Rajasthan High Court
Radha Kishan And Other vs State Of Raj on 21 November, 2022
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil First Appeal No. 112/1991
1. Radha Kishan S/o Shri Ghasi Lal (Now deceased) through his
Legal representatives
1/1. Goving Sharan Dhamani S/o Late Shri Radha Kishan age 61
years, R/o D-118, Siwar Area, Bapu Nagar, Jaipur
1/2. Ghan Shyam Dhamani S/o Late Shri Radha Kishan age 58
years, R/o D-118, Siwar Area, Bapu Nagar, Jaipur
1/3. Babu Lal Dhamani S/o Late Shri Radha Kishan age 54
years, R/o D-118, Siwar Area, Bapu Nagar, Jaipur
2. Goving Sahai S/o Shri Radha Kishan, resident of Sewar Area,
Bapu Nagar, Jaipur.
----Plaintiffs-Appellants
Versus
1. The State of Rajasthan through the Chief Secretary,
Government Secretariat, Jaipur.
2. The Commissioner, Devasthan Department, Rajasthan,
Udaipur.
3. The Assistant Commissioner, Devasthan Department, Temple
of Ram Chandra Ji, Sireh-Dyori Bazar, Jaipur
4. The Collector, Jaipur District, Jaipur- Bani Park, Jaipur.
----Defendants-Respondents
For Appellant(s) : Mr. Suresh Chandra Goyal
Mr. Mahendra Singh and
Mr. Vinay Patni
For Respondent(s) : Mr. Shailesh Sharma, Add. G.C.
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
Reserved On: September 16, 2022
Pronounced On: November 21st, 2022
BY THE COURT
1. Appellants-plaintiffs have preferred this civil regular first
appeal under Section 96 of the Code of Civil Procedure, 1908,
assailing judgment and decree dated 3.12.1990 passed in civil suit
No.358/1987 by the Court of Additional District Judge No.2, Jaipur
City whereby and whereunder civil suit for specific performance of
contract and permanent injunction filed by appellants-plaintiffs
has been decided in the manner that instead of decreeing
plaintiffs' suit for specific performance and issuing directions to
(2 of 47) [CFA-112/1991]
respondents-defendants to execute and register the sale deed,
pursuant to their decision dated 15/16 th April, 1980, in respect of
suit shop which is already in possession of plaintiffs, a decree
against defendants to refund the full sale amount of Rs.46,441/-
has been passed by the trial Court by its own and plaintiffs have
been held entitled for interest thereupon at the rate of 12% per
annum from the date of suit i.e. 18.10.1985 until payment.
2. The relevant facts of the case as culled out from the record
are that plaintiffs instituted civil suit for specific performance of
contract and permanent injuncstion on 18.10.1985 stating inter
alia that plaintiffs were tenant in the suit shop No.5/10 situated in
Temple of Shri Anand Bihari Ji at Ramganj Bazar, Jaipur belonging
to Devasthan Department. There has been a policy of the State
Government to dispose of the unprofitable properties of Devasthan
Department and in a meeting of Devasthan Properties Disposal
Committee (hereinafter referred as "the Disposal Committee")
took place in the month of December, 1973, a decision was taken
to dispose of properties of temple of Shri Anand Bihari Ji.
Thereafter, proceedings were postponed for a long period and
finally, the Disposal Committee under the chairmanship of
Revenue Secretary of the State Government, in its meeting dated
15/16th April, 1980 took a decision to dispose of the vacant and
unprofitable properties of Devasthan Department. Vacant
properties were to be disposed of by way of public auction and in
respect of properties occupied by tenants, it was decided that rent
would be determined according to the norms prescribed under the
Rajasthan Nazool Buildings (Disposal by Public Auction) Rule, 1971
by the Public Works Department and cost would be determined at
(3 of 47) [CFA-112/1991]
the rate of 200 times of the rent. One month notice would be
given to tenants asking to pay the due rent and the cost of
property as determined within a period of one month in order to
sale the property occupied by tenant and in case tenant remain
fail to deposit the determined sale amount, properties would be
auctioned after dispossession of the tenant. In pursuance of such
decision of the defendants, rent of plaintiffs' shop was determined
at the rate of Rs.232.20/- per month and value of shop was
assessed 200 time of the determined rent. Vide letter dated
22.7.1982, plaintiffs were given an offer to deposit due rent
arrears of Rs.22,786.29/- and the sale price of shop is
Rs.46,441/-, totaling Rs.69,187/- within one month in single
installment, then only shop can be sold to plaintiffs. Plaintiffs
accepted the offer and deposited the entire demanded sum of
Rs.69,187/- within a period of one month and in one installment
on 20.8.1982 vide receipt No.502 of book No.222403. This receipt
clearly contends that a sum of Rs.69,187/- has been received as
sale price of shop. Plaintiffs have pleaded that, thus a concluded
contract arrived at and completed between plaintiffs and
defendants. The possession of shop continued with plaintiffs as
part performance of contract, plaintiffs have been ready and
willing to get sale deed executed and registered and for this
purpose plaintiffs regularly contacted to employees of defendants
and offer to deposit the stamp charges but defendants postponed
the issue by saying that let the draft sale deed be prepared. Later
on, when plaintiffs realized that defendants are not taking interest
in execution of the sale deed in favour of plaintiffs rather are
trying to sell the shop in question to other person, plaintiffs served
(4 of 47) [CFA-112/1991]
one legal notice dated 15/ 19th March, 1985 upon defendants,
asking to execute the sale deed. This notice was issued under
Section 80 of CPC and was delivered through registered post as
well as under postal certificate (UPC) to all defendants. Thereafter,
plaintiffs instituted the present civil suit on 18.10.1985.
3. Defendants were served and put in appearance through
Advocate on 23.11.1985. Defendants took time for filing written
statement but despite giving several opportunities even after
giving opportunities on cost of Rs.50, then on Rs.100, defendants
did not file their written statement and therefore, their written
statement was closed vide order dated 19.9.1986. Plaintiffs
adduced their evidence and plaintiff- Radha Kishan deposed his
statement as Pw.1 and one witness Rampal deposed his statement
as Pw.2. No cross-examination was made by defendants from
Pw.1 and Pw.2. In documents, letter of defendants dated
22.7.1982, through which plaintiffs were informed about decision
of the State Government to sell the tenanted shop in question of
plaintiffs to them, on deposition of amount of (22,786.29/- +
46,441/-), total 69,187/- within one month was exhibited as
(Ex.1), receipt dated 20.8.1982, depositing the entire amount by
plaintiffs was exhibited as (Ex.2) and legal notice dated 15/ 19 th
March, 1985 was exhibited as (Ex.3), receipts of registry (Ex.4 to
Ex.7), acknowledgment receipts (Ex.8 to Ex.10) and UPC receipt
(Ex.11) were produced. Plaintiffs concluded their evidence on
22.1.1987. The suit was adjourned for final hearing on various
dates. At this stage, defendants moved application dated
27.5.1987, asking for opportunity to file written statement.
Plaintiffs opposed the application and the trial Court after
(5 of 47) [CFA-112/1991]
considering the conduct of defendants dismissed their application
vide order dated 20.5.1988. Nevertheless, granted opportunity to
defendants to lead evidence to rebut the case of plaintiffs. It may
be noticed that defendants never challenged order dated
19.9.1987 and 20.5.1988, closing their right of written statement
and orders have attained finality. As such defendants have not
filed any written statement to plaintiffs' suit. Thereafter,
defendants produced Radha Kishan as Dw.1 in their rebuttal
evidence and produced subsequent decision of the Disposal
Committee dated 19.2.1987 (Ex.A1), letter of Assistant
Commissioner dated 31.8.1982 (Ex.A2). Defendants moved an
application under Order 18 Rule 17 CPC, asking for cross-
examination from witnesses of plaintiffs and this application was
dismissed vide order dated 12.8.1988. Defendants produced one
reply notice which is undated along with an application under
Order 13 Rule 2 CPC, which was allowed vide order dated
15.5.1989. This reply notice was exhibited as (Ex.A3).
4. Final arguments of both parties were heard and learned trial
Court decided the suit vide judgment dated 3.12.1990. Learned
trial Court clearly observed that Dw.1 admits that defendants
decided to dispose of few properties of Devasthan Department in
the meeting of the Disposal Committee dated 15/ 16 th April, 1980
and in respect of shop of plaintiffs, decision was taken to sale the
shop to plaintiffs, on payment of 200 time of the determined rent
and letter dated 22.7.1982 was issued to plaintiffs. Dw.1 also
admits that plaintiffs has deposited entire sale amount within the
prescribed period of one month but later on, the Disposal
Committee has declined to sale the suit shop to plaintiffs vide
(6 of 47) [CFA-112/1991]
decision dated 19.2.1987 (Ex.A1). Learned trial Court has
recorded findings in favour of plaintiffs that plaintiffs have been
ready and willing to perform their part of contract and since
plaintiffs were already in possession of the suit shop and have
deposited the entire sale amount to defendants and were ready to
get the sale deed registered and to bear the stamp duty/
registration charges, therefore, there is nothing due on the part of
plaintiffs to perform their part of contract. Nevertheless, the trial
Court swayed away that since no agreement in terms of Article
299 of the Constitution of India executed between parties,
therefore, such contract is not valid between the parties. Thus,
though a contract was completed between the parties but only
because of having no written contract by and on behalf of
defendants in terms of Article 299 of the Constitution of India, the
trial Court observed that such a contract is void and declined to
pass the decree for specific performance in favour of plaintiffs,
however, by its own, observed that since defendants have realized
sale amount of Rs.46,441/- in respect of shop in question from
plaintiffs for which defendants were not entitled, therefore,
plaintiffs are entitled for damages under Section 70 of the
Contract Act and thus has decreed plaintiffs' suit for Rs.46,441/-
against defendants with interest at the rate of 12% per annum
from date of suit till its recovery, vide impugned judgment dated
3.12.1990.
