(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 By way of the present appeal, the appellant has challenged the Order dated 18.1.2010 passed in Special Civil Application No.887 of 2009 by learned Single Judge by which the petition filed by the appellant was dismissed by elaborate reasons and confirmed the order dated 12.9.2008 passed by respondent No.1 rejecting the application of condonation of delay of 14 years caused in preferring Revision Application challenging the order dated 30.10.1993 passed by the Taluka Development Officer, Bharuch .
2 The brief facts arising from the case are as under:
2.1 The appellant company was granted non-agricultural use permission with respect to the land in question, situated at village Nabipur, Taluka & District - Bharuch on 2.8.1975 subject to certain terms and conditions. By conditions No.10 and 11 in the order dated 2.8.1975, the appellant was directed to start its non- agricultural activities within a period of one month under the provisions of Section 86 of the Bombay Land Revenue Code and about the said activity, the appellant had to inform the Talati-cum-
Mantri of village Nabipur of Taluka & District – Bharuch. As per Condition No.11, the appellant has to start construction of Electric Transmission Tower within a period of six months and to complete the same within a period of three years from the date of permission received from the authority. It was also categorically made clear in the said Condition that if the construction is not carried out within the stipulated period, the permission of non- agricultural use of the land in question shall be treated as cancelled.
2.2 It appears that till 1991, the said land was not used for the purpose for which the permission was granted and, therefore, the Taluka Development Officer had issued show cause notice on 3.7.1991 and the appellant was called upon to show cause why the N.A. permission granted to the appellant should not be cancelled as it was found that the appellant had not put the land to non- agricultural use as per the conditions of the order granting of non- agricultural permission. The Taluka Development Officer passed an order on 18th March,1992 canceling the N.A. permission granted to the appellant for the land in question. The appellant challenged the said order of the Taluka Development Officer by way of an Appeal No. 78 of 1992 before the Deputy Collector, Bharuch, under Section 273 of the Bombay Land Revenue Code. The Deputy Collector, Bharuch, by its order dated 19th March, 1993, quashed and set aside the order dated 18th March, 1992 passed by the Taluka Development Officer and remanded the matter to the TDO to consider the same on merits after taking into consideration the provisions of law and the relevant government rules. After remanding the matter, the Taluka Development Officer again passed a reasoned order on 30.10.1993 and it appears from the said order that sufficient opportunity was given to the appellant to defend its case, but the appellant did not remain present before the authority to defend its case. Therefore, by order dated 30.10.1993, the Taluka Development Officer, Bharuch, quashed and set aside the order dated 20th August, 1975, by which N.A. permission was granted to the appellants.
2.3 This Order dated 30th October, 1993 was challenged by the appellant by way of filing Revision Application along with an application for condonation of delay before the revisoinal authority – respondent No.1 in the year 2008. The respondent No.1 after hearing the learned Advocate for the appellant as well as perusing the reasons for delay canvassed in the delay application in preferring the Revision Application, dismissed the application of condonation of delay as it was filed after a period of 14 years without showing sufficient reasons for delay in preferring the Revision Application.
2.4 The order of the respondent No.1 rejecting the delay condonation application was challenged by the appellant/petitioner by way of filing the Special Civil Application No. 887 of 2009 before this Court. The learned Single Judge after hearing the learned counsel appearing for the appellant/petitioner as well as for the respondents, dismissed the petition by an elaborate order dated 18.1.2010. The said decision is under challenge by way of the present appeal under Clause-15 of the Letters Patent.
3 We have heard the learned Senior Counsel Mr.
S.I.Nanavati assisted by Mr. Mr. Anal S. Shah, learned Advocate for the appellant; learned Advocate Ms.Sejal K. Mandavia for respondent No.2 and learned A.G.P. Mr. N.J. Shah for respondents No. 1 and 3. We have also gone through the memo of Special Civil Application along with its annexures and affidavit-in-reply filed by respondent No.2 i.e. Taluka Development Officer of Taluka Panchayat, Bharuch, which has been filed in the present Appeal.
