As per case facts, land originally owned by Laxmibai Kavitake, with Bhiku Deshmukh as tenant. Laxmibai obtained possession of half the land for personal cultivation after Tiller's Day was postponed. ...
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.13496 OF 2016
1.Shankar Ganpat Salunke, deceased
through his legal heirs
1A.Gopika Shankar Salunke
1B.Narendra Shankar Salunke
1C.Vijay Shankar Salunke
1D.Ganesh Shankar Salunke
1E.Ratnaprabha Badrinath Kale
1F.Kalpana Namdeo Raut
1G.Archana Kashinath Raut … Petitioners
Vs.
1.Laxmibai Shankar Kavitake, deceased
through her legal heirs
1A.Ganpat Sitaram Kavitake
1B.Namdeo Sitaram Kavitake, since
deceased through his legal heirs
1B(A)Vimal Namdeo Kavitake
1B(B)Dhananjay Namdeo Kavitake
1B(C)Yeshwant Namdeo Kavitake
1B(D)Swati Vijay Dhakle … Respondents
Mr. Anil Anturkar, Senior Advocate with Mr. Sugandh
B. Deshmukh for the Petitioners.
Mr. Drupad S. Patil with Mr. Parag Tilak for the
Respondents.
1
ATUL
GANESH
KULKARNI
Digitally signed
by ATUL
GANESH
KULKARNI
Date: 2026.09.29
11:16:14 +0530
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CORAM :AMIT BORKAR, J.
RESERVED ON :SEPTEMBER 21, 2026.
PRONOUNCED ON:SEPTEMBER 29, 2026
JUDGMENT:
1.By the present Writ Petition filed under Articles 226 and 227
of the Constitution of India, the Petitioners are challenging the
legality, validity, and correctness of the Judgment and Order dated
13 October 2016 passed by the Member, Maharashtra Revenue
Tribunal, Pune Bench, Pune in Revision No. P/III/4/2015.
2.The facts which have given rise to the present Writ Petition
are as follows. The land bearing Survey No. 710/8, admeasuring 2
H. 90 R., situated at Indapur, was originally owned by Smt.
Laxmibai Kavitake. Bhiku Shankar Deshmukh was the tenant of
the said land even before the Tiller's Day. His name was recorded
as an “Ordinary Tenant” in the other rights column by Mutation
Entry No. 920 dated 8 September 1955. On the Tiller's Day,
Laxmibai was a widow. Therefore, the Tiller's Day stood postponed
as provided under Section 32(F) of the Bombay Tenancy and
Agricultural Lands Act. This fact was recorded in the revenue
record by Mutation Entry No. 1533 dated 27 November 1961.
Thereafter, on 19 February 1963, Laxmibai filed Tenancy
Application No. 61 of 1962 under Section 33(B) read with Section
29(2) of the Bombay Tenancy and Agricultural Lands Act, 1948
before the Awal Karkoon, Indapur. By the said application, she
sought possession of half portion of the land for her personal
cultivation. The application was allowed on 19 February 1963 and
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the tenant was directed to hand over possession of 4 Acres and 3
Gunthas. In the year 1966, Laxmibai obtained possession of 4
Acres and 3 Gunthas. Her name was recorded in the cultivation
column of Form No. 12 in respect of that portion. She cultivated
Jwari and Kardi on the said land. From 1966 till 1973, possession
of the said 4 Acres and 3 Gunthas remained with Laxmibai and she
cultivated the land herself. Accordingly, her name continued to be
shown as the cultivator in Extract No. 12. In the year 1973-74,
Laxmibai agreed to sell the said portion of 4 Acres and 3 Gunthas
to one Govind Laxman Thorat. Accordingly, on the application
made by Laxmibai, the name of Thorat was entered in the crop
and tenancy column for the year 1973-74. On 21 June 1973,
Shankar Salunkhe made an application requesting that his name
be recorded in the cultivation column. The said application is
referred to in the Order dated 24 July 1975. Shankar Salunkhe
claimed that he was in possession of the land on Batai basis. After
making an inquiry, the Circle Officer passed an Order dated 8
February 1974. It was found that possession of the land was with
Shankar Salunkhe. The Circle Officer directed that his name be
recorded in the cultivation column. Laxmibai challenged the said
order by filing the first RTS Appeal before the Sub-Divisional
Officer, Baramati. The appeal was allowed on 24 July 1975. The
order passed by the Circle Officer was set aside and the Sub-
Divisional Officer directed that the name of Laxmibai be entered.
Laxmibai died in the year 1975 and had left a Will in favour of the
Respondents. Shankar Salunkhe filed II Appeal No. 32 of 1975
before the Additional Collector, Pune. The said appeal was
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dismissed by Order dated 23 February 1976.
3.Shankar Salunkhe filed an RTS Revision before the
Additional Commissioner, Pune, being RTS No. 611. By Order
dated 6 April 1977, the revision was allowed. The Additional
Commissioner recorded, amongst other things, the following
findings: (i) “From Evidence on record it is quite clear that
Applicant is in possession of suit land”; (ii) Opponent No. 2,
namely Thorat, had not produced the Agreement on record and his
claim of possession could not be accepted; (iii) the Additional
Collector had unmixed the issues arising in RTS proceedings with
the provisions of the BTAL Act; (iv) in RTS proceedings, the
question of possession of the person concerned was relevant, and it
was not possible to advise the parties to proceed under another Act
in such proceedings; and (v) the Applicant was in possession of the
suit land. On these findings, the orders passed by the Sub-
Divisional Officer and the Additional Collector were set aside.
4.The daughters of Laxmibai filed Special Civil Application No.
1376 of 1977 before this Court, challenging the Order of the
Additional Commissioner. By Order dated 22 June 1981, this Court
observed that the matter concerned entries in the lower part of the
Record of Rights and that the finding regarding possession had
been recorded by the competent authority. Therefore, no
interference was found necessary. It was observed that the
daughter of Laxmibai could file a civil suit for declaration of her
title so that appropriate entries could be made in the upper part of
the Record of Rights. It was observed that the Petitioner was not
concerned with the upper part of the Record of Rights and could
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not insist upon filing such a suit. The names of Laxmibai's
nephews, namely Ganpat Sitaram Kavitake and Namdeo Sitaram
Kavitake, were entered in the 7/12 extract in respect of the
concerned portion of the land on the basis of Laxmibai's Will dated
15 March 1974. The said entry was made by Mutation Entry No.
14299 dated 25 May 1976 and was certified on 30 June 1976.
Laxmibai died in the year 1975. The Civil Judge, Senior Division,
Pune granted probate of the said Will in Miscellaneous Application
No. 592 of 1976 by Order dated 30 June 1978.
5.Thereafter, a settlement took place between Laxmibai's
nephews and Bhiku Deshmukh, who was the tenant. Under the
settlement, a portion admeasuring 1 H. 23 R. was sold to Bhiku
Deshmukh and the remaining land admeasuring 1 H. 65 R. was
retained by Laxmibai's nephews. Accordingly, Mutation Entry No.
