Tribunal has vide judgment dated 15.09.1999 allowed that appeal filed by respondent no.1-Ramchandra.

4. This Court while issuing Rule in the matter on 10.02.2000 directed the respondents not to alienate the suit property or create any third party interest. That interim orders continue to operate till today. In this background, I have heard Advocate Mr. Sapkal for petitioner, Advocate Mr. Kulkarni for Respondent Nos.3-A, 5 and 6 and Advocate Mr. Salunke has argued for respondent no.1.

5. After pointing out the facts in detail, Advocate Mr. Sapkal has taken the Court through the impugned judgment delivered by Maharashtra Revenue Tribunal and he points out that the notification as contemplated under Section 38-E of 1950 Act for Parbhani District in which the lands are situated came to be issued on 01.02.1957. The name of the petitioner as protected tenant was entered into revenue records on 04.03.1959 and it continued till it was deleted on 05.09.1974. He has also invited attention to the sale-deeds as already mentioned above. According to him, after coming into force the notification under Section 38-E, the father of petitioner became owner and therefore, thereafter there could not have been any sale-deed by earlier land owners either in favour of respondent no.1 or respondent nos.2 and 3. The consideration by Maharashtra Revenue Tribunal is therefore urged to be totally erroneous. It is argued that Section 98 which provides for summary eviction does not deliberately contain any period of limitation and the finding by Maharashtra Revenue Tribunal that application filed in the year 1988 was not maintainable, is therefore mis-conceived. The finding that he ought to have filed application under Section 32(1) of 1950 Act within a period of two years is also assailed on the ground that the petitioner was not tenant after 01.02.1957.

6. To demonstrate that there is no time limit deliberately prescribed in scheme of Section 98 attention has been invited to the judgment of this Court reported at "2010(6) Bom.C.R. 124 : [2010(6) ALL MR 81]" - Kisan Sayaji Shelke Vs. Madhukar Mohan Deshpande and others. Similarly, the judgment reported at "2010(2) Bom.C.R. 739 : [2010(2) ALL MR 179]" - Limbaji Shankar Mundhe (Deceased) Through L.Rs. & ors. Vs. Bhaurao Baliram Munde (Deceased Through L.Rs.) and others is also pressed into service to show how the remedy under Section 98 is only available remedy and the bar of limitation is not attracted. Judgment of the Hon'ble Apex Court reported at "1998(1) Bom.C.R. 786 : [1997(4) ALL MR 447 (S.C.)]" - Uttam Namdeo Mahale Vs. Vithal Deo and others, particularly paragraph no.14, is also relied upon to urge that when there is absence of any specific limitation in a provision by necessary implication it follows that general law of limitation provided in Limitation Act stands excluded. According to learned Counsel therefore, the finding of Maharashtra Revenue Tribunal in this respect is misconceived. Judgment of this Court reported in "1991 Law Suit (Bom.) 234" - Eknath s/o. Raghoba Vs. Somla s/o. Lalu Lamani is also pressed into service for the same purpose. It is urged that similar contentions raised are looked into by this Court there and this Court has found that those contentions misconceived. Discussion on scope of Section 98 therein is also relied upon to support the case of the present petitioner.

7. Mr. Kulkarni, learned Counsel appearing for Respondent Nos.3-A, 5 and 6 has contended that entry in relation to father of petitioner as protected tenant was deleted way back in 1959-60. Provisions of Section 38, 38-E or 38-G do not provide for any remedy to him in this connection. As petitioner was attempting to recover possession, he ought to have move application under Section 32(1) only and that application can be filed within two years of the alleged dispossession. He further states that admittedly sale-deeds have been executed in favour of the respondent nos.1, 2 and 3 and original land owner has lost title to that property. Provisions of Section 98 are pressed into service in this connection to show that possession of such purchaser cannot be viewed as unauthorised in this background.