4 From the papers it reveals that it is an admitted position that after getting the N.A. permission in the year 1975, the appellant/petitioner had not complied with the Conditions No.10 and 11 by starting construction of Electrical Transmission Tower on the land in question and completing the same within the stipulated period of time. Therefore, there is a clear breach of Condition No.11 of the order dated 2.8.1975 by which the N.A. permission was granted to the appellant/petitioner. The appellant/petitioner did not care to see that the land is used for other than agricultural purpose for which the permission was granted. It also appears that upto 1993, the appellant company never approached the authorities for extension of time to start construction and to complete the construction. Only when the notice was issued in the year 1991, the appellant company tried to get extension of time by way of two representations, which are annexed with the petition. Bare reading of these representations, it appears that, the appellant – company could not satisfy the authorities for extension of the time for starting of construction or completing the same as per Condition No.11. The only reasons mentioned in the representations was that the financial condition of the company was deteriorated and, therefore, the construction work could not have been started. It is to be noted that from 1975 to 1993, at no point of time, with these difficulties, the appellant company approached the authorities for extension of time.
5 After remanding of the case by Deputy Collector to Taluka Development Officer, it appears from the order dated 30.10.1993 that the appellant did not remain present before the Taluka Development Officer when the appellant was called upon to plead their case which was going to be decided on merits. In absence of the representative of the appellant, the Taluka Development Officer had no other alternate but to pass an appropriate order pursuant to the notice issued against the appellant for the breach of conditions which was imposed by Order dated 2.8.1975.
6 The order was passed in October 1993 and as per the say of the appellant, they came to know about such order of canceling the N.A. permission only in the year 2007. It was pleaded in the application of condonation of delay in Revision application that no notice was issued and they were not heard. This contention is without any basis since the order dated 30.10.1993 clearly mentions that the appellant was informed about the dates of hearing at least for two occasions, however, the appellant did not remain present before the authority to defend its case. The appellant slept for at least 14 years over the issue and did not care to inquire about the proceedings which were pending for adjudication pursuant to the notice issued by the authority.
7 It has been rightly observed by the learned Single Judge in the order that the appellant/ petitioner has failed to explain that under what circumstances the appellant came to know about the order dated 30.10.1993 only in the year 2007 and not prior to that.
8 On the other hand, an Affidavit-in-reply has been filed by respondent No.2 and has clarified that he has tried to get the register but the record could not be traced out. However, he has categorically stated on oath that in the order dated 30.10.1993, itself, it has been mentioned that the order has been sent by Regd.
A.D. and it is the practice of the government as well as the Panchayat Office that the posts should be sent by Regd. A.D. post and accordingly the order was sent to the appellant/petitioner by Regd. Post A.D.
9 The contention raised by Mr. Nanavati that there was a huge delay in initiating the proceedings by the authority for canceling N.A. Permission. The said contention of the learned Counsel cannot be accepted since the appellant/petitioner never challenged the initiation of the said process from 1991onwards till 2009, i.e. by filing the captioned petition.
10 Mr. S.I. Nanavati, learned Senior Counsel has relied upon the following decisions:
i) in the case of State of Maryann vs.Chandra Mani & Ors., as reported in AIR 1996 SC 1623;
ii) in the case of Collector, Land Acquisition, Anantnag & Anr. vs. Mst. Katiji & Ors., as reported in AIR 1987 SC 1353;
iii) in the case of Ghyandeep Co-operative Housing Society vs. Deputy Collector, Baroda, as reported in 2000 (3) GCD, 2265;
iv) in the case of Dahyabhai Laldas (Deceased) through his LRs - Bhikhubhai Dahyabhai Patel vs. State of Gujarat & Anr., as reported in 1997 (2) GLH 633;
v) in the case of Aksa Cooperative Housing Society Ltd. vs. State of Gujarat and Ors, as reported in 1996(2) GLH (UJ) 34; and
11 By placing reliance on the decision of the Apex Court in the case of State of Haryana (supra) it is contended by learned Counsel Mr. Nanavati that the Apex Court has held that the sufficient cause should be considered with pragmatism in justice- oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. We are in respectful agreement with the aforesaid principle of the Apex Court, but, as stated here-in-above, in the present case, no reason which would have been satisfied either to the authority or to the court has been explained by the appellant/petitioner for huge delay of 14 years in preferring the Revision Application.
