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Kanubhai Sankalchand Patel Vs. Nayankunj Co-operative Housing Society Ltd., Ahmedabad and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Contract
CourtGujarat High Court
Decided On
Case NumberFirst Appeal No. 290 and Civil Appln. No. 974 of 1971
Judge
Reported inAIR1978Guj140; (1978)0GLR920
ActsUrban Land (Ceiling and Regulation) Act, 1976 - Sections 5(3), 6, 10(1), 19, 19(1) and 42
AppellantKanubhai Sankalchand Patel
RespondentNayankunj Co-operative Housing Society Ltd., Ahmedabad and ors.
Appellant Advocate B.R. Shah,, Adv.
Respondent Advocate V.P. Shah, Adv. for; S.B.Vakil, Adv. and; R.N. Shah,
Cases ReferredJambu Rao Satappa Kocheri v. Neminth Appayya Hanamannayar
Excerpt:
property - agreement for sale - section 5 (3) of urban land (ceiling and regulation) act, 1976 - agreement for sale executed in respect of suit land - sale deed not executed - act passed subsequent to agreement of sale - section 5 (3) imposes complete ban on transfer of suit land - whether agreement for sale enforceable - held, agreement for sale not enforceable. - - 4, under the entry 'gujarat' appears ahmedabad urban agglomeration'.it clearly shows that rajpur-hirpur where the suit land is situate and which is regarded by the act -as an out-growth of the city of ahmedabad is governed by the act. (1), it shall be presumed that the competent authority has no intention to purchase such land on behalf of the state government and it shah be lawful for such person to transfer the land to.....s.h. sheth, j. 1. the plaintiff filed the present suit against the defendants for obtaining decree for specific performance of the contract for sale exh. 116 dated 27th may 1963. under that agreement of sale, the land admeasuring 3500 sq. vds. out of s. no. 235 of rajpur-hirpur in the city of ahmedabad was agreed to be sold by defendant no. 8 to the plaintiff. the total area of s. no. 235 was 3 acres 25 gunthas or 18045 sq. vds. in the alternative, the plaintiff prayed for a decree for damages in the sum of rs. 57085/-. the land in question originally belonged to one sankalchand manilal mukhi who died on 14th july 1963. he had executed an agreement of sale in respect of 6000 sq. yds. of land out of this survey number in favour of defendant no. 8 on 16th aug. 1962. defendant no. 8 in his.....
Judgment:

S.H. Sheth, J.

