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Subhadrabai Digambar Godse Vs. Bhau Mahadu Bagane - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 347 of 1973 with Civil Application No. 3694 of 1977
Judge
Reported in(1980)82BOMLR290; 1979MhLJ391
AppellantSubhadrabai Digambar Godse
RespondentBhau Mahadu Bagane
Excerpt:
bombay tenancy and agricultural lands act (bom. lxvii of 1948), sections 33b(5)(a), 31, 31a, 31b, 29, 88c, 33a, 33b and 33c - choice of remedies available to certificated landlord under section 88c against excluded tenant either under section 31 or under section 33b (5)(a)--connotation of 'resumed' in section 33b (5)(a)--whether means a landlord who has obtained final order under section 31 or a landlord who has obtained possession on execution of such order--whether order under section 31 can be executed after final orders on application under section 33b.;in the case of a certificated landlord for whose apparent benefit chap. ii-a has been introduced the said chapter represents a complete scheme or a code by itself, by which the rights between a certified landlord and the tenant are now.....deshmukh, c.j.1. this petition has been referred to the division bench by a learned single judge of this court as there is conflict of views between the judgments of this court regarding the correct meaning and interpretation of the provisions of clause (a) of sub-section (5) of section 33b of the bombay tenancy and agricultural lands act, 1948 (hereinafter referred to as 'the tenancy act'). along with the petition has been placed civil application no. 3694 of 1977 for orders. that was a civil application for amendment in view of the forty-second constitutional amendment. however, the application does not survive and has been withdrawn by mr. rane and no order is required to be passed on this civil application.2. the facts for the purpose of the controversy leading to the reference to the.....
Judgment:

Deshmukh, C.J.

1. This petition has been referred to the division Bench by a learned single Judge of this Court as there is conflict of views between the judgments of this Court regarding the correct meaning and interpretation of the provisions of Clause (a) of Sub-section (5) of Section 33B of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Tenancy Act'). Along with the petition has been placed Civil Application No. 3694 of 1977 for orders. That was a civil application for amendment in view of the Forty-second Constitutional Amendment. However, the application does not survive and has been withdrawn by Mr. Rane and no order is required to be passed on this civil application.

2. The facts for the purpose of the controversy leading to the reference to the division Bench are these : The original petitioner, Shamrao Dattatraya Gosavi is now dead. However, we are referring to him as the petitioner in this judgment throughout for the purpose of convenience. But ultimately we will pass an order with reference to his heirs, who are brought on record. This course is being adopted to facilitate the various arguments raised where the original landlord is primarily relevant for determining the issue.

3. The petitioner, who is the original landlord, is the owner of survey No. 1207/3 measuring 4 acres 16 gunthas, assessed at Rs, 21.75, from village Ashta, Taluka Walwa, District Sangli. The petitioner filed an application under Section 31 read with Section 29 of the Tenancy Act, being Tenancy Case No. 643 of 1957. By that application the petitioner sought to terminate the tenancy of the respondent-tenant and claim possession of the land for bona fide personal cultivation. The Tenancy Mahalkari's decision was given on January 14, 1958, against which the landlord went in appeal and the Deputy Collector remanded the matter on all issues, After remand, the Taluka Awal Karkun passed an order dated July 14, 1963 permitting termination of tenancy and awarding half the land to the landlord and directing him to resume half the land from the tenant.

4. In the meanwhile, and in the light of the amendment of 1957 to the Tenancy Act, the landlord applied and obtained a certificate under Section 88C on May 31, 1958. Thereafter the Tenancy Act was further amended by the introduction of chap. II-A with effect from February 9, 1961. Under this chapter a certificated landlord is permitted to terminate the tenancy of the excluded tenant in the manner provided by Section 33B and in the circumstances detailed therein. This chapter, in Section 33C also laid down the consequences if an application under Section 33B was not made by the certificated landlord. Accordingly, the petitioner-landlord gave a notice under Section 33B on December 26, 1961 and filed an application on March 23, 1962 under Sub-section (3) of Section 33B. It is this application which is being heard by us now.

5. The application under Section 33B which we are now deciding will be referred to hereinafter as 'Section 33B application', and the earlier application will be referred to as 'Section 31 application'. The Section 33B application was decided by the Tahsildar on September 29, 1966 when he rejected it on the ground that the Section 31 application had already resulted in a final order on July 14, 1963 awarding half the land to the landlord. The final order passed for taking possession of half the land in the Section 31 application was treated by the Tahsildar as resumption of half the land under Section 33B' {5](a). On that conclusion the Tahsildar held that the Section 33B application was itself not maintainable and hence rejected the same. However, he also decided the application on the merits, and held in favour of the landlord regarding his total possession as well as annual income and bona fide requirement.

6. Being aggrieved by this order the landlord filed an appeal before the Special Deputy Collector. By his order dated January 28, 1968 the Special Deputy Collector confirmed the findings on merits. He further held that a mere final order under the Section 31 application does not amount to resumption, as contemplated by Clause (a) of Sub-section (5) of Section 33B of the Tenancy Act. Since the order was not actually executed, there was no resumption under that clause, and the landlord was entitled to succeed. He, therefore, allowed the appeal and directed that the entire tenanted land be handed back to the landlord.

7. The tenant then carried the matter to the Maharashtra Revenue Tribunal, which took a contrary view by its order dated March 17, 1972. According to the Tribunal, the passing of a final executable order amounts to resumption, the appellate order was thus set aside and the trial Court's order was restored, resulting in the dismissal of the petitioner's application under Section 33B. Being aggrieved by that order the petitioner has filed this writ petition.

8. The main and the only point that arises for our consideration relates to the true construction of the word 'resumed' occurring in Clause (a) of Sub-section (5) of Section 33B of the Tenancy Act. Conflicting views have been taken by different Judges. All of them were single Judge's judgments. One view is that if there is a final order under Section 31 application before the Section 33B application reaches the final termination, that final executable order under the earlier application would amount to resuming land by the landlord for the purpose of Section 33B(5)() of the Tenancy Act. In that case the Section 33B application shall be disposed of on the short ground that the landlord had already resumed the land and is barred from terminating the tenancy of the remaining land in view of the provisions of Section 33B(5)(a).

