(1) This is tenant's petition under article 227 of the constitution. One Narayan was the Landlord of two fields survey No. 16/2, area 14, acres 29 gun has at villages Akkalkot, and survey No. 105/1 - area 7 acres and 12 gunthas, of villages Akola. Both the field were being cultivated by the petitioner under a lease granted by Narayan.
(2) On 4-5-1961 Narayan gave a notice to the petitioners that the failed to pay the lease money for the years 1960 - 61. The leases money was not paid for both the fields. By the notices the petitioners was called upon to pay to the amount of lessee money within a period of three months. In spite to notice the patina did not pay the amount of the rent of the arrears.
(3) Narayan therefore filed an application of on 27-9-1961 for possession under S. 36 read with S. 19 of the new Tenancy Act. In those proceedings the petitioners admitted that Rs. 159 were due from him to the landlord by was of arrears of rent for the years 1960-61. Thus there was no dispute as to the quantum of arrears of rent due fro the petitioners to the landlord. Narayan died during the tendency t the proceedings and the names of his legal representatives i.e., has window laxmibai and his son Arjun, were brought on record.
(4) on 18-10-1961 the tenancy Naib Tahsildar passed an order under S .30 of the new Tenancy Act that the petitioners shall pay the arrears to rent of Rs. 159 within three months, failing which the tenancy would be deemed to be validly terminated. There was no order as to costs.
(5) In spite of the this order nothing was paid by the petitioners till 18-1-1962 which was the last date for payment. On 20th March 1962 the landlord applied for warrant for delivery of possession being issued to evict of the petitioners from the fields. A notice of these proceedings was issued to a petitioner contended ad the petitioner filed a written statement on 12-4-1962 in proceeding for possession. In this written the petitioner contended that the amount was to be paid on before 18-1-1962, but in current year i.e., in the year that there was failure of crops and the land revenue of village was suspended. In these circumstances the petitioners claimed that he was unable to pay the amount in time and there was further vague statement of that the petitioners was still making efforts to raise the requisite and amount, the he had brought the amount that he had brought deposit the same in case the landlord does not accept the payment. He therefore claimed that the landlord applications the landlord does not accept the payment. He therefore possession should be dismissed. On 28th April 1962 the Naib Tahsildar passed an order that the petitioners deserved a further relief against the forfeiture of the tenancy, under the provision to S. 30 (1) of the new Tenancy act ,and he directed that the petitioner shall make payment within one years from 18-10-1961 failing, which 'the tenant shall have lost all chances of annulling the termination o tenancy brought about under S. 19 (1) ibid' The result of this appear to be that the petitioner was granted a further time of one year with effect from 18-10-1961.
(7) The landlord therefore approached the Maharashtra Revenue Tribunal challenging the orders of the revenue authorities and the [Tribunal has allowed the application holding that the Naib Tahsildar could not further extent the time on failure of the petitioner of pay the amount of th arrears within the time originality fixed by the tenancy Naib Tahsildar. According to the view taken by the Tribunal S. 30 (1) proviso, of the new Tenancy act does not contemplate a second opportunity being given to the defaulting tenant to make the payment.
(8) The tenant therefore has filed this petition invoking the extraordinary jurisdiction of this court under Article 227 of the constitution. After the petition was admitted, the petitioner applied for permission to make an application to raise a new ground based on the provisions of S. 46 of the new Tenancy Act. Accordingly the petition has been amended. It is contended that the petitioner could not evicted in a proceeding commenced after 1-4-1961 because the ownership of the land stood vested in the petitioner as a result of the provisions of S. 46 to the new Tenancy Act. I do not think It is ground permissible for the petitioner to raise this ground at this stage which involves an enquiry into many questions of fact. The provisions of S. 46 do not become applicable to all cases of the tenancies an several question of fact are required to the decided. The opposite side has so notice of this contention and I do not think it will be fair to certain a plea based on the therefore, on the facts pleaded and the issue raised before the Revenue has Authorities to determine whether any of the Revenue Authorities or has committed any patent illegality of in the interpretation of law governing the parties.
