SATISH CHANDRA Vs. DISTRICT JUDGE ETAH

JUDGEMENT

(1.) This petition is directed against an order passed by the District Judge, Etah, on 30th October 1979, accepting the objection filed under Section 47 C. P. C. by the Zila Parishad, Etah, respondent No. 2. The brief facts are these. The Zila Parishad, Etah, had held an auction for sale of certain plots of the agricultural farm of Junior High School, Kasganj, District Etah on 14-6-1965. The petitioner, Satish Chandra, offered the highest bid for plots Nos. 13 and 14, the bid being for a sum of Rs. 2700/ -. One- fourth amount of the sale consideration was deposited by him on the same date and the remaining was deposited on 27th January, 1966. It appears that the Zila Parishad, Etah, did not execute the sale did in respect of the said plots in favour of the petitioner. Accordingly, the petitioner filed suit No. 139 of 1974 for a decree for specific performance of the agreement and for posses sion of the land. The Zila Parishad, Etah, did not contest that suit and it was decreed on 12th October. 1974. Thereafter, the petitioner moved an application on 20th May, 1976, for execution of that decree. In the execution proceedings the Zila Parishad, Etah. filed an objection under Section 47 of the Civil Procedure Code. It was, inter alia, contended on behalf of the Zila Parishad, Etah, that in view of the fact that prior approval of the Commis sioner of the Division had not been taken for transfer of the land in dispute as required by Rule 8 (i) (ii) of the U. P. Zila Parishad and Kshettra Samities (Movable and Immovable Property) Rules, 1965, which had come into effect before the right to enforce the agreement to sell arose to the petitioner, the decree passed in the case was not executable. The executing Court did not accept this contention and rejected the objection. Aggrieved, the Zila Parishad, Etah, filed a revision, under Section 115 C. P. C. which came up for hearing before the District Judge, Etah. The learned District Judge has taken the view that since at the time of the institu tion of the suit and passing of the decree therein the aforesaid rule had come into effect, non-compliance thereof rendered the decree in executable and that it did not appear that the required permission had been taken from the autho rity concerned. The objection has been accordingly allowed. It has been submitted before me on behalf of the petitioner by his learned counsel that the view taken by the revisional Court is manifestly erroneous in law because the decree for specific performance was passed by a Court having jurisdiction to do so and it could not be challenged in execution pro ceedings. Apart from that the requirement of previous approval of the authority concerned is required while making the transfer and not while ente ring into an agreement to sell. That being the position the Zila Parishad could have obtained the necessary approval from the authority concerned and the decree thus could not be regarded as in executable. I find considerable merit in this submission. It is correct that Rule 8 of the rules aforesaid required previous approval of the authority concerned. These rules were published in the U. P. Gazette dated October 23, 1965. Rule 8 in so far as it is relevant for the present purpose reads:- "8 (1) A Zila Parishad/kshettra Samiti shall not transfer otherwise than by way of lease with premium, any immovable property which has vested in it and the capital value whereof exceeds Rs. 500/-, except- (ii) in case the capital value of the property exceeds Rs. 2500/- but does not exceed Rs. 10,000/- with the previous approval of the Com missioner of the Division;. . . . . . . . . . . . (2) All such transfers shall further be subject to such terms and conditions as the appropriate authority approving the transfer may prescribe. " Under this provisions, of course, a Zila Parishad or a Kshetra Samiti cannot transfer immovable property which has vested in it otherwise than by way of lease with premium and if the capital value exceeds Rs. 500/-, except with the previous approval of the Collector, if the capital value does not exceed Rs. 500/-, of the Commissioner of the Division, if the capital value exceeds Rs. 2500/- but does not exceed Rs. 10,000/- and of the State Government if the capital value exceeds R s. l0,000/ -. Rule 12 of these rules provide that where these rules require the previous approval of the Collector, Commissioner or of the State Government to a transfer of property vested in the Zila Parishad Kshettra Samiti the fact of the approval of the appropriate authority having been obtained shall be recorded in the deed of transfer. It would be seen that these are enabling provisions and they lay down that in respect of immovable property of the capital value exceeding Rs. 500/-, the transfer can be made by the Zila Parishad only after obtaining the previous approval of the authority concerned. It has not been provided in the rules as to what Is to happen if the transfer is made by a Zila Parishad of an immov able property, the capital value of which exceeds Rs. 500/- without obtaining such previous approval. In such a case all that would happen is that the transfer would be in transgression of the powers vested in the Zila Parishad. The right of the petitioner to enforce the agreement to sell certainly arose on 27-1-1966 when the entire sale consideration was paid by him. The rules aforesaid had come into effect by that