1. The Plaintiff filed the present suit against the defendants for obtaining decree for specific performance of the contract for sale Exh. 116 dated 27th May 1963. Under that agreement of sale, the land admeasuring 3500 sq. vds. out of S. No. 235 of Rajpur-Hirpur in the City of Ahmedabad was agreed to be sold by defendant No. 8 to the Plaintiff. The total area of S. No. 235 was 3 acres 25 gunthas or 18045 sq. Vds. In the alternative, the plaintiff prayed for a decree for damages in the sum of Rs. 57085/-. The land in question originally belonged to one Sankalchand Manilal Mukhi who died on 14th July 1963. He had executed an agreement of sale in respect of 6000 sq. Yds. of land out of this survey number in favour of defendant No. 8 on 16th Aug. 1962. Defendant No. 8 in his turn executed in favour of the plaintiff the said agreement in respect of 3500 sq. Vds. of land. After the expiry of the owner of the land, some of his heirs refused to execute the direct sale deed in favour of the plaintiff in respect of 3500 sq. vds. of land. Defendant No. 1 one of the two widows of the original owner was willing to execute the sale deed. Similarly defendants Nos. 4 and 6 daughters of the original owner were also wilWW to execute the sale deed. The rest of the heirs of the original owner were unwilling to do so. The real contesting parties, therefore, in the trial Court were defendants Nos. 2, 3, 5 and 7. 71he suit was defended by the contesting defendants. Two principal defences were raised by the contesting defendants. Firstly, they did not admit the agreement of sale or banakhat Exh. 185 executed by the original owner in favour of defendant No. 8. Secondly, they contended that the suit property was a joint family property and that the original owner as the manager of the Joint Hindu Family could not execute the agreement of sale or banakhat in favour of defendant No. 8 because there was no legal necessity for him to do so. They, therefore, contended that Exh. 185 - agreement of sale executed by the original owner in favour of defendant No. 8-was not binding upon them. The learned trial Judge, on evidr ence held that the original owner Sankalchand was the exclusive owner of this suit property. He also held that execution of banakhat Exh. 185 was proved by the plaintiff. He, therefore. passed in favour of the plaintiff decree for specific performance of agreement of sale in respect of 3132 sq. yds. of land. He passed decree in respect of the smaller skrea of land because out of the totol area of S. No. 235, an area of 3M sq. yds. was compulsorily acquired bV Government sometime in 1967. Notification for compulsory acquisition was In the first instance issued under S. 4 of the Land Acquisition Act on 28th Jan. 1963 in respect of 2800 sq. yds. of land. Subsequently it was cancelled. On 27th Aug. 1964 second nbtification under Section 4 in respect of an area of 4161 sq. yds. was issued. Thereafter on 19th Dec. f963 notification under S. 6 of the Land Acquisition Act was issued in respect of an area of 3999 sq. yds. On account of compulsory acquisition of a -part of the land, since the learned trial Judge could pass decree only in respect of 3132 sq. yds. of land he did so. It is that decree which is challenged by defendant No. 3 In this appeal

2. W B. R. Shah learned Advocate who appears on behalf of the appellant. has raised before us as many as seven contentions. Majority, of these contentions have been raised for the first time in this appeal the following are the contentions which he has raised:

(1) Agreement of sale Exh. 116 executed by-defendant No. 8 in favour of the plaintiff cannot be enforced against the heirs of the original owner Sankalchand because Sankalchand was not a Party to it.

(2) Exh. 185 - agreement of sale executed by the original owner in favour of defendant No. 8 is void for uncertainty.

(3) Suit Property was the Joint family property and the appellant had a share In it. Therefore, the original owner Sankalchand could not have sold in except for legal necessity.

(4) Assuming that Joint family property was partitioned and as a result thereof suit property had fallen to -the share of the original owner Sankalchand, that partitiod was inequitable and was, therefore, not binding upon the appeal.

(5) Agreement of sale Exh. 185 exeeuted by the original owner Sankalchand lin favour of defendant No. 8 is an indivisible on* and, therefore, demve for performance of a part of that agreemeni cannot be passed.

(6) No decree for specific performance can be passed in view of the Provisions of Urban, Land (Ceiling and Regulation) Act, 1976.

(7) In the facts and circumstances of this case, the Court should exercise its discretion and refuse to pass decree for specific performance.

3. We may state that the first, second, fourth and fifth contentions, which Mr. B. 1.1. Shah has raised before us, have been raised for the first time in this appeal. Sixth contention was earlier raised in this appeal. It was permitted to be raised and an issue was framed on the question of the applicability of the said Act to the suit land and was sent down to the trial Court for trial. Evidence was recorded by the learned trial Judge. He has certified the finding that the said Act applies to the land in question.

4. We are not expressing any opinion whether we should permit Mr. B. R. Shah to raise the said four new contentions before us. They raise new questions of fact. Thev were not raised before the trial Court. Whether they should be allowed to be raised or not is not necessarv to be decided because we are finally deciding this appeal only on the sixth contention, which he has raised and, which, in our opinion, goes to the root of the case. Since our finding on the sixth contention is capable of finally deciding the appeal, we are not answering any other contention in this appeal.

