JUDGMENT
1. The appellant's suit for specific performance of contract of sale is dismissed by the Court below vide its judgment and decree dated 23-11-1984. The appellant has come up with an appeal against the said judgment and decree.
2. From the facts of the case it is revealed that an agreement of sale was executed by the respondents in favour of the appellant for sale of 200 sq. yards of land in consideration of Rs. 12,000/- Rs. 1,000/- is said to have been paid at the time of execution of the sale deed and balance was to be paid at the time of registration of the sale deed. According to the stipulations contained in the agreement respondent was to apply within one week for permission under the Urban Land (Ceiling and Regulation) Act of 1976 for transfer of the land. After the permission was granted sale deed was to be executed within two months by the defendant. It is contended by the appellant that the defendant did not apply within one week for the permission but he submitted an incomplete application much after to the concerned authorities. Said application was rejected and information of the same was conveyed to the appellant on 26-12-1982. The order rejecting the application filed by the respondent is placed on the record of the trial Court. By this order the competent authority had informed respondent that he had not given the proof in support of the application whereby notice of sale was given. Therefore, issuance of notice by the respondent was not competent. Under the provisions of Ceiling Act respondent had to give notice in writing of the intended transfer to the competent authority. The purpose of issuing the said notice is to give option of purchase of land to the State Government at a price calculated in accordance with the provisions of the Land Acquisition Act or on any other corresponding law for the time being in force and on receipt of the notice if the option is not exercised by the authority within 60 days from the date of receipt of the notice it is to be presumed that the competent authority has no intention to purchase the said land on behalf of the State Government and it shall be lawful for the said person to transfer the land to whomsoever he may like. Bar created by S. 26 for transfer of vacant land can be relaxed if notice is given for the transfer of land and thereafter option is not exercised by the State Government to purchase the land within 60 days of the notice. Along with the notice the person intending to transfer the land has to give details of the intending purchaser and his address etc. in the form which is part of the Act.
3. The respondent in this case therefore had to make a complete application within one week to the competent authority. The notice which was to be given to the competent authority was to be complete in every respect and completion of the notice and its submission to the competent authority within one week from the date of execution of the agreement was the responsibility of the respondent. There is an express covenant to this effect in the agreement dated 26-9-1980. The notice is said to have been given by the respondent to the competent authority after a few months from the date of execution of the agreement and that notice was incomplete. There has been some exchange of notices between the parties on the subject of issuance of notice under S. 26 of the Ceiling Act. However, the relevant notice which is said to have been given by the respondent to the plaintiff is dated 27-1-1981. The respondent in this notice had said that he had written two letters to the appellant which were not replied by the appellant and the appellant was asked to give full and complete details of his sons and of the land possessed by him and his family members so that respondent is able to issue a notice under S. 26 of the Act. After the order of the competent authority respondent had a remedy under S. 33 of the Act to file an appeal to such authority as was prescribed. The said appeal was to be decided by the competent authority after hearing the other side. No appeal was filed by the respondent against the order rejecting his notice for want of details. Neither was fresh application filed by the respondent with complete details which he had to obtain from the appellant. The appellant is said to have informed the respondent that he was willing to help him before the competent authority and if his help was needed he was willing to file an affidavit also. After the efforts made by the appellant to persuade the respondent to execute the sale deed and obtain permission had filed a suit for specific performance was filed by the appellant.
4. The Court below framed issues after pleadings were filed. Issue No. 1 was with regard to the willingness of the plaintiff to perform his part of contract. Issue No. 2 was with regard to the defendant's breach of contract. Issue No. 3 was whether the possession of the land was transferred to the plaintiff because the plaintiff has alleged in para 7 of the plaint that the possession of the land was transferred to him. Issue No, 4 was that the plaintiffs claim for specific performance was barred under the provisions of S. 26 of the Urban Land (Ceiling and Regulation) Act of 1976.
5. The Court below has decided issue No. 1 in favour of the plaintiff. However, it has said that in view of the provisions of S. 26 of the Urban Land (Ceiling and Regulation) Act defendant could not be compelled to perform the contract. Court below has also held that there was no breach of contract committed by the defendant and the sale in favour of the plaintiff could not take place in view of the provisions of S. 26 of the Act.
6. The learned counsel for the appellant has submitted that defendant has not performed his part of contract. He was bound to apply within one week for permission under S. 26 of the Act and it was for the defendant to file a complete application in all respects so as to conform to the provisions of law which he did not file, therefore, from the very beginning he was not willing to perform part of his contract. It is also argued that the decree of specific performance could be granted subject to condition which could be complied with when the time for execution of sale deed would arrive. Learned counsel for the appellant has also submitted that there is a presumption that the breach of contract to transfer immovable property cannot be adequately relieved by compensation in money unless and until contrary is proved. This presumption arises in terms of S. 10 of the Specific Performance Act. He has relied on a few authorities which also needs some comment. In Pabunchi Lal v. Man Singh, AIR 1971 All 444, it is held that provisions contained in S. 154 of the U. P. Zamindari Abolition and Land Reforms Act against a sale of land to a person having twelve and a half acres of land is to take effect from the date of sale and not from the date of agreement to sell. A Sirdar can obtain Bhumidari rights under S. 134 of Land Reforms Act by compelling the Assistant Collector to grant a certificate to the effect that he has deposited ten time of revenue and thereafter sale of the plot by the Sirdar could take place.
