Gujarat High Court
Girishbhai Natwarlal Shah vs State Of Gujarat on 21 August, 2018
Author: C.L. Soni
Bench: C.L. Soni
C/SCA/12564/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12564 of 2018
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GIRISHBHAI NATWARLAL SHAH
Versus
STATE OF GUJARAT
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Appearance:
MS TRUSHA K PATEL(2434) for the PETITIONER(s) No. 1
for the RESPONDENT(s) No. 10,11,12,13,2,3,4,5,6,7,8,9
MS NISHA THAKORE, AGP for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 21/08/2018
ORAL ORDER
1. The petition is filed under Articles 226 and 227 of the Constitution, seeking to quash and set aside the order dated 9.10.2017 (dispatched date 6.11.2017) passed by the Joint Secretary, Revenue Department (Appeals), Ahmedabad in Revision Application No.20 of 2012 filed by the respondent No.3 herein.
2. The above revision application was filed by respondent no.3 under Section 211 of the Gujarat Land Revenue Code,1894 ('the Code') against the order dated 30.10.2012 passed by the respondent No.2- the Collector granting Non-Agriculture permission under Section 65 of the Code to the respondent Nos.4 to 11 for land bearing Survey No.42 admeasuring 11028 Sq. Mtrs. situated at village Sama, Taluka Vadodara for residential purpose. It was the case of the respondent no.3 that he has agreement to sell ('the Banakhat') for the land in question executed on 4.4.1986 by the landlord in his favour and based on such agreement to sell, he filed Special Civil Suit No.50 of 2009 for specific performance of contract.
3. As recorded in the impugned order, the respondent No.3 was refused injunction by the Civil Court in his suit, against which he Page 1 of 8 C/SCA/12564/2018 ORDER filed Appeal from Order No.38 of 2011, which was dismissed by this Court and later on, he withdrew his suit unconditionally on 5.12.2014.
4. The petitioner claims to be one of the assignees under the assignment deed dated 5.3.2012 of the rights which the respondent No.3 got under the agreement to sell dated 4.4.1986. As further recorded in the impugned order, after the petitioner was joined as party in the revision application filed by the respondent No.3, the Joint Secretary ordered to hear the revision application in due course. It was thereafter, the respondent No.3 filed application before the Joint Secretary to withdraw his revision application. The petitioner however opposed the application and prayed to transpose him as revisionist. The Joint Secretary after hearing the parties passed the impugned order granting prayer for withdrawal of the revision application and ordering to remove the revision application from the case register with observation that the parties shall be bound by the decision rendered in Special Civil Suit No.263 of 2014 pending for the land in question.
5. The Joint Secretary has observed in the impugned order that the dispute concerning the agreement to sell and the right or title in the land could be decided by the Civil Court for which the petitioner has already filed above suit. It is further observed that by grant of NA permission, the title or the ownership rights are not changed and the petitioner has failed to establish his locus in connection with the land in question.
6. Learned advocate Ms. Patel for the petitioner submitted that the respondent No.3 filed the revision application on the basis of the agreement to sell and when the rights under the agreement to sell were assigned by the respondent No.3 in favour of the petitioner, Page 2 of 8 C/SCA/12564/2018 ORDER the Joint Secretary could not have permitted the respondent No.3 to withdraw the revision application when the petitioner objected to withdrawal of the revision application and prayed for his transposition as revisionist. She submitted that just to defeat the rights of the petitioner for specific performance of contract in his favour, the respondent No.3 and the other private respondents joined hands and sought withdrawal of the revision application. She submitted that when such ill-design hatched by the respondent No.3 and the other private respondents was brought to the notice of the Joint Secretary and when the petitioner stepped in the shoes of the respondent No.3 on assignment of the rights in connection with the agreement to sell for the land in question, the Joint Secretary ought not to have permitted withdrawal of the revision application but ought to have ordered transposition of the petitioner as revisionist so that the respondent No.3 and the other private respondents would not remain successful in their game plan to defeat the rights of the petitioner and the revision application could be decided on its own merits. Ms. Patel submitted that when the specific prayer for transposition was made, the Joint Secretary was first required to decide on such prayer, however without deciding whether the petitioner could be permitted to be transposed as revisionist, the application for withdrawing the revision application was allowed, which was palpably illegal. She submitted that when the similar prayer made by the respondent No.3 to withdraw the revision application from the Gujarat Revenue Tribunal was granted by the Tribunal, learned Single Judge of this Court remanded the matter to the Tribunal as the prayer of the petitioner for transposition was not first decided.
