P GOPIRATHNAM Vs. FERRODOUS ESTATE PVT LTD

JUDGEMENT

(1.) THIS case had been placed before Full Bench pursuant to reference order dated 8.12.1997.

(2.) RESPONDENT herein filed a suit for specific performance of contract as C.S.No.130 of 1981 and a learned Judge of this court passed decree directing appellants to execute sale deed as per decree dated 15.3.1991.

(3.) BEFORE the Division Bench, learned counsel for respondent placed two decisions; Satappa v. Appayya, AIR 1968 S.C 1358 and also a full Bench decision reported in Shah Jitendra Nanalal v. Patel Lallubhai Ishverbhai, (FB), AIR 1984 Guj. 145. When these two decisions were placed before the Division Bench, it expressed a doubt about the correctness of Bench decisions of this Court. Paragraph 15 of the reference order read thus: "Section 4 of the Act states that no person shall be entitled to hold vacant land in excess of the ceiling limit, except as otherwise provided in the Act. Section 7 of the Act makes it obligatory on the person holding excess land to file statement. Under section 11 of the Act, excess land could be acquired. Section 17 of the Act places ceiling limit on future acquisition by inheritance, bequest or by the sale in execution of decrees etc. Section 19 of the Act provides for penalty for concealment etc., of particulars of vacant land. Even under section 6 of the Act, there is a prohibition to transfer the excess vacant land unless such person has filed a statement and notification regarding the excess vacant land held by him, has been published under sub-section (1) of section 11 of the Act. The said section further declares that any transfer made in contravention of the provisions of the Act, shall be deemed to be null and void. As can be seen from the various provisions contained in the Act, section 21 deals with power of exemption. A plain reading of section 6 goes to show that what is prohibited is a transfer of excess vacant land and the consequence of such transfer in contravention of the provision contained in the said section viz., such transfer shall be deemed to be null and void. In other words, it speaks of a completed transaction of transfer. It does nor refer to the agreements at all. We are not able to read any prohibition in the said provision prohibiting the parties from entering into agreement of sale. In the decision of the Division Bench of this Court aforementioned, a view is taken that courts in passing a decree for specific performance, cannot lend support to the parties to enforce the agreement so as to defeat the provisions of the Act, in particular section 6 of the Act. We are unable to agree with this view. There may be a decree for specific performance subject to certain conditions, to be complied with provisions of section 6 itself or subject to grant of exemption and in the light of the judgment of the Supreme Court in the case of Jambu Rao Satappa Kocheri v. Neminath Appayya Hanamannayyar, AIR 1968 S.C 1358, it cannot be said that such an agreement is hit by section 23 of the Act. Under the circumstances, we are of the view that this question is required to be decided by a larger Bench. Hence we refer this case for hearing and disposal by a larger Bench including the question as we have stated above." Consequently, the matter was placed before the full Bench for consideration.