B.N. DESHMUKH, C.J.:---This petition has been referred to the Division Bench by a learned Single Judge of this Court as there is conflict of view between the judgment of this Court regarding the correct meaning and interpretation of the provisions of Clause (a) of sub-section (5) of section 33-B 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 However, that application does not survive and has been withdrawn by Mr.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 :

3. 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 facilities the various argument raised where the original landlord is primarily relevant for determining the issue.

4. The petitioner who is the original landlord, is the owner of Survey No. 1207/3 measuring 4 acres 16 gunthas assessed at Rs. 21.745 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 Mahalkaris decision was given on 14th January, 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 14-7-1963 permitting termination of tenancy and awarding half the land to the landlord and directing him to resume half the land form the tenant.

5. 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 88-C of 31st May, 1958. Thereafter the Tenancy Act was further amended by the introduction of Chapter II-A with effect from 9th February, 1961. Under the chapter a certificated landlord is permitted to terminate the tenancy of the excluded tenant in the manner provided by section 33-B and in the circumstances detailed therein. This chapter, in section 33-C also laid down the consequences if an application under section 33-B was not made by the certificated landlord. Accordingly, the petitioner landlord gave a notice under section 33-B on 26th December, 1961, and filed an application on 23rd March, 1962 under sub-section (3) of section 33-B. It is this application which is being heard by us now.

6. The application under section 33-B which we are now deciding will be referred to hereinafter as "Section 33-B Application" and the earlier application will be referred to as "Section 31 Application". The section 33-B application was decided by the Tahsildar on 29-9-1966 when he rejected it on the ground that the section 31 application had already resulted in a final order on 14th July, 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 33-B(5)(a). On that conclusion the Tahsildar held that the section 33-B 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.

7. Being aggrieved by this order the landlord filed an appeal before the Special Duty Collector. By his order dated 28th January,