SSK/ 1 appl 250.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL(LODGING) NO.250 OF 2011 IN NOTICE OF MOTION NO.1187 OF 2011 IN SUIT NO.875 OF 2011 Atul Projects India Ltd. ....Appellant Versus Babu Dewoo Farle & Ors. ...Respondents Mr. A.Y.Sakhare, Senior Advocate with Mr. R. M. Vasudeo for the Appellant. Mr. A. V. Anturkar i/b. Mr. Sandesh Patil, Advocate for respondent nos. 1 to 8. Mr. Vishal Kasbekar, Advocate for respondent no.9 to 13 Mr. P. K. Dhakephalkar, Sr. Advocate with Mr. Jagdish Aradwad for respondent nos. 19 to 22. CORAM : SMT. RANJANA DESAI & RANJIT MORE,JJ. RESERVED FOR ORDERS : 28TH JULY, 2011. DATE OF PRONOUNCEMENT : P.C.: (Per Ranjit More, J.) Heard Mr.Sakhare, learned senior counsel for the appellant, Mr.Anturkar, learned counsel for respondent nos.1 to 8, Mr.Kasbekar, learned counsel for respondent nos.9 to 13 and Mr.Dhakephalkar, learned senior counsel for respondent nos. 19 to 22. SSK/ 2 appl 250.11 2. The appeal is directed against the Order dated 25th March, 2011 passed by a learned Single Judge of this Court in Notice of Motion No. 1187 of 2011 in Suit (L) No. 581 of 2011 whereby appellant’s/plaintiff’s notice of motion came to be dismissed. For the sake of brevity and convenience, hereinafter the parties are referred to by their respective nomenclature in the suit. 3. Defendant Nos. 1 to 18 are tribals and they claim ownership in respect of certain lands in pursuance of the proceedings under Section 32G along with Section 32M of the Bombay Tenancy and Agricultural Lands Act, 1948. The Maharashtra Housing and Area Development Authority claimed title by virtue of Deed of Conveyance of 27th October, 1958 and had filed three writ petitions under Article 226 of the Constitution interalia challenging the validity of the certificates which were issued under the Tenancy Act. Defendant Nos. 1 to 8, 9 to 13 and 14 to 18 claimed ownership in respect of three plots of land. The petitions came to be disposed of by a learned Single Judge on 14th December, 2004 in terms of consent terms arrived at between the parties. The consent terms recognized that lands admeasuring about 30620 sq. meters bearing Survey No.56 Hissa Nos.2 & 3, SSK/ 3 appl 250.11 Survey No.53 and Survey No.55 Hissa No.1 corresponding to C.T.S.Nos. 273,274 and 183 of Village Magathane, Taluka Borivali, belonged to MHADA as owner under a Registered Deed of Conveyance dated 27th October, 1958. The consent terms recognized that the tribals were in occupation of an area admeasuring about 40% of the land more particularly described in the consent terms. The certificates issued under Section 32G were quashed and set-aside, and MHADA, in consideration of the tribals agreeing to give up their claims against it agreed to transfer three plots of land to defendant nos. 1 to 18 or to their nominees. 4. On 1st December 2003 an Agreement for Development and Sale was entered into by defendant nos. 1 to 18 interalia with the plaintiff by which they agreed to grant development rights on the lands which were to be allotted to them by MHADA for a consideration of Rs.3 Crores. The first schedule of the Agreement adverts to a larger property; whereas the second schedule elucidates 40% thereof which MHADA was to allot to defendant nos. 1 to 18 and which in turn formed the subject matter of the agreement to sell in favour of the plaintiff (hereinafter called as “the suit property”). On 24th December, 2004 a further agreement was SSK/ 4 appl 250.11 entered into between defendant nos. 1 to 18, Bagve Housing Private Limited, J. B. Associates and the predecessor of the plaintiff recording that in pursuance of the Development Agreement dated 1st December 2003, physical possession had been handed over to the plaintiff. This Agreement confirmed that by virtue of Development Agreement dated 1st December, 2003, the parties had agreed to transfer and assign the development rights in respect of 40% of the property at Magathane to the plaintiff. A possession receipt was also executed. The plaintiff claims to have paid an amount of Rs.3 Crores under the Development Agreement and agreed to give to defendant nos. 1 to 18 a