5. It is necessary to note two material facts so far as the 6th contention raised by Mr. B' R. Shah is concerned. The area of the land agreed to be sold under Exh. 116 which the plaintiff seeks to enforce is 3500 sq. yds. However, we are concerned, with considering the plaintiff's case in respect of the area of 3132 sq. yds. which is the subject matter of the decree under appeal.

6. The Act came into force on 17th Feb. 1976. It affects all transactions which took place after 28th Jan. 1976, which is the appointed day so far as the city of Ahmedabad is concerned. Section 2(h) of the Urban Land (Ceiling and Regulation) Act, 1976 defines 'urban agglomeration' and has reference to Schedule I in the Act. Section 4 sets down ceiling limit in respect of vacant land which can be held by a person in urban agglomerations of different categories specified in Schedule I. Section 11 provides for payment of compensation for the vacant land acquired under the Act and has reference to Schedule 1. Section 29 regulates construction A, B, C, & D and has reference to Schedule I. In Schedule I, State of Gujarat appears at Sr. No. 4. In Sr. No. 4, under the entry 'Gujarat' appears Ahmedabad urban agglomeration'. It clearly shows that Rajpur-HirPur where the suit land is situate and which is regarded by the Act - as an out-growth of the city of Ahmedabad is governed by the Act. The finding recorded by the learned trial Judge and certified to this Court also shows that the land in question is governed by the Act. Section 3 provides that except as otherwise provided in the Act on and from the commencement of the said Act, no Person shall be entitled to hold any vacant land in excess of the ceiling limit in the territories to which the Act applies under sub-section (2) of S. 1. Section 4 groups different cities and towns in the country under four categories. Schedule I shows that Ahmedabad falls under category B. It provides that ceiling limit in case of every person subject to the other provisions of the said section shall be 1000 sq. meters where such land is situate in an urban agglomeration falling within category B specified in Schedule I. It is, therefore, clear that the ceiling limit which has been Prescribed for the city of Ahmedabad in case of every person is 1000 sq. meters. Indisputably, the subject-matter of the agreement of sale Exh. 116 and the decree under appeal exceeds 100 sq. meters. Section 2(1) defines 'Person' so as to include an individual, a family, a Arm, a company, or an association or body of individuals whether incorporated or not. Section 5 imposes a ban on transfer of such vacant land. Sub-see. (3) of S. 5 is material for the purpose of the present case. It provides that no person holding vacant land in excess of ceiling limit immediately before the commencement of the Act shall transfer any such land or a part thereof by way of sale, mortgage, gift lease or otherwise until he has furnished, a statement under S. 6 and a notification regarding the excess vacant land held by him has been published under sub-section (1) of S. 10 and that any such transfer made in contravention of the provisions shall be deemed to be null and void. Section 6 requires every person holding, vacant land in excess of the ceiling limit to file statement before the competent authority within the specified time. Such a declaration must specify the location, extent, value and such other particulars as may be prescribed of all vacant lands and of any other land on which there is a building, whether or not with a dwelling unit therein. It also requires such a person to specify vacant land within the ceiling limit which he desires to retain. Section 10 provides that the competent authority shall cause a notification giving the particulars of the vacant land held by every such person in excess of the ceiling limit to be published for the information of the general public in the official gazette and in such other manner as may be prescribed. That notification is required to state that such vacant land is to be acquired by the State Government and that the claims of all persons interested in such vacant land may be made by them personally or by their agents giving particulars of the nature of their interests in such land. Whereas S. 5 bans the transfer of vacant land exceeding 1000 sq. meters, S. 26 deals with transfer of vacant lands which are admeasuring less than 1000 sq. meters. It lays down that no person holding vacant land within the ceiling limit shall transfer such land by way of sale, mortgage, gift, lease or otherwise except after giving notice of the intended transfer to the competent authority. It further provides that it shall be open to the competent authority to purchase such open land on behalf of the State Government at a price calculated in accordance with the provisions of the Land Acquisition Act, 1894, or of any other corresponding law for the time being in force. It next provides that if the competent authority does not exercise such option within a period of 60 days from the date of the receipt of the notice by the person concerned under sub-see. (1), it shall be presumed that the competent authority has no intention to purchase such land on behalf of the State Government and it shah be lawful for such person to transfer the land to whomsoever he may like. Proviso to sub-see. (2) is not necessary to be reproduced for the purpose of the present case. Section 27 prohibits transfer of urban property on which building is constructed except with the previous permission in writing of the competent authority. It inter alia Provides that no person shall transfer by way of sale, mortgage, gift, lease for a period exceeding ten years, or otherwise, any urban or urbanisable land with a building whether constructed before or after the commencement of the said Act, or a portion only of such building for a period of ten years of such commencement or from the date on which the building is constructed whichever is later. Sections 5, 26 and 27 deal with urban properties of three different and distinct kinds. We are concerned with sub-section (3). of S. 5. Sub-see. (3) of S. 5, in our opinion, imposes a complete ban upon the transfer of vacant land which exceeds the area of 1000 sq. meters. It Is not correct to say as has been argued by Miss V. P. Saha that the transfer of such land is subject to two conditions, namely, furnishing a statement under S. 6 and issuance of notification under sub-section (1) of S. 10. We state so because we have not been able to find in the Act any provision which lays down what is going to follow if no notification under S. 10(1) is issued. If the transfer of such a vacant land was merely subjected to two conditions specified in sub-see. (3) of S. 5, the Parliament would have certainly provided for the consequences of non-issuance of notification under sub. section (1) of S. 10. One such consequence would have 'been to permit the person concerned to enter into a transaction of transfer. In this context sub-section (3) of S. 5 can be usefully read in contrast with sub-sees. (1) and (2) of S. 26. Section 26 in terms provides that if the-land to which that, section applies is not acquired by the competent authority within a period of sixty days after he has received the notice in writing of the intended transfer, he shall be entitled to transfer it in any manner he likes. There is no such provision in regard to vacant land governed by S. 5(3). It is, clear, therefore, that issuance of a notification under sub-section (1) of S. 10 in respect of the land governed by sub-section (3) of S. 5 is compulsory or mandatory and that delay in issuance of such a notification does not restore to the person concerned the right to transfer such land. Consequences of non-issuance of notification under sub-section (1) of S. 10 have not been provided in the case of land to which sub-section (3) Of - S. 5 applies because the Parliament has not contemplated any such contingency. It is, therefore, clear that the land in question which is governed by sub-section (3) of S. 5 cannot be transferred by its owner under any circumstances. It is in this light that we have to examine the question whether the decree for specific performance of the agreement of sale Exh. 116 can be passed in the instant case.