7. In Mrs. Chandnee Widya Vati Madden v. Dr. C. L. Katial, AIR 1964 SC 978, Supreme Court held that specific performance was enforceable. Vendor had to obtain necessary permission from the Government before sale. Vendor had made an application but had withdrawn the same. Specific performance was enforceable if Government would refuse to give permission to sell, damages would be granted. An observation made in AIR 1990 All 65 (Bishambhar Nath Agrawal v. Kishan Chand) to the effect that permission for sale of the property is not required if its sale is made in pursuance of the decree of the Court. The permission is required only in case of voluntary sales is relied upon by the appellant. An authority relied upon by the trial Court in support of this judgment. Taherbhoy Feeds Ally v. State of West Bengal, AIR 1977 Cal 361 is said to be distinguishable because the authority was not applicable to the facts of this case. A learned single Judge of Calcutta High Court held that in absence of any permission granted by the competent authority there can be no question of any transfer. It is clear from the language of S. 27 itself that without permission of the competent authority no property can be transferred. Section 54 of T. P. Act also makes it clear that a contract for sale itself does not create any interest or charge.
8. There is a prohibition of transfer of urban property under S. 27 of the Urban Land (Ceiling and Regulation) Act. A previous permission is to be obtained from the competent authority if a sale is intended to be made in any manner.
9. On the basis of the aforesaid authorities it was argued by the learned counsel for the appellant that respondent has observed the agreement of sale in breach and the findings of the Court below that he has complied with the conditions of the agreement is not correct. It is stated that suit for specific performance would not be barred. A decree, on condition can be passed that after complying with the provisions of S. 26 of the Urban Land (Ceiling and Regulations) Act sale of the property covered by the agreement can take place. The relief of specific performance cannot be refused because defendant has failed to give notice under S. 26 to the competent authority in accordance with law or the said notice has not been considered for want of details,
10. Mr. Grover appearing for the other side has submitted that defendant had given the notice to the competent authority but he could not furnish the details in respect of the appellant as required under law because the appellant never supplied the detail to the respondent though he was asked to do so number of times. He has relied on the statement of the respondent in which respondent has said that appellant was asked to give details but he did not furnish the same. This is said to have been said by the respondent during the course of his cross-examination, therefore, it will bind the appellant. However, I am not incline to accept his argument. The statement of the respondent is to be appreciated as a whole and in the context in which it is tendered. He has produced the letter dated 27-1-I981 but he has not been able to prove that he in fact had written two letters to the appellant by which he had asked the details from the appellant so as to issue notice to the competent authority under S. 26 of the Urban Land Ceiling Act. He has omitted to say anything about these letters which are alleged to have been sent to the appellant by him for the purpose. In the statement also he has not given the date of two letters nor has he mentioned anything about these two letters. His omission to explain this conduct as to why he did not apply within one week under S. 26 of the Act to the competent authority cannot be brushed aside. He was obliged to prove that he had complied with the terms of the agreement and was willing to perform his part of the contract. In first place he has not applied within seven days as stipulated in the agreement, under S. 26 of the Act. In the second place his application which is termed to be notice under S. 26 of the Act was incomplete for want of details and was rejected by the competent authority as it could not be considered to be a notice under S. 26 of the Act. He should have within one week obtained the details from the appellant to enable him to give a valid notice under S. 26 of the Act. It was his obligation to give a notice within one week. Notice which he had to give was required to conform to the provisions of the Act. If the application filed by the respondent did not conform to the provisions of the Act the lapse cannot be attributed to the appellant. It is not correct to suggest that respondent within one week had asked the appellant to furnish the details. That is not said in the written statement also nor in the notice dated 27-1-1981 therefore, the random reference made by the respondent in this regard in his statement cannot be accepted. That portion of the statement seems to be inconsistent with the story which is set up by the respondent in respect of the discharge of his obligation. In the third place respondent has not filed any appeal when he was asked that his notice under S. 26 of the Act could not be considered for want of details. However, the said notice was not rejected on merits. A fresh notice could be given in accordance with the provisions of the Act and for that the appellant was always ready to cooperate with the respondent. The respondent did not move in the matter, therefore, it seems that respondent has not been willing to perform his part of the contract after he executed the agreement with the appellant. Mr. Grover's contention was that respondent had been oppressed and he wanted Rs. 1,000/- for the marriage of his daughter is not born out by the record nor is born out by the agreement to sell. Assuming, and not deciding, that the respondent being oppressed was in need of money was a reason for execution of the agreement would indicate that he has not been willing to execute the sale deed but had intended to extract the money from the appellant for his own needs. However, I don't pronounce on this aspect of the matter that will amount to adding or altering the contents of the agreement to sell which would not be permissible under law.
