SA6_1992
Vidya amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 6 OF 1992
Shantaram Babu Longale
Occupation: Agriculture and service,
R/o. Vimbroli, Tal. Karjat,
Dist. Raigad. ... Appellant
vs.
1. Balaram Krishna Patil,
Occupation : Agriculture
R/o. Kathrap,
Tal. Ulhasnagar, Dist. Thane.
2. Smt. Sharadabai Harishchandra Longale
aged 51 years
3. Rajendra Harishchandra Longale
aged 25 years
4. Naresh Harishchandra Longale
aged 21 years
5. Kum. Karuna Harishchandra Longale
aged 19 years
6. Sau. Pratibhabai Dynaneshwar Jadhave
aged 35 years
Res. Nos. 2 to 6 R/o. Umroli,
Post Pashane, Tal. Karjat,
7. Sau. Shailabai Govind Masane
aged 31 years
R/o. Shelu Post, Nerul,
Tal. Karjat, Dist. Raigad,
8. Sau. Manikbai Gopinath Shelar,
aged 29 years
R/o. Khambalpada, Tal. Kalyan.
Dist. Thane
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SA6_1992
9. Sau. Sobhabai Bhaskar Patil
aged 27 years
R/o. Kamab, Post. Kulgaon,
Tal. Ulhasnagar.
(Respondent no. 2 to 9 are heirs of
Ori. Deft. No. 1 and they are
substituted parties)
10. Sau. Bakulabai Vilas Mhaskar
aged 33 years
R/o. Kalundre, Tal. Panvel,
Dist. Raigad. ... Respondents
Mr. Anurag Gokhale i/b. Ms. Prabha Badadare, Advocate for the
appellant.
Mr. Manoj Kadam, Advocate for respondent no. 1.
CORAM : MRS. MRIDULA BHATKAR, J.
RESERVED ON : 22nd October, 2012.
PRONOUNCED ON: 29th November, 2012.
JUDGMENT
The appellant filed Regular Civil Suit No. 71 of 1981 against the defendants for specific performance of the contract and for declaration.
The appellant/plaintiff has entered into an agreement on 18 th March, 1980 with the respondents/defendants for the purchase of the land bearing Gat No. 47, Hissa No. 1(a) situates at village Garpoli, Taluka Karjat, District Raigad admeasuring one acre and 20 gunthas, out of total land admeasuring 2 Hectares 40R. At the time of execution of the Agreement of Sale, the full consideration of amount of Rs.6,000/- was paid by the appellant to the respondents. However, the land was coming under the scheme of Bombay Prevention of Fragmentation and Consolidation Holdings Act, 1947 (hereinafter referred to as the 'said Act'. So the agreement was executed on the condition that the defendants would obtain requisite permission for transfer of the suit land from the Collector. Despite repeated request of the appellant for execution of the sale deed, the respondent did not take steps and the 2 Of 14 ::: Downloaded on - 09/06/2013 19:26:25 ::: SA6_1992 respondent/defendant no. 1 objected the possession of the plaintiffs in December, 1981. The defendant no. 1 on 18 th November, 1981 entered into a sale deed for entire land i.e. 2.27H with defendant no. 2. After having knowledge of this sale transaction between defendant nos. 1 and 2 of the entire land, the appellant filed a suit for specific performance of the contract dated 18 th March, 1980 and for declaration that transaction of the suit land between defendant nos. 1 and 2 is null and void. The appellant/plaintiff filed a suit for execution of the Agreement of Sale of the suit land. The defendant no. 1 and 2 both contested the claim. Defendant no. 1 though admitted the execution of the agreement dated 18th March, 1980 with the plaintiff, he denied that it was a sale of the land but averred that it was a mortgage, therefore the possession of the land was given. The suit was decreed and the respondents were directed to perform the specific performance by executing the sale deed in favour of the appellant/plaintiff. Being aggrieved by the said judgment and order of the trial Court, the respondents filed Appeal No. 43 of 1986 and the said appeal was allowed, against which this Second Appeal is preferred.
2. Appeal was admitted. The substantial question of law formulated is as under:
"Whether the specific performance can be granted to the parties on obtaining necessary permission under the Fragmentation Act even if it was not done earlier."
