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2010 DIGILAW 1074 (BOM)

Hareshkumar Kanhayalal v. Eknath Chendu Mahajan

2010-07-30

S.V.GANGAPURWALA

body2010
JUDGMENT:- The present petition raises an issue regarding applicability of the concept of 'child in the womb' vis-a-vis the provisions of Bombay Tenancy and Agricultural Lands Act, 1948 (here-in-after referred as 'Act, 1948'). 2. The Petitioner has initiated proceedings invoking section 25 of the Act, 1948, demanding the possession of the agricultural lands by filing an application bearing tenancy case No. 10 of 1981. The Tahasildar, Raver, dismissed the said application of the petitioner vide its judgment and order dated 23/ 06/1983, the petitioner aggrieved by the said order, preferred tenancy appeal bearing No. 52 of 1983, before Sub Divisional Officer, Jalgaon Division, Jalgaon. The said appeal was allowed by the sub Divisional Officer, Jalgaon Division, Jalgaon, vide judgment and order dated 06/09/1986. The respondents aggrieved by the same preferred revision application No.186 of 1986 before the Maharashtra Revenue Tribunal, Bombay. The Maharashtra Revenue Tribunal vide its judgment and order dated 27/07/1990 allowed the said revision. The petitioner being aggrieved by the same has approached this Court. 3. The petitioner in the tenancy application contended that he is the land lord of survey No. 8/4 admeasuring 4 Acres 20 Gunthas, situated at Borakheda (Sim), Tq. Raver and the respondents are the tenants. According to the petitioner, vide notice dated 30/01/1979, the applicant demanded the arrears of rent and determined the tenancy rights of the respondents. Yet, the respondents failed to pay the rent, therefore, applicant is entitled for possession. 4. The respondents contended that the petitioner is not the land lord on the tillers day i.e. on 01/04/1957 he was not born. The father of the respondent namely Chindu Sandu became the deemed purchaser. 5. It is not disputed that the petitioner was not born on the tillers day i.e. on 01/04/1957. According to the petitioner his date of birth is 17/10/1957. The petitioner became major on 17/10/1975. 6. Shri. Nagargoje, the learned counsel for the petitioner canvassed before me following propositions:- i] The petitioner was born on 17/10/1957. He was conceived on tillers day i.e. 01/04/1957, and hence on the tillers day he was deemed to be a member of the joint Hindu family or co-parcener. The partition was affected on 04/03/1958 and in view of provisions of Tenancy Act 1943 including section 32-F and its proviso, the petitioner would be land lord for all purposes. He was conceived on tillers day i.e. 01/04/1957, and hence on the tillers day he was deemed to be a member of the joint Hindu family or co-parcener. The partition was affected on 04/03/1958 and in view of provisions of Tenancy Act 1943 including section 32-F and its proviso, the petitioner would be land lord for all purposes. ii] The partition is proved, as the same is by registered instrument and the said partition is by metes and bounds. iii] The respondent had committed default, the notice was rightly given and the tenancy was terminated. The respondent did not pay the total amount, and as such petitioner is entitled for possession. To substantiate said contention relied on the judgment of the Apex Court in case of '"Dhansingh Ramkrishna chaudhuri and others Vs. Laxminarayan Ramkrishan & another, reported in AIR 1974 Supreme Court, 1613". 7. The arguments of Shri, Gholap, learned counsel for the respondents can be culled out as under:- i] The Bombay Tenancy and Agricultural Lands Act, 1948 does not admit the concept of child in the womb. To buttress his submission, relied on the dictum of the Apex Court in case of "Chettim Vetti Ahmed and another v s. Taluk Land Board and others, reported in AIR 1979 SC 1573 " and judgment of this Court in the case of "Laxmanrao Madhavrao Vs. State of Maharashtra and others, reported in AIR 1979 Bombay 276". ii] On the tillers day the respondents have become deemed purchaser and there is no person either a minor, widow, or a person under any mental or physical disability for postponement of date of purchase, as contemplated under Section 32(f) of the Tenancy Act, 1948. iii] As per the Indian Majority Act, 1875, more particularly Section 3, a person shall be deemed to have attained his majority when he shall have completed his age of 18 years and not before, and as per Section 4 in computing the age of majority the day on which he was born is to be excluded. As such for being a minor within the meaning of Tenancy Act, 1948 a person should have been born on 01/04/1957. iv] The partition deed is not proved. The partition deed was not produced before the Tahasildar and for the first time it was produced before the appellate authority, the same was not proved. The petitioner cannot take advantage of tile same. iv] The partition deed is not proved. The partition deed was not produced before the Tahasildar and for the first time it was produced before the appellate authority, the same was not proved. The petitioner cannot take advantage of tile same. v] The tenant had deposited the rent as demanded, and as such no default can be attributed to the respondents. 