J.B. Mehta, J.
1. The three petitioners are tenants since about 25 years on the land in question and they are using it for the non-agricultural purpose as tenants of respondent No. 3 occupant. The petitioners have filed this petition challenging the two orders at Annexures a and b, dated December 5, 1969, and November 19, 1971 respectively, refusing permission for N.A. use on the ground that the tenants could not apply and seeking to evict the petitioners from the land in question.
2. The short facts which have given rise to this petition are as under:
The land in question is S. No. 1168/C/1A and City Survey No. 6790/1/A admeasuring about 1789 sq. Yds. And is situated in the limits of the Kapadvanj town within the municipal limits. The land is situate on the station road in a developed locality of the Kapadvanj town for which the town planning scheme has been prepared and even a master plan has been prepared. Surrounding this land there are saw-mills, hotel, factories, business premises, high schools, residential houses etc. The structures in question of the three petitioners are kutcha structures or bamboo sheds. Originally the predecessor of respondent No. 3 one Ramjibhai Tribhovandas had obtained N.A. permission by the letter, dated February 1, 1937 with effect from August 1, 1936. The occupant having constructed these constructions after N.A. permission they were let to these three petitioners since more than 25 years. Petitioner No. 1 has his own saw mill and has about 23 persons residing in the two rooms therein. Petitioner No. 2 is also residing with his family in two rooms. Petitioner No. 3 has also his residence in one room. It is the case of the petitioners that from time to time the rent of these premises has been increased by the occupant. Permission originally obtained for five years from August 1, 1936, has from time to time been extended and under the various orders mentioned in the affidavit of the authorities, these structures ware regularised by the same by extending period from time to time on the occupants application. Extension was obtained by respondent No. 3 occupant till July 31, 1963. It is the case of the petitioners that thereafter flouting all the provisions of the rent Act respondent No. 3 occupant with ulterior motive to get the petitioners evicted from this land refused to make an application. The Collector passed two orders, dated June 23, 1967 and November 13, 1967 by which he directed removal of structures regularising them only for the period upto July 31, 1967. The petitioners tenants applied on December 19, 1967, stating that they were tenants of respondent No. 3 occupant and if the structures were thus summarily removed they would be rendered homeless and jobless. Therefore, the Collector gave a stay order and meanwhile obtained a report. Thereupon, the petitioners-tenants filed an appeal to the state Government against these orders of the Collector, dated June 23, 1967 and November 13, 1967 and the Government was pleased to set aside in revision both these orders and remand the matters for hearing the concerned tenants. In spite of this specific remand order, the Collector thereafter took the view that as respondent No. 3 occupant was not prepared to apply, the tenants could not have any such permission for N.A. use under Section 65 and, therefore, unauthorised structures must be removed by the occupant. These are the impugned orders-one by the Collector at Annex. A, dated December 5, 1969 and thereafter of the state Government at Annex. B, dated November 19, 1971, which hold that the tenants could not apply for N.A. Permission under Section 65. The state Government also substituted the eviction order. Of-course, under the impugned orders N.A. Use was regularised upto July 31, 1972, but as permission has been refused and the petitioners are sought to be evicted, the present writ petition is filed by the petitioners-tenants. Even though Mr. Shah has offered much wider challenge as to the vires of the provisions in question, this petition can be disposed of by proper interpretation of the relevant scheme under which the tenants seek to obtain N.A. permission, so far as the facts of the present case are concerned. Therefore, it is not necessary to go into the resolution of the wider question of vires of the impugned provisions.
3. Section 3(16) defines the term occupant as a holder in Actual possession of unalienated land, other than, a tenant, provided that where the holder in actual possession is tenant, the landlord or superior landlord, as the case may be, shall be deemed to be the occupant. The occupancy under the code by specific provision in Section 73 is, subject to the provisions contained in Section 56 and to any conditions lawfully Annexed to the tenure, save as otherwise prescribed by law, deemed to be both heritable and transferable property. Therefore, the lease which was granted by the occupant respondent No. 3 after securing N.A. Permission for the N.A. Use so that the tenants put the property for N.A. use either of the saw-mill or residential premises was the lawful transfer as contemplated by Section 73. It is also the settled legal position as enunciated in Nathulal v. Phoolchand 1969 (3) S.C.C. 190 that where by statute a property is not transferable without the permission of the authority, an agreement to transfer the property must be deemed subject to the implied condition that the transferor will obtain the sanction of the authority concerned. In the present case, an identical question arises as regards the lawful lease of the occupancy where such lawful lease has been created by the occupant for N.A. use and where the relevant statute requires any permission to be obtained by the occupant I so that such N.A. use can be made or continued by the concerned tenants, it would be an implied obligation of the occupant to make necessary application for N.A. purpose. The occupant cannot evict these tenants so long as they were ready and willing to pay rent in view of the statutory protection afforded by the Bombay rent Act. Therefore, the landlord occupant could not by adopting a subterfuge of not making the requisite application for permission for N.A. use seek to deprive the tenants of their lawful protection of the rent Act by adopting this clever ruse and, in any event, the authorities who are justly administering this land would refuse to be a party to such a clever ruse adopted by the ingenious landlord. The authorities would be making all efforts to see that no such dishonesty succeeds.
