1996 Supreme(Guj) 220

Gujarat High Court
Judgename :A.N.Divecha
Heirs and Legal Representatives of Dahyabhai Laldas - Appellant
Versus
STATE - Respondent
S.C.A. 4037 of 1989
Decided On : 04/30/1996

Headnote:Tenancy & Land Laws - Constitution of India, 1950 - Art. 226 - Cancellation of N.A. permission - Ground that Collector was not moved to fix premium amount & extension of time limit for completion of construction was not sought - Fixation of premium was the duty of the officer concerned to fix the same and for his lethargy & negligence petitioner could not be penalised - Petitioner could not also apply for extension of time limit for construction as well, because he was waiting for fixation of premium amount and also because in the meanwhile acquisition proceeding had started - That apart condition of time limit in N.A. permission is only directory & breach of the said condition could not by itself invite the penalty of cancellation of permission order of cancellation of N.A. permission is result of non-application of mind - Such order can not be sustained - Set aside & matter remanded to Collector with direction to fix the premium amount keeping in view the acquisition proceeding of a position of land.

       Important Point : Petitioner can not be penalised for failure of Collector on his part to fix premium amount for conversion of disputed land from new tenure to old tenure.

       Respondent No. 2 in his order at Annexure F to this petition has found fault with the deceased not to have moved the Collector at Gandhinagar for fixing the premium amount or not to have applied for extension of the time-limit prescribed for completion of the construction work by the order at Annexure A to this petition. By the order at Annexure B to this petition, the matter was referred to the Collector at Gandhinagar for fixation of the premium amount for conversion of the disputed land from new tenure to old tenure. It was the duty of that officer to fix the premium amount as expeditiously as possible. There was no reason for him to sit tight over it. It was not necessary for the deceased to have reminded the Collector at Gandhinagar to discharge his duty or to perform his function in that regard. For negligence on the part of the Collector at Gandhinagar the petitioner could not have been penalised. To do so would tantamount to putting premium on lethargy and negligence on the part of the Collector at Gandhinagar. It cannot simply be permitted to be done. The deceased was certainly not at fault for lethargy and negligence on the part of the Collector at Gandhinagar. The reasoning on that account given by respondent No. 2 in his impugned order at Annexure F to this petition passes comprehension. It shows total lack of application of mind on his part.

       So far as omission on the part of the deceased in not applying for extension of the time-limit for completion of the construction work pursuant to the N. A. permission order at Annexure A to this petition is concerned, the deceased could not have been faulted with. The reason therefor is quite simple. He was awaiting the decision of the Collector at Gandhinagar for fixation of the premium amount for conversion of the disputed land from new tenure to old tenure. Besides, the acquisition notification at Annexure C to this petition had come to be issued. In view of the acquisition proceeding, he would naturally not raise any construction and would wait for fixation of the premium amount by the concerned authority. The deceased was justified in waiting for initiation of actions for breach of that condition in the N.A. permission order at Annexure A to this petition and to have set out the necessary fact-situation in that proceeding. In his reply at Annexure E to the show-cause notice at Annexure D to this petition, the deceased has in no uncertain terms stated that he could not carry on the construction work on that account. It was therefore not necessary for him to have applied for extension of the time-limit.

       Besides, fixation of the time-limit for the purpose of completion of the construction work pursuant to the order at Annexure A to this petition was a directory condition and not a mandatory condition. The N.A. permission could not have been cancelled if the deceased could not have completed the construction work within the stipulated time-limit on account of certain circumstances beyond his control like non-availability of construction material in whatever form for a reasonably long period. In that case, the authority might have been required to extend the time-limit on being satisfied about the genuineness of the ground for its extension. In that view of the matter, omission on the part of the deceased in making an application for extension of the time-limit for completion of the construction work can be said to be a mere technical breach not warranting any serious or severe action of cancellation of the N.A. permission. Respondent No. 2 appears to have remained oblivious to this aspect of the matter. The impugned order at Annexure F to this petition as affirmed in revision by the order at Annexure G to this petition cannot therefore be sustained in law on the ground of non-application of mind on the part of its author.

       [Paras 6, 7 & 8]