JAYANTIBHAI BABALDASBHAI DARJI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Mr.Desai, learned AGP waives service of rule on behalf of respondents No.1 and 2 and with the consent of the parties the matter is taken up for final hearing today.

(2.) The short facts of the case are that the land was converted for N.A. purpose in the year 1984 and one of the conditions inter alia was to initiate the construction within a period of six months and complete the same within a period of three years. It is the case of the petitioner that due to drought situation the petitioner could not start with the construction within the stipulated time. It appears that the Mamlatdar, Harij prepared the report and forwarded to the District Collector. On the basis of the said report show-cause notice was issued by the District Collector in breach of the conditions of the order for converting the land for N.A. purpose. It appears that the petitioner appeared in response to the show-cause notice and on behalf of all the persons, Darji Naranbhai Mohandasbhai and Darji Narsibhai Mohandasbhai remained present and stated that because of water scarcity and drought situation, the construction could not be made. However, they stated that now the water can be made available from the Municipality and, therefore, the prayer was made to impose fine and extend the period for making construction. It appears that thereafter the Collector passed the order on 7.12.2001, whereby he found that there are no proper reasons for breach of the conditions and the prayer for extension of the period does not deserve to be granted and, therefore, the permission for N.A. is cancelled. It appears that the petitioner carried the matter before the State Government in revision under section 211 of Bombay Land Revenue Code and the State Government ultimately rejected the revision by confirming the order passed by the District Collector as per the order dated 31.1.2004 and it is under these circumstances the petitioner has approached this Court by preferring this petition.

(3.) When the matter was considered for the irst time on 30.11.2004, a declaration was made on behalf of the petitioner that the petitioner is ready to make construction within a period of two years from today if the period is extended and the petitioner is also ready to pay the amount of penalty, which may be found appropriate by this Court for extension of the period for completion of the construction. It appears that the question raised in this petition is covered by the decision of this Court in case of "Dahyabhai Laldas (Deceased) through his heirs and legal representatives v. State of Gujarat", reported in 1997(2) GLH, 633, whereby the view taken is that the condition providing for completion of the construction can be said as directory and not mandatory and N.A. permission cannot be cancelled if construction could not be completed within the stipulated time limits on account of certain circumstances beyond the control like lack of availability of construction material in whatsoever form for a reasonably long period. At para 8 of the said decision it was observed by the Court as under: