JUDGMENT : B.M. Trivedi, J. 1. The petitioners, claiming to be the legal heirs of the deceased tenant Parshottam Kashibhai Patel, have challenged the order dated 21.4.1995 passed by the Gujarat Revenue Tribunal (hereinafter referred to as the "GRT") in Revision Application No. TEN-BA-314/93, whereby the Tribunal while allowing the said Revision Application filed by the deceased respondent No. 1 Chandulal Bhogilal Shah had set aside the order dated 7.2.1991 passed by the Additional Mamlatdar and ALT in Tenancy Case No. 1075/88. 2. As per the case of the petitioners, the deceased respondent Chandulal Bhogilal Shah was the owner of the land bearing Survey No. 991 admeasuring 8 acres 8 gunthas situated at Village Vanadara, Taluka Dabhoi, District Vadodara. The said land was cultivated by one Parshottam Kashibhai Patel as the tenant. The said Parshottam Kashibhai Patel happened to be the uncle of the petitioner Nos. 1 and 2 and brother of the petitioner Nos. 3, 4, and 5. It is further case of the petitioners that the certificate under Section 88C of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Tenancy Act") was issued in favour of the said respondent Chandulal Bhogilal Shah by the Mamlatdar, Dabhoi, as a result thereof the land in question was exempted from the applicability of Sections 32 to 32R of the Tenancy Act. The said Chandulal Shah thereafter terminated the tenancy of the tenant Parshottam Kashibhai Patel after issuing notice, for his bona fide requirement and personal cultivation, as required under Section 32T(3) of the said Act. The possession of the land was taken back by the said respondent Chandulal Shah on 16.11.1976 from the tenant Parshottam Kashibhai Patel, pursuant to the order passed by the High Court in Special Civil Application No. 556 of 1971. The said Parshottam Kashibhai Patel expired on 24.4.1983. The present petitioners, claiming to be the legal heirs of the said Parshottam Kashibhai Patel filed an application under Sections 37 and 39 of the Tenancy Act for restoration of possession on the ground that the respondent Chandulal Shah had failed to cultivate the land personally as required under Section 37. The Mamlatdar and ALT, Vaghodiya, after appreciating the evidence on record allowed the said application of the petitioners vide the order dated 7.2.1991 (Annexure-A). The Mamlatdar and ALT, Vaghodiya, after appreciating the evidence on record allowed the said application of the petitioners vide the order dated 7.2.1991 (Annexure-A). Being aggrieved by the said order, the respondent had preferred the appeal before the Assistant Collector, Dabhoi under Section 74 of the Tenancy Act, who vide the order dated 6.3.1993 dismissed the said appeal. The respondent, therefore, had challenged the said order before the GRT by filing the Revision Application, which came to be allowed vide the impugned judgment and order. Hence, the present petition has been filed by the aggrieved petitioners. 3. The learned Counsel Mr. A.J. Patel for the petitioners submitted that the petitioners being the nephews and brothers of the deceased tenant Parshottam Kashibhai Patel were his legal heirs, and therefore, they were entitled to make application under Section 37 read with Section 39 of the Tenancy Act for restoration of the possession, the respondent owner having failed to cultivate the land personally. In this regard, he has pressed into service various provisions of the Tenancy Act, more particularly Section 37 and Section 40, and the "Will" allegedly executed by the deceased Parshottam Kashibhai Patel to submit that the petitioners had right to file such application for restoration of the possession of the land from the respondent Chandulal Shah, after the death of the tenant Parshottam Kashibhai Patel. He also submitted that the Mamlatdar and the Assistant Collector had properly appreciated the evidence on record and recorded the findings that the respondent had ceased to cultivate the land personally, and therefore, the Tribunal should not have disturbed the said findings. According to him, the Tribunal had committed error in misinterpreting the judgment of the Supreme Court to hold that the petitioners being not the direct descendants of the deceased tenant, they were not entitled to file the application under Section 39 of the Tenancy Act. Mr. Patel has also relied upon the decision of this Court in case of Raj Madavsang Gulabsang Vs. Parmar Ranchhodbhai, reported in 1976 GLR 689 , to submit that the Tribunal had no jurisdiction to re-appreciate the entire evidence in the Revision Application filed under Section 76(1) of the said Act. 4. However, Mr. Mr. Patel has also relied upon the decision of this Court in