5. By way of present first appeal, the plaintiffs have challenged
the decree of the trial Court denying specific performance on the
ground that since as per the policy of the State Government to
dispose of the unprofitable properties of Devasthan Department,
(7 of 47) [CFA-112/1991]
defendants have taken a final decision to sell the tenanted shop of
plaintiffs to them and have determined the sale amount,
demanded the same from plaintiffs offering to sale the shop, offer
was accepted by plaintiffs and full sale price, has been deposited
by plaintiffs which has been accepted by defendants, thus, a
concluded contract has resulted in the eye of law. It has been
alleged that in course of completion of concluded contract in the
present case, their was no requirement for execution of any
formal agreement in writing and therefore, provision of Article 299
of the Constitution of India does not have any application in the
present case nor any such objection was ever pleaded/ raised by
defendants, neither any written statement was filed nor there is
any other document of defendants which require essentially to
execute any formal agreement in writing. As a matter, after
completion of the contract and deposition of full sale amount by
plaintiffs, defendants were required to execute the sale deed as
was done in case of other similarly situated persons while selling
out the properties of Devasthan Department. The requirement of
execution of any formal agreement as per provision of Article 299
of the Constitution of India is nowhere indicated in the decision of
the Disposal Committee dated 15/16th April, 1980 nor in the letter
of offer to sale dated 22.7.1982 nor any such requirement is
indicated in the subsequent decision of the Disposal Committee
dated 19.7.1987 whereunder the previous decision to sale the
shop in question was reviewed by defendants one sided, that too
after completion of the contract. On the contrary, the subsequent
decision of defendants dated 19.7.1987 itself confirms the
previous decision of defendants dated 15/ 16 th April, 1980 and
(8 of 47) [CFA-112/1991]
speaks only about to defer the decision of sale. Plaintiffs have
pointed that this subsequent decision of the Disposal Committee
dated 19.2.1987 (Ex.A1) has been taken after filing of the present
civil suit on 18.10.1985 and after giving appearance by
defendants in the present civil suit on 23.11.1985, which is
squarely hit by principle of lis pendence. Further, defendants have
sold out other properties of Devasthan Department in respect of
which decision was also taken in the meeting dated 15/ 16 th April,
1980 but the decision in respect of shop of plaintiffs was deferred
that too during the pendency of suit, therefore, the trial Court has
committed illegality and perversity, in declining to grant the
decree for specific performance in favour of plaintiffs, under a
wrong impression that no written contract in terms of Article 299
of the Constitution of India has been executed between parties. It
has been pointed out that the trial Court has not adverted to the
other relevant factors that decision of defendants dated 15/16 th
April, 1980, issuance of letter dated 22.7.1982 and deposition of
sale amount by plaintiffs are not in dispute and further plaintiffs
have been in possession of the shop in question, since after
deposition of the entire sale amount which is as a part
performance of the contract under Section 53A of the Transfer of
Property Act and the entire chain of events clearly proves a
concluded contract between parties which has been acted upon
and equity lies in favour of plaintiffs, therefore, discretion should
be exercised judiciously and not arbitrarily by passing a decree for
specific performance in favour of plaintiffs in respect of shop in
question and the impugned judgment be set aside and plaintiffs'
suit for specific performance be decreed.
(9 of 47) [CFA-112/1991]
6. Per contra, respondents have opposed the prayer of plaintiffs
asking for decreeing their suit of specific performance on the
ground that because no agreement to sale the shop in question in
writing was executed, hence, there is no concluded contract
between the parties in compliance of Article 299 of the
Constitution of India and therefore, plaintiffs do not deserve for
decree of specific performance. It has been urged that compliance
of Article 299 is mandatory in nature and since defendants have
not executed any written agreement in terms of Article 299 of the
Constitution of India, therefore, learned trial Court has rightly
declined the decree for specific performance.
7. It is worthy to note that respondents-defendants have not
filed any cross objections nor have challenged the orders closing
their written statement, nor has made any prayer to grant an
opportunity to file written statement, nor have challenged the
decree passed by the trial Court in respect of refund of the sale
amount of Rs.46,441/- with interest at the rate of 12% per annum
to plaintiffs.
8. During pendency of first appeal, appellants and respondents
both moved applications under Order 41 Rule 27 CPC to produce
additional documents. Both applications have been allowed by this
Court vide separate order dated 9.9.2022 and additional
documents, produced by parties have been taken on record. These
documents are non else, but the Minutes of Disposal Committee
dated 15/ 16th April, 1980 and other correspondence letters dated
25.1.1983, 22.12.1984, 14.7.1986 and 10.9.1986 between inter
se Departments of defendants before the next meeting of the
Disposal Committee dated 19.2.1987. Since additional documents
(10 of 47) [CFA-112/1991]
are undisputed and part of Government record, therefore, same
have been taken on record and with consent of counsel for both
parties, Court has exhibited those additional documents from
Ex.C1 to Ex.C5.
9. Heard counsel for both parties at length, perused the
impugned judgments and scanned the entire record as also
considered the additional documents.
10. This Court, in the present appeal is exercising its powers and
jurisdiction under Section 96 read with Order 41 of CPC as first
Appellate Court. The first Appellate Court has jurisdiction to
reverse or affirm the findings of the trial Court. It is no more res
integra that the first appeal is valuable right of parties and unless
restricted by law, the whole case is therein open for re-hearing
both on questions of fact and law. It is settled law that an appeal
is a continuation of the original proceedings and all questions of
fact and law decided by the trial Court are open for re-
consideration. The first Appellate Court is required to decide the
appeal with conscious application of mind and must record
findings, supported by reasons for its decision in respect of all
issues, along with contentions put forth and apprised by parties.
Order 41 Rule 31 CPC provides guidelines to the Appellate Court
for deciding the appeal. Thus Rule mandates that the judgment of
the Appellate Court shall state:
(a) Points for determination;
(b) the decision thereon;
(c) the reasons for such decision; and
(d) where the decree appealed from is reversed or varied,
relief to each appellant is entitled.
11. In the present appeal at hand, since defendants have not
filed any written statement, the trial Court has not settled any
(11 of 47) [CFA-112/1991]
issues. Having considered pleadings of plaint, evidence of parties,
arguments advanced by counsel for both parties and in totality of
facts and circumstances, this Court finds that following points fall
for determination before this Court:
(i) Whether concluded contract for sale of the shop in
question has arrived at/ resulted in between parties, though
there is no written contract executed?
(ii) Whether defendants can take plea of Article 299 of
the Constitution of India to deny their promise, in the peculiar
facts and circumstances of present case?
(iii) Whether the trial Court committed error of fact and
law in declining to grant decree for specific performance in
favour of plaintiffs in respect of suit shop already in
possession of plaintiffs and for which defendants have
received entire sale amount, and instead decreeing plaintiffs'
suit, has passed order by its own for refund of the sale
amount with interest @ 12% per annum?
(iv) Relief?
Point No.1:-
(i) Whether concluded contract for sale of the shop in question
has arrived at/ resulted in between parties, though there is no
written contract executed?
12. In the present case, plaintiffs have come out with specific
pleadings that there has been a policy of the State Government to
dispose of the unprofitable properties of the Devasthan
Department and in that regard, meeting of Devasthan Properties
Disposal Committee was held in December, 1973 wherein
properties of Devasthan under Shri Anand Bihari Ji Temple, Jaipur
were also decided to be disposed of and such decision was
approved by the State Government vide its letter No.F-3 (9) (58)
Raj-1-63 dated 26.4.1974, Revenue Department (Group-I) to
(12 of 47) [CFA-112/1991]
thereafter proceedings were postponed for a long time and finally
a meeting of the Disposal Committee, under the chairmanship of
the Revenue Secretary of the State Government, was held on
15/16th April, 1980. In this meeting, a decision was taken to
dispose of the vacant and unprofitable properties of Devasthan
