H.K. Chainani, C.J.
1. The common question of law, which arises in these three petitions Nos. 275, 380 and 541 of 1963, is about the interpretation of Clause (b) in Sub-section (5) of Section 33B of the Bombay Tenancy and Agricultural Lands Act, 1948. This clause is in the following terms:
The right of a certificated landlord to terminate a tenancy under this section shall be subject to the following conditions, that is to say,...
(b) The landlord shall be entitled to terminate a tenancy and take possession of the land leased but to the extent only of so much thereof as would result in both the landlord and the tenant holding thereafter in the total an equal area for personal cultivation-the area resumed or the area left with the tenant being a fragment, notwithstanding, and notwithstanding anything contained in Section 31 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act 1947.
Two different views in regard to this clause have been taken by members of the Bombay Revenue Tribunal. One view is that under this clause the land leased must be divided in equal portions between the landlord and the tenant without taking into consideration the other lands, if any, held by the landlord or the tenant for personal cultivation. The other view is that the landlord has to obtain from the tenant so much portion of the leased land as would make the total area under his personal cultivation equal to the total area under the personal cultivation of the tenant. In calculating the total areas, held by the landlord and the tenant, the other lands personally cultivated by them should also be taken into consideration. The latter view has been taken by a Full Bench of the Bombay Revenue Tribunal.
2. In order to decide which of these two views is correct, it is necessary to refer to other relevant provisions of the Act. Section 31 enables a landlord to terminate the tenancy of any land and to make an application for possession of the land if he requires the land bona fide for personal cultivation. Section 31A states that the right of a landlord to terminate a tenancy for cultivating the land personally under Section 31 shall be subject to the condition specified in this section. Section 31B is in the following terms:
In no case a tenancy shall be terminated under Section 31-
(1) in such manner as will result in leaving with a tenant, after termination, less than half the area of the land leased to him, or
(2) in such a manner as will result in a contravention of the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, or in making any part of the land leased a fragment within the meaning of that Act, or....
Section 88C states that save as provided by Sections 33A, 33B and 33C nothing in Sections 32 to 32R shall apply to lands leased by any person if such land does not exceed an economic holding and the total annual income of such person, including the rent of such land does not exceed Rs. 1,500. Sections 33A, 33B and 33C were inserted in the Act by the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1960, (Maharashtra Act IX of 1961). The heading of these sections is 'Termination of tenancy by landlords, and purchase by tenants, of lands to which Section 88C applies.' Section 33A defines a certificated landlord to mean a person who holds a certificate issued to him under Sub-section (4) of Section 88C and an excluded tenant to mean a tenant of any land to which Sections 32 to 32R do not apply by virtue of Sub-section (1) of Section 88C. Sub-section (1) of Section 33B provides that notwithstanding anything contained in Sections 31, 31A or 31B a certificated landlord may, after giving notice and making an application for possession as provided in Sub-section (3), terminate the tenancy of an excluded tenant, if the landlord bona fide requires such land for cultivating it personally. Section 31B is, therefore, expressly not made applicable to applications under this section. Sub-section (2) states that a notice may be given and an application may be made by a certificated landlord, notwithstanding that in respect of the same tenancy an application of the landlord made in accordance with Sub-section (2) of Section 31 was pending on the date of the commencement of the Amending Act of 1960, February 9, 1961, or notwithstanding that such application had been rejected by any authority before this date. Sub-section (5) states that the right of a certificated landlord to terminate a tenancy under this section shall be subject to the conditions specified in Clauses (a), (b) and (c) of this sub-section. Clause (a) provides that if a landlord has already obtained possession of part of the land for cultivating it personally under Section 31, the tenancy in respect of the remaining land left with the tenant shall not be liable to be terminated under Sub-section (1). Clause (b) has been quoted by me above. We are not concerned with Clause (c). Sub-section (7) states that if, in consequence of the termination of the tenancy under this section, any part of the land leased is left with the tenant, the rent shall be apportioned in the prescribed manner in proportion to the area of the land so left with the tenant.