16330 was made on 28 November 1983 and was certified on 16
January 1984. The original Survey No. 710/8 was divided. The
portion sold to Bhiku Deshmukh was given Survey No. 710/8A,
whereas the portion retained by Laxmibai's nephews was given
Survey No. 710/8B. The land bearing Survey No. 710/8B,
admeasuring 1 H. 65 R., is the land which is the subject matter of
the present litigation. Laxmibai's nephews filed Tenancy
Application No. 05 of 2013 under Section 84(c) of the BT & AL Act
before the Sub-Divisional Officer, Baramati. The application was
filed against the legal representatives of Shankar Ganpat Salunkhe.
It was their case that Shankar Salunkhe was in wrongful
possession of the suit land which belonged to Laxmibai and that,
after his death, his legal representatives had continued in such
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wrongful possession. They contended that there was no
relationship of landlord and tenant between Laxmibai and Shankar
Salunkhe. According to them, the entry of Shankar Salunkhe on
the land was without any title. On this basis, they sought an order
directing delivery of possession of the suit land. An affidavit was
filed in support of the application. The legal representatives of
Shankar Salunkhe opposed the application. They contended,
amongst other things, that they were in possession of the suit land.
They pointed out that the daughters of Laxmibai had not been
made parties to the proceedings. According to them, this Court had
held that Shankar Salunkhe was in possession of the suit land.
They contended that the daughters of Laxmibai had not filed the
civil suit referred to by this Court in Special Civil Application No.
1376 of 1977. It was contended that the application filed under
Section 84(c) was barred by limitation. Laxmibai's nephews filed
an Evidence Affidavit in support of their case.
6.In the year 2015, the Sub-Divisional Officer, Baramati
rejected the application. The Sub-Divisional Officer held that the
application had been filed after about 33 years and that it was not
filed within three years as contemplated by Article 58 of the
Limitation Act. The application was held to be barred by
limitation. Laxmibai's nephews filed a Revision Application under
Section 76 of the BT & AL Act before the Maharashtra Revenue
Tribunal, Pune, being Revision Application No. P/III/4/2015. The
Member, MRT, held that the legal representatives of Shankar
Salunkhe had not pleaded that they were tenants. It was held that
they had not raised any plea of tenancy by seeking a declaration
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under Section 70(b) of the BT & AL Act. The Member observed
that mere continuation of an entry showing a person as a possessor
would not give that person any legal right to continue in
possession. The Member held that, on the basis of the probate of
the Will of Laxmibai, the cousins were the owners of the land.
According to the Member, the entry showing the name of Shankar
Salunkhe did not create any interest in his favour or in favour of
his legal representatives. The Member considered the mode of
cultivation shown against the name of Shankar Salunkhe as “O”
and held that the 7/12 extract did not disclose any valid source of
interest or possession in the suit land. The Member held that no
period of limitation was prescribed for an application under
Section 84(c). Therefore, according to the Member, the finding of
the Sub-Divisional Officer regarding limitation did not get support
from the provisions of Section 84(c). On these findings, the
Revision Application was allowed and the legal representatives of
Shankar Salunkhe were directed to hand over possession of the
suit land to Laxmibai's nephews.
7.The legal representatives of Shankar Salunkhe have filed the
present Writ Petition. They contend, amongst other things, that
they are in possession of the suit land, as was held by this Court in
Special Civil Application No. 1376 of 1977. According to them, the
Maharashtra Revenue Tribunal ought not to have reopened or
reconsidered that issue. They contend that, in any event, the
maximum period of limitation applicable to the claim is three years
and the application under Section 84(c) filed after such a long
period was barred by limitation. It is their contention that the
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application under Section 84(c) was not maintainable. According
to them, while exercising revisional jurisdiction under Section 76
of the BT & AL Act, the Maharashtra Revenue Tribunal could not
exercise jurisdiction in the manner of a Court exercising powers
under Section 100 of the Code of Civil Procedure.
8.Mr. Anturkar, learned Senior Advocate appearing for the
Petitioners, submitted that although Section 84C of the
Maharashtra Tenancy and Agricultural Lands Act, 1948 ("the MTL
Act") does not prescribe any period of limitation, the power under
the said provision cannot be exercised after an unreasonable delay.
According to him, the principles of delay, laches and negligence
can still apply. A statutory authority cannot exercise its power after
an unlong and unexplained period, particularly where, because of
the delay, rights have become settled, possession has continued for
a long time, or serious prejudice has been caused to the other side.
He submitted that if the principle of laches can apply even to a
Court having wide powers and not being governed by any
particular period of limitation, then the same principle must apply
with greater force to a revenue authority such as the Collector,
whose powers are limited by the statute. According to him, the
Collector cannot exercise the statutory power at any point of time
without considering the delay, conduct of the parties, prejudice
caused or rights which may have been created during the
intervening period.
9.Mr. Anturkar submitted that the principles of laches and
negligence may apply even when the Supreme Court exercises its
inherent power to do substantial justice under Article 141 of the
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Constitution of India. In support of this submission, reliance was
placed on the judgment of the Supreme Court in
Shyamo Devi and
Others v. State of U.P
., 2024 SCC OnLine SC 966, as well as the
judgment reported in
Satyam Sahu, (2004) 8 SCC 340. Reliance
was placed upon the judgment of the Supreme Court in
Ibrahimpatanam Taluk Vyawasayik Coolie Sangam v. K. Suresh
Reddy, reported in
(2003) 7 SCC 667.
10.Learned Senior Advocate submitted that the question
whether limitation is inapplicable to proceedings under Section
84C requires reconsideration. According to him, although at least
three Division Benches of this Court have taken the view that the
provisions of limitation do not apply to proceedings under Section
84C of the MTL Act, the correctness and extent of that proposition
requires reconsideration. The three judgments of this Court relied
upon by the Petitioners are
Ganesh and Another v. Kushal Rao and
Others,
2023 SCC OnLine Bom 2623; Hasan bin Salam, Salam bin
Abdul Habib v. Madhavrao Rangnathrao Shinde,
2014 SCC OnLine
Bom 4617;
and Ghanashyamprasad Narwarlal Bhatta v. Gendal
Singh Vakhat Singh,
Special Civil Application No. 764 of 1955,
which has been referred to in paragraph 12 of the judgment in
Ganesh and Another.
11.According to the learned Senior Advocate, the question is not
only whether the Limitation Act applies to proceedings under
Section 84C. The larger question is whether a statutory authority
can start proceedings after an unreasonable and unexplained delay
merely because the statute does not prescribe any period of
limitation. The Petitioners have relied upon the observations made
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by T.S. Thakur, J. in his concurring judgment in Joint Collector,
Ranga Reddy District and Another v. D. Narasing Rao and Others,
reported in (2015) 3 SCC 695. It was submitted that, particularly
in view of the judgment of the Supreme Court in 2015 and the
judgment in
Ibrahimpatanam Taluk Vyawasayik Coolie Sangam,
the question requires reconsideration by this Court. According to
the Petitioners, these judgments have not been considered in the
later judgment in
Ganesh and Another.
