1. The short point that arises for consideration in these two Special Civil Applications is as to the true interpretation of Clause (a) of sub-section (5) of Section 33-B of the Bombay Tenancy Act. The petitioner is the landlord in both the applications while the respondents are tenants on two different lands. Before obtaining the certificate under S. 88-C of the Tenancy Act, the petitioner had also made applications for possession of the lands for bona fide personal cultivation against these tenants under Section 31 read with Section 29 of the Tenancy Act. Finally he succeeded in getting an order for resumption of half the area of the lands. The same has been confirmed by this Court on 10-3-1964, though the order has not been executed till this day. While these proceedings under Section 31 read with Section 29 were pending, the petitioner obtained the certificate under Section 88-C and made two applications against the tenants on 1-3-1962 for possession for bona fide personal cultivation under Section 33-B of the Tenancy Act. The Tenancy Aval Karkun, Tasgaon, raised the necessary issues and decided both the cases against the landlord. One of the grounds for rejection is that the earlier final order passed by this Court on 10-3-1964 in proceedings under Section 29 read with Section 31 of the Act barred the subsequent termination of the tenancy in the present proceedings in view of Clause (a) of sub-section (5) of Section 33-B of the Act. The Asstt. Collector and the Maharashtra Revenue Tribunal confirmed this finding and the Review Application to the Maharashtra Revenue Tribunal also was rejected on 20-1-1966. Hence these two Special Civil Applications have been filed by the landlord under Art. 227 of the Constitution.
2. Clause (a) of sub-section (5) of Section 33-B of the Tenancy Act is as follows:-
33-B (5) (a). 'The right of a certificated landlord to terminate a tenancy under this section shall be subject to the following conditions, that is to say,-
(a) If any land is left over from a tenancy in respect of which other land has already been resumed by the landlord or his predecessor-in-title, on the ground that that the other land was required for cultivating it personally under Section 31 (or under any earlier law relating to tenancies then in force), the tenancy in respect of any land so left over shall not be liable to be terminated under sub-section (1).'
Sub-section (5) of Section 33-B lays down the conditions on which the so certificated landlord can terminate the tenancy of his excluded tenant. One of the conditions is laid down in Clause (a) of sub-section (5). Such termination of tenancy under this clause is prohibited in regard to any land 'left over from a tenancy in respect of which other land has already been resumed by the landlord' on the ground of being required for personal cultivation under Section 31 of the Tenancy Act. Before, therefore, a landlord's right to terminate the tenancy is said to have been barred, what is necessary is that the landlord should have resumed the part of the land on the ground of being required for personal cultivation under S. 31 of the Act and left the other part with the tenant. Now, the right to resume the land under S. 31 is hedged by several conditions mentioned in Section 31-B of the Act. Section 31-B (1) restricts the right of resumption of the landlord to such area of the land leased as will result in leaving with the tenant after termination, not less that half the area of the land leased to him. The words 'land is left over from a tenancy' in Clause (a) of sub-section (5) of Sec 33-B have obviously reference to this condition laid down in Section 31-B of the Tenancy Act. Therefore, the prohibition in regard to termination of the tenancy is restricted to such land or portion of the land which is left over with the tenant after execution of the order in favour of the landlord under Section 31 of the Act. Where, however, the landlord merely succeeds in getting an order under Section 31 and does not proceed to execute the same for (some?) reason or the other, he cannot be said to have resumed any land and also cannot be said to have left over any land with the tenant from a tenancy in respect of which the landlord had instituted proceedings under Section 31 read with Section 29 of the Act. Thus not mere an order under Section 31 but the execution thereof affords foundation for the bar and prohibition. The bare wording of this clause therefore, clearly shows that the bar created by Clause (a) of sub-section (5) of Section 33-B cannot be said to have been attracted unless the order obtained by the landlord under Section 31 read with Section 29 is actually executed and the landlord has actually executed and the landlord has actually resumed the land as a result of which the tenancy is split up and a portion of the land as contemplated under Section 31-B is left over with the tenant. This bar cannot be said to have been attracted merely when the landlord succeeds in getting an order under Section 31 read with Section 29 of the Act and does not choose to execute the same.