3. The learned counsel for the appellant submitted that this is a suit for specific performance. The Agreement of Sale is not denied. The suit was filed within time. At the time of Agreement of sale, the possession of the land was handed over to the appellant. He submitted that the party was ready and willing to perform the contract. He submitted that 3 Of 14 ::: Downloaded on - 09/06/2013 19:26:25 ::: SA6_1992 the transaction being an agreement of sale cannot be covered under section 31 of the Act. The first Appellate Court has framed in all four points, out of that three points were decided in favour of the appellant.
Point no. 4 - whether the plaintiff is entitled to specific performance of the contract was decided against the appellant. The said point was decided in negative on the basis of Section 31 of the said Act. He submitted that the First Appellate Court has committed an error in holding that the transaction did not culminate into a sale for want of permission of the Collector. He submitted that the second buyer has challenged the order of the trial Court and the appellant, being the first buyer, is on the better footing than the second buyer. He relied on Section 2(4) i.e. definition clause and Section 3 of the said Act, which is about determination of local area under the Fragmentation Act. He submitted that it was necessary for the Government to declare or settle a standard area under section 4 and 5 of the said Act. He submitted that as fragment is not determined, bar under section 31 cannot be attracted. The learned counsel submitted that the bar is not applicable automatically unless standard fragment is determined. In support of his submissions, he relied on the decision of the Single Judge in Bapurao Ragho Dethe vs. Ganpati Vithu Rohankar reported in 1994 Mh. L.J. 1504 on the point of sale of land and the determination of standard area under the said Act. The relevant portion in paragraph 8 is reproduced here below:
"8. ....The learned Judge observed that the Court shall have to address itself to the question as to whether the consolidation scheme was made under the Act and whether such scheme was made applicable to the village where the land in dispute is situated. With respect, the question of consolidation scheme appears to be irrelevant in this case in view of the fact that the relevant Notification was not in force on date of the transaction. Since the transaction is of the year 1960 and the relevant notification was issued only on 17th 4 Of 14 ::: Downloaded on - 09/06/2013 19:26:25 ::: SA6_1992 May, 1962, the transaction is not at all affected by the provisions of the Act and the plot of land in question cannot be considered as fragment under the Act.
The learned counsel prayed that the First Appellate Court has gone wrong in relying on Section 31 of the said Act.
4. Per contra, Mr. Kadam submitted that under section 31 any transaction is prohibited if the scheme is implemented under the Bombay Prevention of Fragmentation and Consolidation Holdings Act, 1947. He submitted that though the words 'Agreement of Sale' is not mentioned in Section 31, the word 'otherwise' takes care of such transaction. He submitted that the notification under the Act was issued and it was in existence at the relevant time in respect of village Garpoli, District Raigad and that fact is not challenged. He relied on Section 8 and Section 21 of the said Act.
5. The trial Court and the first Appellate Court both have held that the agreement dated 18th March, 1980 was executed between defendant no.1 and the plaintiff. It was not a mortgage but it was an agreement to sell the land of 1H 20 Gunthas. The case put up by the defendants of mortgage was rightly not accepted by both the Courts. The Courts below have also given concurrent finding on the point of possession of the suit land by the appellant, as the consideration of Rs.6,000/- was paid by the plaintiff to defendant no. 1. Defendant no. 1 has admitted that he has entered into sale deed of the entire land on 18 th November, 1981 with defendant no. 2. It is also an admitted position that the agreement of sale, which was executed between the plaintiff and defendant no. 1 on 18th March, 1980 was a conditional sale and both the parties have agreed that a requisite permission for sale of the land is 5 Of 14 ::: Downloaded on - 09/06/2013 19:26:25 ::: SA6_1992 required from the Collector under the said Act. Admittedly, the defendant no. 1 did not bother to get the permission from the Collector.
When the suit was decreed, the vendor i.e. defendant no. 1 did not challenge the said decree in appeal. Naturally, defendant no. 2, being the second buyer, went in appeal and succeeded only on one point i.e. the plaintiff is not entitled to specific performance of contract, as the transaction of sale of any land for want of requisite permission under the said Act is prohibited under section 31(1)(a) of the Act. The impugned agreement of 18th March, 1980 is an agreement of sale. In the section 31(1)(a) though the word "Agreement of sale" is not used specifically, the last word 'otherwise' takes care of such transaction. Section 31(1)(a) reads as follows:
"31.(1) Notwithstanding anything contained in any law for the time being in force, no holding allotted under this Act, nor any part thereof shall save as otherwise provided in this section -
(a) be transferred, whether by way of sale (including sale in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue) or by way of gift, exchange, lease, or otherwise; (emphasis placed)
6. In the decision of the Nagpur Bench of Bombay High Court reported in Vinayakrao S/o. Ganpatrao Pimpalapure vs. The State of Maharashtra reported in AIR 1976 Bom. 10, the Division Bench has held that:
5. ..... We are unable to accept the submission urged on behalf of the petitioner. The opening part of Section 31 states "Notwithstanding anything contained in any law for the time being in force, no holding allotted under this Act, nor any part thereof, shall be transferred". The instances of transfer are stated in Section 31 of the Act. However, they are not exhaustive and for showing that there may be some other transfers stated, in our opinion, the word "otherwise" has been used.