12.The submission of the Petitioners is that the Supreme Court
has held that where a statute gives a power to an authority but
does not prescribe any period for exercising that power, the power
must ordinarily be exercised within a reasonable period. What is a
reasonable period would depend upon the nature of the subject
matter, the nature of the right affected, the conduct of the parties
and the prejudice caused because of the delay. Learned Senior
Advocate submitted that the nature and source of jurisdiction
under Section 84C requires consideration. According to him, it has
to be examined whether the jurisdiction of the Collector under
Section 84C is original and independent, permitting the Collector
himself to decide whether a person in occupation is a trespasser or
is otherwise in unauthorised possession. Alternatively, it has to be
considered whether the jurisdiction is only consequential and can
be exercised after the competent authority has decided the status
of the person in occupation.
13.The question is whether the Collector, while acting under
Section 84C, can himself decide disputed questions relating to
title, possession, tenancy, adverse possession or the nature of the
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occupation. According to the Petitioners, such questions may first
have to be decided by the competent Civil Court. Where the
dispute relates to tenancy, the question may have to be decided by
the Mamlatdar, Tahsildar or other authority having jurisdiction
under the BT & AL Act.
14.It was submitted that Section 84C cannot be understood as
giving the Collector a wide power to decide complicated and
seriously disputed questions relating to civil title or possessory
title. According to the Petitioners, the provision has to remain
within the purpose for which it has been enacted. It cannot be
used as a substitute for a instituted civil suit. The Petitioners
submitted that the jurisdiction of the Collector under Section 84C
is limited because it is created by statute. According to them, this
jurisdiction cannot include matters which belong to the Civil
Court. These would include a claim of possessory title, a claim
based upon long, settled and uninterrupted possession, a plea of
adverse possession, a dispute regarding title or competing
ownership rights, and a dispute as to whether a person is a
trespasser where deciding that question requires a detailed
examination of civil rights and evidence.
15.It was submitted that where the basis of the proceedings
under Section 84C is disputed and depends upon deciding civil
rights, the Collector cannot assume jurisdiction merely by
describing the person in possession as an unauthorised occupant.
According to the Petitioners, such a question must first be decided
by the competent Civil Court unless the statute gives such
adjudicatory power to the revenue authority and excludes the
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jurisdiction of the Civil Court. It was submitted that if the
jurisdiction under Section 84C is held to be both adjudicatory and
executory and is not treated as limited, then the provision would
come into conflict with Section 9 of the Code of Civil Procedure,
which is a Central enactment. It is true that the Maharashtra
Tenancy and Agricultural Lands Act has been placed in the Ninth
Schedule to the Constitution of India. However, according to the
Petitioners, the protection available under the Ninth Schedule is
relevant in the context of certain challenges based on fundamental
rights. It does not mean that the provisions of the MTL Act can be
treated as overriding a Central enactment merely because they
have been included in the Ninth Schedule.
16.Another question raised by the Petitioners concerns the
relationship between Sections 84 and 84C of the BT & AL Act.
According to the Petitioners, it requires consideration whether the
power to resume or recover possession under Section 84 operates
independently of Section 84C, or whether such power can be
exercised only after the basic jurisdictional facts contemplated by
Section 84C have been determined. The words "under the
provisions of this Act" occurring in Sections 84 and 84C are
submitted to be important. According to the Petitioners, if the
dispute does not arise under the provisions of the MTL Act but
arises under general law, such as the law relating to adverse
possession or Section 27 of the Limitation Act, the Collector or
Tahsildar exercising powers under Sections 84 or 84C would have
no jurisdiction to decide that question. Such a question would fall
within the jurisdiction of the Civil Court because it concerns title
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and, in the case of adverse possession, the extinguishment of title.
According to the Petitioners, Section 84C deals with the
consequences of an invalid transfer or acquisition contrary to the
provisions of the Act. Section 84, on the other hand, provides the
machinery for enforcement and recovery of possession.
17.On this basis, the Petitioners submitted that the following
questions arise for consideration: first, whether a prior
adjudication under Section 84C is necessary before the coercive
machinery under Section 84 can be used; second, whether the
Collector can use Section 84 to dispossess a person without first
deciding whether the transfer, acquisition, or occupation is under
Section 84C; third, whether Section 84 is only an enforcement
provision while Section 84C provides the substantive jurisdictional
foundation; and fourth, whether Sections 84 and 84C have to be
read together so that the Collector does not use Section 84 as an
independent source of power to decide disputed questions of title
and possession.
18.The Petitioners rely upon the earlier order of a Division
Bench of this Court comprising Kanade, J. and Pendse, J.
According to the Petitioners, that Division Bench had directed the
Respondent to institute a Civil Suit for declaration and possession.
It was submitted that once this Court had directed the Respondent
to establish title and possession before the Civil Court, the
Respondent could not avoid that direction by invoking revenue
proceedings under Sections 84 or 84C of the BT & AL Act.
According to the Petitioners, unless the Respondent obtains an
appropriate declaration from the competent Civil Court, it cannot
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obtain in through revenue proceedings the same relief which the
earlier Division Bench had directed it to seek through a civil suit.
The earlier order continues to bind the parties on the issues
decided therein unless the said order is set aside or otherwise
ceases to operate.
19.The Petitioners submitted that the scope of the Full Bench
judgment requires consideration. According to them, the first
question considered by the Full Bench appears to relate to whether
the Collector, while exercising the relevant statutory jurisdiction,
can decide a claim of tenancy made by a person in possession. It
was submitted that this may not be the issue in the present case.
According to the Petitioners, there is a finding that they are in
possession of the subject property and they claim possessory title.
Their case is not based upon a claim that they are tenants whose
tenancy rights are required to be determined. The real dispute,
according to them, is regarding possession, possessory title and the
Respondent's claim to recover possession despite the earlier
direction of this Court to seek declaratory relief before the Civil
Court. Therefore, the Full Bench decision dealing with the
Collector's power to decide a tenancy claim may not determine the
controversy in the present case.
20.The Petitioners submitted that even if a question of tenancy
is found to arise, another question regarding the proper
interpretation of the statutory provisions remains. The MTL Act
creates different authorities having different functions concerning
tenancy and possession. Section 70 gives the Mamlatdar or the
competent tenancy authority power to decide whether a person is
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a tenant and whether that person has tenancy rights under the Act.
Section 84 is in the nature of an enforcement provision and
permits the competent revenue authority, where the statutory
conditions are satisfied, to secure compliance with the Act and to
recover or deliver possession. Section 84C deals with an inquiry
into transfers or acquisitions which are alleged to be invalid or
contrary to the Act and permits consequential orders after such
inquiry. The question is whether these provisions can be used
interchangeably or whether they have to operate in a particular
statutory order. According to the Petitioners, if the basic question is
whether a person is a tenant, that question should ordinarily be
decided by the authority empowered under Section 70. The
Collector cannot use Sections 84 or 84C to assume jurisdiction
over a tenancy question which the Act has entrusted to the
Mamlatdar or another competent tenancy authority.
21.According to the Petitioners, where the case is based upon an
alleged invalid transfer or acquisition, the inquiry contemplated
under Section 84C must first be completed before any
consequential action for recovery of possession can be taken.
Section 84 cannot be treated as an independent and unlimited
power to dispossess a person when the legality of the transfer, the
nature of possession or the tenancy status of that person is
disputed and has not been decided. The provisions have to be read
together. Section 70 deals with the question of tenancy status.
Section 84C deals with prohibited or invalid transfers or
acquisitions and their consequences. Section 84 provides the
machinery for enforcement after the necessary jurisdictional facts
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have been determined by the competent authority. According to
the Petitioners, Sections 84 and 84C cannot be used to avoid the
statutory procedure under Section 70 or to decide questions of
civil title, possessory title or adverse possession which fall within
the jurisdiction of the Civil Court.
22.On the basis of the above submissions, the Petitioners
proposed the following questions for consideration:
(a) Whether, even though Section 84C of the MTL Act does
not prescribe any period of limitation, the power under the
said provision must be exercised within a reasonable period
and is subject to the principles of delay, laches, acquiescence
and prejudice?
(b) Whether the Collector, while exercising limited
statutory jurisdiction under Sections 84 and/or 84C of the
MTL Act, can initiate or continue proceedings after an
inordinate and unexplained delay, particularly when rights
have become settled and possession has continued for a
substantial period?
(c) Whether the jurisdiction under Section 84C is original
and independent and permits the Collector to decide
disputed questions relating to title, possession, trespass,
adverse possession or the nature of the possession of the
occupant?
(d) Whether proceedings under Section 84C are
consequential in nature and can be initiated only after the
relevant status or basic dispute has been decided by the
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competent Civil Court or the competent tenancy authority?
(e) Whether the Collector's jurisdiction under Sections 84
and 84C extends to questions of possessory title and adverse
possession, or whether such questions fall within the
jurisdiction of the Civil Court?
(f) Whether an order under Section 84C is a necessary
jurisdictional foundation before Section 84 can be used for
recovery or delivery of possession?
(g) Whether Section 84 can be used as an independent
source of power to dispossess a person when his alleged
status as an unauthorised occupant, trespasser or person
without title is seriously disputed?
(h) Whether, in view of the earlier order of the Division
Bench directing the Respondent to file a Civil Suit for
declaration of title and possession, the Respondent is
precluded from seeking substantially the same relief through
revenue proceedings unless and until such declaratory relief
is obtained from the Civil Court?
(i) Whether the Full Bench judgment concerning the
Collector's power to consider a claim of tenancy applies to a
case where the person in possession does not claim tenancy
but claims settled possession and possessory title?
(j) If a tenancy issue is found to arise, how are the
jurisdictions under Sections 70, 84 and 84C of the MTL Act
to be read together so as to avoid overlapping jurisdiction
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and at the same time preserve the jurisdiction of the Civil
Court over questions of title and adverse possession?
23.Learned Senior Advocate referred to Section 84 of the
Maharashtra Tenancy and Agricultural Lands Act, 1948. According
to the Petitioners, Section 84 provides for summary eviction of a
person who is unauthorisedly occupying or is wrongfully in
possession of land in the circumstances mentioned in the
provision. These circumstances include a case where the transfer
or acquisition of the land, whether by an act of the parties or by
operation of law, is invalid under the Act; where management of
the land has been assumed under the Act; or where the person
occupying the land is not entitled to occupy it under the provisions
of the Act and the Act does not otherwise provide for his eviction.
In such circumstances, according to the provision relied upon by
the Petitioners, the person in occupation may be summarily evicted
by the Collector.
24.The principal issues raised by the Petitioners concern
limitation and the requirement of a reasonable period. Their
submission is that the summary power of eviction under Section
84 cannot be exercised at any point of time without considering
the period which has passed. According to them, the principle of
reasonable time cannot be excluded from proceedings under
Section 84C. Another question raised is whether a person who is a
pure trespasser, having no relationship or connection with the
provisions of the Tenancy Act, can be summarily evicted under
Section 84C. On the question of limitation and reasonable time,
the Petitioners submitted that the earlier view based upon the
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judgment of B.P. Dharmadhikari, J., particularly the observations in
paragraphs 21 and 22, that limitation and the test of reasonable
time do not apply to proceedings under Section 84C requires
reconsideration. According to the Petitioners, the matter deserves
to be considered by a larger Bench.
25.The Petitioners sought to distinguish the authorities relied
upon against them. According to them, the decision in
Uttam
Mahale
concerns execution proceedings, where the question of
statutory limitation operates in a different manner. It was
submitted that the judgment of the Gujarat High Court relied upon
by the other side cannot now be treated as good law in view of the
binding judgments of the Supreme Court recognising that statutory
powers, even where no period is provided, have to be exercised
within a reasonable time in appropriate cases. The Petitioners
submitted that legal certainty is an important part of the Rule of
Law. According to them, a statutory authority cannot be given an
unlimited power to start proceedings after arbitrary periods such
as 50, 100 or 150 years. Whether the period is reasonable must
depend upon the facts of each case and cannot be excluded from
consideration under Section 84C.
26.On the scope of Section 84C, the Petitioners submitted that
the words "under the said provisions" require there to be a direct
connection with the Maharashtra Tenancy and Agricultural Lands
Act. According to them, where a person is a pure trespasser and
there is no connection between his possession and any tenancy
right or statutory provision under the Act, summary eviction under
Section 84 cannot be ordered. In such a case, the remedy would be
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under general civil law by filing a suit for declaration and recovery
of possession. It was submitted that such a matter cannot be
decided through summary revenue proceedings. It was submitted
that, while deciding whether the authority has jurisdiction, the
Court must look at the case made in the original application filed
by the person seeking eviction. The jurisdiction cannot be created
by relying upon the defence or upon an alternative or inconsistent
plea raised by the person in possession, such as a plea of Batai or
tenancy.
27.Applying these submissions to the facts of the present case,
the Petitioners referred to the case made by the Respondents.
According to the Petitioners, the Respondents stated in their
application that the possession had been obtained between 1964
and 1974 and that mutation entries had been made. They stated
that the Petitioners had no continuing statutory interest or concern
with the land. The Petitioners relied upon the observations made
by this Court in the earlier mutation proceedings. According to
them, this Court had noticed that the Petitioners were in
possession and had granted liberty to the owner to establish both
title and possession before the competent Civil Court.
28.The Petitioners submitted that there was an inordinate delay
in initiating the present proceedings. According to them, the
proceedings were started after more than 33 years from the Court
order of 1983, or more than 43 years if the period is calculated
from 1974. Such a long and unexplained delay, according to the
Petitioners, cannot satisfy the requirement of a reasonable period.
On the basis of the above submissions, the Petitioners contended
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that the proceedings under Section 84 of the Act have no
application to the facts of the present case. According to them, the
summary power was exercised after an unreasonable period and
without jurisdiction. They submitted that the Order passed by the
Maharashtra Revenue Tribunal deserves to be quashed and set
aside.
29.Mr. Drupad Patil, learned Advocate appearing for the
Respondents, submitted that the Application filed by the original
Applicants under Section 84(c) of the Act of 1948 was
maintainable. According to him, there is no period of limitation
which can prevent the authority from exercising the power under
Section 84(c). He submitted that the Petitioners are in possession
of the suit land. According to him, the statutory right available
under Section 84(c) cannot be taken away or abandoned merely
because of any act or conduct of the parties. In the present case,
the Petitioners are in unauthorised possession of the suit land.
Therefore, according to the learned Advocate, they are liable to be
evicted by exercising the power under Section 84 of the Act of
1948.