8. Without prejudice to the contention that remedy under Section 32(1) is the only available remedy in such circumstances and the provisions of Section 98 are not applicable, the learned Counsel has urged that in any case action under Section 98 also ought to have been initiated within reasonable time. To support this contention, the reliance is placed upon the judgment of the Hon'ble Apex Court reported at "2007(9) SRJ 545 : [2007 ALL SCR 2958]" (Mahabir Singh Vs. Subhash and others), Judgment of this Court reported at "2009(5) Mh.L.J. 442" - Waman Atmaram Lavand and another Vs. Dattatraya @ Dattu Baba Lavand and others, judgment of the Hon'ble Apex Court reported at "2010(2) Mh.L.J. 150" - Santoshkumar Shivgonda Patil and others Vs. Balasaheb Tukaram Shevale and others" and the Judgment of learned Single Judge of this Court reported at "2007(6) Mh.L.J. 117 : [2007(4) ALL MR 339]" - Radhu Gokul Gawali and others Vs. Mohan Kishan Gawali and others. It is contended that this judgment considers the provisions of Section 32 and Section 98 of 1950 Act and is in favour of the present respondents. Judgment of the Hon'ble Apex Court reported at "(1997)6 Supreme Court Cases 71" - Mohamad Kavi Mohamad Amin Vs. Fatmabai Ibrahim is also relied upon for very same purpose.

9. To point out the scope and limits of jurisdiction of this Court under Article 227 of the Constitution of India, reliance is placed upon the judgment of the Hon'ble Apex Court reported at "2010(9) SCC 385 : [2010(6) ALL MR 410 (S.C.)]" - Jai Singh and others Vs. Municipal Corporation of Delhi and another and " 2009(5) SCC 616" : [2009 ALL SCR 1765] - Radhey Shyam and other Vs. Chhabi Nath and others.

10. Lastly without prejudice to these arguments, it is contended that the respondent nos.5 and 6 are subsequent purchasers, who have been added for the first time before this Court as party respondents and as they did not get any opportunity in the case, this Court if inclined to interfere, the matter should be remanded back to the trial Court namely Deputy Collector.

11. In the alternative, it is also requested that if any adverse order is passed, its operation and execution should be stayed for a period of three months to enable the respondents to take further appropriate steps in the matter.

12. Advocate Mr. Salunke for respondent no.1 has adopted the arguments of Advocate Mr. Kulkarni. He has invited attention to the provisions of Section 32(1)(2) and to Explanation of Section 38-A(1) to urge that these are the only two provisions made by Legislature for recovery of lands by tenant. According to him, Section 98 is a provision for eviction of unauthorised persons and it is not a remedy for dispossessed tenant to recover possession. He states that procedure as contemplated by Sections 98-A or to 98-C needs to be followed while undertaking inquiry under Section 98. He reiterate that as in the present matter transfer in favour of respective respondents is valid, there can not be any recourse to Section 98. He therefore prays for dismissal of Writ Petition.

13. I find that the petitioner had moved two separate applications before the Deputy Collector under Section 98 of 1950 Act. In the application he contended that his father namely Laxya was the protected tenant of the entire land admeasuring 17 A and 18 R and it was so recorded in tenancy rights. He then pointed out that after death of his father in 1959 his name was mutated vide entry no. 18 on 04.03.1959 and he became protected tenant. He continued in possession till he was dispossessed by the respondents in 1978-79 after obtaining illegal mutation entries 101, 124 and 123. Consideration of this aspect by Deputy Collector is important. The Deputy Collector has perused abstract of copy of tenancy register and noted that Laxya son of Gundya (father of petitioner) was declared as protected tenant as per entries therein. Pahani Patrak for the year 1958-59 is also perused to note that present petitioner cultivated the land in his capacity as successor of protected tenant. Village form Nos.VII, XII in the year 1958-59 and 1960-61 are also looked into to note that the petitioner cultivated the suit land but thereafter his name disappeared from the cultivation column. The Deputy Collector noted that this prove that petitioner cultivated the suit lands in his capacity as protected tenant. In other matter, on different date Deputy Collector has recorded same findings. The matter was then looked into by the Maharashtra Revenue Tribunal in appeal and the Maharashtra Revenue Tribunal has found that name of Laxya was recorded as protected tenant in tenancy register and his name also appeared in other right column in Pahani Patrak and 7/12 extracts. After his death his son inherited tenancy rights in respect of land survey nos.9/A and 9/2 as per revenue records. Maharashtra Revenue Tribunal also noticed that name of the petitioner was removed by Talathi from the column of cultivation in the year 1961-62 under mutation entry 125. Thus, both the authorities namely Deputy Collector and Maharashtra Revenue Tribunal have found that earlier Laxya and after Laxya present petitioner was cultivating the lands as protected tenant till 1960-61.

