S.B. Majmudar, J.
1. This special civil application has been preferred to a larger Beach for resolving the controversy arising out of conflicting views expressed by M.P. Thakkar, J. in Bhailalbhai Gonrdbhai v. Bai Nandubha wdlo Gulabsing Mohansing reported in 18 G.L.R. 901 and N.H. Bhatt, J. in Nalbiibhai Gandabhai v. Bhagubhai Ichubhai reported in 21 G.L.R. 366, regarding the interpretation of Section 32(1B) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Tenancy Act').
2. M.P. Thakkar, J. has taken the view that the provisions of this section enure for the benefit of heirs of a deceased tenant and that such heirs can apply under Section 32(IB) for necessary reliefs; while N.H. Bhatt, J. has taken a contrary view.
3. This petition earlier reached final hearing before B.K. Mehta, J. who was not inclined to agree with the view expressed by N.H. Bhatt, J. and hence, B.K. Mehta, J. directed the matter to be placed before the learned Chief Justice for referring it to a larger Bench and that is how this matter has been placed before us for final decision.
4. It may be stated at this stage that the present proceedings have been referred to us for deciding the only question whether benefit of Section 32(1B) of the Tenancy Act is available to the heirs of a deceased tenant dying subsequent to dispossession.
5. In order to appreciate the nature of the controversy posed for our decision, it is necessary to have a look at certain relevant facts leading to the present proceedings. The father of the present petitioner Motibhai was originally the tenant of agricultural land bearing survey No. 2773/1 admeasuring acre-1 gunthas 17 situated at village Ode in Anand taluka of Kheda district. The petitioner applied under Section 32(1B) of the Tenancy Act to the Mamlatdar and A.L.T. Anand for being granted necessary relief under the said provision on the ground that his father was the tenant of the land on 15-6-1955 and had continued in possession of the said land thereafter and that by mutation entry No. 10874 sanctioned on 18-11-1956, the said piece of land was mutated from the name of the petitioner's father to that of the respondent-landlord. The petitioner's father died somewhere in 1966. The contention of the petitioner in his application under Section 32(1B) of the Tenancy Act which was made before the Maralatdar and A.L.T. on December 22, 1967 was that the petitioner was entitled to get purchase price fixed for the land in question as respondent-landlord had illegally dispossessed the tenant and the land was in possession of the respondent and consequently all the requirements of Section 32(1B) were compiled with in the case.
6. The respondent-landlord appeared in the said proceedings before the Marnlaidar and A.L.T., Anand. Evidence of the parties was recorded by the Mamlatdar and A.L.T, Anand and he held that the petitioner was a tenant of the land. On detailed consideration of the evidence--oral as well as documentary--adduced before him, he granted necessary reliefs to the petitioner under Section 32(1B) of the Tenancy Act. The Mamlatdar and A.L.T. found that the petitioner's father was dispossessed between two terminal dates prescribed under Section 32(1B) of the Tenancy Act viz. 15-5-1955 and 3-3-1973. He further found, with regard to entry No. 9915 in village form. No. VII-XII, that the name of the petitioner's father was entered as a tenant and it was mutated by entry No. 10874 dated 5-11-1955, He also found from she two agreements of S.Y. 2006 dated 8-7-1950 that the father of the petitioner was cultivating the land till that year. He also found that the petitioner's father was on the land on the basis of the writing of S.Y. 2010 corresponding to year 1954, wherein the respondent had acknowledged and admitted that the father of the petitioner was cultivating the land and attending to the mango trees standing thereon The A L.T., therefore, held that the petitioner was entitled to be declared a deemed purchaser of the land and he granted the necessary relief under Section 32(IB) of the Tenancy Act. The Mamlatdar also held that the petitioner's father was in possession of the land in question as a lawful tenant thereof on 15-6-1955, the appointed day, and that the respondent-landlord had illegally dispossessed him. Consequently, he directed that possession of the land be restored to the petitioner. The aforesaid order of the Mamlatdar was carried in appeal by the respondent to the District Deputy Collector, Anand. His appeal being tenancy appeal No. 202 of 1974 was dismissed by the Deputy Collector who confirmed the order of the Mamiatdar. However, in a revision application preferred by the respondent before the Gujarat Revenue Tribunal being tenancy revision application No. 620 of 3975, the Tribunal reversed the order of the Deputy Collector as confirming the order of the Mamlatdar, and took the view that there was no evidence on record to warrant a conclusion that the respondent-landlord was in possession on or before 3-3-1973 that is-the specified day as mentioned in Section 32(IB). The Tribunal held that since that was the crucial day before which dispossession should have taken place in order to invoke Section 32(IB) the order of the Deputy Collector confirming the order of the Mamlatdar was required to be reversed. Accordingly, the Gujarat Revenue Tribunal by its order dated 21st July 1976 allowed the revision application and set aside the orders of the Deputy Collector, Anand and Mamlatdar and A.L.T. Anand.