8. I have heard the learned counsels for the parties at length and with their assistance I have gone through the record. Before adverting to the legal submissions canvassed by the respective learned counsels for the parties, it would be appropriate to reproduce the relevant provisions of the Tenancy Act. 1948 relied by them. "Section 2(7-A):- [7(A)"joint family" means an undivided Hindu family, and in the case of other persons a group of unit the members of which are by custom join in estate or residence:] (11) "person" includes [a joint] [* *] family;" "[Section 14 :-(1) Notwithstanding any law, agreement or usage, or the decree or order of a Court, the tenancy of any land shall not be terminated - (a) unless the tenant- (i) has failed to pay the rent for any revenue year, before the 31st day of May thereof; (ii) has done any act which is destructive or permanently injurious to the land; (iii) has sub-divided, sub-let or assigned the land in contravention of section 27: (iv) has failed to cultivate it personally; or (v) has used such land for a purpose other than agriculture or allied pursuits; and (b) un less the landlord has given three months notice in writing informing the tenant of his decision to terminate the tenancy and the ground for such termination, and within that period the tenant has failed to remedy the breach for which the tenancy is liable to be terminated. (2) Nothing in sub-section (1) shall apply to the tenancy of any land held by a permanent tenant unless by the conditions of such tenancy the tenancy is liable to be terminated on any of the grounds mentioned in the said sub-section.]" "Section :- 25 [(1)] Where any tenancy of any land held by any tenant is terminated for non-payment of rent and the landlord files any proceeding to eject the tenant, the Mamlatdar shall call upon the tenant to tender to the landlord the rent in arrears together with the cost of the proceeding within [three months] from the date of order, and if the tenant complies with such order, the Mamlatdar shall, in lieu of making an order for ejectment, pass an order directing that the tenancy had not been terminated and thereupon the tenant shall hold the land as if the tenancy had not been terminated: [Provided that if the Mamlatdar is satisfied that in consequence of total or partial failure of crops or similar calamity the tenant has been unable to pay the rent due, the Mamlatdar may for reasons to be recorded in writing, direct that the arrears of rent together with the costs of the proceedings if awarded, shall be paid within one year from the date of the order and that if before the expiry of the said period the tenant fails to pay the said arrears of rent and costs,the tenancy shall be deemed to be terminated and the tenant shall be liable to be evicted.) [(2) Noting in this Section] shall apply to any tenant whose tenancy in terminated for non-payment of rent if he has failed for any three years to pay rent[and the landlord has given intimation to the tenant to that effect within a period of three months on each default.]" "Section 32:- Tenants deemed to have purchased land on tillers day [(1)] On the first day of April, 1957 (hereinafter referred to as" the tillers day") every tenant shall, [subject to the other provisions of this section and the provisions of this section and the provisions of] the next succeeding sections, be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon on the said day, the land held by him as tenant, if, - (a) such tenant is a permanent tenant thereof and cultivates land personally; (b) such tenant is not a permanent tenant but cultivates the land leased personally; and (i) the landlord has not given notice of termination of his tenancy under Section 31; or (ii) notice has been given under section 31, but the landlord has not applied to the Mamlatdar on or before the 31st day of March, 1957 under section 29 for obtaining possession of the land; [or] [(iii) the landlord has not terminated this tenancy on any of the grounds specified in section 14, or has so terminated the tenancy but has not applied to [the Mamlatdar or before the 31st day of March, 1957 under Section 29 for obtaining possession of the land:]" "Provided that if an application made by the landlord under section 29 for obtaining possession of the land has been rejected by the Mamlatdar or by the Collector in appeal or in revision by the [Maharashtra Revenue Tribunal] under the provisions of this Act, the tenant shall be deemed to have purchased the land on the date on which the final order of rejection is passed. The date on which the final order of rejection is passed is hereinafter referred to as "the postpone date": [(1A) (a)o------- (b)-------- [(1B)--------- [(2)-------- (a)--------- (b)-------- [(3)---------- (a)------ (b)------ [(4)------ (a)------• (b)----- (i)---- (ii)--- "Section 32F : -(1) Notwithstanding anything contained in the preceding sections, (a) where the landlord is a minor, or a widow, or a person subject to any mental or physical disability [ * * * * *] the tenant shall have the right to purchase such land