Friday 1 February 2013

The permission from land and development office is not a condition precedent for grant of decree for specific performance

The permission from land and development office is not a condition precedent for grant of decree for specific performance. In Mrs. Chandnee Vidya Vati Madden v. Dr. C.L. Katial , the Supreme Court confirmed the decision of the Punjab High Court holding that if the Chief Commissioner ultimately refused to grant the sanction to the sale the plaintiff may not be able to enforce the decree for specific performance of the contract but that was no bar to the court passing a decree for that relief. The same is the position in the present case. If after grant of the decree of specific performance of the contract the Land and Development Office refuses to grant permission for sale and the decree-holder may not be in a position to enforce the decree but it cannot be held that such a permission is a condition precedent for passing a decree for specific performance of the contract. I may also notice that Section 27 (1) of the Urban Land (Ceiling and Regulation) Act, in so far as it imposes a restriction on transfer of any urban or urbanisable land with a building or a portion of such building, which is within the ceiling area, was declared invalid by Supreme Court in (Maharao Saheb Shri Bhim Singhji v. Union of India) , and as such it may not be necessary to obtain permission under the said act but that is not a matter with which I am concerned at this stage. Assuming such a permission is required that would be a matter for consideration after passing of the decree and at the stage of execution . No fault can be found out with the plaintiff's anxiousness to take possession in terms of the agreement on payment of the amounts stipulated therein.

Bombay High Court
Krishna S/O Sadashiv Kale, ... vs Bhagwan Natthu Kale And Vithobaji ... on 2 May, 2008
Author: C Pangarkar
Bench: C Pangarkar