7. The aforesaid order of the Gujarat Revenue Tribunal resulted in the present special civil application at the instance of the petitioner, heir of the original tenant. As stated above by us, this petition earlier reached final hearing before B.K. Mehta, J. on 19th March 1980. The learned Judge, after hearing both the sides, took the view that the Tribunal was in error in not considering the relevant material evidence before deciding to reverse the order of the Mamlatdal as confirmed by the Deputy Collector. The learned Judge further found that it had clearly emerged from the record of the case that dispossession of the petitioner's father from the said land had taken place in 1972-73 as in that year, the land stood in the name of the respondent in the record of rights form VII, VILA and XII and the method of cultivation mentioned was method No. 1 which means cultivation by the landlord himself personally. B.K. Mehta, J. therefore, held that the Tribunal's finding to the contrary was required to be reversed, meaning thereby, that both the requirements of Section 32(IB) were complied with in the present case namely that the original tenant was in possession of the said land on the appointed day, that is-15-6-1955 and his heir-the present petitioner-was dispossessed except in accordance with law from the land in question before the specified day that is-3-3- 1973. But when B.K. Mehta, J, came to the aforesaid conclusion of his, an additional contention was raised on behalf of the respondent before him viz. that N.H Bhatt, J. had taken a view in special civil application No. 556 of 1976 that the benefit of Section 32(IB) was available only to the tenants concerned and not to their heirs and consequently, the proceedings initiated at the instance of the petitioner were incompetent. B.K. Mehta, J. was prima facie not inclined to agree with the said view of N.H. Bhatt, J. in the aforesaid decision which is now reported in 21, G.L.R. 366, and hence, he directed the reference of this matter to a larger Bench, as we have already stated above.
8. The aforesaid facts show that we are concerned with a short question as to whether heirs of a tenant who was in possession of the land on 15-6-1955 and who died there after and when possession of such land was obtained by the landlord illegally prior to 3-3-1973 can get necessary reliefs under Section 32(IB) or whether the remedy available under the said section is confined to the tenants personally and do not enure for the benefit of their heir.
9. Before adverting to the relevant authorities on the point and the rival views expressed by N.H. Bhatt, J and M.P. Thakkar, J. in 21 G.L.R. 366 and 18 G.L.R. 901 respectively, it will be profitable to have a look at certain relevant provisions of the Tenancy Act. Section 32 occurs in part (II) of Chapter III having the caption 'Purchase of land by tenants'. In the said part (II), the main Section 32(1) provides for purchase by every tenant of the land held by him in his capacity as the deemed purchaser on 1-4-1957 known as tillers' day. Subject to certain exceptions as provided by other succeeding sections, every tenant is deemed to have purchased land held by him from his landlord free from all encumbrances on the tillers' day. Thereafter follows Sub-section (1A) of Section 32 which was inserted by Bombay Act 63 of 1958. The said provision provides for a situation where the tenant who would otherwise become the deemed purchaser from the tillers' day, may have lost his possession of the land in question before the tillers' day. In such an eventuality, a provision is made in Sub-section (1A) to the effect that if such a tenant makes an application for possession of the land under Sub-section (1) of Section 29 within the period specified in that subsection, then such a tenant would be a deemed purchaser on the day on which the final order allowing his application is passed. It is in this background of the provisions that Section 32(IB) has to be considered.