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6. ..... This kind of transaction is covered under Section 31 of the Act which prohibits transfer and which, is of "otherwise" nature. In the instant case, the word "otherwise" in our opinion, has been given an extended meaning to include the above mentioned transaction and other transactions which are not covered by either sale mortgage, lease, gift, exchange but in which there is a transfer of the holding."
7. Similar view is taken in the decision of Single Judge of this Court in Lataru Sapaku Thakur vs. Hansaram Sakharam Pardhi reported in 1983 MH.L.J. 423. Thus, it is a settled position that Agreement of sale is by applying doctrine of 'ejusdem generis' is covered under the term "otherwise" of Section 31.
8. The learned counsel Mr. Gokhale advanced second limb of submissions pointing out the various provisions of the Act in respect of Prevention of Fragmentation. He tried to impress upon the Court that the land sold to the appellant is of 60R and in village Garpoli where the land situates, the 'standard fragment' is determined as 15R in respect of paddy field. Thus, the land sold is much more than the 'standard fragment' so the permission of the Collector is in fact not required for such transfer. These submissions require consideration.
9. In order to appreciate these submissions, it is necessary to go into the entire scheme of the said Act. Though the object of the Act is one and common i.e. to provide the larger portion of lands for better cultivation, the Act is in two parts. The first portion of the Act is in respect of Prevention of Fragmentation of agricultural lands and second part is for the consolidation of the holdings. The Act consists of five chapters - Chapter I & II are in respect of Prevention of Fragmentation; Chapter III lays down the procedure for consolidation; Chapter IV 7 Of 14 ::: Downloaded on - 09/06/2013 19:26:25 ::: SA6_1992 states the effect of consolidation proceedings and consolidation of holdings; and Chapter V is general in respect of powers of the Settlement Commissioner and of Appeal and Revision jurisdiction etc.
10. In the definition clause of sub-section (2) of Section 2, "Consolidation of holdings" means the "amalgamation and where necessary the redistribution of holdings or portions of holdings in any village or taluka or any part thereof so as to reduce the number of plots in holdings". A Consolidation Officer is appointed to perform all the functions of Consolidation under the Act. Section 4 defines a "fragment" as a plot of land of less extent than the appropriate standard areas determined under this Act. The standard area is also defined in Sub-section (10) of Section 2, which reads as follows:
" "standard area" in respect of any class of land means the area which the State Government may from time to time determine under section 5 as the minimum area necessary for profitable cultivation in any particular local area and includes a standard area revised under the said section."
11. Under sections 3, 4 and 5 of the Act, the State Government has to issue a notification in the Official Gazette about the village concerned and determine the standard area of each class of land in such local area. Thus, the Government by applying different criteria in respect of arable land, paddy field or horticulture land etc. shall determine a different standard area for each class of land and the Government has power to revise the said standard area. Thus, that standard area is a fragment and Section 9 prohibits the transfer or partition of any land contrary to the provisions of this Act and it is considered as void. If the owner wants to enter into the transaction of the kind which is a fragment, he needs to take the permission of the Collector.
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12. In case of Shantabai Bhima Sangle & Ors. vs. Yamunabai Waliba Kedar & Ors. reported in 2009(2) Mh. L.J., a Single Judge of this Court, while deciding the question of validity of transfer of fragment, has held that bar under section 31 of the Bombay Prevention of Fragmentation and Consolidation Holdings Act, 1947 will not come in the way and no permission of the Collector is required where the entire gat number is transferred and if only the part of the Gat number is being transferred, then the permission of the Collector is necessary. While taking this view, the Single Judge of this Court has relied on Sub-
section 3 of Section 31 which creates an exception to sub-section (1) of section 31. Similarly, in the case of Bapurao Ragho Dethe vs. Ganpati Vithu Rohankar & Ors., reported in 1994 Mh. L.J. 1504, the Single Judge of this Court has held that "Merely because provisions of Act were extended to a particular area, the plot of land in question did not become a fragment in the absence of determination of the standard area by appropriate authority".