9. The other view is that the Section 33B application being a later and a better remedy enacted for the purpose of giving benefit to a certificated landlord, the mere final order passed in the Section 31 application pending the hearing and final disposal of the Section 33B application cannot amount to resumption and cannot defeat the subsequent remedy. If, however, the landlord avails himself or the earlier-final order and moves the Tahsildar and obtains actual possession as per final order in the Section 31 application, he has made a choice with regard to resumption and it is this actual resumption of the land which will come in the way of his getting relief in the subsequent application under-s. 33B of the Tenancy Act. We will refer to these judgments a little later. We are merely summarising the opposing points of view at this stage so that the real nature of the controversy is known. What we propose to do is to approach the entire problem by reference to the provisions of the Tenancy Act, formulate our opinion with reference to these provisions in the first instance, and then refer to the decided cases.

10. With a view to facilitate the discussion, we will quote here the relevant provisions of Section 33B, as also Section 33C, in addition to Section 88C.

33B.(1) Notwithstanding anything contained in Section 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.

(2) The notice may be given and an application made by a certificated landlord under Sub-section (3), notwithstanding that in respect of the same tenancy an application of the landlord made in accordance with Sub-section (2) of Section 31-

(i) is pending before the Mamlatdar or in appeal before the Collector or, in revision before the Maharashtra Revenue Tribunal, on the date of the commencement of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1960 (hereinafter referred to in this section as 'the commencement date'), or

(ii) has been rejected by any authority before the commencement date.

(3) The notice required to be given under Sub-section (1) shall be in writing, and shall be served on the tenant-

(a) before the first day of January 1962, but

(b) if an application under Section 88C is undisposed of and pending on that date then

within three months of his receiving such certificate, and a copy of the notice shall, at the same time, be sent to the Mamlatdar. An application for possession of the land shall be made thereafter under Section 29 to the Mamlatdar before the 1st day of April 1962, in the case falling under (a) and within three months of his receiving the certificate in the case falling under (b).

(4) Where the certificated landlord belongs to any of the following categories, namely:

(a) a minor,

(b) a widow,

(c) ...

(d) a person subject to any physical or mental disability,

then, if he has not given notice and not made an application as required by Sub-sections (1) and (3), such notice may be given and such application made-

(A) by the landlord within one year from the date on which he,-

(i) in the case of category (a), attains majority;

(ii) ...

(iii) in the case of category (d), ceases to be subject to such physical or mental disability; and

(B) in the case of a widow, by the successor-in-title within one year from the date on which widow's interest in the land ceases;

Provided that, where a person belonging to any category is a member of a joint family, the provisions of this sub-section shall not apply if any one member of the joint family does not belong to any of the categories mentioned in this sub-section, unless the share of such person in the joint family has been separated by metes and bounds before the 31st day of March 1958 and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated (having regard to the area, assessment, classification and value of the land) in the same proportion as the share of that person in the entire joint family property, and not in a larger proportion.

(5) 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 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).

(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.

(c) The land leased stands in the Record of Rights (or in any public record or similar revenue record) on the 1st day of January 1952 and thereafter until the commencement date in the name of the landlord himself, or of any of his ancestors (but not of any person from whom title is derived by assignment or Court sale or otherwise) or if the landlord is a member of a joint family, in the name of a member of such family.

(6) ...

(7) ...

33C. (1) Notwithstanding anything contained in Sub-section (1) of Section 88C, every excluded tenant holding land from a certificated landlord shall, except as otherwise provided in Sub-section (3), be deemed to have purchased from the landlord, on the first day of April 1962, free from all encumbrances subsisting thereon on the said day, the land held by him as tenant, if such land is cultivated by him personally, and

(i) the landlord has not given notice of termination of tenancy in accordance with Sub-section (3) of Section 33B, or.

(ii) the landlord has given such notice, but has not made an application thereafter under Section 29 for possession as required by the said Sub-section (3), or

(iii) the landlord, not belonging to any of the categories specified in Sub-section (4) of Section 33B, has not terminated the tenancy on any of the grounds specified in Section 14, or has so terminated the tenancy but has not applied to the Mamlatdar on or before the 31st day of March 1962 under Section 29 for possession of the land:

Provided that, where the landlord has made such application for possession the tenant shall, on the date on which the application is finally decided, be deemed to have purchased the land which he is entitled to retain in possession after such decision.

88C.(1) Save as otherwise provided by Sections 33A, 33B and 33C, nothing in Sections 32 to 32R (both inclusive) 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:

Provided that the provisions of this sub-section shall not apply to any person who holds such land as a permanent tenant or who has leased such land on permanent tenancy to any other person.

(2) Every person eligible to the exemption provided in Sub-section (1) shall make an application in the prescribed form to the Mamlatdar within whose jurisdiction all or most of the pieces of land leased by him are situate, within the prescribed period for a certificate that he is entitled to such exemption....