10. Section 32(1B) with which we are directly concerned in the present proceedings was inserted by Gujarat Act 5 of 1973 and it reads as under:
Where, a tenant who was in possession of land, on the appointed day and who, on account of his being dispossessed of such land or any part thereof by the landlord at any time before the specified date otherwise than in the manner provided in Section 29 or any other provision of this Act, is not in possession of such land or any part thereof and such land or part thereof is in the possession of the landlord or his successor-in-interest on the said date and such land or part thereof is not put to a non-agricultural use on or before the said date, than the Mamlatdar shall, notwithstanding anything contained in the said Section 29 or any other provision of this Act either suo motu or on an application of the tenant made within the prescribed period, hold an inquiry and direct that such land or, as the case may be part there of shall be taken from the possession of the landlord, or, as the case may be, his successor in interest, and shall be restored, to the tenant; and thereafter, the provisions of this section and Sections 32A to 32R (both inclusive) shall so far as they may be applicable, apply thereto, subject to the modification that the tenant shall be deemed to have purchased such land or part thereof on the date on; which such land or, as the case may be, part thereof is restored to him.
11. It is thus clear that under Section 32(IB), two terminal points are earmarked. The concerned tenant must be in possession of the land in question on the appointed day. Appointed day is denned by Section 2(2B) of the Tenancy Act as 15-6-1955, and such a tenant should have been dispossessed contrary to the provisions of the Tenancy Act by the landlord before the specified date, which is defined by Section 2(16C) as the date of coming into force of the Gujarat Amendment Act, 1972, that is-3-3-1973. If such a tenant is dispossessed during the aforesaid period, then a right is given to apply for restoration of possession of the land and the said right is given notwithstanding anything contained in Section 29 or any other provisions of the Act. Even suo motu, Mamlatdar can exercise his power under Section 32(IB) once the relevant facts are brought to his notice. If it is established that the concerned tenant was dispossessed illegally by the landlord during the relevant period as provided by Section 32(IB), the Mamlatdar can restore possession back to him and on such restoration, the tenant can be considered to be a deemed purchaser and provisions of Sections 32A to 32R would apply to such a purchase. Thus, it is very clear that a tenant who was in possession on the appointed day and who lost possession of the land held by him illegally, has been given legal right to apply for restoration of possession to the Mamlatdar as per the aforesaid provision. But he must show that he was dispossessed prior to the specified date. A tenant who was in possession of the land in question on the appointed day, that is 15-6-1955 and who lost possession of the land before the specified date, on account of an illegal act of (he landlord cannot be said to have ceased to be a tenant of the land. His tenancy rights subsisted but possession of the land was illegally lost. Section 32(IB) caters to the need of such a situation and seeks to restore the possession of such land to the tenant. It is further pertinent to note that from the operation of Section 32(IB) on account of non-obstinate clause, Section 29 is excluded. Under Section 29(1) of the Tenancy Act, a tenant who has lost possession of the land in question is given a right to apply for restoration of possession within a period of two years from the date such right of restoration accrues to him. If the tenant who has lost possession has not applied within two years as required by Section 29(1), it can be said that he has lost his remedy to be restored back the possession. Section 32(IB) cuts across this scheme of Section 29(1) and states that notwithstanding anything contained in Section 29, such a tenant can get back possession even though he may not have applied for restoration of possession under Section 29(1) within a period of two years of his dispossession. Thus, a special remedy is given to such a tenant by the Legislature by enacting Section 32(IB). This is clearly a remedial measure and a beneficial provision. Implicit in the wordings of Section 32(IB) is the legislative intent that right of and remedy for such a tenant who has lost possession illegally enure for his benefit, Section 29 notwithstanding and is such a subsisting right which is intended to be made more effective by restoration of possession of the land to the concerned tenant as per Section 32(IB). It is in the background of the aforesaid setting of Section 32(IB) that we have to answer the question posed for our consideration.
12. If such a tenant whose case is governed by Section 32(IB) dies, what is to happen to his tenancy rights which the legislation itself assumes to be subsisting? Even though actual possession of the land may have been illegally taken away by the landlord from such a tenant, his tenancy right is not lost. On the contrary, Section 32(IB) postulates subsistence of such a tenancy right. If such a tenant had himself made an application under Section 32(IB) and thereafter he had died pending the proceedings it is not disputed by the respondent that his heirs could have carried on the proceedings and could have got not only restoration of possession but got purchase price fixed. Under these circumstances, will it made any real difference if such a tenant whose case is clearly covered by Section 32(IB) dies before he himself could make an application? Why can his heirs not apply to the Mamiatdar under Section 32(IB) for the benefit of the estate of the tenant which is left by him on his death? We find that the answers to these questions are clearly indicated by the legislature itself by enacting Section 40 of the Tenancy Act. The said section as substituted by Bombay Act 13 of 1956 reads as under:
Where a tenant (other than a permanent tenant) dies, the landlord shall be deemed 5 to have continued the tenancy on the same terms and conditions on which such tenant was holding it at the time of his death, to such heir or heirs of the deceased tenant as may be willing to continue the tenancy.