built up area of 4000 sq. ft.. The predecessors of plaintiff made an application under Section 36A of the Maharashtra Land Revenue Code, 1966 (for short “the MLRC”) on 11th June, 2007 to the competent authority for permission to alienate the property. Defendant nos. 23 to 27 were claiming certain rights in the property, however, they executed a Deed of Release on 22nd December, 2005 against receipt of payment. The application of the predecessors in title of the plaintiff was recommended by the Tahsildar and the SDO by their letters dated 27th November, 2009 and 4th February, 2010 respectively. SSK/ 5 appl 250.11 6. On 22nd April, 2010, defendant nos. 1 to 8 and defendant nos. 14 to 18 issued notice to the plaintiff thereby seeking to cancel the Development Agreement dated 1st December, 2003 both on the ground that the plaintiff had not performed its obligation under the agreement and that the agreement was null and void for want of permission of the Collector under Section 36A of the MLRC. The defendant nos. 1 to 8 and 23 to 27 thereafter executed a conveyance in favour of defendant nos. 19 to 22 on 23rd July, 2010. Prior to the execution of the conveyance, permission was obtained under Section 36A on 19th May, 2010. This permission was objected to by the plaintiff and at the instance of the plaintiff, the Collector had issued notice to show cause as to why permission under Section 36A granted in favour of defendant nos. 19 to 22 should not be cancelled. 7. In the above facts and circumstances, the plaintiff by filing above said suit had claimed declaration that the agreement dated 1st December, 2003 as confirmed by Deed of Confirmation dated 24th December, 2004 is valid and subsisting, a declaration that the termination of the agreement made on 22nd April, 2010 is invalid, and a decree for specific performance requiring defendant SSK/ 6 appl 250.11 nos. 1 to 18 to perform the agreement for sale of the suit property. Consequential reliefs i.e. declaration that the Deed of Conveyance dated 23rd July, 2010 is null and void was also sought. 8. In the above stated suit, notice of motion was filed for the following reliefs:- a. That pending the hearing and final disposal of the present suit, this Hon’ble Court be pleased to restrain the defendants, their servants, agents, or person claiming through or under them from in any manner acting in pursuance of the said Deed of Conveyance dated 23rd July, 2010 (Exhibit “Z”) and/or further restraining them from representing themselves as the owners of the suit properties to any authorities either the Government, Semi Government, Local or Municipal or any persons; b. That pending the hearing and final disposal of the present suit, this Hon’ble Court be pleased to restrain the defendants, their servants, agents, or persons claiming through or under them from in any manner disturbing the plaintiff’s possession of the suit property except in accordance with law; c. That pending the hearing and final disposal of the present suit, this Hon’ble Court be pleased to restrain the SSK/ 7 appl 250.11 defendants, their servants, agents, or persons claiming through or under them from in any manner disposing of, alienating, encumbering or creating any third party interest in the suit property or any part thereof. As stated above, this notice of motion was dismissed, and therefore, the present appeal. 9. Mr. Sakhare, learned senior counsel appearing on behalf of the plaintiff took us through the Agreement dated 1st December, 2003, Confirmation Deed dated 24th December, 2004, Power of Attorney dated 14th May, 2004 and fresh Power of Attorney dated 22nd December, 2005. On the basis of these documents, he submitted that defendant nos. 1 to 18 legally entered into development agreement and possession was handed over to the plaintiff. He also pointed out application under Section 36A of the MLRC dated 11th June, 2007 for sale permission in favour of Atul Builders and letters of the Tahsildar Borivali and SDO dated 27th November, 2009 and 4th February, 2010 respectively. Relying upon the above documents, he submitted that since the plaintiff’s possession in