14. The provisions of Section 38-E came into force and accordingly, the notification extending the same to Parbhani District was issued on 01.02.1957 is not in dispute. It is necessary to refer to said provision along with other provisions because of contentions of other side that provisions of Section 98 of the 1950 Act are not available to petitioner. Section 38-E begins with non-obstante clause and it overrides all provisions in Chapter IVA of 1950 Act. It also supersedes any law in force or any custom, usages, decree, contract or grant to the contrary. It stipulates that from the date of notification published by the State Government, the protected tenants become the full owners of the lands. This needs to be viewed in the light of provisions of Section 38(1) which also is placed in Chapter IVA. Section 38(1) again begins with non-obstante clause and it supersedes anything to the contrary in law usages or contract. However, it is made subject to provisions of sub-section 7. Thus, the protected tenant is entitled to purchase the land holders interest in the land held by him at any time as mentioned therein. Sub-section 7 only indicates the extent or area which can be purchased by him under the said provision. Sub-section 2 of Section 38 requires such protected tenant who desire to exercise that right to make an offer to the land holder stating the price which he prepares to pay. Other formalities are then taken care of by other sub-sections of this Section. As against this Section 38-E statutorily transfers ownership to protected tenant. Thus, he is not expected to take any steps for acquiring ownership and therefore, only there is also a deeming fiction in opening part of Section 38-E. Proviso to this opening part then subjects such transfer to condition (a) and (d) mentioned in sub-section 7 of Section 38 i.e. about area or extent of which ownership can be acquired. Sub-section 3 of Section 38-E requires land holder to file an application before Tahsildar for determination of reasonable price. In other words, under Section 38, when it is for tenant to exercise the rights and to decide whether to purchase or not, under Section 38E tenant becomes owner even against his wish and obligation is cast upon the land owner to apply for determination of market price. For the purposes of present discussion, it is not necessary to this Court to go into more details in this respect. Then but attention can be invited to the judgment of Division bench of this Court in "Ganpat Sakharam Deshmukh Vs. Yeshwant Digambar Deshmukh" reported in 2000(1) Mh.L.J. 126 : [2000(2) ALL MR 338] where after noticing the said difference, the Division Bench held that deposit of purchase money is not condition precedent for issuance of ownership certificate under Section 38-E(2) and that purchase can become ineffective only in eventuality specified in sub-section (3).

15. It is therefore apparent that at the time of death in 1959, the father of the present petitioner Laxya was not the tenant but was the owner of the suit lands. It is again therefore clear that after his death present petitioner become owner of those lands. In other words, the original owners ceased to have any ownership rights on those lands and consequently purchasers from them, therefore, do not derive any ownership, These subsequent purchasers are respondents before this Court.

16. Perusal of the provisions of Section 32 of the 1950 Act relied upon by the Maharashtra Revenue Tribunal to conclude that the remedy under Section 98 is not available to the petitioner now becomes necessary. Here, it needs to be mentioned that Maharashtra Revenue Tribunal has not found that application under Section 98 of the 1950 Act needs to be moved within reasonable time. It has found that remedy under Section 98 is not available to the petitioner and he ought to have filed application under Section 32(1) only. Section 32(1) gives remedy for taking possession. The remedy is given to a tenant or an agricultural labourer or artisan. The discussion above clearly shows that on the date of alleged dispossession the present petitioner was not a tenant and hence, remedy under Section 32 was not available to him. It therefore follows that reason given by the Maharashtra Revenue Tribunal for holding that remedy under Section 98 is not available to the petitioner falls to ground and that being the only reason, remedy under Section 98 must be held to be available to him. However, in view of the other contentions raised by the respondents before this Court the controversy is required to be looked into in more details.