The aforesaid Section 40 clearly mentions that once a tenant dies, the landlord is deemed to have continued the tenancy on the same terms and conditions to such heir or heirs of the deceased tenant as may be willing to continue the tenancy. Thus, statutory tenancy of the deceased tenant enures for the benefits of his willing heirs. Section 40 operates on its own and automatically. Consequently the tenancy rights of the deceased tenant by operation of Section 40 are available to his willing heirs and they step in the shoes of the deceased tenant. Once Section 40(1) is attracted on the death of a tenant and once his tenacy right gets vested in his willing heirs, there is no reason why such willing heirs cannot take the benefit of Section 32(IB) and cannot apply under the said provision for necessary reliefs of restoration of possession and fixation of purchase price. It is pertinent to note that Section 40(1) deals with the question regarding continuance of tenancy which a tenant was holding at the time of his death and it is this tenancy which he was holding and which is made available by the Legislature to his willing heirs elmost automatically and wherein the landlord is out of picture. There is no hiatus between the death of the tenant and the transmission of his tenancy rights to his willing heirs. Consequently even though the deceased tenant whose case is covered by Section 3?(IB) may have died before he himself could make an application under see 32(1B), there appears no rhyme or reason to contemplate a situation where his heirs who automatically step in his shoes by the statutory operation of Section 40(1), cannot maintain an application for restoration of possession of the land from the landlord as they are statutorily clothed with all rights of the deceased tenant as per the combined operation of Section 32(1B) and Section 40(1) of the Tenancy Act. The aforesaid view of ours is clearly borne out by the relevant provisions of the Tenancy Act to which we have referred.
13. We may now refer to the judgments of M.P. Thakkar, and N.H. Bhatt, J. which have resulted in the present reference.
14. M.P. Thakkar, J. in the case of Bhailalbhai (supra) was concerned with a case in which provision of Section 32(1 B) came up for consideration. A contention was raised en behalf of the landlord in that case that if a tenant was not violently dispossessed of the land and had been persuaded to surrender his tenancy rights (of course contrary to the provisions of the Tenancy Act) he could not get the benefit of Section 32(1B). M.P. Thakkar, J. took the view in the aforesaid decision that the expression 'dispossession' as employed in Section 32(1B) includes all sorts of dispossession contrary to the provisions of the Tenancy Act and it was not necessary to equate 'dispossession' with 'violent dispossession'. It was enough for the section to operate if the tenant was in possession on the appointed day and if he was not in possession on the specified date. Having taken this view on the main controversy posed before him for consideration, M.P. Thakkar, J. in the last part of his judgment addressed himself to the consideration of the alternative submission made by the learned Counsel for the respondent-landlord before him to the effect that the petitioner in that case was the son of the deceased-tenant and consequently he was not entitled to claim benefit of Section 32(IB). The said contention on behalf of the respondent-landlord was not entertained by M.P. Thakkar, J. for the first time in a writ petition as such a contention was not raised in the courts below. Thereafter on assumption that such a contention was open, a view expressed by M.P. Thakkar, J. that expression 'tenant' as employed in Section 32(1B) must be construed as being applicable to the original tenant as also to his successor-in-interest. The aforesaid reasoning of the learned Judge implicitly places reliance on Section 40 of the Tenancy Act by which these statutory tenancy rights of the deceased tenant are automatically transmitted to his willing heirs.