11. Section 26 of the Urban Land Ceiling Act requires notices to be given. It did not oust the jurisdiction of the Court to pass a decree for specific performance. The specific performance decree could be executed or made workable only after S. 26 of the Act was complied with. At the time of passing of the decree Court could impose a condition that execution of the sale deed by the respondent in favour of the appellant will be subject to the compliance with the provisions of S. 26 of the Urban Land (Ceiling and Regulations) Act of 1976. If these provisions were not complied with no sale deed could be executed. However, I am not inclined to accept the contention of the learned counsel for the appellant that when sale is made in pursuance of the decree of the Court no permission is needed under S. 26 of the Act. This is a far fetched contention which may have serious repercussions and may render the Urban Land (Ceiling and Regulations) Act of 1976 redundant because vendor and vendee could by underhand means defeat the provisions of the Act by entering into collusive agreements and thereafter get the decree on the basis of the agreement of sale and execute sale deed without complying with S. 26 or S. 27 of the Act.
12. What is required for execution of deed of sale in that there has to be compliance with S. 26 of the Act. Agreement of sale does not confer any title by itself. It only binds the vendor to execute the sale deed which in turn will confer title in the immovable property covered by the agreement. So, if the sale deed is required to be executed either out of the Court or through the intervention of the Court compliance of S. 26 of the Act is mandatory. Compliance could be made with S. 26 when the sale deed is required to be executed and not when the claim of specific performance is granted. For granting the claim of specific performance provisions of S. 26 of the Act do not come in the way of the Court to grant the relief. However, Court cannot loose sight of the said provisions and it could direct that on compliance of S. 26 of the Act vendor is to execute the sale deed in favour of the vendee.
13. In the present case also condition could be imposed for compliance with the S. 26 of the Act before the sale deed was executed and on fulfilling the said condition the sale deed could be validly executed.
14. Learned counsel for the respondent has submitted that plaintiff has stated in his plaint that he has been in possession of the suit property in pursuance of the agreement, therefore, he should pay additional consideration in case his claim for specific performance is upheld. I have perused the plaint. In para 7 of the plaint it is stated that actual possession over the plot was delivered by the defendants after execution of the agreement and on the plot plaintiff through his brother ties his cattle. It is said that this plot is being used by the plaintiff ever since the execution of the agreement to sell. Court below had framed issue No. 3 also in this regard. It has not upheld the contention of the plaintiff that he was in possession of the land in suit. That being so it cannot be said that plaintiff is in possession of the suit land. Possession of the suit land is to be delivered under the terms of the agreement to the plaintiff at the time of registration of the sale deed.
15. The consideration of the land was fixed on 26-9-1980. More than twelve and a half years have elapsed from that day. There has been escalation in the price of the immovable property from the last twelve years and the escalation at some place is many fold. What is the price of the land at present is not proved by either of the parties nor was there any issue before the Court. Under S. 10 of the Specific Relief Act there is a presumption that monetary compensation could not be adequate compensation to the appellant in the present case. This presumption has not been rebutted by the respondent at the trial of the case nor has Court below considered this aspect of the matter. Court below has held that sale deed could not be executed without complying with the provisions of S. 26 of the Urban Land (Ceiling and Regulations) Act and that is the reason for rejecting the relief of the appellant. It has however, offered refund of Rs. 1000/- with interest @6% to the appellant. Since I am taking a contrary view, therefore, view taken by the Court below is of no consequence. As to what price should be paid by the appellant in case his claim is granted cannot be stated with accuracy in the absence of details nor is this Court in a position to fix t he price of the land and award such price to the respondent which will be prevalent now. The price which was originally fixed in the agreement is therefore the reasonable price which respondent could get in terms of the agreement. That price may not be equivalent to the market price now but that fact would also not allow the Court to enhance the price of the land because that will be against the terms of the agreement. Price is fixed according to the agreement. The said agreement is to be enforced. Therefore, no alteration can be made by this Court also in respect of the consideration of price.
16. For the reasons stated above I set aside the judgment and decree of the Court below dated 23-11-1984 and allow this appeal. The appellant's suit for specific performance of the agreement dated 26-9-1980 is decreed and the execution of the sale deed by the respondent shall be subject to the permission to be obtained by the respondent after giving notice under S. 26 of the Urban Land (Ceiling and Regulations) Act of 1976. The respondent shall make a fresh application within two months to the competent authority under the said Act and the appellant is required to furnish full details to the respondent for making the application within a period of a fortnight from the obtaining of the certified copy of this judgment and if the permission is granted under S. 26 of the Act to the respondent for sale of the land, the respondent shall execute the sale deed in favour of the appellant for the property in question failing which appellant will be at liberty to execute the sale deed in accordance with the provisions of law by asking the Court to execute the sale deed in his favour and before the execution of the sale deed the appellant shall pay the balance consideration in terms of the agreement or deposit the same as the case may be and the said amount shall be permitted to be withdrawn by the respondent. No order as to costs.
17. Appeal allowed.