17. The provisions of Section 38 which gives option to protected tenant to purchase land does not contemplate situation where such protected tenant is not in possession. Section 38-E with which this Court is concerned, vide its Explanation provides a remedy to protected tenant if he is not in possession of the land on the date of notification and his dispossession is otherwise then in manner and by order of Tahsildar as provided in Section 32. Explanation itself contemplates that such a tenant shall be deemed to have been holding the land on the date of notification and the Tahsildar has been given powers to pass appropriate orders for restoring actual possession. Thus, again this deeming fiction for possession is for the purposes of operation of main clause 38-E which statutorily transfers ownership to that tenant. Thus, when landlord has taken or procured both lands contrary to the provisions of Section 32, and therefore, the protected tenant is found not in possession on the date of notification, legi has taken precaution to confer the statutory ownership upon him and for restoration of his physical possession. Here, on 01.02.1957, father of petitioner was very much alive and was in cultivating possession, therefore, this Explanation does not provide any remedy to him. Section 46 is also a provision in 1950 Act which enables tenant to approach the Tahsildar for recovery of possession but then that operates only when the landlord who after termination of tenancy under Section 44 or Section 44-A, does not within one year of resumption of possession, start personal cultivation. That remedy therefore is again not available to the present petitioner.

18. Advocate Mr. Salunke has relied upon the provisions of Sections 98-A, 98-B, 98-C for contending that petitioner could have taken recourse to said provisions. Section 98-A is for validation of alienation made before 1st day of December, 1957. It speaks of contravention of any of the provisions of Section 38-D or of Chapter V as it stood before the commencement of the Hyderabad Tenancy and Agricultural Lands (Amendment) Act, 1957. Provisions of Section 38-D are already deleted from statute book and provisions of Chapter V imposes restrictions on transfer of agricultural lands. It is not the case of any of the parties that there was any alienation before 1st day of December, 1957 which violated either Section 38-D or then Chapter V. Section 98-B speaks of alienations between 1st December, 1957 and the date of commencement of above mentioned Amending Act, 1957. Those transfers are declared invalid. Again as it is not the case of parties that before coming into force the said Amending Act, 1957 there were any such transfers. Hence, the said provision is not relevant. Section 98-C lays down procedure to be followed by the Tahsildar for declaration & disposal of lands whose alienation, transfer or acquisition is found invalid. Thus, if alienation is found invalid, the land forming its subject matter can be disposed of in terms of Section 98-C. The application for that purpose can be moved by any person having interest in the land and after enquiry as provided in Section 98-B, the Tahsildar can decide whether alienation, transfer, acquisition is or is not invalid. Therefore, it has to be shown that there was some transfer or alienation not permitted by the provisions of 1950 Act and the action was solicited in relation to that transfer. Section 98-C(1) provides for validation of certain transfers made before 9th July, 1965. Again its bare perusal shows that it has got reference to provisions of Section 38-D or then provisions of Chapter V as they stood before commencement of Hyderabad Tenancy and Agricultural Lands (Amendment) Act, 1965 and such permanent alienation should be before 9th day of July, 1965. The said provisions therefore again has no application. Perusal of Section 98 reveals that it does not contemplate moving of any application and it only states that any person unauthorisedly occupying or wrongfully in possession of any land can be summarily evicted by Collector. Three contingencies in which such eviction is permitted are laid down in its clauses (a), (b) and (c). Clause (a) stipulates that if transfer of such land either by act of parties or by the operation of law is invalid under the provisions of 1950 Act, summary eviction is possible. If the management of said land was assumed under 1950 Act, then again summary eviction is possible. Clause (c) stipulates that if such person is not entitled to use or occupy the said land and if Act of 1950 does not expressly provide a remedy for his eviction, he can also be summarily evicted. Here, as already noted, in view of the statutory vesting of ownership in protected tenant under Section 38-E, there is no question of its transfer by erstwhile land owner to any third person. Therefore, transfer by such owners who have lost title to that land is not legal. As 1950 Act does not envisage such transfer, there is no express provision in it declaring it to be illegal. Clause (b) has no application here. The respondents who have purchased the lands from such erstwhile owners therefore do not get any right, title or interest in it. They are therefore not entitled to its occupation or possession. With result, their occupation is unauthorised or wrongful. No other provision of 1950 Act enabling either Collector or then tenant who has become owner (like present petitioner) to evict such occupants is pointed out to this Court. Infact there is no such provision in 1950 Act. It is therefore obvious that Section 98(c) squarely covers the present situation and provisions of Section 98 were therefore rightly invoked by the present petitioner.

