Writ Petition No.5014 of 2014

11th February, 2015.

Petitioner Counsel: Shri R.B. PENDHARKAR, Shri S.P. HEDAOO, Shri G.P. BELASARE
Respondent Counsel: Shri N.S. RAO

Cases Cited:
Prakash H. Jain Vs. Ms. Marie Fernandes, 2004(5) ALL MR 1 (S.C.)=AIR 2003 SC 4591(1) [Para 4]

JUDGMENT

JUDGMENT :- Rule, made returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties.

2. The Revisional Authority acting under Section 44 of the Maharashtra Rent Control Act, 1999 (herein after referred as "the said Act") has passed an order on 10.09.2014 condoning the delay of 639 days caused in filing revision challenging the order passed under Section 43 by the Competent Authority for eviction and possession on 28.08.2012. The only ground on which the delay has been condoned is that this Court has in Writ Petition No.5967/2013 filed by the respondent and decided on 05.08.2014 directed the Revisional Authority to sympathetically consider the claim of the petitioner regarding condonation of delay and to pass an appropriate order.

3. The question involved is whether the Revisional Authority under Section 44 of the said Act has jurisdiction to condone the delay beyond the period of 90 days. Section 44 being relevant is reproduced below:

44. Order of Competent Authority to be non appealable and revision by State Government.

"(1) No appeal shall lie against an order for the recovery of possession of any premises made by the Competent Authority in accordance with the procedure specified in section 43.

(2) The State Government or such officer, not below the rank of an Additional Commissioner of a Revenue Division, as the State Government may, by general or special order, authorise in this behalf, may, at any time suo motu or on the application, of any person aggrieved, for the purposes of satisfying itself that an order made in any case by the Competent Authority under section 43 is according to law, call for the record of that case and pass such order in respect thereto as it or he thinks fit:

Provided that, no such order shall be made except after giving the person affected, a reasonable opportunity of being heard in the matter:

Provided further that, no powers of revision at the instance of person aggrieved shall be exercised, unless an application is presented within ninety days of the date of order sought to be revised."

The order under Section 43 was passed on 28.08.2012. The revision under Section 44 above therefore, could have been preferred within a period of 90 days in terms of second proviso above. This period has expired on 26.11.2012. The revision is preferred in the month of September, 2014 i.e. after delay of 639 days. There is no provision under the said Act to empower the Revisional Authority to condone the delay beyond the period of 90 days.

4. In the decision of the Apex Court in the case of Prakash H. Jain v. Ms. Marie Fernandes reported in AIR 2003 SC 4591(1) : [2004(5) ALL MR 1 (S.C.)], it has been categorically held that various provisions under Chapter VIII of the Maharashtra Rent Control Act unmistakably indicate that Competent Authority constituted thereunder is not a 'Court' and the mere fact that such authority is deemed to be a Court only for limited and specific purposes, cannot make it a Court for all or any other purpose and at any rate for the purpose of either making the provisions of the Limitation Act, 1963 attracted to the proceedings before such Competent Authority or clothe such authority with any power to be exercised under the Limitation Act.

5. In view of the aforesaid position of law, the Revisional Authority acting under Section 44 in Chapter VIII of the said Act, would also not be a 'Court', competent to invoke the powers under Section 5 or Section 14 of the Limitation Act, 1963. In the absence of there being any power conferred upon the Revisional Authority under Section 44 of the said Act, to condone the delay beyond the period of 90 days, the order passed by the authority condoning the delay was without jurisdiction. Merely because, this Court has directed the concerned authority to consider the case of the petitioner sympathetically would not confer jurisdiction upon such authority to condone the delay, if it has no such jurisdiction in law.

6. Shri Dhabe, the learned counsel has urged that on 21.09.2013 i.e. within a period of 90 days from the date of passing an order under Section 42 on 28.08.2001, an application for recall of the order was filed. Thereafter, Writ Petition No.5967/2013 was filed before this Court it was decided on 28.10.2014 and thus time was spent bonafide in prosecuting in wrong forum. In the absence of any power to condone the delay conferred upon the Revisional Authority, no sympathy can be shown. The contention is therefore, rejected.

7. In the result, the writ petition is allowed. The judgment and order dated 10.09.2014 passed in Revision Case No.2/RC/u/s 44/201415, is hereby quashed and set aside. The revision is dismissed. Rule is made absolute in the above terms. No order as to costs.

8. At this stage Shri Dhabe, the learned counsel appearing for the petitioner seeks protection for further period of four weeks. This is opposed by the learned Senior Advocate Shri Pendharkar assisted by Shri Hedaoo and Shri Belsare. Keeping in view the factual background of the case, I do not find any reason to grant such protection. The prayer is rejected.

Petition allowed.