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(38) In the present case there is no contention that the parties have get the prior sanction to such agreement to sale therefore this agreement to sale against the provisions of law. Further as per the provisions of law such suit land of new tenure cannot be transferred by sale deed to any third party without any sanction. Therefore, a decree cannot be passed to execute sale deed for such suit land. Further as principles laid down in 2011(2)GLH 760 (Rameshbhai Chaturbhai case) even in case of compromise also where the party agreed to execute compromise deed such agreement which is against the provision of law cannot be allowed. Further, as discussed above that when on the facts of the case, it is established that plaintiff failed to perform his part, in that case though I humbly agreed with the principles and ratio laid down in the cited judgments by plaintiff on the point that a conditional decree may be passed and on the point that one cannot set benefit of his own wrong, these judgments do not help to the plaintiff in the present case. Therefore, I inclined to hold affirmative to issue no.5B."

43 In the aforenoted decision, Her Ladyship has made herself very clear that there is no provision in law permitting the Collector to validate the agreement by granting ex­post facto sanction i.e. subsequent to the execution of such invalid agreement hit by Section 43 of the Act. In my view, Hardik Harshadbhai Patel (supra) lays down the correct proposition of law and I am in full agreement with the same.

44 I may now refer to one another decision rendered by a learned Single Judge of this Court in which the Full Bench decision of this Court in the case of Jitendra Nanalal Shah (supra) has been referred to and discussed. In the case of Rameshbhai Chaturbhai Prajapati (supra). The issue before the learned Single Judge revolved around the non­ irrigated agricultural lands which originally belonged to a Charitable Trust. One Rasiklal Tilakram Jaiswal was declared as a tenant of the said land by the Mamlatdar and A.L.T. in the tenancy proceedings. By virtue of such declaration, Rasiklal became the deemed purchaser thereof and the same was confirmed by the Gujarat Revenue Tribunal, thereafter by this Court and by the Apex Court. The respondents Nos.1 to 8 before the learned Single Judge preferred four suits against the petitioners and the respondents Nos.9 to 11 for a declaration that the registered sale deed dated 14th October 1999 in respect of the plot Nos.1 to 4 were not binding on the plaintiffs and for a declaration that the petitioners were not entitled to demand from the respondents Nos.10 and 11 any building permission and further to restrain them from dealing, plotting, alienating, allotment, etc. of the land in question. In the pending suits, a compromise was arrived at between the petitioners and the respondents Nos.1 to 8 and the same was reduced into writing. It appears that the Trial Court declined to accept such compromise and pass a consent decree on the premise that such compromise was in violation of the provisions or restrictions under Section 43 of the Act and no consent decree could be passed on such a invalid settlement. Before the learned Single Judge, it was argued that the parties can enter into a contract for transfer of land and the Court can pass a conditional decree for specific performance subject to the sanction being obtained. For the purpose of making such submission good, reliance was placed on the Full Bench decision of this Court in the case of Shah Jitendra Nanalal (supra). The learned Single Judge, while rejecting all the petitions and while discussing the Full Bench decision of this Court in the case of Shah Jitendra Nanalal (supra) at length, held as under:

"20. The decision of the Full Bench of this Court in the case of Shah Jitendra Nanalal {1985 GLH 53} [supra], relied upon by learned Senior Advocate Mr. S.B. Vakil for the petitioners, was in a different context and under the statutory provisions of Urban Land [Ceiling and Regulation] Act,1976 whether right to claim exemption under section 20 of the ULC Act was available to the holder of the excess vacant land. In the above decision, agreement to sell certain land was executed on 4.7.1966 and further agreement was entered into on 1.7.1967 and the civil suit, being Civil Suit No.1915 of 1970, was filed while another suit filed by the defendants as the plaintiffs being Civil Suit No.2063 of 1969 was compromised between the parties thereto and, on the basis of the settlement, a decree was passed on 5.7.1972. Subsequent to institution of the suit, Gujarat Vacant Lands in Urban Areas [Prohibition of Alienation] Act,1972 came into force which later on ceased to operate in its place on the advent of Urban Land [Ceiling and Regulation] Act, 1976. Further, right to claim exemption by the owner of the land under the ULC Act continued until vesting under section 10(3) of the ULC Act and, therefore, a conditional decree for specific performance subject to exemption being obtained under section 20 of the ULC Act was held to be permissible. In the facts of the case, transfer/alienation of tenure land viz. a land given to a tenant by the Government under various provisions of Tenancy Act to the tiller of the land, subject to restriction of Section 43 of the Act, is clearly impermissible without previous sanction of the Collector/Competent Authority, therefore, the law laid down by the Full Bench in Jitendra Nanalal [supra] is not applicable to the facts and circumstances of the present case.

35. It is, therefore, clear on an analysis of the principles laid down by the Supreme Court and various High Courts in the matter of granting decree for specific performance in cases where consent, sanction or permission of any officer, authority or Government is required. The principle laid down is that if a condition is laid down that the transferor is bound to do everything to give effect to the contract, specific performance can be obtained with a direction to the transferor to obtain the required consent or permission. The general principle is that until and unless the transaction itself is unlawful, it may be enforced directing the defendant to take such steps as are necessary for affecting the contract. Reference may be made to a judgment of the Andhra Pradesh High Court, in the case of Somisetti Ramanaiah v. The District Supply Officer, Chittoor, AIR 1979 AP 19. The principle laid down by the Privy Council in the case of Motilal (supra) and by the Supreme Court in the cases of Mrs. Chandnee Widya (supra) and Rojasara Ramjibhai Dahyabhai (supra), all together if considered would indicate that the principle laid down is that if the vendor has agreed to sell property, which can be transferred only with the sanction of some Government authority, the Court has jurisdiction to order the vendor to apply to the authority and if sanction is not forthcoming, to convey to the purchaser the same and on the ground that the sanction is not available, decree for specific performance cannot be refused. It is held in most of the cases that when permission from some authority is required to be obtained, obtaining of the same is not a condition precedent for grant of decree for specific performance, if after grant of decree permission can be obtained. The conditional decree for specific performance can be granted making it subject to obtaining permission or exemption as contemplated in the statute. It is held that a relief can be moulded to such an effect that defendant is directed to obtain permission or consent. It has been the consistent view that on the ground of non­availability of consent or permission a defendant cannot avoid such an agreement. There are series of judgments in this regard by various High Courts, which have followed the principles laid down in the case of Mrs. Chandnee Widya (supra); Motilal (supra), and some of the judgments in this regard are Khan Bahadur C.B. Taraporwala v. Kazim Ali Pasha, AIR 1966 AP 361; Indra Prasad Saxena v. Chaman Lal Malik, AIR 1994 All 105; and, Shri Rajesh Agrawal v. Shri Balbir Singh, AIR 1994 Delhi 345.