4. If in this background the relevant scheme is interpreted, it is obvious that the statutory authority had completely abdicated the judicial discretion by refusing to consider this application on the sole ground that it was made by the tenants, without considering the relevant fact that the occupant with ulterior purposes was not prepared to make this application, even though these tenants were on the premises for more than 25 years and were protected from eviction under the rent Act Sections 65 to 67 provide as under:
Section 65. Any occupant of land assessed or held for the purpose of agriculture is entitled by himself, his servants, tenants, agents or other legal representatives, to erect farm-buildings, construct, wells or tanks or make any other improvements thereon for the better cultivation of the land, or its more convenient use for the purpose aforesaid.
But if any occupant wishes to use his holding or any part thereof for any other purpose the Collectors permission shall in the first place be applied for by the occupant. The Collector, on receipt of such application.
(a) shall send to the applicant a written acknowledgment of its receipt and
(b) may, after due inquiry, either grant or refuse the permission applied for: provided that, where the Collector fails to inform the applicant of his decision on the application within a period of three months, the permission applied for shall be deemed to have been granted; such period shall if the Collector sends a written acknowledgment within seven days from the date of receipt of the application, be reckoned from the date of the acknowledgment, but in any other case it shall be reckoned from the date of receipt of the application.
Unless the Collector shall in particular instances otherwise direct, no such application shall be recognised except it be made by the occupant.
When any such land is thus permitted to be used for any purpose unconnected with agriculture it shall be lawful for the Collector, subject to the general order of the state Government to require the payment of a fine in addition to any new assessment which may be leviable under the provisions of Section 48.
66. If any such land be so used without the permission of the Collector being first obtained or before the expiry of the period prescribed by Section 65, the occupant and any tenant, or other persons holding under or through him, shall be liable to be summarily evicted by the Collector from the land so used and from the entire field or survey number of which it may form a part, and the occupant shall also be liable to pay, in addition to the new assessment which may be leviable under the provisions of Section 48 for the period during which the said land has been so used such fine as the Collector, may, subject to the general orders of the state Government direct.
Any tenant of any occupant or any other person holding under or through any occupant who shall without the occupants consent use any such land for any such purpose and thereby render the said occupant liable to the penalties aforesaid shall be responsible to the said occupant in damages.
67. Nothing in the last two proceeding sections shall prevent the granting of the permission aforesaid on such terms or conditions as may be prescribed by the Collector, subject to any rules made in this behalf by the state Government.
5. A bare perusal of Section 65 reveals that the occupant and his tenants, servants, agents and legal representatives are entitled to make use of the land for the purpose of agriculture by erecting farm-buildings, constructing wells or tanks or make any other improvements thereon for the better cultivation of the land or for more convenient use for the agriculture purpose. So far as the relevant provision in Section 65 is concerned, it enacts that when the occupant wishes to use his holding or any part thereof for any other purpose other than the agriculture purpose, the Collectors permission shall in the first place be applied for by the applicant. Then the relevant provision provides a procedure for making an application and for this enquiry and for a deemed grant of permission if the decision is not informed within three months. Then comes the material provision as under-unless the Collector shall in particular instances otherwise direct, no such application shall be recognised except it be made by the occupant. This material provision is to be interpreted in the context of the relevant scheme of Section 65. Section 65 gives right of user of the land for agricultural purpose to the occupant, his tenants, legal representatives etc. That is why when the change is sought to be made of the user for non-agriculture purpose, it has been specifically enacted that, in the first instance, the occupant shall apply for the Collectors permission. This guarded language used by the legislature makes it abundantly clear that what is contemplated is that in the first instance the occupant shall apply for a change of the user from agriculture to non-agriculture user. But where a lawful transfer has been made by the occupant and the tenant also has been lawfully using the land, it is obvious that this provision which requires the occupant to apply in the first instance does not negative the right of the tenant to make the application. Section 73 having recognised such lawful lease, it is obvious that the tenant who is protected under the rent Act would not remain at the mere mercy of the occupant, as the occupant would have the necessary implied obligation to apply for the necessary permission, as long as this lease subsists and the tenant is lawfully protected. That is why