11. The first -important thing to be borne in mind is that this section found its way into the Tenancy Act through chap. II-A, which was introduced into the Tenancy Act by the Maharashtra (Amendment) Act No. 9 of 1961. This Amendment Act of 1961 came into force on February 9, 1961. It would be worthwhile to note as to what was the legal position on the date this chapter was introduced. The amendments to the Tenancy Act made from time to time ever since the present Act was passed in the year 1948 do show a distinct scheme behind the legislation. The main object of this Act is to do away with the absentee landlordism, Land to be retained with the tiller has been the main principle governing the various amendments from time to time. The Tenancy Act, as it stood on February .9, 1961, already contained provisions like Sections 31, 32 to 32R and 32C. We are making reference to only these provisions which appear to be relevant for deciding the present issue. These provisions read as a whole would show that ordinarily every tenant in possession was to become the statutory purchaser and owner on April 1, 1957, which was the tillers' day. However, the Legislature made two distinct exceptions to this proposition. Land was not being denied to all the landlords who were not actually cultivating the land on April 1, 1957. The Legislature permitted a landlord to terminate the tenancy of his tenant and apply for possession of the land for bona fide personal cultivation. That was the right introduced in favour of the landlord by Section 31, together with limitations provided in Sections 31A, 31B and 31C. The manner of giving notice and the time by which application was to be made were laid down and in respect of those landlords who had so terminated the tenancy by notice and had applied for claiming possession of the land for bona fide personal cultivation, the tillers' day was deferred till or until this application was heard and finally disposed of. The limitations which were introduced broadly show that even if the landlord desires to terminate the tenancy of a tenant, he can take possession of the land leased to the extent of a ceiling area but not exceeding half of the leased land. If the landlord succeeds in getting possession of half the land in pursuance of his application and the final termination of such application, the left over land with the tenant would be deemed to have been purchased by the tenant. So far as the left over land is concerned, Section 31C lays down that once the tenancy is terminated under Section 31 and some land remains with the tenant, the tenancy in respect of the left over land can never be further terminated on the ground that the landlord bona fide requires the land for personal cultivation. In the case of most of the landlords, the left over land automatically vested in the tenants. However, the Legislature took into account a class of landlords who own very little land and who could hardly be described as that class of landlords against whom the legislation was addressed. The landlords owning less than an economic holding and whose total annual income including the rent of such tenanted land did not exceed Rs. 1,500 were separated from the other landlords. This class of small land holders was given a further facility, by which their tenants did not become owners on the tillers' day. The landlords remained landlords and the tenants remained tenants as soon as the provisions of Sections 32 to 32R did not apply to such landlords and their tenants. However, if this small landlord wanted land for bona fide personal cultivation by terminating the tenancy of his tenant, he had to take recourse to Section 31 alone. If he succeeded in getting the order in his favour and got possession of half the land the title to the other half would vest in the tenant, as a favoured class of landlord, being the owner of limited holding. In his case he could not get the other part of the land in view of the provisions of Section 31C of the Tenancy Act. _ However, it was not obligatory upon such a landlord to apply under Section 31, his relationship of landlord with regard to his tenant continues in view of the provisions of Section 88C,

12. By Way of a further step in obliging even such a class of landlords and to see that only cultivator of land is in possession thereof, chap. II-A was introduced along with further amendment of Section 88C. What we have quoted above are the up-to-date amended provisions, which we are to interpret. .

13. Section 33A gave the nomenclature 'certificated landlord' to the abovementioned small land-holder and his tenant was described as excluded tenant. At an earlier stage, when Section 88C was amended by which original Sub-section (2) was replaced by Sub-section (2) to (5), it was made obligatory upon the certificated landlord to make an application for obtaining a certificate from the Mamlatdar that the landlord was a certificated landlord. This amendment was brought into force on September 28, 1957. The landlords were permitted to apply for certificates at any time before September 30, 1961. This is the final time that was allowed by amendments from time to time. In case a landlord falling under this description did not apply for a certificate and had not applied for possession under Section 31, he would no more be a class of landlords getting advantage of this provision and the land of such a landlord would vest in his tenant. We need not add that this would have retrospective effect at this stage from April 1, 1957.

14. After making these provisions at an earlier stage when chap. II-A was introduced, the Legislature felt that enough justice is not being done to the marginal class of small landlords, who could not be given half the land for personal cultivation under the provisions of Section 31. The Legislature, therefore, thought that certain landlords belonging to this class should be given an additional facility of getting the entire land for personal cultivation, provided the conditions proposed in Section 33B as a whole are being fulfilled. While enacting this section and adding this facility in favour of the class of small landlords, now described as certificated landlords, the Legislature observed one more principle which seems to be observed in this Act throughout. Where the landlord is allowed to apply for terminating the tenancy of the tenant on the ground of bona fide personal cultivation he was given only one opportunity to do so. If he took advantage of this opportunity and obtained the final order in his favour the subsequent legislative change was not made to benefit such a landlord once again. Even though the Legislature revised its policy from time to time, the subsequent changes were made available only to that class of landlords who had not utilised the earlier opportunity and whose rights under the earlier opportunity were still inchoate and not finally decided. Bearing this broad approach in mind, the Legislature has provided that a certificated landlord may apply under Section 33B notwithstanding the provisions of Section 31, 31A or 31B.

15. However, the Legislature found that the landlords including the certificated landlords may have applied under Section 31 for getting the land for bona fide personal cultivation were rejected outright by the final order. There would be another class of such landlords whose applications were finally determined before February 9, 1961 by passing the order in favour of the landlords for resumption of half the tenanted land. A third class of landlords would be those whose applications under Section 31 were still pending on February 9, 1961 either before the Tahsildar, or before the appellate authority or the revisional authority. In the case of those landlords whose applications were finally disposed of before February 9, 1961 and what remained was a mere execution of the order, the Legislature has denied them any further right of application. In the case of the remaining two classes of landlords where the applications failed to assist the landlords in obtaining possession, or where the remedy of the landlords is still pending before one of three Tribunals constituted as the hierarchy under the Tenancy Act, the landlords were given a further right to apply under Section 33B. This has been so held by a division Bench of this Court in Chintaman Anant Khasnis v. Keshav Dnyanu More (1977) Special Civil Application No. 1778 of 1972, decided by Deshmukh and Shimpi JJ., on August 12, 1977 (Unrep.).

16. It is against this background that we are called upon to examine the position of a certificated landlord whose application under Section 31 was pending at some stage on February 9, 1961 and who has applied under Section 33B by observing the requisite formality. Unless the earlier application under Section 31 was a pending application as described in Clause (0 of Sub-section (2) of Section 33B, or the application was rejected earlier, the certificated landlord had no right to apply at all. Having excluded one class in that manner and having indicated the other two classes of certificated landlords who can apply under Section 33B, a further question arises in relation to those landlords whose applications were pending before some Tribunal on February 9, 1961. Undoubtedly, such a certificated landlord was allowed to terminate the tenancy by a notice as required by Sub-section (3) of Section 33B and to make an application for possession against the tenant for bona fide personal cultivation. The sections which we have quoted above do indicate that the provision to make an application for possession under Section 33B is notwithstanding anything contained in Section 31, 31A or 31B. Sub-section (2) further says that a certificated landlord can apply only if his application under Section 31 is pending before the Mamlatdar or in appeal before the Collector or in revision before the Maharashtra Revenue Tribunal on the date before the commencement of the Bombay Tenancy and Agricultural Lands (Amendment) Act, 1960, (hereinafter referred to in this section as 'the commencement date'), and this commencement date is February 9, 1961.