7. Reference has also been made at the bar to S. Y5 of the Act. It deals with vacant land which is acquired by inheritance settlement or bequest or by sale in execution of decree or order of Civil Court or of an award or order of any authority or by purchase or otherwise. For the purpose of answering the question which has been raised before us, S. 1B cannot be pressed into service because the plaintiff who seeks to enforce Exh. 116 is not going to acquire, in case we pass decree for specific performance the land in any of the manner specified in S. M. It may be noted in this context that original owner Sankalchand had executed a will Exh. 131 on 30th April 1963. The will has been Proved in this case. Under that will he has conferred upon defendant No. 1 - his junior widow - life interest and reversionary interest upon defendant No. 3 who is the appellant before us. Section 19 deals with exemptions. It inter alia provides that subject to the provisions of sub-section (2) nothing in Chapter III shall apply to any vacant land held by any co-operative society, registered or deemed to be registered under any law relating to co. operative societies for the time being in force and to any society registered under the Societies Registration Act, 1860, or under any other corresponding law for the time being in force and used for any non profit and non-commercial purpose. To repeat, S. 19 provides that nothing in Chapter III shall apply to any vacant land held by a co-operative society or a society. Section 2(1) defines the expression 'to hold' in the fol. lowing terms :

'to hold' with its grammatical variations, in relation to any vacant land~ means-

(i) to own such land; or

(ii) to possess such land as owner or as tenant or as mortgagee or under an irrevocable power of attorney or under a hire-purchase agreement or partly in one of the said capacities and partly in any other of the said capacity or capacities.'