date. As noted above the petitioner filed a suit for that a decree for specific performance of the agreement and for possession of the land in 1974. The Zila Parishad, Etah did not contest the suit and it was decree ex parte. In my opinion that decree was perfectly valid and enforceable in law because it was not the case of the Zila Parishad that it had no right to auction the land and invite offers and accept highest bids and thus enter into an agreement to sell immovable property. Of course, when it came to execute the sale deed, the Zila Parishad was required to obtain the previous approval of the Commissioner. It did not do so and when the decree was not complied with by the Zila Parishad, the petitioner moved for execution of the decree. During the pendency of the execution proceedings the Zila Parishad could have taken time from the Court of or obtaining such previous approval. It was not the case of the Zila Parishad that it had applied for such previous approval and that such approval was not forthcoming. This obligation was to be discharged by the Zila Parishad and certainly not by the petitioner. In my opinion, therefore, the decree did not become in executable merely because the Zila Parishad did not move in the matter to obtain previous approval of the Commissioner to execute the sale deed. My attention has been invited by the learned counsel for the petitioner to a decision of the Supreme Court which is certainly apposite to the present controversy. It was rendered in Satappa v. Appayya, A. I. R. 1968 S. C. 1358 In that case the appellant had agreed to sell some agricultural land to the respondent. The appellant having failed to execute the conveyance of the land, the respondent filed a suit for a decree for specific performance of the agreement to sell and for possession of the land. The trial Court dismissed the suit holding that the agreement, if enforced, would result in "transgression of the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948". In appeal the High Court of Mysore granted a decree for specific performance and with certifi cate a further appeal was filed before the Supreme Court. Since in the trial Court the parties had proceeded on the footing that if the contract is specifically enforced having regard to the holding of the respondent the total area would exceed the ceiling, the Court proceeded to decide the appeal on that footing. Referring to Section 23 of the Contract Act the Court held that in that case the consideration of the agreement was not unlawful nor was the object of the agreement to defeat the provisions of any law. The Bombay Tenancy and Agricultural Lands Act did not impose any restriction upon the transfer of agricultural lands from one agriculturist to another. Section 35 of that Act, of course, provides that after the appointed day agricultural land in excess of the ceiling was not permissible. The acquisition of excess land becomes in valid. It was held that the invalidity of the acquisition is only to the extent to which the holding exceeded the ceiling prescribed by Section 5 and involves the consequence that the land will vest in the Government. Thus, it was not a contract which was expressly or impliedly prohibited by statute and the in ability of the transferee to hold land in excess of the ceiling prescribed by the statute has no effect upon the contract or the operation of the transfer. Another instance may be cited with reference to the provisions of the U. P. Zamindari Abolition and Land Reforms Act. Sirdari plots are not transferable under this Act and further under Section 154 thereof there are restrictions on transfer by a Bhumidhar. In Pahunchi Lal v. Man Singh (A. I. R. 1971 Alld. 444.), inter alia, two questions arose before this Court; firstly whether the plaintiff who admittedly held more than twelve and half acres of land on the date of agree ment to sell, could enforce the agreement in view of Section 23 of the Contract Act read with Section 154 of the U. P. Zamindari Abolition and Land Reforms Act and secondly whether a decree for specific performance with regard to Sirdari plots could be granted. The answer given to the first question was that there is a distinction between sale and a contract for sale. It is the sale of land that creates a transfer of interest in Bhumidhari land which falls within the mischief of Section 154. A contract to sell does not by itself create any interest in favour of the purchaser and therefore it is not covered by Section 154. On the second question it was held that a Sirdar is quite competent under Section 134 of the Zamindari Rights and Land Reforms Act to acquire the Bhumidhari Rights on depositing the required amount and hence it cannot be said that the sale of Sirdari plots was depending on any event in the sense that the sale was beyond the control of the vendor. It would, thus, be seen that the present agreement to sell was neither hit by Section 23 of the Contract Act nor by Rule 8 of the Rules aforesaid nor it can be said that the transfer of the disputed land was depending on any event in the sense that the sale was beyond the control of the vendor. The decree passed in the case, therefore, was not an in executable decree. In the result, the petition is allowed and the impugned order passed by respondent No. 1, District Judge, Etah, on 30-10-1979 is quashed and the execution proceedings will proceed according to law. The petitioner is entitled to costs. .