Department situated at Jaipur, Ajmer, Bharatpur, Sawaimadhopur,
Kota, Jodhpur, Ganganagar, Churu and Udaipur etc. Defendants
have not disputed such meetings of the Disposal Committee and
the minutes of the meeting dated 15/16 th April, 1980 are available
on record as Ex.C1. It clearly reveals that the Devasthan
Properties Disposal Committee comprises of Revenue Secretary,
Deputy Secretary Finance Department, Deputy Secretary Revenue
Department, Executive Engineer PWD and Commissioner,
Devasthan Department. Such meeting was held in the Secretariat
of the Government of Rajasthan and it is relevant to mention here
some portion of the decisions taken by defendants in such
meeting:
"देवस्थान प प्रोपोपररोपर्टी ्टी डर्टी डिी डिस प्रोजल कपोजल कमेोपरोजल कमेटी क कमेटी की टी की बेटी की बैठक ्टी डदन्थाैठक दिनांक 15 व 16-4-80 क कमेटी की
क्थार्यव्थाहोजल कमेटी क्था वववरण
__________________________________________________
्टी डदन्थाक 15 व 16-4-80 क प्रो र्थाजस्व सचसचिव पोजल कमह प्रोदर सचसचिव्थावलर ससत
कक्ष पोजल कम्, र्थाजस्व सचसचिव क कमेटी की अध्यक्षत्था पोजल कम् देवस्थान वव्थान विभ्थाग क कमेटी की सम्पद्था के
सम्बन्ध पोजल कम् सव ग गठठत ्टी डर्टी डिी डिस प्रोजल कपोजल कमेोपरोजल कमेटी क कमेटी की वेटी की बैठक हुई, जजसपोजल कमे वनम्न सददससदस्यों ने
्थान विभ्थाग ललर्था:-
1. शोजल कमेटीपोजल कमतोजल कमेटी क कुशल सससिंह / उपश्थासन सचसचिव सददस
2- शोजल कमेटी जरपोजल कम प्रोहन ्थान विभोपरन्थागर, सददस
उपश्थासन व र्थाजस्व वव्थान विभ्थाग
3- शोजल कमेटी अश प्रोक क कुपोजल कम्थार जेटी की बैन, सददस
असिश्थाषोजल कमेटी अल्थान विभरन्था, स्था०वन०वव०
(्थान विभवन एवैठक दिनां पथ ) ससोपरोजल कमेटी ्टी डर्टी डिवोजल कमेटीजन-1 जरप कुर
4- शोजल कमेटी ्थान विभव्थानोजल कमेटी सससिंह, आर कुक, देवस्थान, सददस सचसचिव
र्थाजस्थान उदरप कुर 1
(13 of 47) [CFA-112/1991]
्टी डर्टी डिी डिस प्रोजल कपोजल कमेोपरोजल कमेटी क कमेटी की गत टी की बेटी की बैठक ्टी डदन्थाैठक दिनांक 26, 27 व 28 ्टी डदसम्बर, 1973
क प्रो उदरप कुर पोजल कम् हुई थोजल कमेटी। उक टी की बेटी की बैठक के वनण्यरसदस्यों पर आर कुक , देवस्थान वव्थान विभ्थाग
द्थार्था पवरवनन्धत एवैठक दिनां वनरैठक दिनां्टी ड नियंत्रित र्थाजस्थान के टी की ब्थाहर तथ्था जरप कुर, ज प्रोिप कुर,
टी की बोजल कमेटीक्थानेर व क प्रोोपर्था खण्ड पोजल कम् ससत र्थाजक कमेटी कीर पत्यक्ष प्थान विभ्थारोजल कमेटी , र्थाजक प्रोष वन्थान विभ्यर
तथ्था र्थाजक कमेटी कीर स कुप कुद्यगोजल कमेटी शेणोजल कमेटी के पोजल कमैठक दिनां्टी डदर प्रो व सैठक दिनांस्थानसदस्यों क प्रो सवं को सर्वेक्षण क कमेटी की गई
अल्था्थान विभक्थारोजल कमेटी असचिल सम्पद्था क प्रो वटी की बक कमेटी की करने के नवोजल कमेटीन प प्रस्थाव तथ्था पाव तथा पूव्य पोजल कम्
पररत वनण्यरसदस्यों पोजल कम् से क कुछ पर प कुनर पुनः ववसचि्थार हेत कु प प्रस्थाव प प्रस कुत वकरे । उक
प प्रस्थावसदस्यों पर ववसचि्थार कर सव्य सम्मवत से वनम्न नोजल कमेटीवत वनिम्न नीति निर्धाररत क कमेटी की गई:-
(1) ज प्रो ्थान विभवन (आव्थासोजल कमेटीर अवैठक दिनां व्थावस्थायरक) ररकत हेटी की बै उनक प्रो
वनरपोजल कम्थान कुस्थार नोजल कमेटील्थापोजल कम वनिम्न नीति निर्धाररत वकर्था ज्थावे।
(2) ज प्रो ्थान विभवन वकररेद्थार के कबे पोजल कम् हेटी की बै उनक्था र्थाजस्थान नजाव तथा पूल
्थान विभवन (नोजल कमेटील्थापोजल कमोजल कमेटी द्थार्था वनरत्थारण ) वनरपोजल कम, 1971, के अन कुस्थार वकर्थार्था
स्थावज्यवनक वनपोजल कमम्न नीति निर्धाण वव्थान विभ्थाग के सचिललत वनरपोजल कम प्रो के अन कुस्थार वनिम्न नीति निर्धारण
कर्थार्था ज्थाकर, उक कर्थारे क्था 200 ग कुन्था र्थाशश फेटी की बैल्थाकर उपर कुक द्थार्था
ववकर र्थाशश वनिम्न नीति निर्धाररत क कमेटी की ज्थावेगोजल कमेटी और ऐसे ्थान विभवनसदस्यों क प्रो साव तथा पूसचिोजल कमेटी पोजल कमर वनिम्न नीति निर्धाररत
र्थाशश के आर कुक देवस्थान वव्थान विभ्थाग र्थाजस्थान उदरप कुर क प्रो पेयषत क कमेटी की
ज्थावेगोजल कमेटी तथ्था एक पोजल कमेटीतोजल कमेटी सम्बज्बन्दित सह्थारक आर कुक क प्रो दोजल कमेटी ज्थावेगोजल कमेटी।
वकर्थारेद्थार क प्रो उक र्थाशश तथ्था टी की बक्थार्था वकर्थार्था पोजल कम कुश्त जपोजल कम्था करने के ललए ,
उपर कुक, देवस्थान द्थार्था एक पोजल कम्थाह क्था न प्रो्टी डोपरस ्टी डदर्था ज्थावेग्था। र्टी डद एक
पोजल कम्थाह क कमेटी की अवसि पोजल कम् उक र्थाशश जपोजल कम्था नह नहीं क कमेटी की ज्थातोजल कमेटी त प्रो वकर्थारेद्थार क प्रो
टी की बेदखल कर ्थान विभवन क प्रो नोजल कमेटीलपोजल कम वकर्था ज्थावे।
(3) ज प्रो ररक ्थान विभाव तथा पूयपोजल कम वकर्थारे पर दोजल कमेटी गरोजल कमेटी थोजल कमेटी ------------
(4) ज प्रो आटी की ब्थादोजल कमेटी ्थान विभाव तथा पूयपोजल कम ररक हेटी की बै और ------------
आर कुक, देवस्थान वव्थान विभ्थाग, र्थाजस्थान, उदरप कुर द्थार्था प प्रस्थाववत अल्था्थान विभक्थारोजल कमेटी
ववकर र प्रोग्य सम्पद्था तथ्था पाव तथा पूव्य टी की बेटी की बैठक पोजल कम् ललए गए वनण्यर पर ववसचि्थार कर वनम्न
वनण्यर ललए गए :-
कपोजल कम सैठक दिनांख्था न्थापोजल कम पोजल कमैठक दिनां्टी डदर वववरण
जजल्था - जरप कुर
1. पोजल कम० शोजल कमेटी रतन वटी की बह्थारोजल कमेटी जोजल कमेटी, -------------
2. -------"---------- -------------
3. ----------------- -------------
4. ----------------- --------------
5. ----------------- --------------
6. पोजल कम० शोजल कमेटी आनैठक दिनांद वटी की बह्थारोजल कमेटीजोजल कमेटी, वनिम्न नीति निर्धाररत वकर्थारे क कमेटी की 200 ग कुन्था
थ्थान्था पोजल कम्थानक सचिौक, टी की बड़ोजल कमेटी सचिौपड़, र्थाशश लेकर ववकर करन्था
जरप कुर ।
7. -------------- -------------
(emphasis supplied)
(14 of 47) [CFA-112/1991]
In the minutes of meeting dated 15/16 th April, 1980, there is
a reference of the meeting of the Disposal Committee held on 26,
27 and 28th of December, 1973 in Udaipur as pleaded by plaintiffs
in para 5 of plaint and since such pleadings and minutes are
unrebutted and undisputed, therefore, it is obvious that
defendants have taken a decision to dispose of the shop in
question which is tenancy of plaintiffs, at the rate of 200 time of
the determined rent. Thereafter, in furtherance to such decision,
defendant No.3, Assistant Commissioner, Devasthan Department
has conveyed plaintiffs through letter dated 22.7.1982 stating that
the State Government has decided to sale the shop in question to
plaintiffs and in case, plaintiffs are ready to deposit the due rent
and 200 times of the determined rent as sale amount of the shop
in question within a period of one month, the suit shop can be sold
to plaintiffs. It is better to extract the letter dated 22.7.1982 as it
is, to consider the same in letter and spirit:
" क्थारम्न नीति निर्धालर उपर कुक, देवस्थान वव्थान विभ्थाग, र्थाजस्थान, जरप कुर।"
कपोजल कम्थाैठक दिनांक : प नियंत्रि- 3 (25) तक/ देव/ 81 / 492 ्टी डदन्थाैठक दिनांक 22.7.1982
न प्रो्टी डोपरस
व्था प्रसे : र्थाि्थावकशन प कु नियंत्रि घ्थासोजल कमेटी ल्थाल
व ग प्रोवव्बन्दि शरण प कु नियंत्रि र्थाि्था वकशन
,वकर्थारे द्थार पोजल कमैठक दिनां्टी डदर शोजल कमेटी आनैठक दिनांद वटी की बह्थारोजल कमेटीजोजल कमेटी
पोजल कम्थानक सचिौक, जरप कुर (र्थापोजल कमगैठक दिनांज टी की ब्थाज्थार)
ववषर :- टी की ब्थाटी की बत ववकर वकरे ज्थाने देवस्थान वव्थान विभ्थाग क कमेटी की
असचिल सम्पद्था एक दक ाव तथा पू ्थान स्थान र्थापोजल कमगैठक दिनांज टी की ब्थाज्थार
उपर प्रोक ववषर पोजल कम् जरररे न प्रो्टी डोपरस ह्थााज़्था आपक प्रो साव तथा पूचसचित वकर्था ज्थात्था हेटी की बै क कमेटी की आपके
देवस्थान, वव्थान विभ्थाग द्थार्था पटी की बरवनन्धत एवैठक दिनां वनरैठक दिनां्टी ड नियंत्रित र्थाजक कमेटी कीर पोजल कमैठक दिनां्टी डदर। सैठक दिनांस्था ्थान विभोजल कमेटी प्थास
आनैठक दिनांद वटी की बह्थारोजल कमेटी जोजल कमेटी पोजल कम्थानक सचिौक, जरप कुर क कमेटी की असचिल सम्पद्था एक दक ाव तथा पू ्थान वकर्थारे पर
से और जजसक्था वकर्थार्था तर स्थाव्यजवनक वनपोजल कमम्न नीति निर्धाण वव्थान विभ्थाग (्थान विभवन एवैठक दिनां पथ) के
व्थाैठक दिनांसछत वनरपोजल कम प्रो के अन कुस्थार 495/- रूपर्था पोजल कम्थाससक वनिम्न नीति निर्धाररत वकर्था गर्था हेटी की बै। र्थाज्य
सरक्थार ने उपर प्रोक सम्पद्था क प्रो ववकर करने क्था वनण्यर ललर्था हेटी की बै। र्टी डद आप
इस सम्पद्था क्था पाव तथा पूव्य वनिम्न नीति निर्धाररत दर से क कुछ टी की बक्थार्था वकर्थार्था 22746 -29 /- रुपर्था
तथ्था वत्यपोजल कम्थान पोजल कम् स्थाव्यजवनक वनपोजल कमम्न नीति निर्धाण वव्थान विभ्थाग (्थान विभवन एवैठक दिनां पथ ) के सचिललत वनरपोजल कम प्रो
(15 of 47) [CFA-112/1991]
के अन कुस्थार वनिम्न नीति निर्धाररत वकर्थारे क कमेटी की दर 232-20 /- रूपरे क्था २०० ग कुन्था र्थानोजल कमेटी 46 ,
441 /- रूपरे इस पक्थार क कुछ 69, 187/- उनहत्तर हाज़्थार एक स प्रो सतसई
रुपर्था इस पोजल कम कुश्त इस पोजल कम्थाह क कमेटी की अवसि पोजल कम् जपोजल कम्था करने क कमेटी की तेटी की बैर्थारोजल कमेटी ह प्रोव त प्रो उक सम्पद्था
आपक प्रो ववकर क कमेटी की ज्था सकतोजल कमेटी हेटी की बै। वजणत सपोजल कमर्थावसि पोजल कम् रकपोजल कम जपोजल कम्था नह नहीं ह प्रोने पर
आपक प्रो टी की बेदखल कर सम्पद्था वनरपोजल कम्थान कुस्थार ख कुलोजल कमेटी नोजल कमेटील्थापोजल कमोजल कमेटी द्थार्था ववकर कर्थाई
ज्थावेगोजल कमेटी ।
उप्थार कुक
देवस्थान वव्थान विभ्थाग, जरप कुर
(emphasis supplied)
13. Defendants in their evidence have produced one letter
No.882 dated 31.8.1982. In this letter, it is contained that as per
the decision No.2 of the Disposal Committee meeting dated
15/16th April, 1980, the properties indicated in the list including
the shop in question were to be sold and the Commissioner,
Devasthan Department, through its letter dated 27.1.1981 asked
to determine the due rent and sale price of the properties decided
to be sold. Accordingly the due rent and sale price were
determined and letter dated 22.7.1982 has been forwarded to
plaintiffs in respect of their shop in question and in pursuance
thereof, plaintiffs have deposited the full amount through the
demand drafts. The Assistant Commissioner as asked further
instruction from the Commissioner to complete proceedings of
sale. This letter dated 31.8.1982 (Ex.A2) itself certify and
corroborate that letter dated 22.7.1982 (Ex.1) that it was issued
pursuant to the decision of the Disposal Committee to sale the
shop in question to plaintiffs.