For the purpose of the present case, it is not necessary to explanation appended to Clause (1) of S. 2. it is, therefore, clear that by virtue of this definition 'to hold land' also means to own land. The question has been argued because the plaintiff is a cooperative society. All that was done in the instant case was the execution of inter the agreement of sale Exh. 116 by defendant No. 8 in favour of the plaintiff society. The plaintiff society which is a co-operative society is in our opinion to make an order which leads or forces not per se entitled to exemption under a person to commit breach of law. it will S. 19(1)(v) because the suit land is not held by it. We say so because within the meaning of the expression 'to hold' it does not own the suit land as no title has passed to it and it does not possess such land because Indisputablv possession of the suit land has not been transferred to it. The applicability of sub-section (3) of S. 42 of the Act which provides as follows:

'The provisions of this Act shall have effect notwithstanding anything inconsistent therewith in any other law for the time being in force or any custom, usage or agreement or decree or order of a court, tribunal or other authority.

It is, therefore clear that S. 42 gives an overriding effect to the provisions of the said Act over amongst others all agreements. Agreement of sale Exh. 10, therefore. will be hit by sub-section (3) of S. 5 read with S. 42 of the said Act. In our opinion, therefore, agreement of sale 19xh. 116 cannot be enforced at law.

8. Miss V. P. Shah has argued that Section 5(3) bans voluntary sale of vacant land but does not take away the power of the Court to Pass decree for specific performance. It is difficult for us to accede to this contention for the reasons which we proceed to state; we have already In relation to the scheme of sub-section (3) of S. 5, recorded the conclusion that it completely bans the transfer of suit land which is governed by ft. It is true that the ban is applicable to a person as defined In the Act. it does not have any express reference to what the Court can do or cannot do can it, therefore, be said that though a person is prohibited completely from transfer in a his vacant land, governed by sub section (3) of S. 5. the Court can order specific performance of the agreement of Sale which is otherwise hit by sub-section. (3) of S. 5 read with S. 42 We do not think the Court has the power to direct a person to do what he cannot willingly do by virtue of the provisions of the Act. To direct him to do so is to ask him to commit breach of law and the Court cannot pass a decree which leads person to commit breach of law. The function of the Court is to pret law and to lay down what can be done and what cannot be done by a person under law. If a Court of law were militate against 4ts very existence and stultify it. In the instant case the con testing defendants indeed have raised a number of defences. In order, however, to test the proposition which Miss V. P. Shah has advanced before us, let us assume the case of an honest man who has executed an agreement of sale in favour of a third party and who is willing to transfer the land to that party but who is prevented by the provisions of law.

9. There are a few decisions to which Miss V. P. Shah has invited our attention. In Samuel Thygaraja Kumar v. V. K. Sitarama Achar AIR 1977 Kant 158, the question of impact of this Act on a Court sale arose. A Division Bench of that Court has laid down in their decision that within the meaning of S. 27(1) of the said Act, execution sale is not a transfer. Secondly it has been laid down that the Court is not 'a person' within the meaning of that expression given in S. 2(1) of the said Act. Elucidating this proposition, it has been further laid down that there is a difference between a transfer by operation of law and a transfer by act of Parties. A purchaser at a Court sale acquires title by operation of law and at such sale title is transferred without a registered deed. The Court merely issues a Sale Certificate. In that view of the matter, the Karnataka High Court has held that S. 27 of the said Act has no application to execution sale and that its scope is limited to transfer inter partes. What applies to a Court sale does not necessarily apply to a case for specific performance there is a substantial difference between the two. Whereas a Court sale takes place after the right of the parties have been finally determined, in case of specific performance, there is no final determination of the rights of the parties. The Court sale follows the final determination of the title to the property. In the case of specific performance title is under adjudication. In case of Court sale, a person against whom bar is supposed to operate has lost his rights and has no volition one way or the other to exercise. In other Words, he goes out of picture altogether. Therefore, there is no person against whom the bar operates. Bar does not operate against the Court because Court is not a 'person'. In case of specific performance, situation is altogether different. The person against whom bar operates is very much there. He is in the picture and has a volition to exercise. Bar operates against him and the Court merely performs an adjudicatory role. Therefore, what can be done in case of a Court sale cannot be done in case of specific performance where the bar under the said Act operates.