3. The question now to be considered is: What is the extent of the laud to which a landlord is entitled, if he succeeds in proving that he requires the land bona fide for personal cultivation. The key words in Clause (b) are 'holding thereafter in the total an equal area for personal cultivation.' The words 'in the total' clearly indicate that the Legislature intended that the entire holdings of the landlord and the tenant should be taken into consideration. It has been urged by Mr. Dalvi that where a tenant is in possession of more than one land, a question will arise whether the landlord is to be given possession of half of each land or whether it would be sufficient if he is given possession of lands, which are equal in area to half the area of all the lands leased to the tenant. He has therefore urged that the words 'in the total' have reference to the lands leased. These words would, however, be meaningless, when only one land has been leased. Section 31B, which had been enacted several years earlier, contains the words 'half the area of the land leased'. These words have been judicially construed to mean half the area of the lands leased, where more than one land has been leased. Consequently, if the intention of the Legislature was that the landlord and the tenant should hold an equal area out of the land leased, it was not necessary to use the words 'in the total', because the object could have been achieved by merely stating 'holding an equal area out of the land leased.' The words 'in the total' have, therefore, been used for a different purpose. This is also suggested by the following words 'for personal cultivation'. As an application under this section can only be made on the ground that the land is required for personal cultivation, it would not have been necessary to use the words 'for personal cultivation' in Clause (b), if the intention had been that the leased land alone should be taken into account. The words 'in the total' mean in the aggregate and read along with the words 'holding thereafter' and 'an equal area for personal cultivation' they make it clear that what the draftsman had in mind is that after the termination of the tenancy the aggregate area of the lands personally cultivated by the landlord should be equal to the area of the lands under the personal cultivation of the tenant.
4. Sub-section (1) of Section 33B states that a tenancy may be terminated under this section notwithstanding anything contained in Section 31B, which provides that in no case a tenancy shall be terminated under Section 31 in such manner as would result in leaving with the tenant less than half of the area of the land leased to him. In other words, a tenancy may be terminated under Section 33B so as to leave with the tenant less than half the area of the land leased. The language used in Clause (b) of Sub-section (5) is also materially different from that employed in Section 31B. If the intention had been that the land leased should be divided equally between the landlord and the tenant, the application of Section 31B would not have been excluded. In that case it would have been sufficient to state in Clause (b) 'but to the extent only of half of such land' and it would not have been necessary to use the not easy to understand phraseology 'but to the extent only of so much thereof as would result in both the landlord and the tenant holding thereafter in the total an equal area for personal cultivation.' The Legislature obviously intended to bring about a different result and that is that in determining the extent of the land leased, of which the landlord can be awarded possession under Section 33B, all the lands held by the landlord and by the tenant for personal cultivation should be taken into consideration.
5. The view, which we are inclined to take, might in some cases result in the landlord not getting possession of any part of the land leased or of the tenant being deprived of the whole land. This would, however, happen only if the difference in the area of the other lands held by the landlord and the area of the other lands held by the tenant is equal to or exceeds the area of the leased land. We cannot also say that this was not intended to happen, because the object of the Legislature clearly appears to have been to do justice to both the certificated landlord and the tenant and to place them on an equal footing so far as possible.
6. Under Clause (a) of Sub-section (3) of Section 33B a landlord, who has already obtained possession of half of the land under Section 31, cannot obtain possession of any more land from the tenant. Under Clause (b) a landlord, whose application under Section 31 is pending or has been rejected, may, however, be able to obtain more than half of the land leased. Mr. Dalvi has urged that this could not have been intended : If that were so, Clause (1) in Section 31B would have been made applicable to applications under Section 33B also. It seems that Clause (a) was enacted so that cases, which had already been finally disposed of and in which the landlords had succeeded in obtaining possession of parts of the lands leased under Section 31, should not be reopened.
7. It has also been urged that in the view which we are taking it might be difficult to make adjustments, if a landlord has more than one tenant or if a tenant has more than one landlord. This would not justify our giving the section a meaning which it does not properly bear. It is also true that it would generally not be possible to bring about equality between a landlord and his tenant in regard to the extent of the lands personally cultivated by them, but the inequality between the two will be reduced.
8. In our opinion, therefore, in determining the extent of the leased land, of which a landlord can be awarded possession under Section 33B, the area of all the other lands, if any, personally cultivated by the landlord and the area of all the other lands, if any, held by the tenant for personal cultivation should be taken into consideration and the landlord should be awarded possession of so much area of the land leased as would result in each of them holding thereafter, so far as possible, equal areas of lands for personal cultivation. We agree with the view taken by the Full Bench of the Bombay Revenue Tribunal in its judgment delivered on July 9, 1963.
[The rest of the judgment is not material to this report.]