13. In Chapter III, Procedure for Consolidation is laid down in detail. For the purpose of consolidation of holding in any village or tahsil, the Government may take out a notification in Official Gazette. While consolidating holdings, may be for better cultivation or for public purpose, a notice is required to be given to the persons concerned for the consolidation of holdings, then the officer shall provide the compensation to the owner who is alloted a holding of less market value than that of his original holding. By way of amalgamation and demarcation, the holdings are consolidated and they are alloted. Section 21 is about the Enforcement of the scheme. Thus, the Consolidation Officer put the owners in possession of the holdings to which they are entitled under the scheme and the officer has power to 9 Of 14 ::: Downloaded on - 09/06/2013 19:26:26 ::: SA6_1992 evict any person who is not entitled to occupy the same. So, once the possession of the holding is allotted as per the entitlement to the persons, then the scheme comes into force.
14. Chapter IV states about the effect of Consolidation proceedings and of consolidation of holdings. Section 31 restricts alienation and sub-division of consolidated holdings with exceptions stated in sub- sections 2 and 3 of Section 31. The sanction of the Collector is required for the purpose of alienation or sub-division of the consolidated holdings. Thus, Section 31 is applicable in respect of transfer or alienation of the consolidated holdings. Such holding is a piece and parcel of land allotted by the Consolidation Officer to the persons as per their entitlement under Section 21 and 22 of the Act, while Section 8 of the Act prohibits the fragmentation and so puts a restriction on the partition of such land. Such land means a standard fragment decided under the notification in that local area. Thus, by notification in the Official Gazette, if the Government has determined the local area and Settlement Commissioner under section 5 of the Act determined standard area of each class of land in such local area, then in that particular area, the transfer of the land which is below the standard fragment is prohibited under sections 8 and 9 of the Act. In support of this analysis, I rely on the decision in case of Bapurao Ragho Dethe vs. Ganpati Vithu Rohankar (supra). Paragraph 9 of the said judgment read as under:
9. ... It is common ground that the standard area was determined for the first time by notification published in the Official Gazette on 17th May, 1962. It is not possible to accept the submission of the learned counsel for the respondent that the transaction is hit by the provisions of the said Act even though no such notification was in force on the date of transaction. Merely because the provisions of the Act were 10 Of 14 ::: Downloaded on - 09/06/2013 19:26:26 ::: SA6_1992 extended to Vidharba Region from 1st April, 1959, the plot of land in question did not become a fragment in the absence of determination of the standard area by appropriate authority. I think I have dealt with all the contentions addressed at the Bar." (emphasis placed)
15. On transfer by way of mortgage, gift etc. of the consolidated holdings, there is a restriction on such alienation and sub-division of any portion of such holdings by virtue of Section 31 except which is permissible under sub-section 2 and 3 of Section 31 of the Act. Thus, Prevention of Fragmentation and Consolidation of Holdings are two independent schemes having one and common object under the Act and the procedure for these two schemes is also laid down separately. Indeed the provisions-8, 9, 10 & 31 are complimentary with a view to provide land for better cultivation.
16. Coming back to the substantial question of law as formulated by my predecessor at the time when the appeal was admitted, is reproduced herein again for convenience:
"Whether the specific performance can be granted to the parties on obtaining necessary permission under the Fragmentation Act even if it was not done earlier?".
17. While deciding this point one has to first consider whether the land in question was from the local area where the scheme of the Prevention of Fragmentation was made applicable or the land is from the area where consolidated holdings scheme is made applicable. If the land is a consolidated holdings, then such transfer will come directly under the rigor of Section 31 of the Act. If the land is not from the consolidated holdings but it is a land from the local area, where the standard fragment is determined and if the suit land is more than the 11 Of 14 ::: Downloaded on - 09/06/2013 19:26:26 ::: SA6_1992 standard fragment as prescribed for that local area of Garpoli, then the transfer does not require any permission of the Collector, as the transfer does not involve a partition of fragment under the Act.