30.Learned Advocate submitted that a similar provision, namely
Section 98 of the Hyderabad Tenancy and Agricultural Lands Act,
1950, was considered by this Court in
Laxman Shankar Bandgar v.
Venkat Rama Bandgar and Others,
2014 (6) ALL MR 661. In that
case, the learned Single Judge relied upon the judgments in
Mesaji
Laxman Ubare v. Ramchanra (Dr.) Laxminarayan Toshniwal and
Others,
2011 (4) Mh.L.J. 668, Limbaji Shankar Munde (deceased
through L.Rs.) v. Bhaurao Baliram Mundhe (deceased through
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L.Rs.) and Others, 2010 Mh.L.J. 138, and Ghanshyamprasad
Natwarlal Bhatt v. Gendalsingh Vakhatsingh and Others,
Special
Civil Appeal No. 764 of 1955. In paragraph 42 of the judgment,
the learned Single Judge made the following observations:
“42. In view of the above observations of the Division Bench
of this Court in Ghanshyamprasad Natwarlal Bhatt (supra),
Limbaji Shankar Munde (supra) and Mesaji s/o Laxman
Ubare;2011 (4) ALL MR 25], I find it appropriate to follow
the view taken in the aforesaid three judgments and
conclude that Section 98 of the Act of 1950, cannot be
fettered with limitation. As such, I conclude that the
application preferred by the applicants under Section 98 of
the Act of 1950 was maintainable and has been correctly so
held by the Deputy Collector, Land Reforms and the
Maharashtra Revenue Tribunal, Aurangabad.”31.Learned Advocate for the Respondents submitted that the
same provision, namely Section 98 of the Act of 1950, was
considered by the Division Bench of this Court in
Ganesh Kachru
Sonawane v. Khushalrao Sable, Writ Petition No. 9745 of 2011,
Aurangabad Bench
. The Division Bench took the following view:
“22. Section 98 of the Act is a power of the Collector. It
pertains to summary eviction of the person unauthorizedly
occupying or wrongly in possession of the land. The purport
of Section 98 is to remove an unauthorized occupant. A
tresspasser is a tresspasser and cannot be heard to contend
that because of lapse of time his possession culminates into
valid possession. Only exception is a person claiming right by
way of adverse possession. But the provisions of the Act do
not contemplate situation of adverse possession. The
judgments cited by the respondents do not commend us to
hold that even if the limitation is not provided still it should
be treated as a reasonable time.”
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32.Learned Advocate submitted that, in the present case, the
Petitioners claim to be in possession of the land without any
authority. However, they have neither pleaded nor proved the date
from which their possession allegedly became adverse to the title
of the Respondents. According to him, in the absence of any such
plea or proof and in the absence of any adverse effect on the title
of the Respondents, the Application filed by them under Section
84(c) cannot be treated as barred by limitation. Learned Advocate
submitted that, even in the earlier proceedings and in the revenue
record, the name of the predecessor of the Petitioners was shown
on the basis of “Batai Basis” and “Khand Basis”. However,
according to him, the Petitioners have failed to establish that they
or their predecessor had the status of a “Tenant”. The Maharashtra
Revenue Tribunal has rightly treated their possession as
unauthorised. In these circumstances, according to the learned
Advocate, the order directing their eviction by exercising powers
under Section 84(c) cannot be said to be illegal.
REASONS AND FINDINGS:
33.I have considered the submissions made by the learned
counsel for the petitioners as well as the learned counsel appearing
for the respondents. The question is that when the statute has not
provided any express period of limitation, whether the power
under Section 84(c) can be exercised at any point of time without
looking into the delay, conduct of the parties and the prejudice
which may have occurred during the intervening period.
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34.In my view, this question has to be considered in four parts.
First, whether absence of an express period of limitation means
that there can be no question of reasonable time at all. Second,
whether the reasoning in
Ganesh and Another, which was dealing
with Section 98 of the Hyderabad Tenancy and Agricultural Lands
Act, 1950, can be applied to Section 84(c) of the Bombay Tenancy
and Agricultural Lands Act, 1948. Third, what is the nature of the
power under Section 84(c), particularly where the person in
possession claims tenancy, title or some other statutory right.
Fourth, whether on the facts of the present case, the long delay
and the earlier proceedings have any effect on the exercise of the
summary power under Section 84(c).
Absence of limitation and the principle of reasonable time:
35.The relevant part of Section 84 reads as under:
"84. Summary eviction.— Any person unauthorisedly
occupying or wrongfully in possession of any land—
(a) the transfer or acquisition of which either by the act of
parties or by the operation of law is invalid under the
provisions of this Act,
(b) the management of which has been assumed under the
said provisions, or
(c) to the use and occupation of which he is not entitled
under the said provisions and the said provisions do not
provide for the eviction of such persons,
may be summarily evicted by the Collector."
36.Plain reading of the provision makes it is clear that mere
possession of land is not enough to invoke Section 84(c). There
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has to be a person who is "unauthorisedly occupying or wrongfully
in possession". Then, under clause (c), such person must be one
who is not entitled to the use and occupation of the land "under
the said provisions" and there must be no other provision in the
Act for his eviction. Therefore, before an order of summary
eviction is made, there must be a finding regarding the nature of
possession. The Collector has to see whether the possession is
unauthorised.
37.It is true that Section 84 does not provide any period of
limitation. Therefore, it cannot be said that an application under
Section 84(c) becomes barred only because a particular number of
years have passed. The Court cannot put three years or any other
fixed period into the statute when the Legislature has not provided
such period. Absence of limitation and reasonable time are not the
same thing. Limitation creates a statutory bar. Delay and laches are
another consideration. The question there is whether the statutory
power was exercised after such long time that the exercise of the
power becomes unreasonable, considering the statute and the facts
of that particular case.
38.The Supreme Court in Bhatinda District Coop. Milk
Producers Union Ltd.
, has held as under:
"18. It is trite that if no period of limitation has been
prescribed, statutory authority must exercise its jurisdiction
within a reasonable period. What shall be the reasonable
period would depend upon the nature of the statute, rights
and liabilities thereunder and other relevant factors."
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39.This principle is not limited only to the statute which was
before the Supreme Court in that case. The same principle has
been considered in other cases where no particular period of
limitation was provided.
40.In Ibrahimpatnam Taluk Vyavasaya Coolie Sangham, the
statute used the words "at any time". Even then, the Supreme
Court did not understand these words as giving unlimited power
to the authority to act at any time. It held:
"Use of the words ‘at any time’ in sub-section (4) of Section
50-B of the Act only indicates that no period of limitation is
prescribed within which suo-motu power could be exercised
reckoning or starting from a particular date advisedly and
contextually. Exercise of suo-motu power depended on facts
and circumstances of each case. In cases of fraud, this power
could be exercised within a reasonable time from the date of
detection or discovery of fraud. While exercising such power,
several factors need to be kept in mind such as effect on the
rights of the third parties over the immovable property due
to passage of considerable time, change of hands by
subsequent bona fide transfers, the orders attaining finality
under the provisions of other Acts (such as Land Ceiling
Act). Hence, it appears without stating from what date the
period of limitation starts and within what period the suo-
motu powers is to be exercised, in sub-section (4) of Section
50-B of the Act, the words "at any time" are used so that the
suo-motu power could be exercised within reasonable period
from the date of discovery of fraud depending on facts and
circumstances of each case in the context of the statute and
nature of rights of parties. Use of the words "at any time" in
sub-section (4) of Section 50-B of the Act cannot be rigidly
read letter by letter. It must be read and construed
contextually and reasonably."