under Section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31 [and for enabling the tenant to terminate the tenancy under section 31]: [Provided that where a person of such category is a member of ajoint family. the provisions of this sub-section shall not apply if at least one member of the joint family is outside the categories mentioned in this subsection un less before the 31st day of March, 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated. having regard to the area.assessment.c1assification and value of the land, in the same proportion as the share of that person in the entire joint family in the same proportion as the share of that person in the entire joint family property and not in a larger proportion.] (b) where the tenant is a minor, or a widow, or a person subject to any mental or physical disability or a serving member of the armed forces, then subject to the provisions of clause (a), the right to purchase land under section 32 may be exercised,-- (i) by the minor within one year from the date on which he attains majority; (ii) by the successor-in-title of the widow within one year from the date on which her interest in the land ceases to exist; (iii) within one year from the date on which the mental or physical disability of the tenant ceases to exist: (iv) within one year from the date on which the tenant ceases to be a serving member of the armed forces: [Provided that where a person of such category is member of a joint family the provisions of this sub-section shall not apply if at lease one member of the joint family is outside the categories mentioned in this subsection unless before the 31st day of March, 1958 the share of such person in the joint family has been separated by metes a on nd bounds 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.] [(1A) A tenant desirous of exercising the right conferred on him under sub-section (i) shall give an intimation in that behalf to the landlord and the Tribunal in the prescribed manner within the period specified in that sub-section:] [Provided that. if a tenant holding land from a landlord (who was a minor and has attained majority before the commencement of the Tenancy and Agricultural Lands Laws (Amendment) Act. 1969 has not given intimation as required by this sub-section but being in possession of the land on such commencement is desirous of exercising the right conferred upon him under sub-section (1). if a tenant holding land from a landlord (who was a minor and has attained majority before the commencement of the Tenancy and Agricultural Lands Laws (Amendment) Act. 1969 has not given intimation as required by this sub-section but being in possession of the land on such commencement is desirous of exercising the right conferred upon him under sub-section (1). he may give such intimation within a period of two years from the commencement of the Act.] (2) the provisions of section 32 to 32-E (both inclusive) and sections 32-G to 32-R (both inclusive) shall, so far as may be applicable, apply to such purchase." "Section 3 of Indian Maiority Act :- Age of maiority of present domiciles in India.- Subject as aforesaid, [every minor of whose person or property. or both a guardian, other than a guardian for a suit within the meaning of Chapter XXXI of the Code of Civil Procedure, has been or shall be appointed or by declared by any court of Justice before the minor has attained the age of eighteen years. and every minor of whose property the superintendences has been or shall be assumed by any Court of Wards before the minor has attained that age] shall, notwithstanding anything contained in the Indian Succession Act or in any other enactment, be deemed to have attained his majority when he shall have completed his age of twenty-one years and not before. Subject as aforesaid, every other person domiciled in [India] shall be deemed to have attained his majority when he shall have completed his age of eighteen years and not before. " "Section No.4 of Indian Majority Act:- Age of Majority how computed :- In computing, the age of any person, the day on which he was born is to be included as a whole day, and he shall be deemed to have attained majority, if he falls within the first paragraph of section 3, at the beginning of the twenty-first anniversary of that day, and if he falls within the second paragraph of section 3, at the beginning of the eighteenth anniversary of that day." 9. The moot question involved in the present matter is whether the concept of child in the womb as is made applicable to the provisions of Hindu Succession Act can be applied for the purpose of Tenancy Act. The moot question involved in the present matter is whether the concept of child in the womb as is made applicable to the provisions of Hindu Succession Act can be applied for the purpose of Tenancy Act. The Apex Court in case of "Chettiam Vettil Ahmed and another Vs. Taluk Land Board and others, reported in AIR 1979 SC 1573 " held in para Nos.48 and 49 that :- "It has been argued by Mr. Warriyar that a child in the womb on January, 1, 1970 is a member of the family for purpose of Section 82(1) (c) of the Act and the contrary view taken by the High Court on the basis of its decision in Balakrishna Kurup Vs. State of Kerala. 