7. Learned Assistant Government Pleader Ms. Thakore submitted that the Joint Secretary having considered that the order for grant of NA permission does not decide the right, title or interest in the land Page 3 of 8 C/SCA/12564/2018 ORDER and since the challenge made to the order granting NA permission was simply on the basis of the agreement to sell, committed no error in permitting withdrawal of the revision application and refusing transposition of the petitioner as revisionist. Ms. Thakore submitted that it is not correct to say that the Joint Secretary has not considered the prayer for transposition of the petitioner as revisionist. She submitted that in fact, the Joint Secretary found that the petitioner has no locus and therefore, the prayer for transposition was not granted and the prayer of the respondent No.3 to withdraw the revision application was granted.
8. The Court, having heard learned advocates, finds that it is only on the basis of assignment of the rights by the respondent No.3 in favour of the petitioner in agreement to sell, the petitioner objected to grant of the prayer for withdrawal of revision application and to transpose him as revisionist. As submitted by learned advocate Ms. Patel, the petitioner has stepped in the shoes of respondent No.3 after respondent No.3 executed assignment deed in his favour. Thus, the right which the petitioner could claim is to ask for specific performance of the contract, for which he has already filed above suit, which is pending, as stated before the Court.
9. It is by now well settled position of law that the person holding agreement to sell cannot claim right, title or interest in the property for which such agreement is executed, except that he can protect his possession of such property, if he was given possession under the agreement, in terms of Section 53(A) of the Transfer of Properties Act only against the proposed transferor/ vendor.
10. In the case of Patel Natwarlal Rupji Vs. Kondh Group Khet Vishayak and Another reported in (1996)7 SCC 690, Hon'ble Page 4 of 8 C/SCA/12564/2018 ORDER Supreme Court has held and observed in para 6 and 8 as under:-
6. Though the doctrine of part performance embodied in Section 53-A of the Act is part of equitable doctrine in English Law. Section 53-A gives statutory right which is available to the transferee for consideration in possession of the property had under the contract. In terms of the section, so long as the transferee has done and is willing to perform his part of the contract or, in other words, is always ready to abide by the terms of the contract and has performed or is always ready and willing to perform his part of the contract, the transferee is entitled to avail of this statutory right to protect his possession as a shield but not as a sword. The right to retain possession of the property rests on the express provisions of the Act and on his compliance thereof. A person who pleads equity must come to the Court with clean hands and he alone is entitled to the benefit of this section. The section does not create a right or title in the defendant. It merely operates as a bar to the plaintiff to assert his title.
The transferor is barred from enforcing his rights other than those expressly provided by the contract. The section, therefore, imposes a bar on the transferor, when the conditions mentioned in the section are fulfilled by the transferee, and section bars the transferor to enforce his rights against such transferee or person deriving right, title and interest from such transferee. It would, therefore, be clear that Section 53-A confers a right on the transferee, to the extent it imposes a bar on the transferor, to protect the transferee's right to retain possession of the property had under the contract. It would thus be clear that Section 53-A confers no title on the transferee but imposes a statutory bar on the transferor to seek possession of the immovable property from the transferee. Equally, Section 53-A does not confer any title on the defendant in possession nor can he maintain a suit on title.
8. The contract for sale of immovable property does not create any title except when covered under Section 54 of the Act and registered under Section 17 of the Registration Act. Equally, it does not create an interest in the property. It merely gives a right to enforce it specifically as an equitable relief in a Court of law. In Technicians Studio Pvt. Ltd. v. Lila Ghosh, this Court had held that it is well settled that Section 53-A confers no active title on the transferee in possession; it only imposes a statutory bar on the transferor.
11. In the case of Rambhau Namdeo Gajre Vs. Narayan Bapuji Dhotra (Dead) Through LRs. reported in (2004)8 SCC 614, Hon'ble Supreme Court has held and observed in para 10 as under:-
Page 5 of 8 C/SCA/12564/2018 ORDER10. Protection provided under Sec. 53-A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party.