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41.In Situ Sahu, the Supreme Court considered this question.
While dealing with the statutory power for restoration of
possession, the Court held:
"However, even such power cannot be exercised after an
unreasonably long time during which third-party interests
might have come into effect. Thus, the test is not whether
the period of limitation prescribed in the Act of 1963 had
expired, but whether the power under Section 71-A was
sought to be exercised after unreasonable delay."
42.The Court observed that a period of forty years was not a
reasonable time and that the authority should not have exercised
the power after such an unreasonable period. Therefore, I am
unable to accept the submission that merely because Section 84(c)
does not provide any period of limitation, the Collector can
exercise the power without looking at how long the delay is and
under what circumstances the proceeding has been started. At the
same time, I am unable to accept the other submission that an
application under Section 84(c) becomes barred after three years
or any other fixed period. The correct position appears to be
between these two extremes. There is no fixed period of limitation.
But that does not mean that the statutory power can be exercised
without considering reasonable period or that delay can never be
examined.
43.This distinction becomes clear from the judgment of the
Supreme Court in
M/s North Eastern Chemicals Industries (P) Ltd.
v. M/s Ashok Paper Mill (Assam) Ltd.,
2023 SCC OnLine SC 1649.
The Court considered
State of Punjab, Jagdish, SEBI v. Sunil
Krishna Khaitan
and other decisions. The principle laid down is
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that when no limitation is prescribed, the Court should not make
any fixed period. At the same time, the conduct of the parties,
nature of the proceeding, length of delay, possibility of prejudice
and the scheme of the statute may be required to be considered.
44.The law does not say that "no limitation" means that there
can be "no scrutiny of delay". It only means that the Court should
not convert absence of a statutory period into some fixed period.
The question of delay has to be seen from the facts of each case.
The Supreme Court in
North Eastern Chemicals Industries has
considered that when delay is relied upon, the effect of such delay
and the prejudice or loss caused because of it has to be shown
from the facts. In my view the principle of reasonable time cannot
be understood as an attempt to change Section 84(c). It is not
necessary to put three years, five years or any other period into the
provision. What is required is only to accept that when a statutory
power is exercised after an long and unexplained period, the
exercise of such power can be examined with reference to delay,
arbitrariness, prejudice and rights which may have become settled
during the intervening period.
Whether Ganesh can be applied to Section 84(c) and whether its
ratio requires reconsideration:
45.In Ganesh and Another, the Division Bench was considering
the question under Section 98 of the Hyderabad Tenancy and
Agricultural Lands Act, 1950. The question was whether, when the
Legislature has not provided any period of limitation, an
application under Section 98 can be made even after a long period
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of time. The question which was referred to the Division Bench
was as under:
"Whether any period of limitation is applicable for preferring
an application under Section 98 of Hyderabad Tenancy and
Agricultural Lands Act, 1950 (hereinafter referred to as
Act )?"
46.Thus, the question before the Division Bench was regarding
the effect of absence of limitation in Section 98. The respondents
are relying upon this judgment and submit that the same position
will apply to Section 84 of the Bombay Tenancy and Agricultural
Lands Act, and particularly Section 84(c), which is involved in the
present proceedings. According to the respondents, if the
Legislature has not provided any period within which the remedy
is to be exercised, neither the authority nor the Court can put such
period into the provision by interpretation. The Division Bench in
Ganesh answered the reference by holding that there was no
period of limitation for filing an application under Section 98. The
answer given by the Division Bench is as follows:
"(i) No period of limitation is applicable for preferring
application under Section 98 of the Act and it is not
permissible to read a reasonable time of limitation into the
Section."
47.There is no dispute that this was the conclusion of the
Division Bench. It is true that this Court, sitting as a coordinate
Bench, cannot ignore the said judgment and take a different view
only because another interpretation is possible. The judgment of a
coordinate Division Bench has to be respected, unless there is a
proper reason for placing the matter before a larger Bench.
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However, before applying
Ganesh to the present case, it is
necessary to see what was decided in that case. The provision
which was before the Court, the scheme of that Act and the
question which was answered are required to be seen. Only then it
can be said whether the same conclusion will answer the question
arising under Section 84(c) of the Bombay Tenancy and
Agricultural Lands Act.48.The respondents are right to the extent that Ganesh is a
judgment of a Division Bench and that a coordinate Bench
normally follows an earlier judgment of another Division Bench.
Merely because another view may appear possible is not sufficient
reason for a coordinate Bench to disregard the earlier judgment.
There has to be a legal reason for placing the matter before a
larger Bench. That position cannot be lost sight of. But there is
another question which requires consideration. It is whether the
proposition stated in
Ganesh decides the question now arising
under Section 84(c). Some observations in
Ganesh may have to be
understood with reference to the particular provision and the
statutory scheme which were before that Court. A judgment has to
be understood with reference to the question which the Court was
deciding. The observations cannot be taken separately from the
provision, facts and issue before the Court and then applied to
another provision without seeing whether the two situations are
the same. It is true that the Division Bench in
Ganesh noticed the
similarity between Section 98 of the Hyderabad Tenancy and
Agricultural Lands Act, 1950 and Section 84 of the Bombay
Tenancy and Agricultural Lands Act, 1948. The Division Bench
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treated the two provisions as pari materia and, while considering
the absence of limitation, observed as follows:
"Thus, Sections 84 can be said to be pari materia to that of
Section 98 of the Act of 1950. The silent feature of both
these sections is regarding absence of any period of
limitation. In other words, any person can move such
authority, provided under Section 84 and 98 at any point of
time. Thus, absence of clause of limitation under Section 98
and Section 84 is identical."
49.This observation is relevant and cannot be ignored. But only
because two provisions are treated as pari materia, it does not
mean that every question under one provision will have the same
answer under the other provision. The words of the provision, the
nature of the right involved, the other provisions of the Act and the
result of exercising the power are required to be seen. The
similarity between the two provisions is one important
circumstance. But the whole provision and the scheme of the Act
have to be considered.
50.The difficulty is that the issue cannot be decided only by
saying that Section 98 and Section 84 are similar. The present
proceedings are under Section 84(c), and clause (c) contains
certain conditions.
51.Section 84(c) applies to a person: "to the use and occupation
of which he is not entitled under the said provisions and the said
provisions do not provide for the eviction of such persons," and
only when these conditions are found to exist can such person be
summarily evicted by the Collector. These words have to be given
some meaning. The Collector has to consider whether the person
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in possession is entitled to use and occupy the land under the
provisions of the Tenancy Act. The Collector has to see whether
some other provision of the Act provides a remedy for eviction of
that person. Therefore, Section 84(c) cannot mean that if one
person is in possession and another person disputes that
possession, the person in possession can be called a trespasser and
evicted. Before the summary power is used, the conditions which
give jurisdiction under Section 84(c) have to be established. The
words "under the said provisions" and "the said provisions do not
provide for the eviction" are important. They require the Collector
to examine whether the person in possession has any right or
protection under the Tenancy Act. The Collector has to see
whether any other provision of the same Act applies to the case
and provides another remedy. For this reason, Section 84(c) cannot
be understood to mean that every person who has remained in
possession for a long time can be declared a trespasser because the
person claiming the land does not accept his possession. The
source and nature of possession may have to be examined. If the
person in possession claims that he is a tenant, deemed purchaser
or has some other statutory protection, such claim may have to be
considered before exercising the summary power. Thus, the
jurisdiction under Section 84(c) depends upon establishing the
necessary conditions. Only the question of summary eviction
arises.
