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It is common ground that the main purpose for which the agreement was entered into between the parties was the construction of residential houses for the weaker sections of the society in term of Section 21 of the ULC Act. Mr. Nariman contended on behalf of the appellants that under the applicable master plan the suit land is reserved for `open space' and residential houses cannot be constructed thereupon and, therefore, the agreement is incapable of specific performance. On the other hand, Mr. Dhanuka contended that the applicable master plan is the one that existed on the date when excess vacant land first acquired the character of such land, i.e., on enforcement of the ULC Act and according to the said master plan the land is reserved for residential houses. Further contention of learned counsel is that assuming modification of the master plan is required to be considered, even then there is no impediment in the implementation of the scheme inasmuch as there does not exist absolute bar for construction of residential houses. It is submitted that as a matter of fact, the declaration dated 20th June, 1998 provides for obtaining of all requisite permissions whatever, if any, which may be required before commencing the actual construction or work. Further, it is contended, in case of inconsistencies, if any, between the provisions of Town Planning laws and the ULC Act, provisions of the ULC Act will prevail in view of overriding provisions as contained in Section 42 of the ULC Act. In the draft development plan dated 29th February, 1963 prepared under the Bombay Town Planning Act, 1954, the entire area of Laxmi Vilas Palace Estate (except the block of land along the river Vishwamitri and on north and sough of the Zoo Road) was left undesignated. This excepted part of block of land was designated for agricultural use. The State Government on 21st September, 1976 issued a notification under Section 10(1) of the aforesaid Act sanctioning the draft development plan subject to the modifications, inter alia, that the part of the area of Laxmi Vilas Palace Compound which had been left undesignated in the development plan shall be designated for residential use under Section 7(a) of the said Act and the block of land situated along the river Vishwamitri and on north and south of the Zoo Road passing through Laxmi Vilas Palace which had been designated for agricultural use shall be released from the said designation and the land so released shall be reserved for recreational purposes under Section 7(b) of the Act. A further notification dated 17th May, 1975 under Section 10A(1) of the Act was issued by the Government of Gujarat proposing to modify the development plan dated 21st September, 1970 providing that the lands of Laxmi Vilas Palace shown as residential zone in the sanctioned development plan Vadodara shall be released from the said use and the lands thus released shall be reserved for open space under Section 7(b) of the Act as shown in the plan. A notification dated 16th January, 1978 issued by the Gujarat Government in exercise of powers conferred under Section 10A of the Bombay Town Planning Act, 1954 sanctioning the variations proposed by the notification dated 17th May, 1975 to Final Development Plan dated 21st September, 1970 notified 15th March, 1978 as the date from which the variations would come into force. By clause (23) of the Schedule appended to the said notification, it was provided that the land of Laxmi Vilas Palace shown as residential zone in the sanctioned development plan of Vadodara shall be released from the said use and the lands thus released shall be reserved for open space under Section 7(b) of the said Act. Mr. Dhanuka is, however, right in contending that the notification dated 16th January, 1978 never became operative for the reason that before the said notification came into force, the Bombay Town Planning Act, 1954 was repealed w.e.f. 1st February, 1978 and the said notification was not saved under Section 124(2) of the Gujarat Town Planning and Urban Development Act, 1976, which came into force w.e.f. 1st February, 1978.

If the position had rested in terms of what has been stated above, the consequences may have been different. It was, however, not so. Under the aforesaid Gujarat Act, on 17th May, 1979, draft development plan under Section 13 was published wherein the suit land was designated as `open space, sport stadium, Bus terminus and court'. During the pendency of the suit, on 25th January, 1984, the final development plan prepared by the Vadodara Urban Development Authority issued under the Gujarat Act came into effect. As per the said final development plan, the land in question is reserved for open space etc. as stated in draft development plan dated 17th May, 1979.

The Gujarat Government in supersession of the earlier circular dated 1st April, 1978 issued fresh guidelines on 22nd May, 1979 regarding the implementation of schemes under Section 21 of the ULC Act. These guidelines, inter alia, stipulated that the area of 50% of the total house shall not increase 40 square meters and the plinth area and the remaining building plinth area shall not exceed 80 square meters. The construction work under the scheme should be in consonance with the provisions of the Master plan and should be over within 5 years from the date of the sanction under Section 21(1) granted by the competent authority. The units constructed under the scheme shall be allotted to the weaker sections of the society by way of sale or hire-purchase or on hire basis. It also provided that the construction shall be made in accordance with the Town Planning Regulation, Municipal Regulations, Building Regulations etc. The competent officer shall grant the scheme subject to the building regulation, margin of the municipal corporation, panchayat etc. According to the guidelines, the specified officer and the competent officer are required to ensure that the conditions are complied with. The guidelines stipulated the withdrawal of exemption in case of violation of any of the conditions. It is of significance to note that it was specifically provided that at the time of sanctioning the scheme, the competent authority shall ensure that the land in respect of which the scheme is submitted is not placed in reservation. As already stated, the land in question is shown as open space in the draft development plan of Vadodara.

In the present case, in the draft development plan of 1979 which was finalised during the pendency of the suit, the land in question is reserved for open space etc. It cannot be doubted that the agreement had been entered into between the parties mainly and rather only with the object of construction of residential houses under the scheme under Section 21 of the ULC Act for accommodation of weaker sections of the society. In May 1979, it became evident that it will not be possible to construct residential houses in view of what was provided in the master plan. There is no substance in the contention that assuming the prescribed land use is `open space', still there will be no impediment in the implementation of scheme in as much as there is no absolute bar for construction of residential houses. This is not the basis on which the competent authority had considered the matter. The agreement is clearly incapable of being specifically enforced. Under these circumstances, there is no question of any inconsistency and thus Section 42 of the ULC Act cannot have any applicability. We may also consider another contention urged on behalf of the appellants which is based on repeal of the ULC Act. Section 3 of the repealing Act deals with the saving of certain acts despite the repeal. That section reads as under :