12. Thus, the petitioner who holds rights in the agreement to sell on assignment by respondent No.3 cannot claim any right, title or interest in the land in question.
13. It is no longer a matter to be debated that the Collector while deciding the application for grant of NA permission under Section 65 of the Code exercises administrative power and does not decide the issues concerning the right, title and interest in the land.
14. Therefore, if somebody has rival claim for any right in any land or property, he is required to assert his right in the civil proceedings before the competent Civil Court to get his claim for such right decided.
15. A person, like the petitioner, who has agreement to sell in his favour cannot object to grant of NA permission to the person who holds the sale deed or who is taken as legal occupant of the land.
16. In above view of the matter, whether the petitioner was entitled to be transposed as revisionist would pale into insignificance. In any case, it appears from the impugned order that the Additional Secretary has considered the request of the petitioner for transposition by observing that the claim and the dispute raised by the petitioner is in connection with the agreement to sell and he has no locus in connection with the land in question. The Court, therefore, finds that no error is committed by the Additional Page 6 of 8 C/SCA/12564/2018 ORDER Secretary in permitting the respondent No.3 to withdraw the revision application and in not permitting the petitioner to be transposed as revisionist.
17. Learned advocate Ms. Patel however relied on the judgments in the case of R. Rathinavel Chettiar and Another Vs. V. Sivaraman and others reported in (1999)4 SCC 89, in the case of Pratapbhai V. Trivedi Vs. Priyavadu @ Ghanu Pratapbhai Trivedi reported in 1992(2) GLH 414, in the case of Rameshbhai Chaturbhai Prajapati and Ors. Vs. Minaxiben Wd/o. Rasiklal Tilakram & Ors. reported in 2011(2) GLH 760 and in the case of Jayeshkumar Chhakaddas Shah Vs. Gordhanji S/o. Matiji Thakore & Ors. reported in 2009(2) GLH 420, where what is held is that withdrawal of the proceedings need not be allowed if the rights are created in favour of third parties; that the Court can refuse to pass decree as per the compromise if the compromise itself is fraudulent and unlawful; that the order passed against dead person is nullity; that there is difference between withdrawal of the suit and withdrawal from the suit and the party may withdraw from suit but the person having interest in the suit can continue in it. Such judgments shall have no application to decide the issue involved in the present petition. However, on the issue of transposition, learned advocate Ms. Patel has relied on the decisions in the case of R. Ramamurthi Iyer Vs. Raja V. Rajeswara Rao reported in (1972)2 SCC 721, and in the case of R.S. Maddanappa (Deceased) After Him by His Legal Representatives Vs. Chandramma reported in AIR 1965 SC 1812. Both these decisions have dealt with the aspect as regards permission to withdraw the suit where the suits were concerning the rights to have share by partition in the property. The Court finds that such judgments could not be relied by the petitioner in the facts of the present case.
18. The contention that in connection with the revision application Page 7 of 8 C/SCA/12564/2018 ORDER pending before the Gujarat Revenue Tribunal, learned Single Judge of this Court has remanded the matter to decide the request of the petitioner for transposition as revisionist and therefore, the Court may also remand the present matter to the Additional Secretary to decide on the request of the petitioner to be transposed as revisionist cannot be accepted for the reasons that the present matter is in the context of the decision taken under Section 65 of the Code, where the agreement to sell holder is not entitled to object to grant of NA permission, whereas the matter before the Gujarat Revenue Tribunal is under the Tenancy Law. It will be for the Gujarat Revenue Tribunal to decide whether the agreement to sell holder has any locus to have any say in the proceedings under the Tenancy Law. However, as stated before the Court, the order of learned Single Judge remanding the matter to the Gujarat Revenue Tribunal is under challenge before the Letters Patent Bench and the Letters Patent Bench has stayed the proceedings before the Gujarat Revenue Tribunal. Be that as it may, for the reasons stated above, Court does not find any error in the impugned order.
19. In view of above, no interference is called for by this Court in the impugned order in exercise of the powers under Articles 226 and 227 of the Constitution. The petition is therefore, rejected.
(C.L. SONI, J) OMKAR Page 8 of 8