Learned counsel for the appellant, however, further referred to Section 3 of the J & K Prohibition on Conservation of Land and Alienation of Orchards Act, 1975 which is as under: - 3. Prohibition on conversion of land and alienation of orchards.(1) Notwithstanding anything contained in any other law for the time being in force
(a) no person shall alienate an orchard except with the previous permission of the Revenue Minister or such officer as may be authorised by him in this behalf;
[Provided that alienation of orchards to the extent of Four Kanals only in favour of one or more persons for residential purposes shall not need any permission.]
(b) Considering the aforesaid section, it is apparent that prohibition on transfer of orchards is not absolute and the question of obtaining previous permission as contemplated under Section 3(1)(a) would arise at the time of execution of the sale deed on the basis of decree for the specific performance. Section 3 does not bar the maintainability of the suit and permission can be obtained by filing proper application after the decree is passed. Therefore, it cannot be stated that decree for specific performance is not required to be passed. Further, under Section 3 of the J & K Prohibition on Conservation of Land and Alienation of Orchards Act, 1975, prohibition on transfer is limited. Firstly, the proviso makes it clear that alienation of orchards to the extent of four kanals only in favour of one or more persons for residential purposes will not require any permission. Secondly, for more than four kanals of land, previous permission of the Revenue Minister or such Officer as may be authorised by him in this behalf is required to be obtained. Dealing with similar contention, this Court in Bai Dosabai v. Mathuradas Govinddas and Others[(1980) 3 SCR 762] observed that even if the Act prohibits alienation of land, if the decree is passed in favour of the plaintiff, it is required to be moulded suitably.
Supreme Court of India
Manzoor Ahmed Margray vs Gulam Hassan Aram & Ors on 5 October, 1999
Bench: M.B.Shah, D.P.Wadhwa
Citation:(1999) 7 Supreme Court Cases 703
