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TMI Blog2006 (8) TMI 647X X X X Extracts X X X X X X X X Extracts X X X X ..... dant had committed a fraud on the statutory authorities or on the court. The expression fraud in our opinion was improperly used. It must be noticed that admittedly when the agreement was entered into, the proceedings under the 1976 Act were pending. The parties might have proceeded under a misconception. It is also possible that the Defendant had made misrepresentation to the Plaintiff; but the question which was relevant for the purpose of determination of the dispute was as to whether having regard to the proceedings pending before the competent authority under the 1976 Act, the Defendant could perform their part of the contract. The answer thereto, having regard to the order of the competent authority dated 08.08.1980, must be rendered in negative. Our attention has rightly been drawn by Mr. Gupta to the deed of sale executed by the Defendant in favour of others. By the said deeds of sale all the six co-sharers have sold portions of their house properties and lands appurtenant thereto. The total land sold to the purchasers by all the six co- sharers was below 900 sq. metres. Furthermore, Section 20 of the Specific Relief Act confers a discretionary jurisdiction upon the courts. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said proceeding at the hands of the landholders, excess land was directed to be vested in the Central Government. The owners were allowed to retain 1000 sq. metres of land each. Allegedly, on that premise a piece of vacant land bearing Plot No.2 in Survey No.71 measuring 1000 sq. metres which had been allotted to the defendant was allowed to be retained by him. On or about 27.06.1978 he (original Owner) entered into an agreement with the Plaintiff for sale in respect thereof on a consideration of ₹ 50/- sq. yard . As on the said date, a proceeding under the 1976 Act was pending, the agreement to sell was subject to the grant of permission by the competent authority under the said Act. It stipulated that in the event of refusal on the part of the competent authority to grant such permission, the advance paid to the Defendant would be refunded. It was further stipulated that in the event of refusal on the part of the vendor to execute the sale deed upon obtaining permission, if any, not only the amount paid by way of advance was to be refunded but also damages to the extent of ₹ 15,000/- was to be paid by the Defendant to the Plaintiff. The application under Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20 of the Specific Relief Act, 1963, and interference therewith by the Division Bench was unwarranted; and (v) The High Court could not have directed cancellation of the deed of sale in favour of the subsequent purchaser. 6. Mr. L. Nageshwara Rao, the learned Senior Counsel appearing on behalf of the Respondents, on the other hand, submitted that : (i) Although some of the findings arrived at by the High Court cannot be supported, but having regard to the fact that 1000 sq. metres of vacant land, which was the subject-matter of the agreement for sale being outside the purview of the vacant land under the 1976 Act, the learned Trial Judge and consequently the learned Single of the High Court committed a manifest error in so far as they failed to take into consideration that Section 20 of the 1976 Act would not be applicable; (ii) The learned Trial Court having found that the Defendant had been held guilty of commission of fraud, could not have deprived the Plaintiff-Respondent from obtaining a decree for specific performance of contract; (iii) The Advocate-Commissioner appointed by the Trial Judge as also the learned Single Judge having found that the subject- matter of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... second party, the advance sum of ₹ 15,000/- (fifteen thousand only) within one month from the date of refund." 8. The lands in question admittedly were described in the plan annexed to the agreement which shows that the same was lying west to a 30 ft. road. The Respondents themselves had annexed a plan, from a perusal whereof it appears that six co-sharers were allotted 6000 sq. metres of lands four in one block and two in another, apart from their house properties situate on the eastern side of the said road. The plots in question were marked with the letters '1', '2', '3', '4', '5' and '6'. A big chunk of land was held to be the excess land under the 1976 Act at the hands of the Appellants and their co-sharers. The lands belonging to Syed Abdul Razak was marked with the letter '2'. 