19. The respondents have contended that recourse to remedy under Section 98 must also be within reasonable time. They are not disputing that the provisions of Section 98 as such do not prescribe any period of limitation. They are relying upon the judgment of this Court in Radhu Gokul Gawali and others Vs. Mohan Kishan Gawali and others [2007(4) ALL MR 339] (supra). The petitioners have relied upon certain other judgments to contend that this concept of limitation or then acting within reasonable time is foreign to Section 98.

20. Perusal of judgment in Radhu Gokul Gawali and others Vs. Mohan Kishan Gawali and others [2007(4) ALL MR 339] (supra) shows that there the petitioner before this Court had purchased the property by registered sale-deed and one Kishan was protected tenant since the date of sale i.e. 18.02.1966 till his death. He never filed any application raising any claim to suit property or to redress his rights as protected tenant or in relation to his illegal dispossession. In this background, the learned Single Judge has noticed that it would not be justified for a person who has purchased property in the year 1966 to face such proceedings under Section 98 after 18 to 19 years. It has been observed that though no limitation is prescribed, the action must be initiated within reasonable time. In paragraph no.12 it has been observed that availability of remedy under Section 32 and or Section 98 of 1950 Act needs to be decided in the facts and situation appearing in each case, & therefore, Court has to record a finding regarding maintainability of such application or about availability of remedy in each matter. Various judgments are then looked into to arrive at conclusion that purchaser petitioner before High Court can not be expected to meet such challenge after lapse of 18 to 19 years. The judgment of the Hon'ble Apex court reported at "(1997)6 S.C.C. 71" - Mohamad Kavi Mohamad Amin Vs. Fatmabai Ibrahim has also been looked into. In paragraph no.16, this Court has found that in absence of plausible explanation or material in support of the same, action after such long span of time is unconceivable. It was noticed that petitioners there (in Section 98 proceedings) had not explained the circumstances under which they were prevented from initiating action for recovery of possession. This judgment is considered by this Court again in "2010(6) B.C.R. 124 : [2010(6) ALL MR 81]" - Kisan Sayaji Shelke Vs. Madhukar Mohan Deshpande and others. There, this Court through its another learned Single Judge has found that petitioner before it was not consenting party to the transaction of the transfer and his rights as protected tenant were never abrogated on account any legal surrender thereof. In this back ground, in paragraph no.6 reference has been made to remedy under Section 32 of the 1950 Act and it has been noted that it was available to tenant who is dispossessed before commencement of said Act or then if it is resorted to later, same shall be within two years from the date on which the right to such possession accrued to the tenant. Because of these words, the question whether that right of petitioner (to possession) before it was extinguished or not has then been gone into. The Court then noticed that the petitioner before it continued in possession as protected tenant till 1965 and his dispossession was in the year 1965. Therefore, application under Section 98 for recovery of possession was held maintainable. In facts before me, the respondents have nowhere demonstrated that right of present petitioner to possession was determined in accordance with law at any point of time. Though, vaguely it is urged that he left the possession, that also has not been substantiated.

