A. D. DESAI, 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 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. 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 arty such permission for N. A. use under sec. 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 sec. 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. 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 ) SEC. 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 sec. 73 is subject to the provisions contained in sec. 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 tenant put the property for N. A. use either of the saw-mill or residential premises was the lawful transfer as contemplated by sec. 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 premises 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 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 he 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 secs. 65 to 67 provide as under : s. 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 farmbuildings 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 sec. 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 sec 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 sec. 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 parusal of sec. 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 sec. 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 sec. 65. Sec. 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. Sec. 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 sec. 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. That is why the last provision of sec. 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 trueinterpretation 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 sec. 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 sec. 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. 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 sec. 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 sec. 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 sec. 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 sec. 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 sec. 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 sec. 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 sec. 65 in the later portion and in the wideest term by the statutory language of sec. 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 sec. 65 and sec. 67 and that the authority would have an absolute right to refuse such permission. In SARDAR GOVINDRAO V. STATE OF M. P. A. I R 1965 S. C. 1222 their Lordships have interpreted 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 an (i 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 ill such cases such expressions may 11ave 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. . . 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 desecration the authorities would be bound to exercise the discretion when the relevant circumstances exist and the word may in such 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 ill 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 guide-lines are apparent in the statutory scheme of secs. 65 to 67 read with sec. 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 sec 54 read with sec. 136 (1) for the land revenue assessment. Such tenant would only be secondarily liable under sec. 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 tanant who is otherwise protected by the law. 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 tanant 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 recognising 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 sec. 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 sec. 65 and under sec. 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. 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. 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. .