18. In the last portion of the judgment of the trial Court, the Judge has referred the submissions made by the counsel of the appellant(plaintiff) that the standard fragment in Village Garpoli, District Raigad is determined 15R in respect of paddy fields. The suit land is 60 R i.e. 1H 20R, which is much more than the standard fragment in village Garpoli. On query, the learned counsel for the appellant fairly submitted that no such evidence either oral or documentary is tendered by the appellant(plaintiff) that the Government has determined the standard fragment in District Raigad Village Garpoli to the extent of 15R for the land where paddy crop is cultivated. In the absence of any evidence, the trial Court has committed an error in relying only on the submissions of the counsel for the plaintiff in fixing the standard fragment in Village Garpoli.
19. Moreover, Gat no. admeasuring 2.27H was alloted to defendant no.1 -vendor under the Consolidation of holdings scheme or not is not clear. If the land is alloted as holdings under the Consolidation Scheme enforced under the said Act, then except sub-sections 2 and 3 of Section 31, there is a total bar on the transaction of any portion of the said holdings under Section 31 of the said Act. However, as referred earlier in the case of Shantabai Bhima Sangle & Ors. vs. Yamunabai Waliba Kedar & Ors. (supra), a Single Judge of this Court has taken a view that the entire gat no. if sold or transacted, then that transaction cannot be prohibited under section 31 of the said Act. Thus, as mentioned earlier, the transaction of the land, which is more than the standard fragment, is permissible if the land is not covered under the Consolidation of Holdings Scheme. Sale or purchase or any type of 12 Of 14 ::: Downloaded on - 09/06/2013 19:26:26 ::: SA6_1992 transaction of the land more than the standard fragment is possible and the bar of Section 8 or 9 of the Act will not come in the way. However, if the land is Consolidated holdings, then no portion of such land can be subjected to any kind of transaction as mentioned under section 31 of the said Act. In view of these two separate schemes under the said Act, the burden is always on the plaintiff who avers that the sale doesn't require necessary permission of the Collector. No transaction or sale can be entered into without sanction of the Collector. If sanction for sale is granted by the Collector under section 31, only then a portion of the said holdings can be transferred, otherwise that sale is void.
Similarly, if a land below the standard fragment is sold without necessary permission, the said sale is void under sections 9 and 10 of the Act.
20. In the present case, defendant no. 1-vendor has sold the entire gat no. admeasuring 2.27 H to defendant no. 2. I rely on paragraphs 8 and 9 of the judgment of the Single Judge of this Court in Shantabai Bhima Sangle & Ors. vs. Yamunabai Waliba Kedar & Ors. (supra).
8. ... Sub-section (1) of section 31 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (for short 'the Consolidation Act') states that notwithstanding anything contained in any law for the time being in force, no holding allotted under the Consolidation Act, nor any part thereof shall be transferred whether by way of sale (including sale in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue) or by way of gift, exchange, lease, or otherwise; without the previous sanction of the Collector. Sub-section (3) of section 31 creates an exception to sub-section (1) and states that nothing in sub-section (1) shall apply to any land which is transferred to ...(iii) to an agriculturist or an agricultural labourer, in its entirety.
9. Section 31 of the Consolidation Act prohibits transfer of any holding allotted under the Consolidation Act without 13 Of 14 ::: Downloaded on - 09/06/2013 19:26:26 ::: SA6_1992 the permission of the Collector. The prohibition does not apply where the entire gat number is being transferred. In the present case, only part of the gat number was being transferred and therefore permission of the collector was necessary."
Thus, defendant no. 1-vendor did not sell the entire gat number to the appellant, but sold 1 acre 20 gunthas out of 2.27 H. Hence, the transfer is void.
21. A specific performance can be granted to the parties if necessary permission is obtained under the Fragmentation Scheme. As stated above, the appellant(plaintiff) has to prove that the suit land is more than the standard fragment. It is made clear that in the absence of sale of the suit land to the respondents after obtaining the sanction from the Collector, the sale deed could have executed. However, in the present case, as the transaction between defendant no.1 and 2 is already completed and the agreement of sale executed by the appellant and defendant no.1 was conditional subject to obtaining necessary permission of the authority which is not obtained, a suit for specific performance must fail.
22. There is no alternative prayer by the appellant demanding the repayment of the amount of consideration paid by him and the First Appeal Court, therefore, has rightly passed such order to that effect and has allowed the appeal.
23. I appreciate the assistance given by both the Counsel.
24. Second Appeal is dismissed.
(MRS. MRIDULA BHATKAR, J.) 14 Of 14 ::: Downloaded on - 09/06/2013 19:26:26 :::