the last provision of Section 65 enacts that unless the Collector shall in particular instances otherwise direct, no such application shall be recognised, except it be made by the occupant. The expression recognised in this context would mean entertained. Therefore, normally, the occupant would be required to apply, but if he with ulterior motives, after granting lawful lease, refuses to apply, the authorities are not so helpless to have no discretion when such clever ruse is with ulterior motives adopted by the occupant to get the tenant evicted. The legislature has created a wide and wise judicial discretion by providing this material clause that the Collector may in particular instances otherwise direct to enable him to entertain such an application even when it is not made by the applicant, for obvious reasons as in the present case. Therefore, the true interpretation of the statutory language does not justify the construction put by the learned asstt. Government pleader that the Collector has no jurisdiction whatever to entertain any application except one made by the applicant. What Section 65 contemplates is that the occupant has to apply in the first instance and if the occupant has not made the relevant application it would not ordinarily be entertained. But that itself contemplates that when circumstances exist justifying proper judicial discretion being exercised for entertaining the application made by the lawful tenant as in cases of this type, where the occupant with ulterior motives refuses to abide by his implied obligation to make the protection to see that the 25 years tenant looses his protection, the authorities can surely exercise judicial discretion to entertain even the tenants application. That is why in Section 67 the legislature has left no doubt in this matter and has made the position abundantly clear by in terms enacting that nothing in the last two provisions shall prevent granting of the permission aforesaid on such terms and conditions as may be prescribed by the Collector. This is completely non-obstante clause which leaves the widest discretion to the Collector to grant N.A. Permission in particular cases on such terms and conditions as may be prescribed by him, of-course, subject to any rules made in that behalf by the state Government. Besides, these two relevant provisions which provide for ample discretion of the Collector to entertain such an application even at the instance of the tenant when the occupant willfully refuses to make such an application after granting a lawful lease, we find nothing in the whole scheme which derogates from this statutory discretion. Even Section 66 only provides that if any such land is used without permission of the Collector being first obtained or before the expiry of the period prescribed by Section 65, the occupant and the tenant are liable to summary eviction and the occupant is liable to pay even the additional assessment. Even the later part of Section 66 only indicates that any occupant or tenant or any other person holding under or through an occupant, who shall without the occupants consent use any such land for any such purpose and thereby render the said occupant liable to the penalties aforesaid shall be responsible to the said occupant in damages. Even the later part makes the occupant responsible in damages only when he makes non-agricultural use without the occupants consent. In the present case after N.A. Permission was obtained, this land was let to these petitioners for N.A. Purposes and, therefore, the occupants consent was obvious in his lawful lease. Therefore, Section 66 could never help the learned asstt. Government pleader in urging that there is no discretion in the Collector. In fact, the very width of this liability of penalty of summary eviction on the unfortunate tenant which is enacted in Section 66 makes it in terms clear that such a penalty can be imposed on him only if he has used the land without first obtaining the permission of the Collector. Therefore, the tenant would be liable for this penalty, only if he does not apply. If a tenant applies and if the occupant refuses to cooperate, it is obvious that the tenant is not in default and in such a case the Collector must exercise statutory discretion which is enacted in Section 65 in the later portion and in the widest term by the statutory language of Section 67 so that the tenant is not penalised when he has committed no fault whatever.
6. We also cannot agree with the learned assistant govt. Pleader that there is no statutory discretion under Section 65 and Section 67 and that the authority would have an absolute right to refuse such permission. In Sardar Govindrao v. State of M.P. : 1SCR678 , their lordships have interpreted such statutory discretion in such permission cases by holding that it only enables an authority to make his order to fit the occasion, the kind of order to make being determined by the necessity of the occasion. A passage from maxwell, on the interpretation of statutes, was relied upon as under:
Statutes which authorise persons to do Acts for the benefit of others, or, as it is sometimes said, for the public good or the advancement of justice, have given-rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that they May or shall, if they think fit, or shall have power, or that it shall be lawfull, for them to do such Acts a statute appears to use the language of mere permission, but it has been so often decided as to have become an axiom that in such cases, such expressions May have...to say the least...a compulsory force, and so would seem to be modified by judicial exposition.