52.This is one reason why the observation in Ganesh that, in
absence of limitation, an application can be made at any point of
time requires careful consideration when the Court is dealing with
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Section 84(c). The question is not only whether there is a period of
limitation. There is a difference between saying that the
Legislature has not fixed any period and saying that the authority
can exercise the power after any length of time without looking at
what happened during that period. These are two different
matters. The Legislature may have deliberately not fixed any
particular number of years. But it does not follow that the passage
of time, conduct of the parties, earlier proceedings, changes in
possession, creation of rights or prejudice caused because of delay
have no relevance. The present issue is about the extent of power
under Section 84(c) and the manner in which that power can be
exercised after a long period. If the authority has first to establish
the jurisdictional facts, and if the statutory scheme requires
consideration of the nature of occupation and availability of
another remedy, then delay cannot be kept outside consideration.
53.There is another reason why Ganesh requires careful
consideration. The Division Bench was aware of the judgments
dealing with the principle of reasonable time. It considered several
judgments including
State of Punjab, State of Gujarat v. Patil
Raghav Natha, Ram Chand, Chhedi Lal Yadav and Mohamad Kavi
.
These judgments were relied upon for the proposition that even
where no period of limitation is prescribed, a statutory power may
not be exercised after an unreasonable period. The Division Bench
considered
Mohamad Kavi, which concerned Section 84-C of the
Bombay Tenancy and Agricultural Lands Act. Therefore, the
Division Bench was aware of the judgments dealing with
reasonable time even where no fixed limitation was provided. The
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question before this Court is not whether the principle of
reasonable time exists. It does exist. The question is how that
principle is to be understood along with the conclusion reached in
Ganesh.
54.In Mohamad Kavi Mohamad Amin, the Supreme Court was
dealing with Section 84-C of the Bombay Tenancy and Agricultural
Lands Act. One of the submissions before the Supreme Court was
that the statute did not provide any period of limitation. The
Supreme Court did not accept that merely because no limitation
was prescribed, the authority could exercise the power at any time
and after any number of years. The Supreme Court held that the
power had to be exercised within a reasonable time and, on the
facts of that case, found that the exercise of the power was beyond
such reasonable time. This judgment is important because it
concerns the same Bombay Tenancy and Agricultural Lands Act,
though the provision involved was Section 84-C and not Section
84(c). Section 84-C and Section 84(c) are not identical provisions
and cannot be treated as one and the same. But the principle
stated by the Supreme Court regarding exercise of statutory power
where no period is prescribed cannot be ignored while considering
the submission of the respondents. The Division Bench in
Ganesh
considered this line of reasoning in the context of Section 98 of the
Hyderabad Act. The Division Bench placed importance on the
object of that provision and considered
Uttam Namdeo Mahale and
the Division Bench judgment in
Ghanshyamprasad Natwarlal
Bhatt
. The reasoning was that when the Legislature has
deliberately not prescribed any limitation, the Court should not
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supply a period by interpretation. In that context, the Division
Bench observed:
"Adopting literal and strict interpretation, we disapprove the
proposition that even when no limitation is provided in
Section 98 of the Act, it is to be construed as reasonable
period and the reasonable period would be three years."
55.To this extent, the observation has considerable force. If the
Legislature has not provided three years, the Court cannot take
three years from another provision or another statute and put it
into Section 84 or Section 98. There may be another provision
where three years is prescribed. But that does not mean that every
provision where no period is mentioned must be treated as having
three years limitation. Such an approach may amount to putting
words into the statute which the Legislature has not used.
56.I have no difficulty with the principle that the Court cannot
make a fixed period of limitation on its own. If the Legislature
intended three years, five years or any other period, it could have
provided for it. It is not for the Court to make such a provision. I
am not inclined to read three years into Section 84(c). The
petitioners cannot succeed only by saying that the present
proceedings were filed after more than three years. Section 84(c)
does not prescribe any such fixed period. Saying that there is no
fixed period of limitation does not mean that every question
relating to delay has to be ignored. The next question is whether
the authority can exercise the statutory power after an
unrasonably long and unexplained period without looking at what
happened during that period.
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57.Paragraph 26 of Ganesh states:
"(i) No period of limitation is applicable for preferring
application under Section 98 of the Act, and it is not
permissible to read a reasonable time of limitation into the
Section."
58.The words "reasonable time of limitation" require some
consideration. There is a difference between putting a fixed period
into the statute and considering whether the statutory power
should be exercised after an unreasonable delay. For example, if
the Court says that every application under Section 84(c) must be
made within three years, that would amount to creating a
limitation period which the Legislature has not provided. Such a
course cannot be adopted. But if the Court says that there is no
fixed period of limitation, while at the same time the authority has
to consider whether it is reasonable to exercise the power after an
unexplained delay of several decades, particularly where rights
have changed or prejudice has been caused, that is not the same
thing as creating a limitation period. The latter principle does not
end the remedy after a fixed number of years. It examines whether
the statutory power has been exercised in the facts and
circumstances of the particular case. This distinction has been
recognised in judgments of the Supreme Court where no fixed
period of limitation was prescribed. The decision in
North Eastern
Chemicals Industries
is one such later judgment where the Court
considered delay, prejudice and the nature of the statutory power
without creating limitation period.
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59.It appears that Ganesh was pronounced on 5 December
2023.
North Eastern Chemicals Industries was pronounced on 11
December 2023. Therefore, the latter judgment was not before the
Division Bench when
Ganesh was decided. A later judgment does
not make an earlier judgment of a coordinate Bench wrong. That
is not what is being held here. But where a later judgment of the
Supreme Court explains the principles relating to delay and
exercise of statutory power where no limitation is prescribed, that
judgment has to be considered while deciding the present issue.
The later judgment does not say that the Court should create a
limitation period which the Legislature has not enacted. The
principle is different. While considering whether a statutory power
has been exercised, the authority or Court may have to consider
the length of delay, conduct of the parties, rights which may have
arisen in the meantime, the nature of the proceeding and prejudice
which may have been caused because of the delayed action.
Therefore, there may not be a conflict between saying that there is
no fixed limitation and saying that unreasonable delay may still be
relevant. The question is whether
Ganesh intended to exclude this
latter principle altogether. In this background, the issue cannot be
stated as whether
Ganesh is right or wrong on the question of
limitation. The question is somewhat different. It is whether
Ganesh is to be understood as saying that once the Legislature has
not prescribed any period of limitation, matters such as reasonable
time, unexplained delay, laches, prejudice and settled rights can
never be considered in any case. If
Ganesh is understood only to
mean that the Court cannot put a fixed period of limitation into
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Section 98, then there is no difficulty with that principle. That
position has to be respected. But if Ganesh is understood to mean
that even where there is an extraordinary and unexplained delay
of several decades, the authority has to exercise the power without
considering what happened during that long period, then the
matter becomes different. Such a wide proposition would require
examination in the light of the judgments of the Supreme Court
dealing with exercise of statutory powers after long delay. A
statutory power may continue to exist in the statute. But the actual
exercise of that power can still be examined in the facts of the
case, particularly where the delay is long and circumstances have
changed during that period.