17. We will concentrate hereinafter in this judgment to this class of landlords whose applications were pending before any of the authorities mentioned above, because the case before us refers only to such a landlord. In the case of a landlord whose application under Section 31 was already rejected before February 9, 1961 no complication arises in administering the provisions of Section 33B. Some difficulty is felt only in the case of the landlord whose application under Section 31 was pending at some stage on February 9, 1961.

18. We will at once refer now to the provisions of Clause (a) of Sub-section (5) of Section 33B. This provision indicates that the right of a certificated landlord to terminate the tenancy under this Section 33B has been subject to the conditions mentioned in the clauses that follow. The pertinent Clause (a) lays down that

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 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).

It is clear from the above wording of Sub-section (5) that the Tribunal deciding the application of a certificated landlord under Section 33B has to look at this sub-section and decide whether the tenancy should be allowed to be terminated and whether the land hi possession of the tenant should be permitted to be taken over by the landlord. If at the time of that decision under Section 33B the relevant authority finds that the landlord has already recovered possession for bona fide personal cultivation of some land under Section 31 or under any earlier law relating to tenancy in force, the tenancy in respect of the left over land shall not be allowed to be terminated and the landlord shall not be given possession of any further land. In point of time, therefore, two relevant dates should be borne in mind. One is February 9, 1961 when the landlord makes an application under Section 33B because his earlier application under Section 31 is still pending at some stage before any of the authorities mentioned in Sub-section (2). The very right of the landlord to make an application for possession under Section 33B stems from the fact that his earlier application for bona fide personal cultivation under Section 31 is still pending at some stage and has not been finally disposed of on February 9, 1961. Sub-section (5) at once speaks of the decision of the Section 33B application. If on that date the Tribunal deciding this application under Section 33B finds that land has been 'resumed' under Section 31 by the landlord, he shall not now be permitted to terminate the tenancy and recover possession of the left over land. How can this happen? This can happen only if the Section 31 application of the landlord which was pending on February 9, 1961 was allowed to proceed ahead and terminate in a final order. Not only that but the final order in such an application under Section 31 was permitted to be executed so that a situation arises where the land has been resumed as a result of an order under Section 31. The last part of the statement which we have made above is the most controversial and appears to be in the nature of a final conclusion. We will, therefore, keep it aside for the time being and try to deal with the provisions of the sections themselves.

19. At this stage a broad fact that we must notice is that the Legislature has permitted two applications of the landlord for obtaining possession of the land from the tenant to be pending simultaneously. Simply because a second application under Section 33B has been filed no consequences laid down by the provisions of the Tenancy Act could arise so far as the earlier pending application under Section 31 is concerned. On the contrary, the pendency of the first application is the very foundation of the right to make the second application. Automatically, therefore, two applications would be pending between the same landlord and the same tenant, one under Section 31 and the other under Section 33B.

20. We have been taken through all the relevant provisions of the Act by the learned Counsel by either side. The learned Counsel argued that so far as the earlier pending application under Section 31 is concerned, simply because the certificated landlord has been made available a remedy under Section 33B by filing a fresh application, it cannot be said that the application cannot be proceeded with to its final conclusion. The learned Counsel for the respondent-tenant, Mr. Page brought to our notice the relevant provisions of the same Tenancy Act as amended by the Gujarat Legislature and which is in force in Gujarat. So far as the Bombay Tenancy Act as applicable to Gujarat is concerned, the scheme of Section 33B of our Act is to be found in Section 32T of the Gujarat amendment as applicable to the former Bombay area, now forming part of Gujarat State. Having made similar provisions for permitting a certificated landlord to apply for possession because his earlier application for possession is pending, the Gujarat Legislature has inserted Clause (fr) of Sub-section (2) of Section 32T which lays down that any earlier application pending shall be deemed to have abated on the commencement date. In other words, if the Gujarat provisions were to be made applicable to this State, on the commencement date itself, viz. February 9, 1961, all pending applications under Section 31 relating to certificated landlords shall be deemed to have abated automatically. In other words, a certificated landlord may either pursue a remedy under Section 32B or face the consequence under Section 33C.

21. However, so far as the provisions of our Act are concerned, nothing similar to it has been provided. We can, therefore, visualise the situation that the earlier pending application under Section 31 would be proceeded ahead as also the subsequent application under Section 33B should be heard and disposed of in due course. Since the Section 31 Applications were required to be filed on or before April 1, 1957, ordinarily a majority of them would be reaching final hearing long before the Section 33B application reach final disposal. It is entirely different that for reasons beyond the control of parties certain matters remain lingering. In other cases the matters may reach upto the Revenue Tribunal or the High Court in writ petition and on some technical grounds the orders may be set aside and the matters may be remanded to the trial Court for further hearing and disposal according to law. It is, therefore, possible that in such a case some applications under Section 31 may reach hearing after the Section 33B applications are finally heard and disposed of, We must, therefore, contemplate all these situations and have to decide what precisely is the scheme of the Legislature in granting relief to the certificated landlords under Section 33B.

22. While doing so, we may also bear in mind a further broad proposition which has been uniformly implemented in this Act, viz. where the tenancy has been allowed to be terminated in respect of a part of the land on the ground of bona fide personal cultivation, the tenancy in respect of the left over land is never again to be allowed to be terminated on the same ground.

23. We will now consider one or two situations which will immediately illustrate how Clause (a) of Sub-section (5) of Section 33B ought to be interpreted in order to give full benefit of the added remedy to the certificated landlord as against his excluded tenant.

24. The first simple illustration to take would be where a certificated landlord applies under Section 33B though his application under Section 31 is still pending. Before the Section 33B application is processed and finally heard, the Section 31 application reaches final hearing and is disposed of. Not only there is no provision similar to the Gujarat sub-section in our Act, but there is no guidance to the Tribunal or the parties as to how they 'should conduct the two applications which are pending under Sections 31 and 33B. It is, therefore, quite possible that the Tahsildar would in due course dispose of the matters in its chronological order and the earlier application under Section 31 is finally disposed of while the Section 33B Application is pending and yet to be heard and decided.