10. The next decision to which reference has been made is Janampally Narasimha v. M/s. A. S. Krishna and Co. (P) Ltd. : AIR1977SC34 . It was a case in which decree for specific performance pawed by the High Court was challenged in appeal before the Supreme Court. Before the Supreme Court, it was contended for the first time that decree would be hit by the Andhra Pradesh Vacant Lands in Urban Areas (Proffibition of Alienation) Act, 1972. The Supreme Court did not accept the contention that h2 view of the provisions of the A. P. Act the decree should be set aside and observed that the question relating to the applicability of the previsions of the A. P. Act could not be entertained at that stage in the appeal and that if the appellant was so advised, he could raise it at the time of execution of the decree. The Supreme Court observed that the A. P. Act had not made any provision for making the decree a nullity. In the instant cases we have already held that under the provisions of the Central Act, no decree for specific performance can be passed. Secondly, the Supreme Court in the aforesaid decision did not decide what Impact the A. P. Act. bad on agreements of sale but left it to be decided by the executing Court when the decree was taken into execution, That may be one wav of doing things. In our opinion, it is not the only way because we find, as we have done in the instant case, that the agreement of sale, otherwise validly executed is hit by the subsequently enacted legislation. We can therefore determine the question of Its impact upon the anterior agreements of sale and decide the controversy raised before Us. With respect therefore, the Supreme Court has not laid down in that decision any principle which can be applied to the facts of this case. It may be noted that in the instant case during the pendency of this appeal, an issue was raised whether the Act was applicable to the land in question and was sent down to the trial Court which tried It and eerti. tied the finding to us.

11. Next decision to which reference has been made is in Taherbhoy Feeda Ally v. State of West Bengal : AIR1977Cal361 . This decision has no application whatsoever to the instant case because all that has been laid down by the learned Single Judge of that Court Is that the language of S. 27 suggests that without permission of the competent authority, no property can be transferred. In that context, reference has been made by the learned Single Judge to S. 54 of the T. P. Act and it has been observed that contract for sale by itself does not create any Interest or charge.

12. Next decision to which reference has been made is in Nathulal v. Phoolthand : [1970]2SCR854 . The principle which the Supreme Court has laid down in that decision is that if a property is not transferable under a statute without the permission of an authority, an agreement to transfer the property must be deemed to be subject to the implied condition that the transferor will obtain the sanction of the authority concerned. This decision has no application to the facts of the instant case because in our opinion under sub-section (3) of S. 5 there Is a total prohibition of transfer. This Act does not provide for transfer with permission.

13. In Hakim Enayat Ullah v. Khalik Ullah Khan : AIR1938All432 , provisions of S. 7 (3) of the U. P. Encumbered Estates Act, f934, were invoked to defeat a decree of specific performance. In that context, it was laid down by a Division Bench of that Court that, in case of a decree for specific performance which is brought into execution, if the Judge finds himself precluded by reasons of S. 7 (3), it is for the party and not the Court to move the Collector to grant sanction to execute the deed. It was also a case where sale could be effected with the sanction of the Collector. That is not the situation in the instant case.