3. The same conclusion will follow if one takes into account the legislative history of this section. Section 88-C was introduced in this enactment by Bombay Act No. 13 of 1956 with a view to confer some benefits on small land-holders by exempting their lands from the operation of Sections 32 to 32-R. The said section was amended from time to tie and has ultimately assumed the present form after amendment Act No. 9 of 1961. Lands of such land-holders have not only been exempted from tenants statutory right of purchase conferred on them under Sections 32 to 32-R but such landlords have been enabled to resume lands for personal cultivation even after expiry of 31-3-1957, The sub-chapter II-A was introduced in Chapter III by Mah. Act No. 9 of 1961. Ss. 33-A to 33-C were introduced for the first time to enable the small holders to obtain possession of their lands from their tenants for bonafide personal cultivation, subject to such conditions as have been mentioned in the several sub-sections of Section 33-B.
4. When these several sections were introduced in the Tenancy Act the Legislature was fully aware that many of such small holders had already made applications for possession of their lands for bonafide personal of their lands for bonafide personal cultivation under Section 31 read with Section 29, sub-section (2) of Section 33-B in terms provided that such landlords were entitled to terminate the tenancy and make an application for possession notwithstanding that their application under Section 31 (2) were pending or notwithstanding that such applications were rejected by any authority before the commencement of the Bombay Tenancy and agricultural Lands (Amendment) Act, 1960, Thus the rejection of application under Section 31 read with Section 29 or even the pendency of such applications, was not intended to be a bar for terminating tenancy and making an application for possession under Section 33-B. The language in cl, (a) of Sub-section (5) of section 33-B seems to have been deliberately so employed as to leave no manner of doubt that the termination of tenancy and application for possession under Section 33-B would be barred only when he orders obtained by the landlords earlier under Section 31 read with S. 29 were executed and as a result was left over in possession of the tenant. In fact, what is laid down in the said cl, (a) is the repetition of what was laid down earlier in Section 31-C of the Tenancy Act, under which it was in terms provided that the tenancy of any land left with the tenant after the termination of tenancy under Section 31 shall not at any time afterwards be liable to termination again on the ground that the landlord bona fide requires that land for personal cultivation. However, the prohibition contained in Section 31-C or Section 33-B (5) (a) can only be operative when in fact, in execution of the order so obtained the land ordered to be resumed has in fact been resumed and the tenancy has been in fact split up and remaining portion of the land is left with the tenant consequent on the order so passed.
5. As stated, above, Section 88-C and sub-chapter II-A under Chapter III have been enacted to confer some benefits on small landholders. In keeping this object in view, the Legislature has relaxed much of the rigour contained in Section 31 to 31-BB, under which alone the landlord could have resumed the land for bona fide personal cultivation. Excepting in the event of the tenant having no land whatsoever in his possession and the landlord having more than the equal area of the land sought to be resumed in his possession, the landlord is normally to benefit more by the provisions of Section 33-B, than by recourse to Section 31, when he seeks to resume any land for bona fide personal cultivation under these provisions. The Legislature seems to have intended to give some choice to such small landholders either to avail of the order obtained under Section 31 read with Section 29 or to avail of the order under section 33-B of the Act which is available to him only in the event of his being a small landholders as contemplated under Section 88-C read with Section 33-B of the Tenancy Act. It is in keeping with this object in view that the small landholders has been enabled to avail of the special provisions of Section 33-B, excepting in the case where he had, for good or for bad, exercised his choice of availing of the order obtained by him under Section 31 read with Section 29 of the Act. Admittedly the order finally confirmed by the High Court on 10-3-1964 in this case is not as yet executed. In view of this the orders passed by the lower Court are liable to be set aside.
6. I accordingly set aside the orders passed by the Assistant Collector and the Maharashtra Revenue Tribunal in both the special Civil Applications and make the rule absolute. As the Assistant Collector has not considered the other points involved in the case, I remand these matters to him so that he may dispose of he appeals preferred by the landlord in accordance with law. In the circumstances of this case, there will be no order as to costs.
7. Rule made absolute