1977 Ker LT 421 : ( AIR 1977 Ker 13 ) is incorrect and should be set aside." "Clause (c) of sub-section (1) of the Act provides that in the case of a family consisting of more than five members, the ceiling area of the land shall be ten standard acres increased by one standard acre for such member in excess of five, subject to the limit prescribed by the clause. The expression 'family' has been defined in clause (14) of Section 2 as follows :"'family' means husband, wife and their unmarried minor children or such of them as exist". And the expression 'minor has been defined by the clause (36A) to mean 'a person who has not attained the age of eighteen years'. So two postulates are necessary for obtaining the benefit of the increase of one standard acre for such member of the family in excess of five, namely, that the member should be in existence, and it should be possible to ascertain that he had not attained the age of eighteen years on the appointed date. Both these conditions cannot be said to exist in the case of a child en ventre sa mere and it will not therefore be regarded as a member of the family for purpose of Section. We are aware that a child en ventre sa mere has been regarded in some legal systems as a person 'in being' for the purpose of acquisition of property by the child itself, particularly in regard to gifts, but Section 82 of the Act with which we are concerned does not deal with any such contingency or benefit to the unborn child. The view taken by the High Court in Balkrishana Karup case is therefore correct and as it has been rightly followed in the appeal before us, the appeal has no merit and is dismissed". So also this Court in case of "Laxmanrao Madhavrao Vs. State of Maharashtra and others, reported in AIR 1979 Bombay 276" considering the provisions of ceiling Act in para Nos. 8 to 11 held thus: "Thirdly, the benefit of Section 6 is intended not for the family but for the family unit. as defined under Section 2(11-A) read with Explanation to Section 4(1). It reads as follows :"A' family unit means, (a) a person and his spouses (or more than one spouse) and their minor sons and minor unmarried daughters; if any (b) where any spouse is dead, the surviving spouse or spouses, and the minor sons and minor unmarried daughters; or (c) where the spouses are dead, the minor sons and minor unmarried daughters of such deceased spouses." "The 'family' under Section 2(11) includes Hindujoint family and other group or unit, members of which are joint in the estate or possession or residence by custom or usage. In ordinary course, this definition includes anyone's parents, married sons, unmarried major daughters and several others. It consists of earning members as also minors, aged or invalid dependants. The family as such does not own any property excepting possibly in the case of Hindu join family. Blood relationship mainly brings them together. This and the customary notions enable all of them to reside together and enjoy the property and earnings of all or anyone of the jointly, though such bonds are now placed under severance strain in the wake of rapidly changing economic structure". "The 'family unit, though scion of the family of every kind, is still an artificial concept. It is expressly limited to a few, i.e., spouses and their minor children impliedly indicating legislative intent to exclude everyone else coming within the sweep of wide concept of the 'family'. Section 2(20) of the original Act, defining the words 'member of the family' including every conceivable dependant. is now deleted. This amendment also reveals the same legislative intent. It is expressly limited to a few, i.e., spouses and their minor children impliedly indicating legislative intent to exclude everyone else coming within the sweep of wide concept of the 'family'. Section 2(20) of the original Act, defining the words 'member of the family' including every conceivable dependant. is now deleted. This amendment also reveals the same legislative intent. This must necessarily exclude even the legal fiction of Hindu Law, of limited application, assuming the son to have become the member of the joint family from the date of conception, before his actual birth and acquired interest in the joint family property for the purposes of challenging the alienations and partitions effected thereafter. All this militates against the 'family unit' admitting by implication, any child in the womb before its actual birth being treated as its member." "This contention of Mr. Savant that unborn child also is as good as minor is devoid of any merit. The person remains a minor, till he reaches the age of 18. But age begins to run from the date of birth and nor that of conception." Though the aforesaid judgment are under the ceiling Act the interpretation of the terms child in the womb and minor are relevant. The Apex Court and Division Bench of this Court have succinctly laid down that a child en ventre sa mere cannot be regarded as a member of joint family. The Ceiling Act is also a Social Welfare Legislation. External aid can be had for interpretation of the same terms used in present Act with which I am concerned. 