15. The question which has directly arisen before us as raised before N.H. Bhatt, J. in the case of Naihubhai (supra). N.H. Bhatt, J. took the view that the observations of M.P. Thakkar, J. in the aforesaid decision in 18, G.L.R. 901 were obiter dicta. Thereafter, the learned Judge on consideration of Section 32(IB) read with Section 40, took the view that Section 40(1) of the Tenancy Act required for its operation a further fact that the concerned tenant who dies must be in actual possession of the land is question at the relevant time and it was in that view of the matter that the learned Judge came to the conclusion that Section 32(1 B) cannot be invoked by the heirs of a deceased tenant. In para 7 of the report, the learned Judge while referring to Section 40 stated that even a casual glance at the text of that section shows that the legislature intended to extend the benefit of continued possession of a tenant to his heirs on the demise of the tenant. Now, with great respect to the learned Judge, it is not possible to agree with the said view as expressed by him, for the simple reason that under Section 40(1), once a tenant (sic), the landlord is deemed to have continued the tenancy on the same terms and conditions on which such tenant was holding it at the time of his death. This means that it is the tenancy light of the concerned tenant who dies and which he was holding at the time of his death which is contemplated by Section 40(1) for being transmitted onwards automatically to his willing heirs. Now, the tenancy right nowhere requires for its existence actual possession of the land held by such a tenant, The word 'tenancy' has been defined in Section 2(17) to mean relationship of landlord and tenant. For existence of relationship of landlord and tenant, it is not a pie-requisite that such land must be in actual possession of the concerned tenant. N.H. Bhatt, J. with respect to him, assumed that Section 40(1) requires for its operation holding of land by the concerned tenant at the time of his death; while in fact, Section 40(1) requires holding of tenancy right by such tenant at the time of his death and not holding of land. Once it was assumed by the learned Judge that holding of land by the concerned tenant at the time of his death, was a pre-requisite of Section 40(1) he had of necessity to resort to the definition of the phrase 'to hold the land.' The learned Judge, therefore, resorted to Section 3(ii) of the Bombay Land. Revenue Cede which defines the phrase 'to hold land' to mean 'to be lawfully in possession of land'. Once it is found that the very starting premises as assumed by the learned Judge for application of Section 40(1) was erroneous, the conclusion is inevitable that the subsequent part of his reasoning also would fall through. As we have already indicated above, Section 40(1) of the of the Tenancy Act nowhere requires that the concerned tenant must be holding the land in question at the time of his death, It is also necessary to refer to the definition of 'tenant' in Section 2(18) which means a person who holds land on lease and includes-
(a) a person who is deemed to be a tenant under Section 4;
(b) a person who is a protected tenant; and
(c) a person who is a permanent tenant,
16. Section 2(6C) defines 'to hold land' as under:
to hold land' as an owner or tenant shall for the purposes of Clause (2D) of ibis Section and Sections 32A, 32B, 34 and 35, mean to be lawfully in actual possession of land as an owner or tenant, as the case may be.
A mere look at the said provision shows that actual possession of the land is contemplated by the definition of the phrase 'to I old land'. Only for the purpose of Sections 32A, 32B, 34 and 35 as well as Clause (2D)of Section 2 of the Tenancy Act. This means that for the purposes of other sections like Section 32(IB) as well Section 40, actual possession of the land is not a sine qua non before a person is said to have held land. N. H. Bhatt, J. was also conscious of this limited operation of Section 2(6C) and, therefore, he took the view that those words and expressions used in the Tenancy Act but not defined shall have the meaning assigned to them in the Bombay Land Revenue Code, 1879 and that is how, the learned Judge resorted to the definition of the phrase 'to hold land' as per Section 3 of the Land Revenue Code. It is true that the words 'to hold land' in Section 40 have not been defined by the Tenancy Act. But Section 2(6C) of the Tenancy Act in terms mentions that for certain enumerated sections therein the words 'to hold land' must mean to be lawfully in actual possession of land. The said definition necessarily implies that for other sections, before a person can be said to be holding the land, it is not strictly necessary that he should be in actual possession of the land in question. Once Section 32(1B) and Section 40(1) are outside the sweep of Section 2(6C) 'to be in actual possession ceases to be an essential pre-requisite for the decision of the question whether a person holds the land as contemplated by Section 32(1B) and/or Section 40(1) of the Tenancy Act. We have earlier mentioned that for operation of Section 40(1), the concerned tenant who dies is not required to hold the land at the time of his death. What is required for operation of the said section is that he should have held tenancy rights at the time of his death. But even assuming that the concept of holding land may be implied in Section 40(1), once the said provision is read with the definition of Section 2(6C), it is clear that