25. Before we refer to the language of Sub-section (55(a)) of Section 33B, one important fact . may be noted. The remedy under Section 33B is primarily meant for a landlord who has a very limited holding. This certificated landlord has been given a right to resume land from his tenant, which is differently worded than the right of the general class of landlords under Section 31 read with sections that follow Section 31, Primarily, there is no limitation on the area of land which the certificated landlord can claim for bona fide personal cultivation from the tenant. He can get the entire land from the tenant for bona fide personal cultivation under Section 33B. He may get a little less than the whole or in fact even less than half the land in a given set of circumstances. This is because Clause (b) of Sub-section (5) of Section 33B lays down a further condition for handing over possession to a certificated landlord for bona fide personal cultivation in respect of a certain portion of land from his tenant. While awarding possession to the certificated landlord under this section, the Court has to see that after taking into account the other lands in the respective possession of the landlord and the tenant, which they may be cultivating, a situation may be brought about by so dividing the land allotting equal portion of land for cultivation on the whole between the landlord and the tenant. If, therefore, in a given case the landlord' is permitted to resume the entire land tenanted and still the other total land in possession of the tenant which he is cultivating is much more than the total holding of the landlord including the disputed land, the landlord might get possession of the entire piece of land from the tenant. If in a given case the other lands in possession of the landlord and the tenant are equal, needless to add that the tenanted land will be divided half and half so that the landlord and the tenant will have equal land for cultivation. Under Section 33B no distinct quantum of land is being laid down for being handed over to the landlord. He can, therefore, get anything to almost nothing in a given case. How could a landlord in an earlier application under Section 31 know whether he would benefit under Section 33B or not, which is a later remedy. In view of the possibility of getting the entire land for cultivation, the remedy under Section 33B must be prima fade described as a better remedy so far as the certificated landlord having a very limited land of his own is concerned.

26. At this stage we will consider a further approach to the Section 33B application An application under Section 33B is a must for a certificated landlord. This question, in our view, must be answered in the affirmative if the certificated landlord were to save himself from the consequences enumerated in Section 33C. Section 33C(1) lays down that notwithstanding anything contained in Sub-section (1) of 88C, every excluded tenant holding land from a certificated landlord shall, except as otherwise provided in Sub-section (3), be deemed to have purchased from the landlord, on the first day of April 1962, free from all encumbrances subsisting thereon on the said day, the land held by him as tenant, if such land is cultivated by him personally. This consequence is subject to the fact that the landlord has not given a notice of termination of tenancy in accordance with Sub-section (3} of Section 33B, or the landlord has given such a notice but has not made an application thereafter under Section 29 for possession as required by the said Sub-section (3). We need not refer to the other class of disabled landlords for whom consequences are provided but the date of occurrence in that behalf is different. We have already seen earlier that at one stage obtaining of a certificate under Section 88C was made compulsory. If a certificate is obtained, the certificated landlord has to apply, otherwise the land stands compulsorily purchased by the tenant. Section 33C now gives effect to the Legislature's idea of abolishing even such a class of landlords. Either these landlords obtain possession under Section 33B of land and cultivate it or the land vests in the tenant on April 1, 1962. In the case of certificated landlords whose Section 31 applications were pending on February 9, 1961, a facility to apply under Section 33B upto April 1, 1962 is afforded to them. If they do not apply, Section 33C(1) operates from and after April 1, 1962 and makes the tenant statutory purchaser of land as on April 1, 1962. It is worthwhile to note at this stage that this consequence of Sub-section (1) of Section 33C is provided notwithstanding anything contained in Sub-section (1) of Section 88C. The history of Section 88C which we have earlier noticed, shows that Sections 32 to 32R. (both inclusive) shall not 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. By amendment of Section 88C first in the year 1957, a small landlord, whom we have described above, was obliged to make an application for obtaining possession and such application was required to be made on or before April 1, 1962. If he obtains that certificate the compulsory transfer of title is saved and the small landlord was eligible to retain possession as a landlord and the tenant remained a tenant on that land.

27. Then came a further amendment of this section by which operation of Sections 32 to 32R in respect of this landlord, who is now described as a certificated landlord, is saved only to the extent provided by Sections 33-A, 33-B and 33-C. In other words, unless the certificated landlord takes advantage of the provisions of Section 33B, and saves himself of the consequences indicated earlier under Sections 32 to 32 R, the provisions of Section 33C will apply in the first instance to the tenancy of the land which is not permitted to be terminated, and the consequences of Sections 32 to 32R will again apply as provided by Sub-section (5) of Section 33C.

28. The above discussion leads to the conclusion that in the case of a certificated landlord for whose apparent benefit Chap. II-A has been introduced represents a complete scheme or a Code by itself, by which the rights between a certificated landlord and the tenant are now to be finally settled so far as the tenanted land is concerned. If the landlord applies to get his entire land for personal cultivation, so far so good. If he is unable to get any land relieved the tenant will undoubtedly become the purchaser and the procedure of Section 33C(5) will be followed, as if the transfer has been effected from April 1, 1962. However, if a landlord gets only a portion of the land for his personal cultivation and the other part of the land remains with his tenant, then so far as the left over land is concerned, the procedure prescribed under Sub-section (5) of Section 33C will have to be made applicable and given effect to from April 1, 1962.

29. In this, broad scheme the one factor which is the stumbling block in this litigation is the effect and consequence of the final decision of the earlier application under Section 31 application which comes to be decided any time but before the final order under Section 33B application is passed. The Maharashtra Legislature has not made similar provisions as the Gujarat Legislature, as we have pointed out earlier. There is no provision to stay the application simply because the Section 33B application has been filed. Both can and must ran simultaneously and both the applications can be decided on different dates. As we have pointed out earlier, the pending Section 31 application is likely to be decided much earlier than the Section 33B application, which is normally filed after four years after the earlier application is filed. If Chap. II-A is now a complete code by itself of governing the certificated landlord and the excluded tenant, would it not be logical to permit the certificated landlord to take advantage under Section 33B. A certificated landlord who has filed an application under Section 33B may very much wish that this subsequent application be decided expeditiously and before the Section 31 application is decided. He may put in efforts to get such a result, but he may have no control on the circumstances. Inspite of his desire to have the subsequent application decided earlier, the pending application under Section 31 may be decided much earlier than the subsequent application. Would it be proper and logical and be regarded legal, according to the provisions of Chap. 1I-A, to defeat the landlord's rights under Section 33B simply because an event occurs over which he has no control at all. In other words, can the mere passing of a final order under Section 31 in an earlier application which was pending on February 9, 1961 be allowed to defeat automatically the remedy under the subsequent application which is still pending. If this consequence were to be permitted, what is the difference between a situation where the Section 31 application is finally disposed of before February 9, 1961 which bars the filing of an application itself under Section 33B and the final termination of that application subsequent to February 9, 1961 before the Section 33B application is finally disposed of. Since the landlord has no kind of control at all on the situation, we are of the view that the mere passing of a final order in a Section 31 application, though subsequent to February 9, 1961, should not be permitted to conclude the right of the landlord under Section 33B. In fact, that would be inconsistent with the desire of the Legislature to make the remedy available to the certificated landlord under chap. H-A.