Therefore, such enabling provision in such context would make it a power coupled with duty of the authority on whom power is conferred to exercise the power when circumstances exist or necessity of the occasion requires such power to be exercised. In such cases their lordships held that when there are no grounds for not exercising the discretion, the authorities would be bound to exercise the discretion when the relevant circumstances exist and the word may in such a context though apparently discretionary would have to be read as must. The authority would have to pass a reasoned order while exercising such judicial discretion. Therefore, this settled legal position makes it abundantly clear that whenever a statute confers such discretion in fact for the benefit of other persons there is never an absolute discretion. There is always a perspective or guideline laid down for the exercise of this discretion. In the present case, as earlier pointed out, the guidelines are apparent in the statutory scheme of Sections 65 to 67 read with Section 73. In the first instance the occupant has to apply for the N.A. use and that is why application is not to be recognised except when it is made by the occupant. The occupant is primarily responsible under Section 54 read with Section 136(1) for the land revenue assessment. Such tenant would only be secondarily liable under Section 136(2). That is why it is only in those cases where the person who is primarily liable viz., the occupant refuses to apply, and that it would be just in the circumstances to recognise the application of the person lawfully holding the land that the Collector would be bound to exercise statutory discretion in favour of such lawful tenant who is otherwise protected by the law. The land revenue code is a taxation measure and, therefore, the state is primarily concerned with protecting its revenues. The state would never be a party to the clever ruse adopted by the ingenious occupant in such cases and the judicial discretion can be appropriately exercised only by recognising the application of the tenant in such cases when the occupant seeks to adopt such clever ruse to drive out the tenant of 25 years flouting all the protection of the rent Act and refuses to apply for N.A. Permission as per his implicit obligation, with a view to getting assistance of the authority for the purpose. The authority would be always reluctant to help the occupant in such cases and it would be willing to do justice only to the tenant by recognizing such an application in such case, because by recognising such application the revenue would not suffer. More so, this would be a fit case for exercise of the statutory discretion because the occupant had consented and had made application right from 1937 till it was finally extended upto July 1931, 1963, and only thereafter with ulterior motives had refused to apply. Therefore, there was not only occupants consent but there was his implied obligation to apply so long as the tenants were lawfully protected by the rent Act and the authorities were bound to exercise their discretion in recognising this application made by the tenants, in the peculiar circumstances of the case when the occupant refused to apply for ulterior reasons.
7. Besides, in this particular case these authorities had taken this view by exercising just discretion when these petitioners moved the authorities when the occupant initially refused to apply by approaching the Collector as early as on December 19, 1967. The Government even had in the revision application filed by these very tenants set aside the two earlier orders of June 23, 1967, and November 13, 1967, by remanding the matter to the Collector for deciding this matter after hearing the concerned tenants. Therefore, the locus standi of these tenants to make this application where their own occupant refused to apply was already recognised by the state, and it was not open to the Collector to dispose of this application on preliminary point after the remand order. After the remand order, the state Government having directed the Collector under Section 67 to dispose of the application by passing just order, it was obvious that the Collector was to dispose of this application by recognising this application for permission both under Section 65 and under Section 67 by granting application on such terms and conditions as prescribed by him. Even under the impugned order, the authorities have no objection to regularise the whole use upto July 31, 1972. It was only on technical ground that the tenant could not make an application that the impugned orders were passed, even though the authorities came to the conclusion that this was a fit case where the construction must be regularised by granting permission upto July 31, 1972. Once this technical objection as to the maintainability of the application is out of the way, it is obvious that the Collector has to dispose of this application by only imposing just condition, if any.
8. The learned Asstt. Government pleader finally relied on the fact that the authorities have mentioned that in view of the master plan even on the earlier occasion the regularisation was made by extending the permission after imposing the condition that the applicant shall not claim any compensation for removal of any structure if required by the municipality for the proposed road in the master plan. To-day also the position has not changed and the land remains under the master plan. Mr. Shah had pointed out from the relevant plaint that about 10 ft. Of this land would ultimately go under the master plan in the proposed road. The same condition can be still imposed and Mr. Shah has no objection even to give the necessary undertaking for this purpose for removal of any part of the structure if required by the municipality for the proposed road in the master plan. But on this score the revenue authorities could not refuse to grant permission at this stage when the master plan is still in the offing and the present town planning scheme does not create any such restriction.
9. Therefore, it is obvious that both the authorities had committed a patent error of law and had abdicated judicial discretion by refusing to entertain the application of the petitioners tenants on the short ground that the tenant could not apply. In the circumstances, both the impugned orders at Annex. A and B, dated December 5, 1969 and November 19, 1971 are quashed and the matter shall now go back to the Collector for disposing of this application for permission in the light of the aforesaid observations as expeditiously as possible as sufficient time has now elapsed. Rule is accordingly made absolute. Respondent No. 3 shall pay costs of this application and the other respondents shall bear their own costs.