case of Raj Madavsang Gulabsang Vs. Parmar Ranchhodbhai, reported in 1976 GLR 689 , to submit that the Tribunal had no jurisdiction to re-appreciate the entire evidence in the Revision Application filed under Section 76(1) of the said Act. 4. However, Mr. P.J. Bhatt, learned Counsel appearing for the legal heirs of the deceased respondent No. 1 submitted that the application filed by the petitioners under Section 37read with Section 39 of the Tenancy Act before the Mamlatdar was thoroughly misconceived, inasmuch as the petitioners could not be said to be the legal heirs merely on the basis of the so-called "Will" executed by the deceased tenant. Supporting the findings recorded by the Tribunal, he submitted that the right to apply under the statute for recovery of possession of the land could not be said to be a property right, and therefore, even if it is believed that the deceased Parshottambhai had executed such "Will", he could not have bequeathed the right to apply under the Tenancy Act in favour of the petitioners. 5. In order to appreciate the rival contentions raised by the learned Counsels for the parties, it would be beneficial to reproduce the relevant part of Section 88C of the Tenancy Act, which pertains to the exemption from certain provisions to the lands leased by persons with the annual income not exceeding Rs. 1,500/-. 6. Section 88C(1) of the Tenancy Act reads as under:- "88C. Exemption from certain provisions to lands leased by persons with the annual income not exceeding Rs. 1,500.- (1) Save as otherwise provided by sections 33-A, 33-Band 33C, nothing in sections 32 to 32-R (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 person including the rent of such land does not exceed Rs. 1,500: Provided that the provisions of this subsection shall not apply to any person who holds such lands as a permanent tenant or who has leased such land on permanent tenancy to any other person." 7. It is not disputed that the respondent deceased Chandulal, the owner of the land in question was issued the certificate under Section 88C, which certificate was sought to be challenged by the tenant Parshottam Kashibhai Patel by filing SCA No. 556 of 1971. It is not disputed that the respondent deceased Chandulal, the owner of the land in question was issued the certificate under Section 88C, which certificate was sought to be challenged by the tenant Parshottam Kashibhai Patel by filing SCA No. 556 of 1971. This Court vide the order dated 12.8.1976 had dismissed the said petition rejecting the contention for cancellation of the said certificate issued in favour of the said Chandulal. As a result thereof, the said land remained exempted from the applicability of Section 32 to 32R of the said Act. 8. It is also not disputed that the said landlord having terminated the tenancy after issuing the notice to the tenant Parshottam Kashibhai Patel, the possession of the land in question was restored to the landlord under Section 32T of the said Act in November 1976. It appears that thereafter the said Parshottam Kashibhai Patel expired on 24.4.1983 and the present petitioners, claiming to be his legal heirs filed the application under Section 37 read with Section 39 of the said Act. 9. Now, Section 37 provides, inter alia, that if after the landlord takes the possession of the land after termination of the tenancy under Section 31 or Section 32T, he fails to use it for any of the purposes specified in the notice within one year from the date on which he took possession or ceased to use for the said purpose within 12 years from the date on which he took such possession, the landlord has to forthwith restore the possession of the land to the tenant, whose tenancy was terminated by him. Section 37(1A) provides, inter alia, that if the Mamlatdar, suo motu or an application from any person interested in such land, has reason to believe that the landlord had failed to use the land for the purposes specified in the notice given to the tenant under Section 32T, the Mamlatdar after issuing notice to the landlord may declare after holding an inquiry that the landlord shall not be entitled to retain the possession of the land. 10. 