30. However, the Legislature further envisaged the situation where not only the earlier pending application under Section 31 will be disposed of finally before the Section 33B application is finally heard and disposed on, and the landlord execute the order under the earlier application. Since there is no prohibition enacted for the continuance of the earlier application or its execution, though chap. II-A was introduced as an additional remedy or a fresh remedy, it is possible that some landlords might execute the order under earlier application under Section 31. Though the landlord has no control over the hearing and final disposal of an application under Section 31, so far as the execution of the final order is concerned there is no limitation indicated in this Act and the landlord is merely left to his volition to decide whether to execute this order or not. Though the hearing and final disposal of the application under Section 31 is beyond the control of the certificated landlord, he still has a full choice to make whether to execute that final order or not.

31. Let us, therefore, take two different cases, where, the earlier applications under Section 31 have successfully terminated and a final order passed and both the landlords are entitled to possession of half land tenanted. One of the landlords executes that order and obtains possession of half the land before the Section 33B application is heard and finally disposed of; and the other landlord waits to see what happens in the Section 33B application and does not execute that order till the final disposal of the application under Section 33B. Does the Legislature want to treat these two situations differently or in the same manner. In our view, the case of a landlord who voluntarily executes the earlier final order under Section 31 and obtains physical possession of the land awarded to him must be distinguished from or contrasted with the position of the certificated landlord who refuses to execute that order and awaits a decision under Section 33B. In our view, the Legislature had all these situations in mind when it had selected the wording of Clause (a) of Sub-section (5) of Section 33B. As we have already suggested earlier, Sub-section (5) operates when the authority under the Tenancy Act is finally hearing the application under Section 33B. If at that hearing it is pointed out by the tenant to the Tribunal that his landlord has already resumed land under Section 31, or any other earlier law relating to tenancy, in fairness the remedy under Section 33B shall not be made available to such landlord. However, if a mere order is passed under Section 31, but the certificated landlord wants to proceed ahead under 33B and ultimately wants to execute only an order under Section 33B, would it be said that he is such a landlord who has already 'resumed' the land under Section 31. Since both these situations are quite possible at the time Section 33B application comes up for final hearing and disposal, the Legislature must be deemed to have provided for both the situations by the provisions of Sub-section (5) of Section 33B. Where the land has actually been taken possession of under Section 31 application, the Legislature tells the landlord that he shall get no advantage under Section 33B. Where, however, the -landlord awaits the disposal of the application under Section 33B and a final order in his favour, he shall not be deemed to be a landlord who has resumed the land for personal cultivation. In the overall scheme that the Legislature has made 'for eliminating the remaining class of landlords and bringing about a situation of personal cultivation of land alone, the interpretation that we give to Clause (a) of Sub-section (5) of Section 33B would alone be logical for making the remedy of Section 33B real and not illusory. The word 'resume' in the sub-section in the context of the above discussion must mean 'actual recovery of possession and not a mere final order capable of giving possession to the landlord, if executed.

32. A few situations that may develop from the above conclusion may be noted in order to verify how far the above interpretation is logical. If a pending application were the sine qua non-for permitting a fresh application under Section 33B to be filed, the mere disposal thereof could not be treated as a bar to the filing of the Section 33B Application. We will take the simplest illustration. A certificated landlord made an application against a tenant for bona fide personal cultivation under Section 31. All the evidence in that application was recorded by the Tahsildar and the application was marked down for February 10, 1961 for final disposal. On February 10, 1961, the Tahsildar awards the landlord possession of half the land under Section 31. This is the best order that the landlord can obtain under Section 31 and he has no ground to go in appeal. If the tenant is satisfied with the order as just and proper, he may also not go ahead by filing an appeal. Here is a certificated landlord in whose favour a final order under Section 31 has been passed on February 10, 1961. Can he apply under Section 33B for resuming the entire land for his personal cultivation from his tenant? The answer is obviously in the affirmative. This is because he fulfils all the requirements of Section 33B. He is a certificated landlord whose application under Section 31 was pending on February 9, 196L Viz. (the commencement date. Since he is the landlord of that type, he has a right to give notice of terminating the tenancy of his tenant on or before March 31, 1962. After such a notice has been issued terminating the tenancy and even before a process is issued in that behalf, an order has already been passed for final termination of the proceedings under Section 31 and this is an executable order. The landlord has an absolute choice to execute the order or to stay his hand. If the word 'resume' in Clause (a) or Sub-section (5) of Section 33B were to mean the mere passing of a final order in favour of a certificated landlord under Section 31, the very application of the above landlord, in the illustration that we have given, under Section 33B could not be considered at all. Such an interpretation of the word 'resume' in Sub-section (5) will defeat the intention of the Legislature to afford the remedy to the certificated landlord under Section 33B. How shall we, therefore, logically interpret the word 'resume'? In our view, the only logical way to interpret and make the remedy available to the certificated landlord under Section 33B is to interpret the word 'resume' to mean taking of actual physical possession by executing the order under Section 31. It is, therefore, that the word 'resume' may have several meanings as the dictionary shows. In certain context the mere passing of a final order may mean 'resume', but one of the meanings undoubtedly is the physical taking over of possession and in the context of the provisions of the Tenancy Act which we have discussed above and against the background of the scheme making the land available to a certificated landlord who genuinely needs it for his personal cultivation, the meaning which we have attributed to the word 'resume' in Sub-section (5) of Section 33B alone seems to be logical if the certificated landlord has to derive some benefit from the additional remedy under Section 33B. Otherwise, in almost all cases where the Section 31 application would normally come to final conclusion much before the Section 33B application as they are already old by four years before Section 33B application comes to be filed, the remedy would be almost illusory. We do not think that the Legislature provided such an illusory remedy to a certificated landlord.