14. Perusal of the decision taken by the Disposal Committee in
its meeting dated 15/16th April, 1980 (Ex.C1) and letter dated
22.7.1982 (Ex.1) and letter dated 31.8.1982 (Ex.A2) as also
considering the recital indicated in the letter dated 22.7.1982 and
(16 of 47) [CFA-112/1991]
31.8.1982 leaves no room of doubt that defendants have taken a
decision to sale the shop in question to plaintiffs and in pursuance
thereof, the sale price of the shop was determined by defendants,
then proposal was given to plaintiffs that in case plaintiffs are
ready to deposit the determined due rent of Rs.22,746.29/- and
sale amount of Rs.46,441/-, total payable amount of Rs.69,187/-
within a period of one month in single installment, their tenanted
shop can be sold to plaintiffs. Such proposal in writing
communicated to plaintiffs. Thereafter, plaintiffs have accepted the
offer to sale the shop in question, unconditionally and deposited
the amount of Rs.69,187/- in single installment within a period of
one month, through receipt No.502, book No.222403 dated
20.8.1982. Receipt is available on record as Ex.2. In the receipt,
there is clear recital that a sum of Rs.69,187/- has been received
as price of sale of the shop of plaintiffs. The receipt of sale amount
of issuance of receipt Ex.2 is not in dispute and defendants
accepted to receive the sale amount as also issuance of receipt.
Therefore, communication of accepting the proposal of sale, by
the plaintiffs to defendants is also not in dispute. Thus, from the
document Ex.C1, which in decision of defendants to sale the shop
in question and, in pursuance of which letter dated 22.7.1982
(Ex.1), giving an offer to plaintiffs to purchase the shop subject to
deposition of demanded amount, and acceptance of offer by
plaintiffs, unconditionally and unqualified, by depositing the
amount through receit dated 20.8.1982 (Ex.2), and
communication thereof, it is clear that the offer of sale given by
defendants have been accepted by plaintiffs and acceptance is by
way of depositing the consideration of full sale amount and in such
(17 of 47) [CFA-112/1991]
a manner a lawful concluded contract has arrived at and resulted
in between plaintiffs and defendants.
15. Learned counsel for respondents-defendants has argued that
letter dated 22.7.1982 (Ex.1) was only an invitation to offer and
the sale of the shop in question to plaintiffs was subject to
approval by the State Government. This Court, does not find any
force in such submission as the language employed in the letter
dated 22.7.1982 clearly depicts that the State Government has
taken a decision to sale the shop in question to plaintiffs and this
letter nowhere whispers that the offer to sale is subject to
approval by the State Government. It may be noticed that the
State Government is already represented through the Revenue
Secretary in whose chairmanship, the Disposal Committee has
taken a decision to dispose of properties of Devasthan Department
in its meeting dated 15/16th April 1980, therefore, it is not
acceptable that the letter dated 22.7.1982 was an invitation to
offer to sale the shop in question subject to approval of the State
Government but it can be held that through this letter, decision of
the State Government to sale the shop in question to plaintiffs was
conveyed and it was an open offer to sale the shop to plaintiffs, if
plaintiffs are agreeable for deposition of the sale price of shop as
determined by defendants and demanded in the letter dated
22.7.1982. Since plaintiffs have accepted the offer by depositing
the amount unconditionally and within stipulated period in one
installment, the offer of defendants after its acceptance becomes
an agreement and such an agreement is for lawful purpose,
hence, is enforceable by law and as such can be treated as a
concluded contract.
(18 of 47) [CFA-112/1991]
16. Here it would be relevant to refer letters of defendants,
produced as additional evidence and which have been taken on
record and marked as exhibit with consent of counsel for both
parties. As per letter dated 25.1.1983 (Ex.C2), Commissioner,
Devasthan Department wrote to the Principal Secretary, Revenue
Department that in pursuance to the decision of the Disposal
Committee dated 15/16th April, 1980, the valuation of shop in
question which is in tenancy of plaintiffs has been assessed
according to the prescribed rules and the sale price has already
been received, so please give approval soon. Again a reminder
letter date 22.12.1984 (Ex.C3) has been issued by the
Commissioner, Devasthan Department to Revenue Department but
it may be noticed that the Principal Secretary of Revenue
Department has already taken a decision as he was head of the
Disposal Committee, as such there was no occasion for seeking
any further approval and to issue letters dated 25.1.1983 and
22.12.1984. Rather, defendants ought to have prepare a draft of
sale deed, and draft sale deed ought to have been sent for
signature of the concerned Authority of State Government.
Nevertheless, the Commissioner, Devasthan Department, himself
again wrote another letter dated 14.7.1986 to the Principal
Secretary, Revenue Department that the Assistant Commissioner
has inspected the shop in question and has found that same is not
unprofitable, therefore, it has been decided to cancel the decision
of the Disposal Committee to sale the shop to plaintiffs and a
letter has been sent to the Revenue Department for this purpose.
Through this letter, permission has also been sought to refund the
full sale amount of Rs.46,441/- to plaintiffs. This letter dated
(19 of 47) [CFA-112/1991]
14.7.1986 of the Commissioner, Devasthan Department has been
responded by the Revenue Department vide letter dated 1.9.1986
(Ex.C5) that the proposal to cancel the sale of shop in question be
placed before the next meeting of the Disposal Committee.
Thereafter, the next meeting of the Disposal Committee held on
19.2.1987 under the chairmanship of Revenue Secretary on behalf
of State Government. Defendants have produced the minutes of
the Disposal Committee held on 19.2.1987 as Ex.A1. In this
meeting of the Disposal Committee dated 19.2.1987, there is no
mention that the earlier decision of the Disposal Committee dated
15/16th April, 1980, to sale the shop in question of Devasthan
Department to plaintiffs who are in tenancy of shop in question
was subject to approval of the State Government but it is only
indicated that earlier decisions of the Disposal Committee have
been reviewed and the decision of the sale of shop in question to
plaintiffs is hereby postponed. For ready reference, the relevant
portion of the decision of the Disposal Committee taken in meeting
dated 19.2.1987 is also being incorporated herein:
"क्थार्यव्थाहोजल कमेटी वववरण ्टी डर्टी डिी डिस प्रोजल कपोजल कमेोपरोजल कमेटी क कमेटी की टी की बेटी की बैठक ्टी डदन्थािनाँक 19-2-87
======================================================
देवस्थान प प्रॉपोपररोपर्टी ्टी डर्टी डिी डिस प्रोजल कपोजल कमेोपरोजल कमेटी क कमेटी की टी की बेटी की बैठक आज ्टी डदन्थािनाँक 19-2-87 अपर्थान्ह : 3-00
टी की बजे श्थासन सचसचिव देवस्थान के कक्ष पोजल कम् हुई जजसपोजल कम् वनम्न असिक्थारररसदस्यों ने ्थान विभ्थाग ललर्था :-
1- शोजल कमेटी तेज क कुपोजल कम्थार, सचसचिव र्थाजस्व वव्थान विभ्थाग, जरप कुर । (अध्यक्ष)
2- शोजल कमेटी ववयपन क कुपोजल कम्थार शपोजल कमम्न नीति निर्धा, (सददस)
उप सचसचिव ववत्त (वर २) वव्थान विभ्थाग, जरप कुर ।
3- शोजल कमेटी एस र्टी डिोजल कमेटी पोजल कमद्थान, उप सचसचिव र्थाजस्व वव्थान विभ्थाग, जरप कुर । (सददस)
4- -------""""-------, आर कुक, देवस्थान वव्थान विभ्थाग, (सददस)
उदरप कुर ।
5- शोजल कमेटी के सोजल कमेटी शपोजल कमम्न नीति निर्धा, असिश्थाषोजल कमेटी अल्थान विभरन्था, स्था0 वन0, (सददस)
वव्थान विभ्थाग (्थान विभवन एैठक दिनांव पथ) ससोपरोजल कमेटी ्टी डर्टी डिववजन-पथपोजल कम, जरप कुर।
(20 of 47) [CFA-112/1991]
र्थाजस्व सचसचिव ने देवस्थान सम्पद्थार् ज प्रो र्थाजस्थान और उसके टी की ब्थाहर टी की बर्टी डिे -टी की बर्टी डिे शहर प्रो तथ्था
ग्थापोजल कमोजल कमेटीण अैठक दिनांसचिलसदस्यों पोजल कम् ससत हेटी की बै उनक कमेटी की सैठक दिनांसक्षप्त ज्थानक्थारोजल कमेटी सददससदस्यों क प्रो दोजल कमेटी । देवस्थान आर कुक ने
प प्रोपोपररोपर्टी ्टी डर्टी डिी डिस प्रोजल कपोजल कमेोपरोजल कमेटी द्थार्था ज प्रो आज तक क्थार्यव्थाहोजल कमेटी क कमेटी की गई हेटी की बै उसक्था वववरण सददससदस्यों के
सम्म कुख रख्था तथ्था प प्रोपोपररोपर्टी ्टी डर्टी डिी डिस प्रोजल कपोजल कमेोपरोजल कमेटी द्थार्था अल्था्थान विभक्थारोजल कमेटी सम्पद्थाारी सम्पदाओैठक दिनां के टी की बेसचि्थान के ज प्रो
वनण्यर पाव तथा पूव्य पोजल कम् ललरे गरे हेटी की बै और ज प्रो ्थान विभाव तथा पूयपोजल कम टी की बेसचिोजल कमेटी ज्था सचि कुक कमेटी की हेटी की बै उसक्था बौर्था ्थान विभोजल कमेटी सददससदस्यों क प्रो टी की बत्थार्था
। सददससदस्यों ने रह अन कु्थान विभव वकर्था वक आज क कमेटी की पररससवत पोजल कम् देवस्थान वव्थान विभ्थाग क कमेटी की सम्पद्थार् ववशेष
तौर पर व्थाव्थाससक सम्पद्थार् ज प्रो शहरसदस्यों के पोजल कम कुख टी की ब्थाज्थारसदस्यों पोजल कम् ससत हेटी की बै उनके टी की बेसचि्थान करने क कमेटी की नोजल कमेटीवत
क प्रो ी डिसष्ट वकर्था ज्थान्था आवश्यक हेटी की बै । इस पररपेक्ष पोजल कम् वष्य 1980 तथ्था 1982 क कमेटी की प प्रोपोपररोपर्टी
्टी डर्टी डिी डिस प्रोजल कपोजल कमेोपरोजल कमेटी क कमेटी की टी की बेटी की बैठक पोजल कम् ज प्रो वनण्यर ललरे गरे उन वनण्यरसदस्यों क प्रो रथ्थासैठक दिनां्थान विभव प कुनवम्न नीति निर्धाल प्रोकन
वकर्था गर्था। इन द प्रोन प्रो पक्षसदस्यों के टी की ब्थारे पोजल कम् ववसचि्थार ववपोजल कमश्य उपर्थान वनम्न्थाैठक दिनांवकत क्थार्यव्थाहोजल कमेटी करने क्था
वनण्यर वकर्था गर्था :-
देवस्थान अल्था्थान विभक्थारोजल कमेटी सम्पद्था वन प्रस्थारण सयपोजल कमवत क कमेटी की टी की बेटी की बैठक ्टी डदन्थाैठक दिनांक 15/16 अपेटी की बैल 80
पोजल कम् ललरे गए वनण्यरसदस्यों के टी की ब्थारे पोजल कम् :-
कपोजल कम सैठक दिनांख्था न्थापोजल कम पोजल कमैठक दिनां्टी डदर स्थान सम्पद्था वववरण वनण्यर
जजल्था - जरप कुर
1. पोजल कम० शोजल कमेटी रतन वटी की बह्थारोजल कमेटी जोजल कमेटी जरप कुर -------- -------
2 पोजल कम० शोजल कमेटी सचित कु्थान विभ कु्यज जोजल कमेटी जरप कुर -------- -------
3 पोजल कम० शोजल कमेटी ज्थानक कमेटी की वल्थान विभ जरप कुर -------- -------
4 पोजल कम० शोजल कमेटी आनैठक दिनांद वटी की बह्थारोजल कमेटीजोजल कमेटी
पोजल कम्थाणक सचिौक थ्थान्था टी की बड़ोजल कमेटी सचिौपड़ जरप कुर ----" "---- इस सम्पद्था के टी की बेसचि्थान के
पाव तथा पूव्य के वनण्यर क प्रो सवगत
वकर्था गर्था। रह देख्था
ज्थाए क कमेटी की इस एक दक ाव तथा पू ्थान
के आस प्थास देवस्थान
क कमेटी की वकतनोजल कमेटी दक
कु ्थाने हेटी की बै और
उनक कमेटी की क्था सवत हेटी की बै "
17. From perusal of documents referred hereinabove, it stands
clear that the State Government has already taken a decision to
sell the suit property to plaintiffs and which has been acted upon
and accepted by plaintiffs by depositing the sale price. Defendants