9. In the land ceiling proceedings, in response to the Defendant's letter dated 30.07.1980, the competent authority by its letter dated 08.08.1980 rejected the application for grant of permission under Section 26 of the 1976 Act stating : "Out of your prescribed ceiling limit of 1000 sq. mtrs. your individual share of urba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d him in alienating about 30,000 square metres of land which is declared as surplus land circumventing the provisions of Urban Land Ceilings Acts more so after the entire procedure contemplated under the Act is over .Hence the order of competent authority is only camouflage to avoid the completion of the sale transaction. In the light of the foregoing discussion, we cannot agree with the reasoning given by the trial court as well as the Learned Single Judge in dismissing the suits, since the land offered for sale do not contain any built up area either as per the agreement of sale or any of the maps that were filed before various authorities " 12. The competent authority under the 1976 Act was not impleaded as a party in the suit. The orders passed by the competent authority therein could not have been the subject-matter thereof. The Plaintiff although being a person aggrieved could have questioned the validity of the said orders, did not chose to do so. Even if the orders passed by the competent authorities were bad in law, they were required to be set aside in an appropriate proceeding. They were not the subject matter of the said suit and the validity or otherwise of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake amends for that fraud played by him. It may be mentioned that making a false declaration knowing it to be false and having no intention to perform is nothing short of fraud. 70. On account of this fraud perpetuated on the plaintiff, plaintiff can either insist upon specific performance or seek damages. I have already stated above that directing specific performance would prolong the stalemate and uncertainty for good length of time and that it is not interests of even the plaintiff to have such a relief because it depends upon a contingency and the relief may or may not ultimately materialize. The best remedy under the circumstances would be to grant the alternative relief of damages asked for by the plaintiff." It was, therefore, not a case where the Trial Court found that the Defendant had committed a fraud on the statutory authorities or on the court. The expression 'fraud' in our opinion was improperly used. It must be noticed that admittedly when the agreement was entered into, the proceedings under the 1976 Act were pending. The parties might have proceeded under a misconception. It is also possible that the Defendant had made misrepresentation to the Plai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ining therein. 17. In this case, we are concerned with a situation where the sanction, it will bear repetition to state, has expressly been refused. Dharmadhikari, J. in that case itself has noticed a judgment of the House of Lords in New Zealand Shipping Co., Ltd. v. Scoiete Des Ateliers Et. Chantiers De France [(1918-19) AER 552] wherein it was held that a man shall not be allowed to take advantage of his own wrong which he himself brought about. 18. The parties were aware of the proceedings under the 1996 Act. The Plaintiff-Respondents were also aware that sanction under the said Act is necessary. The consequence for non-grant of such sanction was expressly stipulated. Even the parties were clear in their mind as regards the consequences of willful non-execution of a deed of sale or willful refusal on their part to perform their part of contract. We may notice that Lord Atkinson in New Zealand Shipping (supra) took into consideration the inability or impossibility on the part of a party to perform his part of contract and opined that the principle that man shall not be permitted to take advantage of his own wrong, which he himself brought about. 19. Our attention has rightly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : Taking all the aforesaid facts and circumstances I conclude that the plot no.2 in Survey no. 71 as mentioned in agreement of sale Ex.A-2 in the trial court and the house no. 3-9-51/A,B,C and D situated in Survey no.71/part, west Marredpally on which I conducted the local inspection are the same." The learned Commissioner, therefore, only inspected Plot No.2 situated in Survey No.71 and not the lands which were the subject-matter of sale in favour of the subsequent purchasers. 22. The High Court, in our considered view, also committed a manifest error in opining that the Appellants should have questioned the orders passed by the competent authority. If they have not done so, the same would not mean that the Division Bench could go thereinto suo motu. Furthermore, Section 20 of the Specific Relief Act confers a discretionary jurisdiction upon the courts. Undoubtedly such a jurisdiction cannot be refused to be exercised on whims and caprice; but when with passage of time, contract becomes frustrated or in some cases increase in the price of land takes place, the same being relevant factors can be taken into consideration for the said purpose. While refusing to exercise its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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