60.In this connection, the observation relied upon by the
Division Bench in
Ganesh from Ghanshyamprasad Natwarlal Bhatt
requires to be understood. The Division Bench there observed:
"You cannot apply limitation by analogy. Limitation either
bars a remedy or extinguishes a right of a party and it is
unthinkable that any Court would bar a remedy or
extinguish a right when the Legislature has not done so by
importing the principles of some other statute and drawing
analogy from some other provision of law. If there is no
limitation provided by the legislature then the only thing
that the Tribunal has to do is to permit the application to be
made irrespective of passage of time."61.The first part of this observation is clear. A Court cannot take
a period of limitation from another statute and apply it only by
analogy. If the Legislature has not prescribed a period, the Court
cannot create one and thereby extinguish a remedy or right.
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However, the words "irrespective of passage of time" should not be
understood as saying that every statutory authority has an
unlimited power to act after any number of years, whatever may
have happened during that period. The observation was made in
the context of whether another period of limitation could be
brought into the provision by analogy. It was not an examination
of every separate question concerning delay, prejudice, settled
rights, conduct of parties and whether it would be proper to
exercise statutory power after an extraordinary period. Therefore,
the observation in
Ghanshyamprasad prevents the Court from
taking a period from another statute and putting that period into
Section 84 by analogy. But the words "irrespective of passage of
time" cannot, in my respectful view, be taken out from their
context and treated as if the Legislature has said that the Collector
can exercise the power after any number of years and in every
situation without considering what happened during the
intervening period. The later judgments of the Supreme Court
show that absence of a limitation period does not prevent
consideration of whether the statutory power has been exercised
after an unreasonable delay.
62.The question of delay may become relevant for another
reason. During a long period, possession may have become settled.
Third-party rights may have been created. Parties may have acted
upon earlier orders. Investments may have been made. Other
circumstances may have changed. In such a situation, the question
is not whether a limitation period has expired. The question is
whether the statutory power can still be exercised in those
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particular circumstances. These two concepts have to be kept
separate. Statutory limitation means that after the period
prescribed by the Legislature, the remedy is barred or the right is
affected. Reasonable-time review is different. It examines whether
the authority has exercised its existing statutory power in the
circumstances of the case. The first cannot be created by the Court
when the Legislature has not provided it. But the second cannot be
excluded merely because there is no statutory period of limitation.
63.I find that there is an arguable and substantial question
whether
Ganesh, while correctly holding that a fixed period of
limitation cannot be imposed upon Section 98 by judicial
interpretation, has stated the consequence too widely if it is
understood as excluding the consideration of reasonable time,
delay, prejudice and settled rights.
64.At the same time, I am conscious that Ganesh is a judgment
of a Division Bench. This Court, sitting as a coordinate Bench,
cannot depart from it merely because another view appears
possible. If the interpretation of
Ganesh which excludes even
consideration of reasonable time and prejudice becomes necessary
for deciding the present case, the proper course would be to place
that question before a larger Bench. The reference to a larger
Bench is not for introducing a fixed period of limitation into
Section 84(c). The narrower question is whether the absence of
statutory limitation takes away the power of the Court to examine
whether the statutory authority has exercised its power after an
unreasonable lapse of time and whether the prejudice or settled
rights which may have arisen during that period can be considered
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while examining such exercise. In my considered view, this
distinction requires an authoritative answer. Only after this
question is settled can the application of
Ganesh to the present
proceedings under Section 84(c) be determined.
65.I am of the considered view that the present case raises a
substantial question regarding the correct interpretation of Section
84(c) and the extent to which the judgment in
Ganesh can govern
proceedings under that provision. Since
Ganesh is a judgment of a
Division Bench and the issue requires reconciliation with binding
judgments of the Supreme Court, the appropriate course is to have
the above four questions considered by a larger Bench, rather than
this Court taking a view contrary to a coordinate Division Bench.
66.It is only after this question is authoritatively determined
that the merits concerning the petitioners' possession, the
respondents' title, the effect of the earlier order of this Court and
the maintainability of the particular Section 84(c) proceeding can
be considered. The issue deserves consideration by a larger Bench
on the four independent questions formulated below.
(i) The present Petition is not decided on merits at this
stage;
(ii) In view of the reasons recorded above, the following
questions arise for consideration by a larger Bench:
(a) Whether, notwithstanding the absence of any express
period of limitation in Section 84(c) of the Bombay Tenancy
and Agricultural Lands Act, 1948, the Collector is required to
consider whether the power under Section 84(c) has been
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exercised within a reasonable period, without importing any
fixed period of limitation, having regard to the principles laid
down by the Supreme Court in
State of Punjab v. Bhatinda
District Coop. Milk Producers Union Ltd., Ibrahimpatnam
Taluk Vyavasaya Coolie Sangham v. K. Suresh Reddy, Situ
Sahu v. State of Jharkhand and M/s North Eastern Chemicals
Industries (P) Ltd. v. M/s Ashok Paper Mill (Assam) Ltd.
?
(b) Whether the ratio in
Ganesh and Another v. Khushalrao
and Others,
2023 SCC OnLine Bom 2623, that it is "not
permissible to read a reasonable time of limitation" into
Section 98 of the Hyderabad Tenancy and Agricultural Lands
Act, 1950, would exclude consideration of delay, laches,
prejudice and settled rights while exercising the analogous
power under Section 84(c) of the Bombay Tenancy and
Agricultural Lands Act, 1948, and, if so, whether such
proposition requires reconsideration in view of the
judgments of the Supreme Court referred to above?
(c) Whether the power under Section 84(c) can be
exercised merely upon finding that a person is in possession
without an established title, or whether, having regard to the
words "to the use and occupation of which he is not entitled
under the said provisions and the said provisions do not
provide for the eviction of such persons", the Collector is
required to first determine whether the occupant claims or
has any statutory right under the Act and whether any other
statutory remedy is available before resorting to summary
eviction?
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(d) Whether, where possession has continued for several
decades, earlier revenue proceedings and orders of the High
Court have taken note of such possession, and the rival
parties assert competing rights under the Tenancy Act and
other laws, the Collector can exercise the summary power
under Section 84(c) without considering the intervening
proceedings, conduct of the parties, explanation for delay,
possibility of prejudice and the requirement of finality in
settled possession?
(iii) The Registry is directed to place the papers before the
Hon'ble the Chief Justice for such further orders as may be
considered necessary, including for constitution of a larger
Bench to decide the above question.
(vi) All contentions of the parties on the merits of the
Petition are kept open.
(vii) The Petition shall be placed before the appropriate
Bench after the questions referred above are answered by the
appropriate Bench.
(AMIT BORKAR, J.)
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