LAXMAN BHARAMA MAHAR Vs. MAHADEO RAMCHANDRA SATOSKAR

JUDGEMENT

(1.) THIS writ petition under Article 227 of the Constitution of India takes exception to the order passed by Maharashtra Revenue Tribunal, Kolhapur in No. MRT-115/1983 dated April 5, 1984. The petitioners claim to be the tenants in respect of the land bearing Survey No. 133/5 situated at Shirgaon, Tal. Ajara, District Kolhapur. By this writ petition the order passed by the tenancy authority under section 32-P of the Bombay Tenancy and Agricultural Lands Act is being assailed. The background in which the proceeding under section 32-P is initiated is that the tenancy authority recorded the statement of the tenant that he was unwilling to purchase the suit land. In view of that statement the purchase was declared as having become ineffective vide order dated 15-11-1963. As a consequence of that declaration the proceedings under section 32-P were initiated. The tenancy authority by order dated December 23, 1971 directed the petitioners to hand over the possession of the land to the respondents-landlords. The petitioners however, filed appeal before the S. D. O. Gadhinglaj being Chandgad Tenancy Appeal No. 18/1982 challenging the aforesaid order dated 15-11-1963 under section 32-G as well as dated 23-12-1971 under section 32-P of the Act. This appeal is however, filed on 17-2-1982. Before the Appellate Authority grievance made on behalf of the petitioners inter alia is that they had no notice about the proceedings under section 32-P of the Act. That contention has been rejected by the Appellate Authority having found that the case papers would reveal that intimation was forwarded to appellants No. 2 and 3 and they have been duly served on 11-2-1972 and 15-2-1972. Having recorded that finding the Appellate Authority held that the appeal presented by the petitioners was therefore, hopelessly barred by limitation as the same was filed only on 17-2-1982. The Appellate Authority further found that the order passed by the tenancy authority declaring the purchase having become ineffective dated 15th November, 1963 was the consequence of statement made before the authority, coupled with the fact that the thumb impression of tenant Laxman Bharama Mahar on page No. 11 of the case papers was not disputed. In that view of the matter, the Appellate Authority was pleased to dismiss the appeal being devoid of merits. Against the said decision the petitioners filed revision before the Maharashtra Revenue Tribunal, which also was dismissed by the impugned order affirming the view taken by the two authorities below. It is this decision which is subject matter of challenge in this writ petition under Article 227 of the Constitution of India.

(2.) THE learned Counsel for the petitioners contends that fraud has been played on the tenants while recording the statement dated 15th November, 1963. It is further contended that the tenants had already expressed willingness to purchase the land and therefore, there was no reason why they would have expressed unwillingness subsequently. The learned Counsel therefore, contends that since the declaration made on 15-11-1963 was founded on fraud, the order will have to be ignored in law as non est.

(3.) ON considering the rival submissions, and on perusal of the record it would appear that no such grievance was made either before the first authority or the Appellate Authority or even before the revisional authority. Merely because plea of fraud is raised would not be sufficient. The record however, would reveal that statement of tenant was recorded and his thumb impression obtained. The tenant had knowledge about the declaration as well as the subsequent proceeding under section 32-P of the Act. Notwithstanding that, the petitioners did not challenge the said orders with utmost despatch. To get over the difficulty of latches and inordinate unexplained delay, obviously the plea of fraud has been pressed into service. In fact, the petitioners filed appeal in 1982 and went to the extent of contending that they had no notice whatsoever. That plea has been found against the petitioners as the record indicates that the appellant Nos. 2 and 3 were duly served as back as in February 1972 but took no steps for reasons best known to them. Moreover, undisputedly the thumb impression of tenant Laxman on the statement is also not disputed. In this backdrop it will be too much to straight way accept the petitioners plea of fraud played on them. As observed earlier the petitioners have not approached the Court with clean hands as they took false plea before the authority below that no notice was served on any of them. That plea has been rejected as the record would show to the contrary. That cannot be challenged before this Court. According to the learned Counsel for the petitioners, the petitioners had filed written submissions in which the plea of fraud was taken before the Appellate Authority. However, during the arguments, no such grievance was made before the appellate or for that matter even before the revisional authority. Moreover, as rightly pointed out by the learned Counsel for the respondents no such grievance was made even before the revisional authority and even in the memo of writ petition no specific grievance has been made that although such a plea was taken the same was not considered by the authorities below. To my mind, therefore, if the petitioners are right that they had specifically taken the plea of fraud in the written submissions, but if they did not chose to pursue the same, the consequence is that, that plea was given up and relinquished or waived atleast before the appellate as well as the revisional authority. Even for this reason the petitioners cannot now be permitted to raise that plea in writ jurisdiction. It would have been different matter, if the grievance is that the said plea was pressed even during arguments but not examined by the authorities below. Accordingly, there is no substance in the grievance now made before this Court which obviously appears to be an argument of desperation.