12 In the case of Collector, Land Acquisition, Anantnag (supra) similar view was taken by the Apex Court. Relying on the decision in the case of Ghyandeep Cooperative Society (supra), the learned counsel for the appellant has tried to raise a contention that the authority has initiated the proceedings for cancellation of N.A. permission in the year 1991 i.e. after a period of 16 years of granting N.A. Permission, which would be beyond reasonable time, as per the principle laid down in the said case. In the present case, the facts are totally different than the facts of the said case. In the said case, after the sale deed was executed and registered and after construction of residential houses and members were started residing, the competent authority initiated suo moto proceedings and the entire situation of the land was changed within the stipulated period of four years. In the present case, as stated here-in-above, the appellant/petitioner has not even started construction of the Electrical Transmission Towers for which the N.A. permission was granted. It appears that they have not started any construction on the land in question even at the time of filing of the writ petition. Therefore, the decision in the case of Gyandeep Co-operative Society (supra) is not applicable in the facts of the present case.
13 In case of Dhayabhai Laldas (deceased) (supra) the learned Single Judge of this Court has held that the time limit for completion of construction work is directory and not mandatory and, therefore, order canceling the permission on the ground of not completion of construction work was unjustified and, therefore, the order was quashed and set aside. It appears from the said decision that in the said case, the party could not start the construction since the application for fixation of the premium amount for its conversion from new tenure land to old tenure old was pending before the Collector for decision and, therefore, the construction could not be completed by the party. Therefore, this said decision also would not be applicable in the facts of the present case.
14 The case of Aksa Cooperative Housing Society Ltd (supra) it has been held that the construction activity may not be undertaken on account of non-availability of building materials for a certain period of time. Construction activity may come to a stand still if the area is affected by unexpected events like floods, riots, earthquakes and/or the like. If such construction activity is not completed within the stipulated time-limit on account of the circumstances beyond the control of the person concerned, the time-limit for completion of such construction can be extended on his making necessary application for the same purpose. In the present case, the appellant/petitioner has failed to demonstrate that there were unexpected events during the period from 1995 to 2009 that he could not start his construction activity. Therefore, in the facts of the present case, the aforesaid decision would not be applicable.
15 Though India needs lot of agriculture produces to satisfy the basic need of food, the government grants N.A. permission in villages with an intention that the development takes place in villages, local residents get employment in addition to their agricultural activities, so that they do not migrate towards cities. With such purposes, if, the permission is granted to use the agricultural lands to other than the said use, government expects that the person, in whose favour N.A. Permission is granted, has to abide by the conditions imposed on him. The party, in whose favour, permission is granted for construction, cannot sit tight over the permission and does nothing in the matter for number of years. In the present case, it is clear that since 1975 upto 1993 and even thereafter upto 2009, the appellant/petitioner has not started construction of Electrical Transmission Tower on the land in question and, therefore, the respondent No.1 has rightly rejected the application for the condonation of delay of 14 years in preferring the Revision Application.
16 We are in agreement with the reasons assigned by the Revisional Authority, which has been confirmed by the learned Single Judge. We are, therefore, not inclined to interfere with the order passed by the learned Single Judge.
17 In the above view of the matter, the present appeal lacks merit and the same deserves to be dismissed. Hence, the appeal is dismissed accordingly. There shall be no order as to costs.
(V.M. SAHAI, J.) (A.J. DESAI, J.) pnnair