have accepted the sale price. None of the documents referred
hereinabove indicates that the decision to sell the shop in question
(21 of 47) [CFA-112/1991]
was subject to any approval of the State Government but it
appears that the concerned Authorities/ Officers of the Devasthan
Department by its own, took u-turn for the reason best known to
them and instead of preparing a draft sale deed, raised a new
issue by their own arbitrarily and one side, to cancel the previous
decision of the Disposal Committee and again placed the issue of
sale of shop in question to plaintiffs before the next meeting of the
Disposal Committee dated 19.2.1987. Before issuance of letter
dated 14.7.1986 wherein it is indicated that the Assistant
Commissioner inspect the suit shop and the earlier decision of the
Disposal Committee, be cancelled, the present civil suit has been
instituted on 18.10.1985 and defendants have already put in
appearance on 23.11.1985. Thus, it is apparent that the letter
dated 14.7.1986, letter 1.9.1986 and meeting of the Disposal
Committee dated 19.2.1987 are subsequent to the present suit
and defendants have taken one sided u-turn by their own after
completion of a contract and, despite having knowledge about the
pendency of present suit before the Court for enforcement of such
contract. Such letters/ decision of defendants are hit by the
principle of lis pendence. Apart from the above, it may also be
observed that these letters dated 14.7.1986 and 1.9.1986 and
decision of the Disposal Committee meeting dated 19.2.1987
nowhere speak that the earlier decision of the Disposal Committee
dated 15/16th April, 1980, to sell the shop in question to plaintiffs
was subject to decision of the State Government. Further the
decision of sale has also been postponed, so it cannot be said that
no concluded contract arrived at between parties. Therefore, these
documents, which have been produced by respondents-defendants
(22 of 47) [CFA-112/1991]
themselves, make it clear that concluded contract to sell the shop
in question between plaintiffs and defendants has been arrived at
rather, in the last meeting of the Disposal Committee dated
19.2.1987, defendants have just postponed their earlier decision
dated 15/16th April, 1980 to sell the shop in question to plaintiffs,
by reviewing their earlier decision by their own and that too when
the earlier decision had already been acted upon, partly performed
by defendants and fully performed by plaintiffs.
18. The necessary ingredients under the provisions of Indian
Contract Act, 1872 (hereinafter "the Act of 1872") for the
formation of concluded contract may also be taken into
consideration. As per Section 2(e) of the Act of 1872, every
promise and every set of promise, formulating the consideration
for each other, is an agreement. Section 2(f) envisage that
promise which form the consideration or part of consideration for
each other, which called reciprocal promise, Section 2(h) envisage
that an agreement enforceable by law is contract. Section 3 Talks
about manner of communication, acceptance and revocation of
proposals. Section 4 stipulates when the communication becomes
complete. Section 7 envisage that acceptance must be absolute.
As per Section 7, in order to convert a proposal into a promise,
the acceptance must be absolute and unqualified. Thus, the legal
position clearly emerges that an agreement becomes a concluded
contract when proposal is accepted and communicated to the
proposer. In this respect, Hon'ble High Court of Allahabad, in case
of Dominos Pizza Overseas Franchising B.V. Vs. State of
U.P. [2016 ALL HC 667] placed reliance on the judgment of
Hon'ble Supreme Court and held as under:-
(23 of 47) [CFA-112/1991]
"When a concluded contract will come into existence and
where, in our view can be adjudicated by taking recourse
to a three judge's judgment in Bhagwandas Goverdhandas
Kedia Vs. Girdharilal Prashottamdas and Co. and others
[AIR 1966 SC 543] wherein matter was decided by a
majority judgment. The majority judgment was rendered
by Hon'ble J.C. Shah, J. for himself and Justice K.N.
Wanchoo. Therein, Court after referring to Section 3 and 4
of Act, 1872, said, that it is acceptance of offer and
intimation of that acceptance which results in a contract.
By intimating an offer when parties are not in presence of
each other, the offeror is deemed to be making offer
continuously till the offer reaches offeree. The offeror
thereby merely intimates his intention to enter into a
contract on the terms of offer. Offeror cannot impose upon
the offeree, an obligation to accept, nor proclaim that
silence of offeree shall be deemed consent. A contract
being the result of an offer made by one party and
acceptance of that very offer by other, acceptance of offer
and intimation of acceptance by some external
manifestation which the law regards as sufficient, is
necessary. Court said:
"There should therefore be an offer by one party,
express or implied, and acceptance of that offer by the
other in the same sense in which it was made by the
other. But an agreement does not result from a mere
state of mind: intent to accept an offer or even a mental
resolve to accept an offer does not give rise to a
contract. There must be intent to accept and some
external manifestation of that intent by speech, writing
or other act, and acceptance must be communicated to
the offeror, unless he has waived such intimation, or the
course of negotiations implies an agreement to the
contrary."
(emphasis added)"
19. The Hon'ble Supreme Court in Life Insurance Corporation
of India Vs. Raja Vasireddy Komalavalli Kamba and others
[1984 (2) SCC 719], has held that acceptance must be signified
by some act or acts agreed on by parties or from which the law
raises a presumption of acceptance. That was a case relating to
insurance and Court said that contract of insurance will be
concluded only when party to whom an offer is made, accepts it
(24 of 47) [CFA-112/1991]
unconditionally and communicates his acceptance to the person
making offer.
20. In case of The Municipal Council Vs. Pasupathi
Muthuraja [(1969) ILR 1Mad 124], the Hon'ble Single Judge of
Madras High Court placed reliance on the statement of law in
Pollock and Mulla and observed that "only a concluded contract
can bind both parties and for such a contract to come into
existence, the offer and related acceptance must be absolute and
not qualified or conditional". In this judgment, reliance was placed
on previous judgment in case of Somasundaram Pillai Vs.
Provincial Government of Madras [AIR 1947 Mad 366], it would be
relevant to extract para 7 as under:
"To have an enforceable contract there must be an
offer and unconditional acceptance. A person who makes an
offer has the right of withdrawing it before acceptance, in
the absence of a condition to the contrary supported by
consideration. Does the fact that there has been provisional
acceptance make any difference? We can see no reason why
it should. A provisional acceptance cannot in itself make a
binding contract. There must be a definite acceptance or the
fulfillment of the condition on which a provisional
acceptance is based."
21. In the facts of present case, the issuance of letter dated
22.7.1982 (Ex.1) pursuant to decision of the Disposal Committee
dated 15/16th April, 1980 (Ex.C1) is not in dispute through which
an open offer to sale the shop in question was given by
defendants and same was duly communicated. It has already been
discussed in foregoing paras that plaintiffs have accepted the offer
unconditionally and absolutely, by way of depositing the full sale
consideration within a period of one month and in single
installment by way of receipt dated 20.8.1982 (Ex.2). Defendants
accepts to receive the full sale consideration amount, thus, the
(25 of 47) [CFA-112/1991]
communication of acceptance of the offer, by plaintiffs is also not
in question. Therefore, all essential ingredients required to be
fulfilled in order to bring a concluded contract in light and
enforceable, stands complied with in the present case.
22. After discussion of the factual and legal aspects and the
entire chain of documents, this Court is of the opinion that
concluded contract for sale of the shop in question has arrived at/
resulted in between parties, although, no such written contract
was executed.
Point No.2:-
(ii) Whether defendants can take plea of Article 299 of the
Constitution of India to deny their promise, in the peculiar facts
and circumstances of present case?
23. Learned trial Court has relied upon the provisions of Article
299 of the Constitution of India and has held that since the
formation of contract between plaintiffs and defendants is not in
conformity to Article 299 of the Constitution of India, therefore,
such contract is void. Consequently, the prayer for specific
performance has been declined.
24. Learned counsel for appellants has argued that the trial
Court has committed error of fact and law in applying provisions of
Article 299 of the Constitution of India in the present case where
no such objection was raised by defendants has neither any
written statement was filed nor any evidence in respect of such
objection was adduced. He submits that the applicability of Article
299 of the Constitution of India as an objection which pertains to
mixed question of fact and law. Since this objection was not in
issue at all, the trial Court has committed an illegality and
(26 of 47) [CFA-112/1991]
jurisdictional error in holding that the contract between parties is
in conformity to Article 299 of the Constitution of India while
delivering its judgment impugned and such point is surprising and
new point for plaintiffs.
25. Learned counsel for appellants has vehemently argued that
the applicability of Article 299 of the Constitution of India is a
mixed question of fact and law which cannot be decided in
absence of pleadings and issue in that regard. It has been argued
that in various judgments delivered by the Hon'ble Supreme Court
it has been held that even if there is no firm contract, the
Government would be bound by the representation made under a
Government scheme.
26. In the present case, the Government has entered into a
contract with plaintiffs to sell the shop in question in furtherance
to the decision of the Disposal Committee which is headed by the
Principal Secretary, Revenue Department of the State
Government. The decision of the Disposal Committee taken in
meeting dated 15/16th April, 1980 has been acted upon and
through letter dated 22.7.1982 was communicated to plaintiffs
which has been accepted depositing full sale consideration.