1. This is an appeal by the original plaintiffs. The parties shall hereinafter be referred to as plaintiffs and defendants.
2. The facts giving rise to this appeal are as follows - The plaintiffs and defendants are resident of Shivangaon. The defendant owns and possesses Khasra No. 95 and 97 of Shivangaon. Original defendant Raghoji was the owner of the suit property. He was an old man. He did not either have a wife or the children. He was, due to old age, unable to cultivate the land personally. He was, therefore, unable to derive enough income from the fields. He, therefore, wanted to sell the suit property. He therefore entered into an agreement of sale of two fields in favour of the plaintiff for consideration of Rs. 16000/-. The plaintiffs paid Rs. 5000/- to the defendants towards earnest. The sale deed was agreed to be executed on 20/2/1982. The plaintiff submits that he was always ready and willing to take the sale-deed and to pay the balance of the consideration. The plaintiff on 15/1/1982 and 19/1/1982 approached the defendant with a request to execute the sale-deed. The defendant, however, avoided to execute the sale- deed. The plaintiff, therefore, issued notice to the defendant calling upon him to execute the sale-deed. The defendant failed. During the pendency of the suit original defendant Ragho died. His legal representative who is his real brother was brought on record. Defendant No. 2 after the death of Ragho took the possession of the suit property and got his name mutated. Defendant No. 2 is the son of deceased Ragho's sister. The plaintiff learnt that Ragho had executed a Will in favour of defendant No. 2 but, according to the plaintiff, the said Will is invalid and is a bogus document. The plaintiff, therefore, sought a decree for specific performance of the contract or in the alternative for the refund of the earnest money.
3. The original defendant had filed his written statement. He admits that he does not have a family but submits that Bhagwan Kale who is his nephew takes care of him and he treats him as his son. He denied that he has entered into an agreement of sale of field with anybody and he has received consideration of Rs. 5000/-.
The defendant submits that he and the plaintiff are related to each other. On 30/12/1981, the plaintiff's son came to the house of the defendant and compelled him to come to the plaintiff's house which adjoins the defendant's house. One Bakaram, Pandurang and Govindrao were already sitting there on the pretext that some assistance is to be taken from the Government for providing financial assistance to the defendant and for this his thumb impression was required. The plaintiff obtained the thumb impression of the defendant. The defendant being illiterate and old man could not see through the game of plaintiff. The notice given by the plaintiff was false. The plaintiff is not an agriculturist and is, therefore, not entitled to purchase the suit property.
4. Defendant No. 1 Vithoba filed his written statement and contended that the suit property was the joint family property of Ragho and himself. Ragho had no right to sell the suit property. He is the owner of the suit property being only heir.
5. Defendant No. 2 also filed written statement and contended that deceased Ragho has executed a Will in his favour and he has become the owner.
6. The learned Judge of the Trial court found that Raghoba - the deceased defendant had agreed to sell the land to the plaintiff. He was the absolute owner thereof. The plaintiff was ready and willing to perform his part of the contract and that he was entitled to a decree for specific performance. He also directed the plaintiff to apply to competent authority for permission under Section 89 of the Bombay Tenancy and Agricultural Lands Act, 1958 and upon getting permission to deposit the amount and directed the defendant to execute the sale deed. Being aggrieved by this judgment and decree, the defendant preferred the appeal.
7. The learned Judge of the first appellate court set aside the judgment and decree of the trial court on the ground that the plaintiff was not an agriculturist and therefore he could not enforce specific performance and decree could not be passed in his favour. Aggrieved by reversing judgment and decree, the plaintiff has preferred this appeal.
8. The appeal came to be admitted on the following substantial question of law.
Whether obtaining permission under Section 89 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 for purchase of agricultural land is prerequisite condition for passing a decree of specific performance of contract of sale ?
9. I have heard the learned Counsel for the appellants and the respondents.
10. Learned Judge of the first appellate court set aside the decree for specific performance of contract for two reasons i) that plaintiff was not an agriculturist and (ii) the permission by the competent authority was refused. Learned Counsel for the appellants/plaintiffs contended that when the appellate court held that there was a genuine agreement of sale and the plaintiff was ready and willing to perform his part of the contract, there was no reason for him to refuse a decree for specific performance and interfere with the discretion used by the Trial Court. He contended that permission of the competent authority could not and cannot be a condition precedent for grant of decree for specific performance. He also submits that if such permission is not granted ultimately, the decree will not be executed but then there is no reason to refuse a decree for specific performance. Here, one has to bear in mind the fact that the Tenancy Law does not prohibit from entering into a contract of sale. If the law does not prohibit entering into the contract then there is really no reason not to enforce such contract. Granting of decree does not mean that the sale-deed will necessarily be executed. The plaintiff would always carry the risk of frustration if the competent authority does not grant permission. If the plaintiff is ready to have a decree for specific performance and wait for such permission being granted or refused, there is no law which comes in the way. Hence, I find substance in the argument of the learned Counsel. This court in a decision reported in 2004(2) Bombay Cases Reporter 361 (Asudamal Laxmandas Sindhi v. Kisanrao Wamanrao Dharmale and Ors.) has observed as follows -
16. In the said judgment, reliance was placed on one judgment of the Apex Court in the case of(Mrs. Chandnee Widya Vati Madden v. Dr. C.L, Katial and Ors.) . The Apex Court
in the said judgment has held that the Court could enforce the terms of the contract and direct the vendor to make the necessary application for permission. I am of the view that the finding given by the Appellate court that it was essential to refer the matter to the Tenancy Court for deciding the issue as to whether the plaintiff was an agriculturist or not was patently incorrect. It is a settled law that the reference of the issue to the revenue authority become necessary only when the issue is required to be settled or decided for the purpose of the decision of the suit. This view is already taken by this Court in the case of (Bahiram Maruti Satveka v. Dadu Govind Tipugade) reported in 1981 Mh.L.J. page 321.
18. In my view, the lack of permission could not be an impediment in issuing a decree for specific performance. This view has been taken consistently in a series of judgments. The Delhi High Court in the case of Ajit Prashad Jain v. N.K.Wadhani and Ors. A.I.R. 1990 Delhi 42, has observed as follows:
The permission from land and development office is not a condition precedent for grant of decree for specific performance. In Mrs. Chandnee Vidya Vati Madden v. Dr. C.L. Katial , the Supreme Court confirmed the decision of the Punjab High Court holding that if the Chief Commissioner ultimately refused to grant the sanction to the sale the plaintiff may not be able to enforce the decree for specific performance of the contract but that was no bar to the court passing a decree for that relief. The same is the position in the present case. If after grant of the decree of specific performance of the contract the Land and Development Office refuses to grant permission for sale and the decree-holder may not be in a position to enforce the decree but it cannot be held that such a permission is a condition precedent for passing a decree for specific performance of the contract. I may also notice that Section 27 (1) of the Urban Land (Ceiling and Regulation) Act, in so far as it imposes a restriction on transfer of any urban or urbanisable land with a building or a portion of such building, which is within the ceiling area, was declared invalid by Supreme Court in (Maharao Saheb Shri Bhim Singhji v. Union of India) , and as such it may not be necessary to obtain permission under the said act but that is not a matter with which I am concerned at this stage. Assuming such a permission is required that would be a matter for consideration after passing of the decree and at the stage of execution . No fault can be found out with the plaintiff's anxiousness to take possession in terms of the agreement on payment of the amounts stipulated therein.
In the instant case, the learned judge of the first appellate court has found that the application for permission was dismissed for default and therefore, the decree could not be granted in favour of the plaintiff. The law is that there is no impediment in passing a decree. Even if a decree would have been passed, that would have been and could have been executed on production of certificate or permission only. Since the initial application was dismissed for default, it cannot be said that the permission was rejected. The plaintiff was entitled to apply again or get the application restored.
11. Learned Counsel for the appellant has placed before me the copy of the order passed by the S.D.O. in Revenue Case No. 20/59/23/87-88 of Shivangaon. It shows that permission was granted on 28/8/1990. The next order shows that the appeal preferred by the defendant against grant of permission was dismissed. The fact that the defendant had preferred an appeal against the order of grant of permission clearly suggests that the defendant is aware that such permission has been granted. There is, therefore, a clear permission in favour of the plaintiff. In the circumstances, it must be held that the first appellate court fell in error in refusing decree for specific performance. The substantial question of law is answered accordingly. The appeal is allowed. The Judgment and decree of the first appellate court is set aside and that of the Trial Court restored. Costs throughout.
Print Page

No comments:

Post a Comment