10. In the instant case, the petitioners resorting to the said provisions under Section 37had made an application, seeking restoration of the possession, and the Mamlatdar after holding inquiry as contemplated under Section 37(1A) had straightaway directed the respondent Chandulal to hand over the possession of the land in question to the present petitioners as the legal heirs of the deceased Parshottam Kashibhai Patel. In this regard, it is pertinent to note that the Mamlatdar in the inquiry under Section 37(1A) has powers to declare that the landlord shall not be entitled to retain the possession of the land, however, he could not have directed the respondent landlord to hand over the possession. As per Sub-section (1B) of Section 37, after the declaration is made under Sub-section (1A), the landlord was required to offer in writing to the tenant whose tenancy was terminated to give possession of the land on the same terms and conditions on which the tenancy was held before its termination. If within three months of the receipt of such offer, the tenant accepts such offer, the landlord has to restore the possession and if the tenant refuses to accept the tenancy, the land would vest in State Government free from all encumbrances. In the instant case, no such procedure as contemplated in Sub-section (1B) was followed. The Mamlatdar after holding inquiry under Section 37(1A) ignored the procedure as contained in Sub-section (1B), and straightaway directed the respondent landlord to hand over the possession. The said order of the Mamlatdar as confirmed by the Assistant Collector, being in utter disregard of the provisions contained in Sub-section (1B) of Section37 could not be sustained. The question of making application under Section 39 for recovery of the possession by the tenant would arise only when the tenant accepts the offer of the landlord and the landlord fails to comply with the provisions of Section 37 of the said Act within a reasonable time. The original tenant Parshottambhai had already expired when the Mamlatdar held inquiry under Section 37(1A). The original tenant Parshottambhai had already expired when the Mamlatdar held inquiry under Section 37(1A). Even after the said inquiry, if the Mamlatdar came to the conclusion that the said landlord was not entitled to retain possession, he was required to see that the procedure under Sub-section (1B) was followed, as in some cases it might happen that the tenant may not accept the offer of the landlord and the land might vest in the State Government as per Sub-section (1B). 11. The submission of Mr. Patel that in view of Section 40 of the said Act, the petitioners being the legal heirs of the deceased Parshottam Kashibhai Patel, by virtue of the "Will" executed by him, were entitled to make application under Section 37 read with Section 39of the said Act for recovery of the possession of the land in question, also cannot be accepted. Apart from the fact that the statutory right to make application for restoration of the possession of the land could not be said to be a property right as held by the Supreme Court in the case of Swami Motor Transports (P) Ltd. and Anr. Vs. Sri Sankaraswamigal Mutt and Anr., reported in AIR 1963 SC 864 , and therefore, the deceased could not have executed the "Will" in respect of such right in respect of the land in question in favour of the petitioners, it was a matter of serious dispute as to whether the petitioners could be said to be the legal heirs of the deceased Parshottam Kashibhai Patel. Even if it is assumed that the petitioners were the legal heirs of the deceased Parshottam Kashibhai Patel then also the deceased did not have any right to bequeath the right to make application in favour of the petitioners. From the copy of the "Will" also it appears that no such right, as such has given to the petitioners in the "Will". 12. The petitioners could not have resorted to Section 40 of the said Act also, as the said provision operates in a different field with regard to continuation of the tenancy after the death of the tenant. From the copy of the "Will" also it appears that no such right, as such has given to the petitioners in the "Will". 12. The petitioners could not have resorted to Section 40 of the said Act also, as the said provision operates in a different field with regard to continuation of the tenancy after the death of the tenant. In the instant case, the tenancy of the tenant Parshottam Kashibhai Patel having already been terminated under Section 32T of the said Act during his life time, which termination had continued till his death, the question of continuation of the tenancy by the legal heirs as contemplated in Section 40 would not arise. The Court, therefore, is of the opinion that the very application filed by the petitioners before the Mamlatdar under Section 37 seeking restoration of the possession from the deceased respondent Chandulal was thoroughly misconceived on facts as well as on law, and that the Tribunal had rightly held that the petitioners were not entitled to make such application. 13. In that view of the matter, the petition being devoid of merits is dismissed. Rule is discharged. No order as to costs.