21. In Kisan Sayaji Shelke Vs. Madhukar Mohan Deshpande and others [2010(6) ALL MR 81] (supra), question of limitation/reasonable time was also pressed into service and attention was specifically invited to the judgment of this Court in "Radhu Gokul Gawali and others Vs. Mohan Kishan Gawali and others" [2007(4) ALL MR 339] (supra). This Court has noticed that in Radhu Gokul Gawali and others Vs. Mohan Kishan Gawali and others (supra), learned Single Judge has not laid down proposition that in every case application under Section 98 of the 1950 Act will not be maintainable after lapse of 18 to 19 years. It is also noticed that the applicability of relevant provision or its availability needed to be decided looking to the facts available at hand. Court has then noticed that remedy is required to be availed within reasonable period but then absence of any limitation in Section 98 has been noted. It is found that statute prescribes no limitation to avail remedy against person in wrongful possession unauthorisedly. Then, the Judgment in case of "Ganpat s/o. Sakharam Deshmukh Vs. Yeshwant s/o. Digambar Deshmukh" [2000(2) ALL MR 338] (supra) has been considered in paragraph no.8. Thus, the said judgment relied upon by the respondents is already distinguished by this Court in "Kisan Sayaji Shelke Vs. Madhukar Mohan Deshpande and others". In "Ganpat s/o. Sakharam Deshmukh Vs. Yeshwant s/o. Digambar Deshmukh" (supra) the judgment of Hon'ble Apex Court reported at "(1997)6 S.C.C. 71" - Mohamad Kavi Mohamad Amin Vs. Fatmabai Ibrahim is also looked into. Not only this earlier judgment of this Court reported at 1992 Mah.L.J. 541 - Eknath Raghoba Vs. Somla Lalu Lamani has also been considered. In this judgment which is under 1950 Act only, a claim for recovery of possession by protected tenant who was dispossessed prior to 01.10.1957 has been considered in the light of provisions of Section 38-E(1). His case is found covered by Explanation to Section 38-E(1) and contention that his application for recovery of possession tendered after more than 13 years could not have been entertained has been rejected observing that in absence of any specific provision debarring that remedy only alternative available to authority was to entertain it and to pass appropriate orders. In paragraph no.5, this Court has noted the contention of the petitioner that remedy of Section 38-E(1) Explanation was not available to that tenant and he ought to have presented application under Section 98. The other objections raised was in respect of limitation. In paragraph no.6 old judgment reported at Eknath Raghoba Vs. Somla Lalu Lamani (supra) is looked into and it has been noted that the said precedent did not support the case of petitioners but then supported the case of respondents in that matter. The facts of that matter are also noted and because of notification under Section 38-E in Beed District it was held that land stood transferred in the name of tenant w.e.f. 01.02.1957. That tenant lost possession subsequently, therefore, he presented application under Section 98. It may be noted that this Court in the said judgment (Eknath Raghoba Vs. Somla Lalu Lamani) has in paragraph no.3 noted the objections raised and thereafter observed that there was no other remedy available. The transfer in favour of the said petitioners (in Eknath Raghoba Vs. Somla Lalu Lamani) were effected on 16th July, 1957 i.e. the day on which their transferrers had no title because of operation of Section 38-E. Clause (a) and clause (c) of Section 98 were therefore found to be applicable in it. The aspect of limitation is looked into in paragraph no.4 and it has been noted that limitation cannot be applied by analogy. Limitation either bars the remedy or extinguishes right of party and hence, such bar can not be thought of when legislature has not prescribed it. When there is no limitation provided by the Legislature, the only thing that the Tribunal has to do is to permit application to be made irrespective of passage of time. These observations are noted in paragraph no.6 of the judgment supra i.e. Limbaji Shankar Munde Vs. Bhaurao Baliram Munde and answered against the petitioners therein. In paragraph no.7 the provisions of Section 38-E(1) or then contention about reasonable time are looked into. In view of the discussion above, I find more reference to this judgment not necessary.