(9) On the merits of controversy, the learned counsel appearing for the petitioner urged that upon a proper construction of the proviso to S. 30 (1) an independents right has been given to a defaulting tenant of be granted further time it there is a failure on the part of the tenants to make payments within the time the tenants to fixed by the Tahsildar under S. 30 (1) of the Tenancy Act. I do not think this contentions is well founded. The scheme of S. 30 (1) has been examined in previous decisions of this court. Under sub - section (1) of S. 30 where the tenancy of any land held by the tenant of terminated for non = payment or rent and the landlord files proceeding to eject the tenant, the Tahsildar is required to call upon the tenant to tender is rent with arrears together with costs of proceedings, within the three months from the date of the order. If the tenant complies wit h the order. If the tenants complies with Tahsildar in enjoined to pass an order directing that the amount of arrears of rent within the time filed by the Tahsildar and the consequences if that the Tahsi tenancy has been terminated and thereupon the tenant the is to hold the land is the tenancy had not been terminated. Sub = section (1) of S. 30 itself also postulates the consequences of failure of the tenants of the pay Tahsildar is required to make an order to ejectment.
(10) Now turning to the provision the learned counsel says that the proviso creates an independent right the defaulting tenant one account of the which he was unable to pay the rent due. By this it is contended that the in ability must be with respect to the amount directed to be paid under the order under sub - section (1) of S. 30 and the failure of the crops and or such calamity during the period where the payment was required to was made under the order to Tahsildar would give a fresh right to the defaulting tenant to make an application to have the time already upto granted by the order of the Tahsildar under sub - section (1) of S. 30. This would mean, in other words that the provision is as it were an independent, sub - section and created an independent right consequent upon an unintended failure to pay the amount of rent within the time fixed by the pay the amount of rent within the time fixed by the Tahsildar. It is difficult to read the proviso in this manner. The function of the proviso, it is well settled, is in the nature of carving out en exception, and the exception this case with regard in the time that may be allowed for making payment of excess of three months provided the provisioned stated into proviso is satisfied. The condition stated in the proviso and satisfied. That condition is failure of crops or similar calamity which disables the tenant from making pay the rent due.' This could hardly have reference to the amounts determined by the Tahsildar which has given a would are capable of being awarded in the discretion of Tahsildar. If the proviso was intended to cover case of default in the payment of the amount of rent of costs within the time fixed by the Tahsildar in exercise of the power under sub - section (1) of S. 30 the not only the phraseology would have been different but the section costs under the it first clause. It cannot be said that this was an inadvertent omission or that the sum determined by the Tahsildar, or that inclusive or arrears of rent and costs awarded it equal to 'the rent due'. The only and proper construction to be put on the proviso is that the extended time is permissible to be granted and default tenant is they very first enquiry and as far one can see, sub - section (1) of S. 30 contemplates only one enquiry by the Tahsildar where the time which if fixed for payment of arrears of tent within the three months is liable to be extended to one year, provided the Tahsildar is satisfied that the failure of the tenant to pay the rent was due to the total or partial of crops or similar calamity.
(11) The learned counsel for the petitioner referred to a Division Bench decision of this court reported in Sonajee Krishnajee Mujumdar v. Nathu Yadao Patil, ILR  Bom 629. That decision pertain to interpretation of Ss. 29 and 25 and the Bombay Tenancy and agricultural Lands Act, 1948. The learned counsel of the respondents referred to the decision of the supreme court in Rajaram Mahadeo Paranjype v. Aba maruti Mali, : AIR1962SC753 which has interpreted the effect of sub - section (2) of S. 25 of the Bombay Tenancy and Agricultural Lands Act 1948. In view of the principle Land on which that case is decided it must he held that the statute itself having given aright to the defaulting tenants to further grant a right to the defaulting there was hardly any further power in the Tahsildar to extent that time over again in the guise was exercising powers, as it were afresh under the proviso. The proviso and the main sub - section (1) of S. 30 has to be read together and are a part and parcel on the same scheme under which the statute permits the defaulting tenant to get and extended period payment of arrears of the rent, ordinarily as matter of course for three months, but in case of failure to make payment due to failure or crops or similar calamity up to a period on the one year. This provision cannot locus penitentiary with out payment of remerely because an order passed by the Tahsildar be interpreted as being further locus penitential without payment of remerely because an order passed by the Tahsildar under S. 30 (1) may come to b made in a year in which there may be failure of the crops. Once this arguments of accepted it would lead to somewhat starting result it would mean that the tenant of would be entitle to claim mean relief by way of further extension of to time by a year from the date fixed for payment of areas of rent under sub section (1) of S. 30 on, account of failure of crops in year in which Tahsildar comes to pass the orders. I do not think that t he legislature intended any such result to follow from the proviso to sub -section (1) of S. 30 of the new Tenancy act.
(12) The result is that the petition fails and is dismissed but there will be no order as to costs.
(13) Petition dismissed.