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TMI Blog1976 (12) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... r part of the law off discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done and hence becomes within the purview of section 56 of the Indian Contract Act. The facts giving rise to this appeal lie in a short compass and may be briefly stated: The respondents who are the owners of four plots of agricultural land admeasuring 7 acres and 13 gunthas and a bungalow standing thereon situate in village Majwade, near Pokhran Talao Road, Thana, having bought the same from Homi D. Dubash under a sale deed dated September 9, 1953 agreed to sell the same to the appellants in lieu of ₹ 25,000/vide agreement dated May 16, 1957, relevant clauses whereof provided as follows :-- 5. If the purchasers shall insist on any requisitions or objections as to the title, evidence of title, conveyance, possession, receipt of rent or any other matters on the abstract of or this agreement or connected with the sale which the Vendors shall be unable or on any ground unwilling to remove or comply with, the Vendors shall be at liberty notwithstanding any negotiation or litigation in respect of such requisition or objection, to give to the Purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or interest therein, or (b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee, shall be valid in favour of a person who is not an agriculturist (or who being an agriculturist will after such sale, gift, exchange, lease or mortgage, hold land exceeding twothirds of the ceiling area determined under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 or who is not an agricultural labourer): Provided that the Collector or an officer authorised by the State Government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage, on such conditions as may be prescribed ........ It may be mentioned that the conditions alluded to in the proviso to the above quoted section 63 have been prescribed by Rule 36 of the Bombay Tenancy and Agriculutral Lands Rules, 1956 (hereinafter referred to as 'the Rules') the relevant portion whereof is to the following effect: 36. Conditions on which permission for sale, etc., of land under section 63 may be granted.- (1) The Collector or other officer authorised under the proviso to sub-section (1 ) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egard to the provisions of the Act. On the respondents' refusal to cooperate with the appellants in the matter of obtaining permission or sanction under the Act, appellant No. 1 made an application to the Collector, Thana District, Thana on April 8, 1959, bringing the above mentioned facts to his notice and requesting him to grant him a certificate of an agriculturist and the necessary permission to purchase the aforesaid plots of land. Acceding to the request of appellant No. 1, the Additional Collector. Thana by his order dated June 6, 1959 granted to the former the requisite certificate under Rule 36 of the Rules as also the permission to purchase the aforesaid plots of land from the respondents as required under section 63(1) of the Act read with Rule 36 of the Rules. The said order ran as follows :-- No. CB/TNC, 1800 Collector's Office, Thana, Thana, 6th June, 1959. Read: Application of the applicant Shri G.G. Patel, dated the 8th April, 1959. Read: Papers ending with Mamlatdar, Thana's No. TNC. SR. 400 dated the 11th May, 1959. ORDER A certificate is hereby granted to Shri Govindbhai Gordhanbhai Patel residing at House No. 404, Majiwade, Taluka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing upon them to return the title deeds and to restore possession of the aforesaid property. Thereupon, the appellants' advocate wrote to the respondents attorneys on November 24, 1959 pointing out to them that appellant No. 1 having obtained the requisite sanction from the Collector, the respondents were bound to complete the sale and to execute the conveyance in favour of appellant No. 1 and that the aforesaid agreement could not be put an end to in the manner in which the respondents were attempting to do. Not heeding the aforesaid communication of the appellants dated November 24, 1959, the respondents filed a civil suit, being suit No. 36 of 1959 on November 17, 1959 in the Court of the Civil Judge, Senior Division, Thana, for declaration that the aforesaid agreement dated May 16, 1957 was void in law and of no legal effect and for possession of the aforesaid property as also for compensation at the rate of ₹ 150/per mensem for wrongful retention of the property from June, 1957 till delivery of possession thereof. In spite of the stout resistance put up by the appellants, the trial Court decreed the suit in favour of the respondents subject to their paying to the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t became impossible of performance and as such void on December 8, 1958, when the Prant Officer refused to permit the respondents to sell the suit property to the appellants, and that the Prant Officer who had co-ordinate jurisdiction with the Collector under section 63 of the Act having refused to grant permission to the respondents to sell the suit property by his order dated December 8, 1958, which was of quasijudicial character and had not been set aside either in appeal or revision, it was not open to the Collector to grant the permission to the appellants. Two questions arise for determination in this case---(1) whether the order of the Prant Officer dated December 8, 1958, rendered the aforesaid agreement dated May 16, 1957 impossible of performance and as such void under section 56 of the Indian Contract Act and (2) whether in view of the aforesaid order of refusal by the Prant Officer, Thana dated December 8, 1958, the Additional Collector, Thana, was not competent to grant the sanction and the certificate under section 63 of the Act and Rule 36 of the Rules. The answer to the first question depends on the construction of the expression 'impossible of performance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iates the law relating to discharge of contract by reason of supervening impossibility or illegality of the act agreed to be done. The wording of this paragraph is quite general and though the illustrations attached to it are not at all happy, they cannot derogate from the general words used in the enactment. This much is clear that the word impossible has not been used here in the sense of physical or literal impossibility. The performance of an act may not be literally impossible but it may be impracticable and useless from the point of view of the object and purpose which the .parties had in view; and if an untoward event or change of circumstances totally upsets the very foundation upon which the parties rested their bargain, R can very well be said that the promisor found it impossible to do the act which he promised to do. Although various theories have been propounded by the Judges and jurists in England regarding the judicial basis of the doctrine of frustration, yet the essential idea upon which the doctrine is based is that of impossibility of performance of the contract: in fact impossibility and frustration are often used as interchangeable expressions. The changed ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to accord permission under the proviso to section 63 (1) of the Act, the Collector or the officer authorised by the State Government in that behalf acts in an administrative capacity or a judicial or a quasi-judicial capacity and (ii) whether the aforesaid order dated December 8, 1958 passed by the Prant Officer, Thana was one on merits or otherwise. Turning to the question (i), it has to be observed that there is nothing in section 63 of the Act to indicate that in exercising his jurisdiction under the proviso to sub-section (1) of the section, the Collector or the authorised officer has to act judicially or in conformity with the recognised judicial norms. There is also nothing in the aforesaid Section of the Act requiring the Collector or the authorised officer to determine any question affecting the right of any party. The function which the Collector or the authorised officer discharges under the aforesaid proviso is, therefore, an administrative one and not judicial or quasi-judicial. It will be apposite to advert to a few decisions 17 --1546 SCI/76 bearing on the matter. In A.K. Bhaskar v. Advocate General(A.I.R. 1962 Ker. 90) a full Bench of the Kerala High Court held t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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