22. In scheme of various sections noted above by me, whenever Legislature thought it fit to prescribe period of limitation, the said period has been specifically mentioned. In Section 98 only Collector has been enabled to summarily evict a person in unauthorised occupation or wrongful possession. It does not contemplate filing of any application by any party to initiate proceedings under Section 98. Thus, it only casts obligation on the Collector to evict such unauthorised or wrongful occupant. The fact of such wrongful or unauthorised occupation may come to knowledge of Collector belatedly through different sources & in various situations. It is therefore obvious that Legislature has only conferred the powers upon the authority to act in furtherance of provisions and for the purposes of 1950 Act to see that its aims and objections are achieved & preserved. No period of limitation therefore has been deliberately prescribed as such fact of unauthorised occupation or wrongful possession may also be deliberately suppressed by the parties from the Collector by adopting various means and measures. When the legislature has vested title in protected tenant on tiller's day against the wishes of land-holder, it is obvious that its design to advance the said cause, to protect or preserve that title from unscrupulous influences whenever it comes across such instances can not be allowed to be defeated by such technical pleas. I find the absence or non-prescription of any period of limitation in Section 98 is deliberate and in tune with that object.

23. It may be noted that while dealing with the provisions of Section 21 of the Mamlatdar's Court Act, 1906 in Uttam Namdeo Mahale Vs. Vithal Deo and others [1997(4) ALL MR 447 (S.C.)] (supra) in paragraph no.4 the Hon'ble Apex Court has observed that in absence of any specific limitation provided thereunder for execution, necessary implication is that the general law of limitation provided in the Limitation Act (Act No.2 of 1963) stands excluded. Hence period of 12 years as also need to execute within reasonable time was held in-applicable.

24. The Judgment of the Hon'ble Apex Court reported at "2007(9) SRJ 545" : [2007 ALL SCR 2958] - Mahabir Singh Vs Subhash and others considers provisions of Order 9, Rule 13 of Civil Procedure Code dealing with setting aside ex-parte order. The law prescribes limitation of 30 days for the said purposes and the Hon'ble Apex Court has noted that the defendant-respondent could not establish when he came to know events of passing of ex-parte decree. From cross-examination, the application was found to have been filed one and half years after the first respondent came to know about passing of ex-parte decree. The Ruling is therefore no relevance in present facts. In "2006(5) Mh.L.J. 442" - Waman Atmaram Lavand and another Vs. Dattatraya @ Dattu Baba Lavand and others, the learned Single Judge of this Court has found that enquiry under Section 84-C of Bombay Tenancy and Agricultural Lands Act, 1948 must be initiated within reasonable time. The sale there was effected in 1980 and enquiry was initiated in 1986 and thereafter lands were forfeited for not obtaining permission as required under Section 43 of the Act. The sons of tenants who had become owners on tillers day had voluntarily sold their lands to petitioners therein who in turn had invested huge amount in it. Thus both purchasers & sellers were willing parties to the sale. In this background, it is noticed that no limitation has been prescribed under Section 84-C for commencing an enquiry but then the action for forfeiture needed to be initiated within reasonable time. Thus, the complexion of matter & point of view is entirely different. In the present case, we are concerned with the welfare measures which permits the Collector to evict the person in unauthorised and wrongful possession for advancing aims and objects of 1950 Act & a aggrieved party (L.R. of earlier protected tenant) pointing out forcible dispossession. The Judgment reported at "2010(2) Mh.L.J. 150" - Santoshkumar Shivgonda Patil and others Vs. Balasaheb Tukaram Shevale and others considers the time limit for exercise of powers of revision by the authority, suo motu under Section 257 of Maharashtra Land Revenue Code. The Revision can be filed by aggrieved party and authority also suo motu to look into the correctness or otherwise in to the orders passed by the Lower Authority. Thus, a "lis" already adjudicated by the Lower Authorities can be again opened in that Revision and can be modified or upset. The requirements to act within reasonable time because of this capacity to unsettle the settled state of affairs has been found inherent by the Hon'ble Apex Court. The judgment reported at "(1997)6 S.C.C. 71" - Mohamad Kavi Mohamad Amin Vs. Fatmabai Ibrahim is also relied upon by respondents. The said judgment is already looked into by two judgments of learned Single Judge of this Court mentioned above and by third learned Single Judge while considering the provisions of Section 84-C of Bombay Tenancy Act. 1972 sales therein were with consent of parties to it and declared vitiated in 1977 in suo-motu inquiry initiated in 1976 on the ground that the purchaser was not agriculturist.