Defendants nowhere have disputed the decision of meeting dated
15/16th April, 1980 nor in any of the document produced by
defendants including the last meeting of the Disposal Committee
dated 19.2.1987, there is any reference that the contract is
required to be made after adherence to the provision of Article
299 of the Constitution of India. Therefore, as per material
available on record it is not the case of defendants that the
contract arrived at between parties to sale the shop in question is
(27 of 47) [CFA-112/1991]
not in accordance to the provisions of Article 299 of the
Constitution of India. Thus, on this point, the judgment impugned
is erroneous, illegal and perverse as such be quashed.
27. Per contra, learned counsel for respondents have argued that
the compliance of Article 299 of the Constitution of India is
mandatory and any agreement/ contract which is not in
compliance with the constitutional requirement of Article 299,
same is not enforceable in law.
28. Learned counsel for respondents, in support of his
arguments has heavily placed a reliance on judgment of Supreme
Court in case of Bishandayal and Sons Vs. State of Orissa
[ 2001 (1) SCC 555]. Counsel for appellants has argued that the
ratio of this judgment rather supports the case of appellants.
29. In case of Bishandayal and Sons (supra), there was a dispute
in respect of a contract between appellant-firm and State of Orissa
in respect of purchasing the mill with all its land. Appellant-firm
was insisting on purchasing the mill with all its land for a price of
Rs.2.32 lac only, whereas the Government was only offering the
mill with such land as would be required for running the mill and
thus, there was no concluded contract or agreement. In that view
of the case, the Hon'ble Supreme Court held that the plea of non-
compliance of Article 299 of the Constitution of India is a mixed
question of law and fact and unless such plea is not raised in
pleadings and no opportunity to made out with such plea is
accorded to the other side, same cannot be made applicable. The
relevant portion of the judgment, para 10 to 14 are being
extracted hereunder:
(28 of 47) [CFA-112/1991]
"10.Before us the Respondents have not disputed
that, at the meeting of 29th December, 1978, an
agreement as reflected in the minutes had been arrived
at. Thus there is no challenge to the findings in this
behalf. However, it has been contended that this is an
agreement, which is unenforceable in law as the
provisions of Article 299 of the Constitution of India have
not been complied with. The contentions regarding
Section 80, Code of Civil Procedre and precondition of
withdrawal of suit have been pressed.
11. On behalf of the Appellants it is contended that
it is not open to the Respondents to take up the plea of
non compliance with Article 299, Constitution of India as
no such plea was taken in the written statement. In
support of this reliance was placed on the case of Kalyanpur
Lime Works Ltd. v. State of Bihar and other reported in AIR 1954
S. C. 165. In this case the question was whether the
concerned contract conformed with the provision of
Section 30 of the Government of India Act, 1915 Such a
plea had not been raised in the pleadings or in the
memorandum of appeal to the High Court but was taken
for the first time during arguments in this Court. This
Court held that such a question could not be allowed to
be raised at the time of the arguments, as it was a mixed
question of law and fact and no opportunity to adduce
evidence was given to the other side.
12. Reliance was also placed upon the case of Union of India
vs. Surjit Singh Atwal reported in 1979 (1) S.C.C. 520. In this
case there was a concluded contract for the construction
of a hard runway, taxi tracks and dispersal roads The
work under the contract had been completed and the
dispute between the parties was whether the Contractor
was entitled to special rates in respect of certain stone,
which were not available at the site. It was claimed that
at a meeting it had been agreed that the Plaintiff
(therein) would be entitled to extra price. The plea
regarding illegality of the contract had not been raised in
the written statement. In the written statement there
was total denial regarding the agreement to make
payment of special price. Thereafter an application for
amendment of the written statement was made to plead
that there was failure to comply with the provisions of
Section 175(3) of the Government of India Act, 1935.
That application was dismissed but it was observed that
the plea could be raised even without an amendment.
The suit then went to trial. The trial court dismissed the
suit on the ground that there was a new agreement in
November 1947 and that this agreement did not comply
(29 of 47) [CFA-112/1991]
with the requirements of Section 175(3) of the
Government of India Act, 1935. In Appeal the Division
Bench held that there was no new agreement. The
Appellate Court held that the trial court was wrong in
entertaining a plea which had not been taken in the
written statement. The Appeal was accordingly allowed.
This Court dismissed the appeal to this Court on the
ground that such a plea not having been taken in the
written statement could not be raised after several years
after the institution of the suit as it would greatly
prejudice the plaintiff. This Court held if such a plea had
been taken at the earlier stage, the plaintiff could have
come out with a certain alternate case or raised certain
other pleas, which right he had now lost. This Court also
held that such a plea was a mixed plea of fact and law.
13. Reliance was also placed upon the case of Nirod
Baran Banerjee vs. Dy. Commissioner of Hazaribagh reported in 1980
(3) S.C.C. 5. In this case it was held that the question
whether Article 299 of the Constitution of India was
complied with is not a pure question of law but a question
depending on facts and since the point was not pleaded
either before the trial court or the High Court, it cannot
be raised in this Court for the first time. 14. There can
be no dispute with the preposition of law. The question
whether a contract complies with Article 299 of the
Constitution of India or not is a mixed question of law
and fact. Undoubtedly in this case the plea has not been
taken in the written statement and not been urged before
the trial court. However, it was squarely urged before the
Appellate Court. At the stage i.e. when it was urged
before the Appellate Court, a contention could have been
taken that such a plea cannot be raised. Instead the
Appellants took out an application under Order 41, Rule
27,Code of Civil Procedure, for a direction to the
Respondents to produce the original minutes in Court.
That application was allowed by the Appellate Court and
the Respondents were directed to produce the original
minutes in Court. Thus the Appellate Court made sure
that no prejudice was being caused to the Appellants. The
Appellate Court made sure that Appellants were not
deprived of an opportunity to lay all facts before the
Court. The minutes were then produced in Court. It was
found that the original minutes did not contain the
signatures of either of the parties. The original minutes
were shown to the counsel for the Appellants and they
were satisfied that the minutes had not been signed by
the parties. Thus the Appellants themselves, on such a
plea being raised, called for the additional evidence and
(30 of 47) [CFA-112/1991]
the Appellate Court permitted it. The original minutes
clearly indicated that the provisions of Article 299 had not
been complied with. Further the witness of the Appellant
had, during his cross examination, admitted that apart
from the minutes there was no other written agreement
between the parties. It is not the case of the Appellants
that the agreement arrived at in the meeting of 29th
December, 1978 had thereafter been approved or
sanctioned either by the President or the Governor. It is,
therefore, clear that even though there may have been
some agreement the same was not in compliance with
the constitutional requirement under Article 299 of the
Constitution of India and is therefore unenforceable in
law. In a case such as this there is no alternate plea that
could be taken. None has been taken. For this reason the
Appellants would not be entitled to specific performance
of such an agreement. It must be seen that all the cases
relied upon by the Appellants were cases where such a
plea was not allowed to raised, for the first time in this
Court or in the Appeal Court on the ground that the
concerned party did not have an opportunity to meet
such a case. In this case the Appellants, on their
application, were permitted to have brought in Court the
original minutes. Unfortunately this did not assist them.
Now they can not be permitted to argue that such a plea
could not be raised."
30. Applying ratio decidendi as declared by the Hon'ble Supreme
Court in case of Bishandayal and Sons (supra), in the present case
it is not in dispute that there is no pleading from the side of
defendants for taking a plea that the contract is not in compliance
of Article 299 of the Constitution of Indian, nor there is any other
document from the side of defendants showing such plea/
objection or any requirement of execution of any formal
agreement in writing before execution of sale deed pursuant to
the decision of defendants. Therefore, this judgment does not
render any help to respondents, rather supports the argument
advanced by counsel for appellants.
(31 of 47) [CFA-112/1991]
31. Counsel for respondents has also referred few other
judgments, in case of K.P. Chowdhry Vs. State of M.P. [AIR
1967 SC 203], Mulamchand Vs. State of M.P. [AIR 1968 SC
1218], Kirorilal Vs. The State of M.P. [AIR 1977
(Rajasthan) 101] and Union of India Vs. Chouthmal [AIR
1976 (M.P.) 199]. All these judgments have expounded the
proposition of law that the compliance of Article 299 of the
Constitution of India is mandatory and cannot be assumed or
multiplied and if a contract with the Government is not executed
in accordance with the provisions of Article 299 of the Constitution
of India then same cannot be enforced by law. There cannot be
any disagreement to such proposition of law as expounded by the
Hon'ble Supreme Court in all such judgments but the issue before
this Court is that in the present case, firstly, the plea of Article 299
of the Constitution of India is not available to defendants in
absence of any pleadings and documents and secondly the chain
of documents as discussed in point No.1, which proves a
concluded contract between parties, nowhere speaks about
mandating the requirement of adherence to Article 299 of the
Constitution of India, before execution of sale deed.
32. Counsel for appellants has referred judgment of the Supreme
Court in case of Union of India Vs. Indo-Afghan Agencies Ltd.
[AIR 1968 SC 718]. In this judgment the facts were that the
Textile Commissioner published a scheme called Export Promotion
Scheme providing incentives to exporters of woolen goods. The
scheme was extended by a trade notice, to exporters of woolen
goods to Afghanistan. Respondent-firm, dealing in woolen goods
at Amritsar had exported to Afghanistan and claimed for grant to
(32 of 47) [CFA-112/1991]
import entitlement certificate for full f.o.b. value of Rs.5,03,471-
73 np whereas the textile from the office of Textile Commissioner,
an import entitlement certificate was issued only for Rs.1,99,459,
hence, respondents challenged the action of appellant-State by
way of writ petition under Article 226 of the Constitution of India
before the High Court of Punjab. The High Court held that the
Export Promotion Scheme specifically provided for granting
certificates to import material of "value equal to 100% of the f.o.b.
value of the goods exported." and therefore, respondents were
entitled to obtain import license for an amount equal to 100% of
the f.o.b. value and orders of Textile Commissioner and Central
Government were set aside. The Union of India approached to
Supreme Court. It was faintly argued from the side of appellant-
Union of India that if the Government is held bound by every
representation made by it regarding its intention, when exporters
have acted in the manner they were notified to act, the
Government would be held bound by a contract obligation even
though no formal contract in the manner required by Article 299 of
the Constitution of India was executed, and the exporter would be
entitled to claim damages contrary to that provision for breach of
contract even though no formal written contract had been
executed in the manner provided by Article 299. The Supreme
Court observed that respondents are not seeking to enforce any
contractual right but they are seeking to enforce compliance with
the obligation which is led upon the Textile Commissioner by the
terms of scheme. It was held that the claim of respondents is
appropriately founded upon the equity which arises in their favour
as a result of representation made on behalf of Union of India in
(33 of 47) [CFA-112/1991]
the Export Promotion Scheme, and the action taken by
respondents act upon that representation under the belief that the
Government would carry out the representation made by it. The
Supreme Court relied upon the Judgment of Bombay High Court in
case of Municipal Corporation of the City of Bombay Vs. Secretary
of the State of India in Council [ILR 29 Bom 580] wherein it was
held that even though there is no formal contract as required by
the statute, may be bound by a representation made by it. The
Supreme Court held that it is open to party who is acted on a
representation to carry out the promise made by it, even though
the promise is not recorded in the form of a formal contract as
required by the Constitution.