the provision of Section 40 does not contain a legislative mandate that the concerned tenant must be lawfully in actual possession of the land at the time of his death. There arises no occasion to refer to Section 3 of the Land Revenue Code as the term 'to hold land' has been defined by the Tenancy Act itself by Section 2(6C). Hence Section 2(21) cannot be pressed in service at all. Thus, looked at from any angle, it is clear that Section 40(1) of the Tenancy Act would operate in all cases where a statutory tenant having tenancy rights dies leaving behind him his willing heirs who are prepared to continue to be tenants of the lands in question. With great respect to the learned Judge, we are not inclined to agree with his reasoning that Section 40(1) requires for its operation the establishment of the fact that the deceased tenant at the relevant time of his death was in actual possession of the land. Once this assumption is found to be erroneous, the result is obvious that the heirs of the deceased tenant would ipso facto be entitled to inherit the tenancy rights of their predecessor-in-interest and Section 40(1) would squarely apply to such a case. Under these circumstances, the main plank of the decision of N.H. Bhatt, J. in Naihubftai's case (supra) is found to be unsustainable. N. H. Bhatt, J. in para 9 of his judgment also based his decision on the further ground as follows:
If the legislature wanted to confer a benefit on the tenant or his heirs, it was normally and naturally expected that wherever the word 'tenant occurred, it would have been mentioned along with the tenant or his successor-in-interest or heirs' also simultaneously. That having not been done, it is (in sic) enacting Section 32(1B), the Legislature had before its eyes only the original tenant do not his successor-in-interest. If it be argued that because of Section 40 it was not necessary to add the words or his successor-in-interest,' after the word 'tenant' wherever it occurred in Section 32(1B), the above interpretation of Section 40 negatives that claim.
Even this ground is found unsustainable once a conclusion is reached that Section 40(1) would apply almost automatically the moment such a tenant dies. Even the learned Judge himself has noted while putting forward this ground in support of his conclusion, that because in his view Section 40 was not applicable, the absence of the words 'or his successor' after the word 'tenant' made a significant difference, so far as interpretation of Section 32(IB) was concerned. As we have shown above, Section 40(1) will squarely apply to such cases where tenant who are dispossessed after the appointed day illegally by their landlords die survived by their willing heirs who are prepared to succeed to their tenancy rights. As Section 40(1) applies to such cases, there was no need to use the words 'or his successor in interest' after the word 'tenant' in Section 32(1 B). It is, therefore, clear that the view expressed by N. H. Bhatt, J. with respect to him, is not borne out from the interpretation of Section 32(1B) read with Section 40(1). It is necessary to keep in view the fact that Section 32(1B) has been brought on the statute book years after the operation of the tillers' day legislation when the working of those provisions revealed certain lacuna which deserved to be remedied with a view to further the beneficial intention of the Legislature. Section 32(1B) was therefore enacted to plug such loophole and lacuna and with a view to provide a further remedy in cases where the tenants who were holding lands on the appointed day lost their possession illegally at the hands of the landlord and who for no fault of theirs were likely to lose the benefit of the tillers' day legislation. Such a beneficial provision has to be so read in the light of Section 40 as to make it fully effective and not to render it redundant, nugatory, or circumscribed, once the concerned tenant dies without himself being able to apply under Section 32(1B), even though leaving behind him willing heirs, ready to continue the tenancy.
17. It is further pertinent to note in this connection that certain other provisions of the Tenancy Act like Sections 29, 37 and 39 show that for the purpose of subsistence of tenancy rights it is not necessary always that the tenant concerned must be in actual possession of the land. Remedies are provided by the legislature enabling such tenants having subsisting tenancy rights to get back possession of the concerned lands by following the procedure provided by these sections. In that view of the matter also, it cannot be said that the concerned tenant at the time of his death must be in actual possession of the land before the provision of Section 40 can be pressed in service by his willing heirs for being endowded with the statutory tenancy rights or their predecessors-in-title.
18. We are, therefore, of the opinion that the decision of N.H. Bhatt, J. in Nathubhai's case (supra) with great respect to him, does not lay down the correct law. On the contrary, the decision of M.P. Thakkar, J. in the case of Bhailalbhai's case (supra) lays down the correct position in law so far as Sections 32(IB) is concerned. It is true that M.P. Thakkar, J. made the observations after he took th-3 view that it was not strictly necessary to entertain the contention of the respondent landlord. Still, however, the view expressed by him on the beneficial provision of Section 32(IB) is quite acceptable and is founi by us to be fully borne out by the scheme of the Tenancy Act.