14. Next decision to which reference has been made is in Jambu Rao Satappa Kocheri v. Neminth Appayya Hanamannayar : [1968]3SCR706 . It was a case under the Bombay Tenancy and Agricultural Lands Act, 1948. In that case, it has been held by the Supreme Court that the Court will not enforce a contract which Is expressly or implied1v prohibited by a statute, whatever may be the intention of the parties. However, looking to the scheme of that Act, the Supreme Court came to the conclusion that there was nothing to indicate that the legislature had prohibited a contract to transfer land between one agriculturist and another. This case also does not carry any further the argument advanced by Miss V. P. Shah.

15. Reference has then been made to a few unreported decisions of this Court. In First Appeal No. R2 of 1966 decided by D. A. Desai and S. N. Patel JJ. on 19-9-1975, the controversy which arose related to the impact of the Bombay Tenancy and Agricultural Lands Act The contention which was raised in that case was that the land in question was situate within the radius of two miles from the limits of the Ahmedabad Municipality and that therefore, the Tenancy Act which came into force on 29th Dec, 1948 did not apply to the suit land However, it was contended that by Amending Act XXXIII of 1952 which came into force on l2th Jan. 1953, exemption granted to the land in question was withdrawn with the result that the Tenancy Act applied to it. In that context it was contended that once Tenancy Act applied, contract was impossible of performance in view of the provisions of Sections 63 and 64 of the Tenancy Act, Section 63 of the Tenancy Act provides that a sale (including sale in execution of a decree of a Civil Court) in favour of a non-agriculturist shall be invalid. S. 64 provides for priorities where agricultural land is to be sold. This Court came to the conclusion that Ss. 63 and 64 did not enact absolute prohibition of sale of agricultural land to a non-agriculturist and that it could be sold with the permission of the competent authority. Reference was also made to the decision in Nathulal's case : [1970]2SCR854 (supra). Decree for specific performance was passed in that case because the sale was not totally prohibited because the agricultural land could be sold with the Permission of the competent authority. Therefore the decree for specific performance could depend for its enforcement upon the availability of such permission. The scheme of the Bombay Tenancy Act is not identical with the scheme of the Act with which we are concerned. Sub-section (3) of S. 5 enacts a total Prohibition of alienation of any vacant land to which it applies and. therefore, what holds good in a case to which Bombay Tenancy Act applies and in which sale can be effected with the Permission of the competent authority does not hold good in the instant case, In the case of Bombay Tenancy Act, right to sell is very much there. It is hedged in or fettered by the requirement of the permission of the competent authority. Grant of permission by the competent authority revives the full right and removes the fetter placed on it. In the case of present Act, issuance of notification under S. 10 does not remove the fetter on the right to sell but is a step which is taken in pursuance of the loss of right to sell in order to effect final disposal of the vacant land and to make payment of compensation. It is therefore, inappropriate to resort to the analogy of the Bombay Tenancy Act, in order to Judge the impact of sub-section (3) of S. 5 of the pre, sent Act upon the agreements of sale.

16. Then there is another set of decisions to which our attention has been invited. In First Appeal No. 423 of 1971 decided by Justice A. D. Desai and Justice N. H. Bhatt on 12-9-1977 it was argued that by virtue of the provisions of the Act with which we are concerned no decree for specific performance of an agreement of sale could be passed. Whether this Act hits an agreement of sale, executed prior to coming into force of that Act, was not decided in that case by the learned Judges. All that the Court observed was that the contention is raised under Urban Land (Ceiling and Regulation) Act, 1976 could be decided in execution proceedings. Decree for specific performance was passed by this Court subject to the provisions of that Act. We find that the question was left open by this. Court for being decided by the executing Court and that no principle was laid down which can be applied to the instant case. If there is a total prohibition on the sale of a vacant land and if, therefore, it hits the anterior agreements of sale, it can certainly be decided in the suit or in the appeal and need not necessarily be left open for the executing Court to decide in execution proceedings. Instead of leaving the controversy to be decided by the executing Court and prolonging the proceedings, we have thought fit to decide It in this appeal.