10. The Tenancy Act is a Social welfare Legislation and therefor, while construing its provisions regard must be had to its avowed purpose, legislative intent and ultimate object of the Act i.e. to do social justice to the tiller of the soil. The tenancy Act is an agrarian reform law whose avowed object is to confer full proprietorship on tilling tenant. 11. The Tenancy Act, 1948 is a beneficial legislation for the tenants. The tillers day i.e. 01/04/1957 is a golden day for the cultivating tenants, wherein as per Section 32 of the Tenancy Act, 1948 they became deemed purchasers from the land lords free from all encumbrances, subsisting there on the said date. A duty is cast on the Agricultural lands tribunal to fix the purchase price. The tillers day i.e. 01/04/1957 is a golden day for the cultivating tenants, wherein as per Section 32 of the Tenancy Act, 1948 they became deemed purchasers from the land lords free from all encumbrances, subsisting there on the said date. A duty is cast on the Agricultural lands tribunal to fix the purchase price. The said right (If the tenant is postponed only in case the landlord is minor. or widow. or a person subject to any mental or physical disability. It is only in these cases the right of the tenant to purchase the land is postponed. In all other cases, the tenant would become deemed purchaser on the tillers day. 12. Reading Section 32-F in its totality, it is manifest that the person has to be in existence on the tillers day. The conjoint reading of section 2 (7-A) section 32, 32-F and proviso to Section 32-F, would necessarily lead to inference that the concept of 'child in the womb' or the 'child though not born being conceived' is 'alien' to the Tenancy Act. The Tenancy Act, is a self contained code, if the concept of child in the womb is accepted and made applicable to the Tenancy Act, the same would lead to an anomalous position, it would also tantamount to legislating, the same is not permissible. 13. It is the rule, now firmly established that the intention of the legislature must be found by reading the statute as a whole. Every clause of a statute is required to be construed with reference to the context and other clauses of the Act, so as as far as possible, to make a consistent enactment of the whole statute. To ascertain the meaning of a clause in a statute one must look at the whole statute, at what precedes and at what succeeds and not merely at the clause itself. 14. In the present statute Section 2(7A) defines joint family which includes undivided Hindu family. The concept of child in the womb has got limited application to the extent of a partition of ajoint Hindu family property. The concept of child in the womb is not within the realm of the Tenancy Act. 14. In the present statute Section 2(7A) defines joint family which includes undivided Hindu family. The concept of child in the womb has got limited application to the extent of a partition of ajoint Hindu family property. The concept of child in the womb is not within the realm of the Tenancy Act. 1948 for the reason that the Tenancy Act has given a right to the tenant of becoming a deemed purchaser on the tillers day and it is only in circumstances detailed in section 32-F, the right to purchase is postponed i.e. in case the landlord is a minor, widow, or under mental or physical disability. Apart from the said provision there is no provision in the statute which impedes the right of the tenant of being deemed purchaser on the tillers day. The plain and literal construction of Section 32-F is unambiguous. In the present case, the petitioner on the tillers day was not a minor or a widow or a person subject to any mental or physical disability. Minor is defined under the Indian Majority Act i.e. a person who has not attained the age of 18 years and is in cases where superintendence is assumed by the Court of wards. 21 years. Section 4 a said Act lays down that while computing the age day on which he was born is to be excluded. Thus even viewing the term minor as per Indian Majority Act. a person should have been born on tillers day then only his age can be computed from the said date. When the provision is clear and unambiguous then literal construction of the said section will have to be taken and if it is assumed that the child in the womb is also to be interpreted as part of section 32-F, then that would be doing violence to the phraseology of said section. The same would not be permissible. As such, the joint family contemplated under the Tenancy Act, 1948 would not embrace a concept of child in the womb. On this count it will have to he held that the petitioner is not the landlord and had no right or authority to issue the notice for recovery of rent or for determination of tenancy. As such, the joint family contemplated under the Tenancy Act, 1948 would not embrace a concept of child in the womb. On this count it will have to he held that the petitioner is not the landlord and had no right or authority to issue the notice for recovery of rent or for determination of tenancy. The reading of the provisions conjointly, the only interpretation that can be drawn is that a 'child in the womb' cannot be considered to be a member of a joint family for the purpose of Tenancy Act, 1948. 