33. We will now take into account some of the arguments addressed to us as a consequence of taking this view. For instance, an argument is raised as to what should happen to the transfer of title when a certificated landlord files an application under Section 33B and does not want to execute the final order under Section 31, though that order is passed earlier than the final order under Section 33B, According to the view which we have already taken above, the mere passing of a final order under Section 31 will not by itself be of any consequence, as tenancy does not get terminated by that order at that stage. The reason is obvious. Under the scheme of chap. II-A it has been laid down by Section 33C as to what should happen where a certificated landlord does not hake an application under Section 33B, or follows the procedure of Section 33B and files an application for possession. Where a certificated landlord does not serve a notice or after serving a notice does not file an application under Section 33B, it has been clearly laid down by the opening part of Sub-section (1) of Section 33C that the tenant would be deemed to have purchased the land on April 1, 1962. This is the result that follows notwithstanding anything contained in Sub-section (1) of Section 88B, It is, therefore, clear that a certificated landlord must follow the provisions of Section 33B, if he wants to claim possession of land for bona fide personal cultivation. If he does not choose to file an application, the tenant is declared to be the purchaser on April 1, 1962. This will be the result notwithstanding the provisions of Section 88C(1). Under is. 88C the landlord with a limited holding who later on obtains the designation of a certificated landlord was saved from the consequences of vesting of title in the tenants, as the Legislature has given him a little concession in that behalf. We have already indicated that at a subsequent stage the Legislature revised the same things and wanted even these landlords either to cultivate themselves or part with title of the land. In this overall scheme of retaining of land only with an agriculturist who will cultivate the land personally that the provisions of Section 3307) has been made. If the certificated landlord resorts to the provisions of Section 33B, the vesting of the title is deferred till the final disposal of that application as has been laid down by the provisions of Sub-section (5) of Section 33B. We need not repeat what we have stated earlier that under the provisions of this chap. II-A a certificated landlord has a choice of getting possession either of the whole land or a lesser part of it, sometimes amounting to nothing. As the quantum of land that will be handed over to the landlord for bona fide personal cultivation depends upon several factors, it is difficult to predict on the date of the application what precise land he will get. However, after the landlord obtains a final order in this behalf, if any land is still left over with t he tenant, the tenant will automatically become the purchaser on this deferred date of the final decision, as provided by the provisions referred to above.

34. When different dates are contemplated for the vesting of title in the tenant, in the case of a certificated landlord if the certificated landlord does not take advantage at all of the provisions of Section 33B, the title automatically vests in the tenant on April 1, 1962. If he takes resort to the provisions of Section 33B on the date of final disposal in respect of the left over land from a tenancy, the tenant becomes a statutory purchaser. This scheme operates notwithstanding the provisions of Section 88C(1). This scheme under the added chap. II-A, prima facie is meant to benefit the certificated landlord to a larger extent. It stands to reason that these are the only provisions that should now determine the relationship between the certificated landlord and the excluded tenant.

35. We may now point out how the earlier application under Section 31 and the final order thereunder will operate in these circumstances. The one case which we have already considered is where the final order under Section 31 application is actually executed and possession of half the land is obtained before the final disposal of the application under Section 33B. We have quoted above that in those circumstances when the application reaches hearing there will be a bar of certain provisions to the application under Section 33B and the landlord will not be able to agitate the application under Section 33B any further.

36. The next case now to be considered is that the s- 31 application is either pending or is finally decided, but no possession is obtained by execution thereof. If in those circumstances, the Section 33B application reaches final hearing and is disposed of, the controlling provisions will be the provisions of chap. II-A, and the consequences laid down under Section 33C must follow at the final conclusion of the application under Section 33B. This appears to us to be the only logical way in which the provisions will operate. When the Tenancy Act statutorily provides for vesting of title in a tenant on a particular date, it means that the relationship of landlord and tenant is brought to an end by the operation of -the law. A landlord can claim possession of land for bona fide personal cultivation only so long as he is a landlord and the tenant continues to be a tenant as such. There is no question of claiming possession of land for personal cultivation once the title is transferred to the tenant. The only right in that case is to recover compensation from the erstwhile tenant who becomes the owner, by the erstwhile landlord who was the the former owner of the land.

37. Mr. Rane, the learned Counsel for the petitioner, further wants us to hold that in the event of Section 33B application failing or being rejected by the tenancy authorities, the landlord should be able to execute his earlier final order under Section 31. In other words, if a final order under Section 31 is passed, whereby half the land has been awarded to the landlord and he has not executed that order, Mr. Rane wants to take advantage of our view that the Section 33B application should be further proceeded with according to law. A mere passing of a final order under Section 31 should be no bar to the further hearing of the application under Section 33B. However, he wants to argue that in the event of Section 33B application being rejected for any reason whatsoever, the landlord must have a right to execute the earlier final order under Section 31. We are unable to agree with this argument. In fact, such an approach would be inconsistent with the inexorable logic of the situation. Once tenancy is terminated under the Tenancy Act, in respect of a portion of the land, it has been clearly laid down all along that the tenancy of the remaining land shall not be permitted to be terminated for the purpose of bona fide personal cultivation of the landlord. That was the scheme under the old Section 34 and that is also the scheme under Section 31C, and that is also the position under the provisions of Section 33B(6). The obvious logical consequence of what we have held till now may now be indicated so that the argument of Mr. Rane will not survive at all.