17. In First Appeal No. 471 of 1979 decided on 18-10-1977 (Guj) by the same learned Judges, a similar view was taken by them. Suffice it to say that the course followed by the learned Judges might be one way of looking at the controversy but that in our opinion is not the sole and exclusive way. We find that on the pure question of law such as the one which has arisen before us, proceedings need not be prolonged. To leave the question to be decided by the executing Court is to postpone the decision of the question raised before us because whatever view the executing Court takes would be unfailingly challenged before us at a later stage in app peal. We would have been bound by the two unreported decisions last mentioned, if any principle having force of law was laid down by this Court. We find that no principle has been laid down td those two decisions by the Court. Therefore, we have proceeded to decide this controversy in this appeal.

18. Two more decisions 'in which the impact of the Gujarat Vacant Lands in Urban Areas (Prohibition of Alienation) Act. 1972 upon the agreements of sale was canvassed have been cited. It may be stated that this Act has now been repealed. Sub-section (1) of S. 4 of the Gujarat Act provided as follows:-

'No person who owns, any vacant land shall on or after the appointed day, alienate such land by way of sale, Rift, exchange, mortgage other than simple mortgage, lease or otherwise, or effect a partition or create a trust of such land and any alienation made, or partition effected or trust created in contravention of this section shall be null and void.'

It is not necessary for us to reproduce for the purpose of this Judgment proviso to sub-section (1) and sub-section (2) of S. 4. This sub-section corresponds to sub-section (3) of S. 5 of the Act with which we are dealing. Section 13 of the Gujarat Act provided as under:-

'The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith in any other law for the time being in force, or any custom, usage or agreement, or decree or order of a court, tribunal or other authority.' This provision corresponds to the provisions in Section 42 of the Act with which we are dealing.

19. In First Appeal No. -1174 of 1968 (Guj) decided by the learned Chief Justice and Mr. Justice Dave on 25/26-41974, the question of the impact of the above quoted provisions of the Gujarat Act upon an agreement of sale arose. After having examined several provisions of the Gujarat Act this Court passed decree for specific performance subject to the condition of the plaintiff in that case obtaining exemption from the State Government under S. 7 of the Gujarat Act within eight months from the date of the decree. This Court also passed the alternative decree in case the plaintiff was unable to obtain exemption from the State Government under which he could recover damages from the defendant.

20. The next case referred to is First Appeal No. 251 of 1967 (Guj) decided by Justice K P. Thakkar and Justice P. D. Desai on 22-11-1974. What was done by this Court in the case last referred to was adopted and the decree for specific performance was passed subject to the exemption being obtained.

21. We have examined the provisions of the Central Act with which we are concerned. The scheme of exemptions incorporated in S. 19 of the Central Act appears to be entire1V different from the scheme of exemptions incorporated in Section 7 of the repealed Gujarat Act. There was no provision in the repealed Gujarat Act corresponding to S. 19 of the Central Act S. 20 which confers upon the State Government Power to exempt is materially different from the corresponding provision of Section 7 of the repealed Gujarat Act. Whereas the Gujarat Act provided that the State Government may by a general or special order in writing and for the reasons to be recorded therein exempt any area or any alienation or other transfer of any, vacant land from all or any of the provisions of that Act, we find no such provision in Section 20 of the Central Act. In particular, S. 20 does not confer upon the State Government the power to exempt a particular alienation or intended alienation. It may be stated, out of abundant caution, that In the instant case an application for exemption, we are told, was made by the plaintiff intending vendee for exemption. There is nothing to show that it has been granted.

22. Under the aforesaid circumstances, we are of the opinion that the agreement of sale which defendant No. 8 executed in favour of the Plaintiff is not enforceable at law. The learned trial Judge was, therefore, in error in passing decree for specific perfoz7nance. It Is liable to be set aside.

23-29. x x x x x

30. Appeal allowed.


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