(emphasis supplied)
33. In another judgment of the Hon'ble Supreme Court in case of
Century Spinning and Manufacturing Company Ltd. Vs.
Ulhasnagar Municipal Council [(1970) 1 SCC 582], appellant-
Company set up its factory in an industrial area. Later on the
industrial area came within periphery of municipality, constitute
under the notification of State of Maharashtra and on a
representation of the Company, the State excluded the "industrial
area from the municipal jurisdiction and consequently, the
Municipality agreed to exempt the Company from the payment of
octroi. Thereafter, Municipality sought to leave octroi duty from
the Company, hence, Company filed a petition under Article 226 of
the Constitution of India. The writ petition was dismissed by the
High Court in limine. On appeal, the Supreme Court observed that
the public bodies which as much bound as private individuals to
carry out representations of acts and promises made by the,
(34 of 47) [CFA-112/1991]
relying on which other persons have altered their possession to
their purchase. It was observed that different standards of
conduct for the plea and public bodies cannot ordinarily be
permitted. A public body is not exempted from liability to carry out
its obligation arising out of representations made by it relying
upon which a citizen has altered by the State/ public body that
something will be done in future, may involve an existing intention
to act in future in the manner represented. If the representation is
acted upon by another person, it may, unless the statute
governing the person making representation provides otherwise,
resulted in an agreement enforceable at law, if the statute
requires that the agreement shall be in a certificate form, no
contract may result from the representation and thereafter, but
the law is not powerless to raise in appropriate cases an equity
against him to compell performance of the obligation arising out of
his representation.
34. In the present case also plaintiff has acted upon the
representation made by defendants and has altered his situation
which has resulted in a contract and therefore, defendants are
bound to perform their obligation to execute the sale deed in
favour of plaintiff.
35. In case of Mahabir Auto Stores Vs. Indian Oil
Corporation [(1990) 3 SCC 752], the India Oil Corporation
being an organ or instrumentality of the State, entered into a
contract with private parties, in exercise of its executive powers
and later on after acting upon such contractual transactions for
long period by continuing supply of material, abruptly discontinued
(35 of 47) [CFA-112/1991]
the supply on the ground of change in Government policy. In that
factual backdrop, the Supreme Court has held as under:-
"In cases where the instrumentality of the State enters
the contractual filed, it should be governed by the incidence
of the contract. But even though the rights of the citizens
are in the nature of contractual rights, the manner, the
method and motive of a decision of entering or not entering
into a contract, are subject to judicial review on the
touchstone of relevance and reasonableness, fair play,
natural justice, equality and non-discrimination in the type
of the transactions and nature of the dealings as in the
present case. Every action of the State or an instrumentality
of the State in exercise of its executive power must be
subject to the rule of law and be informed by reason. In
appropriate cases, action uninformed by reasons may be
questioned as arbitrary in proceedings under Article 226 or
Article 32. Though it may not be necessary to give reasons
but in the filed of this nature fairness must be there to the
parties concerned. So, whatever be the activity of the public
authority, in such monopoly or semi-monopoly dealings, it
should meet the test of Article 14. If a authority, in such
monopoly or semi-monopoly dealings, it should meet the
test of Article 14. If a authority, in such monopoly or semi-
monopoly dealings, it should meet the test of Article 14. If a
governmental action even in the matters of entering or not
entering into contracts, fails to satisfy the test of
reasonableness, the same would be unreasonable. Rule of
reason and rule against arbitrariness and discrimination,
rules of fair play and natural justice are part of the rule of
law applicable in situation or action by State instrumentality
in dealing with citizens in a situation like the present one.
However, Article 14 cannot and has not been construed as a
charter for judicial review of State action after the contract
has been entered into, to call upon the State to account for
its actions in its manifold activities by stating reasons for
such actions."
36. In case of Nirod Baran Banerjee Vs. Dy. Commissioner
of Hazaribagh [(1980) 3 SCC 5], the Supreme Court has
observed that the appellant had relied upon the Resolution by the
Government, treating it as a valid arbitration agreement and never
raised the question that the said resolution was hit by Article 299
of the Constitution of India. The appellant fully participated in the
(36 of 47) [CFA-112/1991]
arbitration proceedings and having taken the benefit of arbitration
proceedings in his favour, tried to make complete somersault at
the stage of appeal that arbitration agreement was not in
consonance with the Article 299 of the Constitution of India. The
Supreme Court held that if the appellant had raised the plea
before the trial Court, the respondent may have been in
possession to rebut the plea by producing evidence and
circumstances to show that an agreement for arbitration was
authenticated in the form required by Article 299 of the
Constitution of India.
37. Learned counsel for appellants has referred two judgments
of the Division Bench of this Court passed in case of Bhawan
Singh Vs. State of Rajasthan: D.B. CWP No.237/1981
decided on 3.2.1992 and Navratan Mal Vs. State of Rajasthan:
D.B. CWP No.238/1981 decided on 9.3.1992. In both
judgments, issue in question was similar like the present appeal.
Petitioners were tenant of Devasthan Department and their rent
properties were offered to sale on 31.8.1983, petitioners accepted
the offer and deposited the sale amount. Since sale amount was
deposited with some delay, therefore, State of Rajasthan did not
execute the sale deeds although, the sale deeds have been
executed in favour of similarly situated other tenants who have
deposited the sale amount within time. No formal agreement in
writing was executed. In such backdrop of facts, the Hon'ble
Division Bench observed that since the State has accepted the
sale amount and everything which is necessary for execution of
sale deed, has been performed by petitioners, they are entitled for
writ of Mandamus and accordingly the State Government was
(37 of 47) [CFA-112/1991]
directed to execute the sale deeds in favour of petitioners on
bearing the cost and expenses of stamp duty and registration of
sale deeds by petitioners. Counsel for appellants submits that
appellants-plaintiffs are on better footing, only difference is they
have chosen to file civil suit, instead of civil writ petition under
Article 226 of the Constitution of India.
38. Coming back to the facts of present case, there are no
pleadings by defendants raising a plea of non-compliance of Article
299 of the Constitution of India nor in any of documents produced
by defendants, there is any such requirement that in the present
deal to sale properties of the Devasthan Department, before the
execution of sale deed by defendants in favour of plaintiffs, any
separate agreement in writing was required to be executed and
only thereafter sale would be executed. From the pleadings,
evidence and material available on record, this Court finds that
defendants have promised to sale the shop in question to
plaintiffs, subject to deposition of the sale amount as determined
by defendants and when plaintiffs have deposited the sale
amount, which has admittedly been received by defendants. The
sale deed was required to be executed by defendants in favour of
plaintiffs. It is not in dispute that plaintiffs have done everything,
which was to be done on their part and they have been ready and
willing to get sale deed registered and to bear charges of stamp
duty and registration etc.
39. It was not required between parties in the present set of
facts, for execution of any formal agreement in writing, therefore,
in the facts and circumstances of present case, plea of having no
written agreement in compliance of Article 299 of the Constitution
(38 of 47) [CFA-112/1991]
of India, is afterthought and unwarranted and merely on this
count, defendants cannot be allowed to deny their promise to
execute the sale deed, after acceptance of promise by plaintiffs
and position of plaintiffs have altered by continuing their
possession in suit shop in part performance of contract of owner.
40. The trial Court has committed serious error in not adhering
to the peculiar facts of the present case where a concluded
contract has already arrived at between parties and none of
documents/ evidence referred by defendants, make it essential for
execution of an agreement in writing after complying with
provisions of Section 299 of the Constitution of India, before
execution of the sale deed. The trial Court, by its own has
assumed that the contract of sale is void due to non execution of a
formal agreement and without compliance of Article 299 of the
Constitution of India whereas neither any agreement to sale was
required to be executed between parties nor any plea of contract
being void due to non-compliance of Article 299 of the
Constitution of India was taken by defendants nor any other
material was available on record that without execution of an
agreement in compliance of Article 299, the sale deed cannot be
executed. The facts and evidence in the present case clearly show
that a concluded contract has arrived at between parties and when
everything necessary for execution of the sale deed has been
performed by plaintiffs, defendants should have been directed by
the trial Court to execute the sale deed in favour of plaintiffs.
Learned trial Court has committed gross error of fact and law by
applying the plea of Article 299 of the Constitution of India to the
present suit, such plea is neither received by defendants nor is
(39 of 47) [CFA-112/1991]
applicable at all to the present case. Point No.2 is decided
accordingly.
Point No.3:-
(iii) Whether the trial Court committed error of fact and law in
declining to grant decree for specific performance in favour of
plaintiffs in respect of suit shop already in possession of plaintiffs
and for which defendants have received entire sale amount, and
instead decreeing plaintiffs' suit, has passed order by its own for
refund of the sale amount with interest @ 12% per annum?
41. At the outset, it may be noticed that it is not in dispute that
shop in question was already in possession of plaintiffs as tenants
and last rent was determined by Devasthan Department at the
rate of 495/- demanding due rent of Rs.22746.29/- way back vide
letter dated 22.7.1982. Thereafter, in order to determine the sale
price of shop in question, rent was determined as per the Rules of
Rajasthan Nazool Buildings (Disposal by Public Auction) Rules,
1971 at the rate of Rs.232.20/- and sale price was determined
200 times of such determined rent i.e. Rs.46,441/-. The due rent
and the sale price were demanded by defendants vide letter dated
22.7.1982. Entire due rent and full amount of sale price have been
deposited by plaintiffs within time in single installment. Plaintiffs
have pleaded that thereafter, their possession over the shop in
question has continued in part performance of the contract for
sale owner and defendants never asked any rent of the shop in
question from plaintiffs. Defendants have denied the possession of
plaintiffs in part performance of contract for sale of their tenanted
shop to them nor it is a case of defendants that they ever
demanded rent from the plaintiffs for the suit shop treating
(40 of 47) [CFA-112/1991]
plaintiff as tenant. Plaintiffs have done everything on their part for
getting the sale deed and have been ready and willing to bear
expenses for stamp duty and registration charges. The trial Court,
in the impugned judgment has already recorded findings in
respect of readiness and willingness in favour of plaintiffs which
are not under challenge. Defendants, once have accepted the sale
amount from plaintiffs pursuant to their own decision to sale the
shop in question to plaintiffs, cannot be allowed to take
somersault from their promise which has been concluded into an
enforceable contract.