38. Since the Maharashtra State Legislature has not taken the view which the Gujarat State Legislature has taken of statutorily abating of pending applications under Section 31, we have considered the consequences of the Section 31 application going ahead to final termination. A mere passing of a final order under Section 31 will not amount to termination of tenancy but taking over of possession with resumption of land will bring about the situation where the left over land can never be touched. In other words, merely getting a final order under Section 31 is not enough if the landlord wants to get advantage of that order, after he obtains the final order but awaits the final result of the application under Section 33B and obtains a final order of determination of the tenancy. If this is the consequence that arises no further action for the execution of the earlier order under Section 31 could arise. It only means that the Maharashtra Legislature has given to the certificated landlord a choice either to act under Section 31 application or Section 33B application, but there is a limitation within which he must resume the land. Before Section 33B application reaches final conclusion, he has to take advantage of Section 31 and if he fails to avail of this advantage, then chap. II-A alone will operate and the landlord will not be eligible to apply for execution of the order under Section 31. We think that the Maharashtra Legislature has clearly tried to benefit the certificated landlord who is a potty land-holder and has left the choice to him to find out which order will give him the maximum benefit. However, there is a time limit within which he may do so, failing which the land statutorily vests in the tenant. We are unable to agree with Mr. Rane that on a Section 33B application being decided against the landlord, he will still have a chance of executing the earlier final order under Section 31.

39. It is also argued before us that there is apparent inconsistency between the provisions of Section 31 and the provisions of chap. II-A. What is argued is that it is not permissible to terminate the tenancy of the land left over with the tenant after the tenancy of the other land is permitted to be terminated under Section 31. If an application under Section 31 succeeds finally, it amounts to granting permission to terminate the tenancy. This, according to the learned Counsel, is the meaning of Section 31C. If, therefore, the Section 31 application goes to final conclusion before the Section 33B application is yet heard and decided, the tenancy of half the land must be deemed to have been terminated and the remaining half land must be deemed to be the left over land with the tenant. If this consequence follows under Section 31C, the provisions of chap. II-A will operate notwithstanding Section 31C. What is provided by Section 33B(1) is that the provisions of that section will operate notwithstanding anything contained in Section 31, 31A or 31B alone.

40. We do not see any inconsistency in these provisions. The total scheme of transfer of title from the certificated landlord to his excluded tenant, as discussed by us above, would clearly show that in the case of Section 31 application which was pending on February 9, 1961, the Legislature first permitted an application to be filed. We shall illustrate here how the above logic if accepted would lead to very unreasonable results. At an earlier stage we have taken the illustration of a Section 31 application being finally decided by the Tahsildar on February 10, _1961. In that manner several applications filed in 1957 by certificated landlords may be decided during the period February 9, 1961 to March 31, 1962, If a final termination of a Section 31 application is by itself a situation covered by Section 31C, then the certificated landlord would not be able to file applications under Section 33B at all, even though they are filed on or before March 31, 1962, but at a date after the Section 31 application was decided after February 9, 1961. We have refused to accept such a consequence in view of the special provisions of Section 33B, A mere final order under Section 31 is not, therefore, conclusive of the rights between the certificated landlord .and the excluded tenant. In the case of Section 31 application, the Legislature has specifically provided a provision viz. Clause (a) of Sub-section (5) of Section -33B, whereunder if a certificated landlord obtains physical possession of land for personal cultivation under Section 31, he will be debarred from continuing the remedy in view of the resumption of the land under Clause (a) of Sub-section (5) of Section 33B. This being the scheme, it is clear that the Legislature contemplated the pending application under Section 31 not to bring about the termination of the tenancy by its merely coming to an end by a final order in that behalf. The Legislature has, therefore, made the provisions of Section 33B in the case of certificated landlords under chap. II-A notwithstanding anything contained in the provisions of Sections 31, 31A or 31B. It is left to the certificated landlord to bring about the stage off Section 31C through the provisions of Clause (a) of Sub-section (5) of Section 33B. If he brings about that result then undoubtedly the remedy is barred, and the provisions of Section 31C would then be made applicable. We do not find any inconsistency in the earlier scheme of Sections 32 to 32R read with Sections 31 to 31C and the new scheme under chap. II-A, both operate in a different field and in different manner. Simply because a landlord has been given a mere chance at an intervening stage some confusion is likely to arise. However, the above analysis of the two independent schemes would make the provisions clear and no doubt is left as to how the relationship between the certificated landlord and his excluded tenant should be brought to a final conclusion either under the earlier scheme or under the later one and such landlord will exercise his choice but within a limited period.

41. In view of the conclusions reached above, we are unable to accept the other reasoning or conclusion reached by the learned single Judge in Smt. Krishnabai Shankarrao Bagal v. Sadashiv Shripati Zapate (1968) Special Civil Application No. 1255 of 1966, decided by V.S. Desai J., on November 7, 1968 (Unrep.) and Kondiba Laxman Kadlag v. Smt. Parvati Dagadu Jagtap (1971) Special Civil Application No. 2035 of 1966, decided by Bhasme J., on January 22, 1971 (Unrep.). Those judgments stand overruled. We, however, agree with the conclusion reached by the learned single Judge in the case of Antajl Ramchandra v. Pandurang (1968) 71 Bom. L.R. 364, and an unreported judgment of another single Judge in Bhalchandra Bajirao Kulkarni v. Shivaji Namgir Gosavi (1970) Special Civil Application No. 34 of 1970, decided by Wagle J., on June 19, 1970 (Unrep.), but for reasons mentioned above.

42. Having considered the legal position in this manner, what we find now is that the original petitioner Shamrao Dattatraya Gosavi is dead pending this writ petition, and his heirs have been brought on record. It is not being disputed treat in the circumstances the added petitioners, who are the legal representatives, will have to prove their own bona fide requirement for personal cultivation before the tenant is displaced from the land. The finding of this petition in favour of Shamrao Gosavi will next automatically enure to the benefit of his heirs. Shri Page for the respondent made a grievance that the respective holdings of the erstwhile landlord Shamrao Gosavi and his tenant, the respondent, have not been properly considered and a clear finding is not given in that behalf. However, in view of the changed circumstances, it is not possible for this Court to finally dispose of this petition as the heirs of Shamrao Gosavi have now to prove their own requirement for bona fide personal cultivation of the agricultural land. the earlier decisions of the three Courts will have to be set aside and the original Section 33B application will have to be restored to the file of the Tahsildar for disposal according to law by treating the legal heirs as the applicants under Section 33B. However, the further hearing will be in accordance with the procedure laid down in the Tenancy Act and in the light of judgment made by us in this case. Though the petition succeeds on the main point of law, because of the subsequent developments in this case, we direct that there shall be no order as to costs.

43. We, therefore, make the rule absolute, subject to the modifications given above.


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