25. The respondents had also relied upon the judgment reported at "Jai Singh and others Vs. Municipal Corporation of Delhi and another" [2010(6) ALL MR 410 (S.C.)] (supra) and "Radhey Shyam and other Vs. Chhabi Nath and others" [2009 ALL SCR 1765] (supra) to point out limited jurisdiction available to this Court under Article 227 of the Constitution of India. In "2010(9) SCC 385" : [2010(6) ALL MR 410 (S.C.)] - Jai Singh and others Vs. Municipal Corporation of Delhi and another in paragraph no.25, the Hon'ble Apex Court has declared that High Court can not correct all hardships or wrongs if decision of the tribunal is within jurisdiction. The power can be used in case of serious dereliction of duty and flagrant violation of fundamental principles of law. In Radhey Shyam & Anr. Vs. Chhabi Nath & Anr. (supra) again the Hon'ble Apex Court has found that manifest miscarriage of justice can be corrected by High Court.

26. Facts at hand only show that Maharashtra Revenue Tribunal has not disturbed the finding of Deputy Collector about the protected status of father of petitioner on 01.02.1957. On the contrary it has accepted it. However, it has then noted two sale-deeds executed by original owners and found that same were not challenged by the present petitioner as required by Section 32(1) by seeking possession within a period of two years. The consideration by Maharashtra Revenue Tribunal is therefore obviously erroneous. It overlooks express mandate of Section 38-E and fact that after 01.02.1957, father of the petitioner and thereafter the petitioner himself were the owners. Even today, the petitioner is the owner. Respondents who have purchased it from non-owners are in wrongful possession or unauthorised occupation of suit properties and hence, their eviction as sought for under Section 98 is in accordance with law. Neither petitioner nor his deceased father are claimed to be willing parties to this state of affairs. There is no scope to apply even principle of acting within reasonable time here. The approach of the Maharashtra Revenue Tribunal is thus not only contrary to express mandate of Section 38-E but it also contrary to spirit and object of 1950 Act. There is refusal by Maharashtra Revenue Tribunal to exercise jurisdiction available to it.

27. Advocate Mr. Kulkarni had argued that the respondent nos.4 and 5 are added for the first time before this Court, therefore, they had no opportunity to contest the matter on merits before the Lower Authorities. He therefore, by way of abundant precaution had requested for remand. In view of findings recorded above, as basic facts are not in dispute, it is apparent that the respondent nos.5 and 6 have no independent status or locus and hence, request for remand at their instance can not be entertained.

28. In this view of the matter, the Judgment dated 15th September, 1999 delivered by Maharashtra Revenue Tribunal, Aurangabad in Appeal No.13/A/94/P is hereby quashed and set aside and orders passed by the Deputy Collector assailed before that Authority are hereby restored. Rule made absolute accordingly. No costs.

29. At this stage, Advocate Mr. Kulkarni requests for grant of three months time to take further appropriate steps in the matter. The request is being opposed by Advocate Mr. Sapkal. However, in the interest of justice, the parties are directed to maintain statusquo as on today for a period of three more months from today i.e. till 5th August, 2011. This interim order shall cease to operate automatically thereafter.

Ordered accordingly.