15. Even otherwise the petitioner has failed to prove that there was a partition by metes and bounds, prior to 31st day of March, 1958, as required under the proviso to section 32-F. The Apex Court in the case of "Balkrishna Somnath Vs. Sada Devram Koli, reported in AIR 1977 SC 894 " considering the provisions of Section 32F(1) (A) and its proviso has held thus:- The proviso clearly states that the disabled person's share 'in the joint family' must have been separated by 'metes and bounds. Separation from the joint family means separation from all the joint family assets. Otherwise the sharer remains partly joint and, to that extent is not separate from the joint family. Notional division or division in status also may not be enough because the Act insists on separation 'by metes and bounds'. Ordinarily 'metes and bounds' are appropriate to real property. meaning, as the phrase does, 'the boundary lines of land with their terminal points and angles'. In the context, the thrust of the expression is that the division must be more than notional but actual concrete, clearly demarcated. The ineptness and involved structure and some ambiguity notwithstanding, the sense of the sentence is clear. The share of a person in the joint family, plainly understood, means his share in all the joint family properties and not merely in the real estate part. What is more the section uses the expressions 'the share of such person in the joint family' ,'the share of such person in the land', 'the share of that person in the entire joint family property'. Thus it is reasonable to hold that when the expression used is 'the share of such person in the joint family', it is not confined to the share in the land only. Thus it is reasonable to hold that when the expression used is 'the share of such person in the joint family', it is not confined to the share in the land only. It really means his share 'in the entire joint family property'. Moreover, the statutory exercise expected of the Mamlatdar by the Proviso involves an enquiry into the share of the disabled person in the land, and its value, the share of that person in the entire joint family property the proportion that the allotment of the land bears to his share in the entire joint family property with a view to see that there is no unfair manoeuvre to defeat the scheme of the Act. The necessary postulates is that there is a division in the entire joint family property. Therefore, the imperative condition for the operation of the Proviso is that there should be a total separation and so far as a disabled member is concerned it must cover all the joint family properties." The Apex Court in the aforesaid judgment has laid down that statutory duty is cast on the Mamlatdar under Section 32-F of Tenancy Act, 1948 to inquire into the share of the deceased person in the land and its value so also the share of that person in the entire joint family property. 16. In the present case a registered partition deed is produced on record by the petitioner before the appellate forum. It was 'lot produced before the Tahasildar. No evidence is led by the petitioner on the said partition-deed, the same is not proved as is required under the law. No reasons are given for not producing the partition deed before the first court i.e. the Tahasildar, where an opportunity was given for leading evidence. Apart from the partition the other condition of the proviso to section 32-F are also required to be satisfied i.e. the share of such person in the land separated is in the same proportion as share of that person in the entire joint family property. No such evidence is also produced on record. Even before the Tahasildar specific ground was raised by the tenant that the petitioner is not landlord, even issue to that effect was framed, still no such document of partition was produced before the Tahasildar. No such evidence is also produced on record. Even before the Tahasildar specific ground was raised by the tenant that the petitioner is not landlord, even issue to that effect was framed, still no such document of partition was produced before the Tahasildar. The petitioner had not examined himself personally but a power of attorney holder was examined who had no knowledge of facts of partition as admitted by him. In the crossexamination he had specifically stated that he does not have any knowledge about the partition. In such circumstances, even the partition cannot be said to have been proved. On this count also the petition fails. 17. The next contention is regarding validity of the notice. It is already held by me that petitioner was not a landlord and the tenant has become deemed purchaser on the tillers day, as such, it is not necessary to go into the legality of the issuance of notice in respect of default of payment of rent. 18. In the light of the above, the writ petition fails and same is dismissed. Rule is discharged. However. there shall be no order as to cost. Petition dismissed.