42. Learned trial Court has not adhered to the fact that the
subsequent decision of the Disposal Committee taken in the
meeting dated 19.2.1987 (Ex.A1) to defer the previous decision of
the Disposal Committee dated 15/16 th April, 1980 to sale the suit
shop, is against the principle of public policy and suffers from
principle of lis pendence and the suit for specific performance has
been filed on 18.10.1985 and before that a concluded contract has
arrived at and decision dated 15/16 th April, 1980 has been acted
upon, therefore, after giving appearance before the trial Court in
present suit, on 23.11.1985, it is not bonafide and fair andonthe
part of default to hold a meeting on 19.2.1982 and to receive their
decision dated 15/16th April, 1980. Thus, action of default in
respect of taking decision in meeting dated 19.2.1987 rather help
to the case of plaintiffs as default or deferred their decision to
sale. In overall facts and circumstances of the present case, equity
lies in favour of plaintiffs.
43. It is true that the grant of decree for specific performance is
discretionary and equitable relief but as per proposition of law,
(41 of 47) [CFA-112/1991]
such discretion is required to be exercised reasonably and
according to the sound principles of law. There is no circumstances
in the present case to show any lack of bonafides on the part of
plaintiffs rather it appears that defendants are not fair in their
proceedings. Plaintiffs issued legal notice dated 15/19 th April, 1985
purportedly under Section 80 of CPC, asking from defendants to
execute the sale deed and fulfill their promise. Defendants have
filed one reply notice (Ex.A3), which was firstly filed belated along
with application under Order 13 Rule 2 CPC. This reply notice was
alleged to be sent by the Deputy Commissioner but this notice
does not bear any date, any dispatch number nor any postal
receipt or other evidence has been produced that how this reply
notice was delivered. Prima facie, such reply notice appears to be
fake document, prepared arbitrarily to take a plea of Article 299 of
the Constitution of India whereas no such plea is reflected in any
of letters produced by defendants (Ex.C2 to Ex.C5). The decision
dated 19.2.1987 (Ex.A1) to defer the previous decision of sale of
the suit shop is also one sided and cannot be countenanced as
prior to that present civil suit for specific performance has already
been filed and defendants have put in appearance in the suit on
23.11.1985. Therefore, the conduct of defendants seems to suffer
from lack of bonafide and fairness on their part; defendant,
somehow have adopted some arbitrary and malice practice to
contest the plaintiffs' suit for specific performance.
44. In case of Sughar Singh Vs. Hari Singh [2021 SCC
Online SC 975], the Hon'ble Supreme Court, while dealing a case
in respect of specific performance of an agreement, where the
decree was passed in favour of plaintiff and was affirmed by the
(42 of 47) [CFA-112/1991]
first Appellate Court but the High Court quashed and set aside the
decree for specific performance, on the observation that under
Section 20 of Specific Relief Act, 1963, the relief of specific
performance is discretionary and such grant of decree is
dependent upon principle of justice, equity and good conscience.
The Hon'ble Supreme Court upsetting the reversing findings/
judgment of the High Court observed that in every case such
concept cannot be accepted and/ or approved or applied. Many a
times, declining the decree of specific performance to plaintiff
merely because it is a discretionary relief, would be given a
premium to dishonest conduct on the part of defendant who
refuses to honor his promise after execution of agreement to sale.
The Supreme Court observed that even the discretion under
Section 20 of the Specific Relief Act, is required to be exercised
judiciously, soundly and reasonably, plaintiff cannot be punished
by refusing the relief of specific performance despite the fact that
execution of agreement to sale in his favour has been established
and proved and that the plaintiff is found to be always ready and
willing to perform his part of contract. The relevant portion of the
judgment, para 46 and 47 are being extracted hereunder:
"46. Now, so far as the finding recorded by the
High Court and the observations made by the High Court
on Section 20 of the Act and the observation that even if
the agreement is found to be duly executed and the
plaintiff is found to be ready and willing to perform his
part of the Agreement, grant of decree of specific
performance is not automatic and it is a discretionary
relief is concerned, the same cannot be accepted and/ or
approved. In such a case, many a times it would be
giving a premium to the dishonest conduct on the part of
the defendant/executant of the agreement to sell. Even
the discretion under Section 20 of the Act is required to
be exercised judiciously, soundly and reasonably. The
(43 of 47) [CFA-112/1991]
plaintiff cannot be punished by refusing the relief of
specific performance despite the fact that the execution
of the agreement to sell in his favour has been
established and proved and that he is found to be always
ready and willing to perform his part of the contract. Not
to grant the decree of specific performance despite the
execution of the agreement to sell is proved; part sale
consideration is proved and the plaintiff is always ready
and willing to perform his part of the contract would
encourage the dishonesty. In such a situation, the
balance should tilt in favour of the plaintiff rather than in
favour of the defendant-executant of the agreement to
sell, while exercising the discretion judiciously.
47. For the aforesaid, even amendment to the Specific
Relief Act, 1963 by which section 10(a) has been
inserted, though may not be applicable retrospectively
but can be a guide on the discretionary relief. Now the
legislature has also thought it to insert Section 10(a) and
now the specific performance is no longer a discretionary
relief. As such the question whether the said provision
would be applicable retrospectively or not and/ or should
be made applicable to all pending proceedings including
appeals is kept open. However, at the same time, as
observed hereinabove, the same can be a guide."
(emphasis supplied)
45. In case of Zarina Siddiqui Vs. A. Ramalingam [(2015) 1
SCC 705], the Hon'ble Supreme Court discussed the equitable
jurisdiction of Court under Section 20 of the Specific Relief Act,
1963 and after considering the catena of previous judgments, has
held that when the plaintiff has proved his agreement; his
readiness and willingness and his conduct is free from any
malafides, the discretion cannot be exercised in favour of
defendants by refusing to grant the specific performance, moreso
when defendant has not come before the Court with clean hands.
The Court also observed that efflux of time and escalation of price
of the property, during the course of lis, is not valid ground to
deny the specific performance in favour of plaintiff. The relevant
(44 of 47) [CFA-112/1991]
portion of judgment, para 33 and 36 are being extracted
hereunder:
"33. The equitable discretion to grant or not to
grant a relief for specific performance also depends upon
the conduct of the parties. The necessary ingredients has
to be proved and established by the plaintiff so that
discretion would be exercised judiciously in favour of the
plaintiff. At the same time, if the defendant does not
come with clean hands and suppresses material facts
and evidence and misleads the court then such
discretion should not be exercised by refusing to grant
specific performance.
36. As held by this Court time and again, efflux of
time and escalation of price of the property by itself
cannot be a valid ground to deny the relief of specific
performance. But the Court in its discretion may impose
reasonable conditions including payment of additional
amount to the vendor. It is equally well settled that the
plaintiff is not to be denied specific performance only on
account of phenomenal increase of price during the
pendency of litigation."
46. Taking into consideration the gamut of entire facts and
circumstances hollistically and keeping in mind the proposition of
law in respect of grant/ refuse the decree for specific performance,
this Court finds that this is a case, where this is undisputed fact
that the defendants took a decision to sale the properties of
Devasthan Department, occupied by tenants under their policy
and in the meeting of the Disposal Committee dated 15/16 th April,
1980, along with other properties of Devasthan Department,
decision was taken in respect of the shop in question of plaintiffs
which was in their tenancy to sale the same after determination of
200 times of the rent as per the then prevailing rules. Thereafter,
defendants determined the sale price of shop in question and an
open offer through the letter dated 22.7.1982 was given to
plaintiffs, conveying the decision of the State Government to sale
(45 of 47) [CFA-112/1991]
the shop in question and plaintiffs were asked to deposit the
determined due rent and sale price in single installment within one
month, in order to sale the suit shop to plaintiffs. It is also
undisputed that plaintiffs have accepted such offer unconditionally
and absolutely, deposited the full sale amount within a period of
one month in single installment vide receipt dated 20.8.1982.
Acceptance of the offer of sale price dated 20.8.1982 which itself
contains all necessary ingredients as required in law to form a
concluded contract stand complied with, It has already been
discussed in the point No.2 that any formal agreement in writing
in consonance to Article 299 of the Constitution of India was not at
all required in the present case and pursuant to such concluded
contract, defendants were required to execute a sale deed but
defendants have not performed their promise rather from the
record, their conduct has been found to be suffer from lack of
bonafides, the Division Bench of Rajasthan High Court in case of
Bhawan Singh Vs. State of Rajasthan: D.B. CWP
No.237/1981 decided on 3.2.1992 and Navratan Mal Vs. State
of Rajasthan: D.B. CWP No.238/1981 decided on 9.3.1992,
also had passed writ of Mandamus, issuing directions to the State
of Rajasthan to execute the sale deed in order to fulfil the promise
made by the State Government, which has been discussed in
detail in preceding paragraphs No.37, therefore, it is a fit case
where the a decree for specific performance should be passed in
favour of plaintiffs and defendants should be directed to execute
the sale deed in performance of their promise to sale the shop in
question. The trial Court, istead of passing a decree for specific
performance has passed a decree by its own to refund the sale
(46 of 47) [CFA-112/1991]
price to plaintiffs along with interest at the rate of 12% per
annum. Judgment and decree of the trial Court is liable to be
reversed.
47. Before parting with the judgment, this Court deems it just
and proper to take on record the proposal given by counsel for
plaintiffs that although plaintiffs have deposited the full sale price
as determined and demanded by defendants, however, since
prices of shop has increased with passage of time so presently
they are agreeable to pay the sale price of the suit shop according
to the present prevailing rate of District Level Committee of the
State Government in respect of the shop in question but obviously
after adjustment of amount of earlier sale price deposited by them
and interest at the rate of 12% per annum accrued thereupon as
directed by the trial Court to refund the amount. Such proposal
has been made by the counsel for appellants, just to maintain the
equity and balance of interest of both the parties.
48. This Court, prima facie, of the opinion that it may be true
that with passage of time, market value of the shop in question
would have certainly been enhanced during course of pendency of
present list. However, merely increase of price of suit property is
not a ground to deny the specific performance. Moreover, when
equity already stands in favour of plaintiffs by their conduct as
also having continuous possession of suit shop in part
performance of the contract and completing everything on their
part to get the sale deed executed. This Court left it open for the
respondents to consider the offer given by counsel for plaintiffs, to
realise the sale price as per the present and prevailing DLC rate of
the State Government but certainly after adjustment of the
(47 of 47) [CFA-112/1991]
decreetal amount by the trial Court. This Court is just taking the
offer of plaintiffs on record, in all fairness of the parties.
49. For the discussion and reasons made hereinabove, all three
points referred in para 11 of this judgment have been decided in
favour of appellants, therefore, the final outcome is that the
present first appeal succeeds. As a result, the impugned judgment
and decree dated 3.12.1990 stands set aside and the Civil Suit for
specific performance filed by appellants-plaintiffs is decreed.
Respondents-defendants are directed to execute and register the
sale deed of the shop in question in favour of appellants-plaintiffs
within a period of three months. Needless to clarify that expenses
of stamp duty and registration would be borne by plaintiffs.
50. Parties shall bear their own costs.
51. Record of the trial Court be sent back forthwith.
(SUDESH BANSAL),J
NITIN/
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