19. We may at this stage refer to a recent judgment of the Division Bench of the Bombay High Court in the case of Pandharinath Sakharam Chavan v. Bhagwan Ramu Kate : AIR1980Bom203 . A similar question arose before the Division Bench of the Bombay High Court on a reference made by a learned Single Judge (Pendse, J.) who did not find himself in agreement with the view expressed by another learned Single Judge (Chandurkar, J.) who had taken the view that provisions of Section 32(1B) were not available to the heirs of the deceased tenant. While deciding the reference, the Division Bench speaking through Naik, J. held that.
Section 32(1B) is based on the legislative fiction of the continued subsistence of the tenant's tenancy notwithstanding his being out of possession beyond the period within which he could have claimed restoration thereof. Section 2y is expressly made inapplicable to facilitate such statutory fiction. The wording of Section 32(1B) referring to him as 'tenant', and applying Section 32A to 32-R to him on restoration of possession itself implies legislative declaration of such continued subsistency. The expression 'the tenant was holding the tenancy at the time of his death' referred to in Section 40 does not mean that the tenant should be in possession of the land at the time of his death, for the simple reason that the provisions also apply to a tenant who has been dispossessed. What is meant by a 'tenant holding the tenant at the time of his death' is the right to be restored to possession by reason of is being a tenant who has been dispossessed unlawfully. Surely, if the tenant could be restored lo possession notwithstanding the limitation provided by Section 29 there is no reason why any mere specific words were required to ensure the rarre advantage to the heirs of a deceased tenant. Once the provisions of Section 2y have to be ignored, it would appear that the right of a tenant is a subsisting right and since it is a subsisting right, there is no difficulty in the heirs of the tenant being able to press into their service the provisions of Section 40 and take the advantage of Section 32(1B)'. With respect, we fully concur with the aforesaid view expressed by the Division Bench of the Bombay High Court. It is in consonance with the scheme of the Tenancy Act. To take any other view is to whittle down this beneficial provision of Section 32(18) and to make it unworkable beyond a point. It is also necessary to keep in view one additional aspect of the matter, in view of the recent judgment of the Supreme Court in the case of Damadilal Anr. Ors. v. Parasram and Ors. : AIR1976SC2229 , the statutory tenancies under various Rent Control legislations are held to be heritable in the same way as the contractual tenancies. Following the aforesaid decision, a Full Bench of this Court in Babubhai alias Jayantilal Kalyanji and Ors. v. Shah Bharatkumar Raiilal and Ors. reported in 21 G.L.R. 101, held that in view of the decision of the Supreme Court, there does not appear a well recognised distinction between a contractual tenancy and a statutory tenancy governed by the Rent Control Legislation and the difference is erased to such an extent that no apparent distinction is visible between the two.
20. Thus, it is now well settled position in law that contractual tenancy and statutory tenancy for the purpose of their heritability do not represent different classes and on the contrary stand en the same footing. Hence even by law of in heritance and succession, such a statutory tenancy can be inherited by the heirs of the deceased tenant. Even apart from this, as we have shown earlier, Section 40 of the Tenancy Act in clear terms provides for transmission of such statutory tenancy to willing heirs of the deceased tenant.
21. As a result of the aforesaid discussion, the conclusion is inevitable that petitioner who is the heir of the deceased tenant is entitled to make an application under Section 32(1B) and to carry it to its logical conclusion. B.K. Mehta, J. has found on facts that other requirements of Section 32(1B) have been complied with. Once we come to the conclusion that benefit of Section 32(1B) is also available to the heirs of the deceased tenant, the conclusion is inevitable that the Mamlatdar and Agricultural Lands Tribunal had rightly held in favour of the petitioner and the Gujarat Revenue Tribunal was not justified in reversing the decision of the Mamlatdar and the Agricultural Lands Tribunal as confirmed by the Deputy Collector.
22. In the result, this special civil application is allowed and the rule issued (sic) it is made absolute by quashing and setting aside the decision of the Gujarat Revenue Tribunal. The decision of the Mamlatdar and Agricultural Lands Tribunal, Anand as confirmed by the Deputy Collector in appeal is restored. In the facts and circumstances of the case, there will be no order as to costs.