the suit property is in pursuance of enforceable agreement, same deserves to be protected. He also submitted that SSK/ 8 appl 250.11 the plaintiff has paid an amount of Rs.3 crores towards consideration. He further submitted that the subsequent sale of the said property in favour of defendant nos. 19 to 22 is void in view of the earlier development agreement. He submitted that, therefore, in the above circumstances, the plaintiff’s possessions deserves to be protected during the pendency of the suit. Mr. Sakhare lastly invited our attention to sub-sections (5) and (6) of Section 36A of the MLRC and submitted that even assuming for the sake of argument that the transaction in favour of the plaintiff is void for want of permission under Section 36A of the MLRC, in that case the property automatically stands vested in the Government and defendant nos. 19 to 22 could not have purchased the property from defendant nos. 1 to 18. 10. Mr. Dhakephalkar, learned senior counsel appearing for respondent nos. 19 to 22 submitted that the main prayer in the suit is for specific performance of Development Agreement dated 1st December, 2003. Admittedly, the plaintiff has not obtained any permission under Section 36A of the MLRC, and therefore, the Development Agreement becomes void ab-initio. He submits that in the circumstances, specific performance cannot be granted to the SSK/ 9 appl 250.11 plaintiff, and if that is so, no interim relief can be claimed. Mr. Dhakephalkar submits that defendant nos. 1 to 8 and 14 to 18 have executed conveyance after obtaining permission of the competent authority under Section 36A of the MLRC. He submits that defendant nos. 19 to 22 are already put in possession of the suit property. He relies upon several documents including 7/12 extract in support of his contention. 11. Mr. Anturkar, learned counsel for defendant nos. 1 to 8 contested the appeal. He submits that even if the case of the plaintiff as narrated in the plaint is assumed to be true, in that case also, the plaintiff is not entitled to any interim relief inasmuch as the Development Agreement is null and void for want of statutory permission under Section 36A of the MLRC. He submitted that in case transaction is void for want of permission under Section 36A(1), the property in question does not automatically vest in Government and for that purpose the Collector has to declare the transfer as invalid. He supported the argument of Mr.Dhakephalkar and lastly submitted that the appeal is devoid of any substance and deserves to be dismissed as such. SSK/ 10 appl 250.11 12. Mr. Kasbekar, learned counsel for defendant nos.9 to 13 invited our attention to the affidavit dated 13th June, 2011 of defendant no.9 filed in the present appeal. In paragraph 6 of the said affidavit, defendant no. 9 has pointed out that Justice Dr. D.Y. Chandrachud who disposed of the notice of motion by the order impugned in the present appeal was consulted in two writ petitions filed by MHADA against defendant nos. 1 to 18, and therefore, the impugned order deserves to be quashed and set-aside with direction to hear the matter by a judge other than Justice Dr. D.Y.Chandrachud. 13. Before going into the merits of the matter, we would like firstly to deal with the objection of defendant no.9. In his affidavit dated 13th June, 2011, he has made a statement that in the year 1995 i.e. prior to elevation as Judge of this Court, Justice Dr. D.Y. Chandrachud was consulted and briefed in two writ petitions filed by MHADA against defendant nos. 1 to 18, and therefore, Justice Dr.D.Y.Chandrachud could not have heard the notice of motion. We do not find any merit in the contention of learned counsel for defendant no.9. The subject matter of the present suit as well as appeal is 40% of share in the suit property which defendant nos. 1 SSK/ 11 appl 250.11 to 18 were held entitled to in view of the consent terms of 2004. The consent terms were filed in the said writ petitions by MHADA and defendant nos. 1 to 18. MHADA is not a party to the present proceedings. Defendant No.9 has only made a statement that Justice Dr.D.Y.Chandrachud was consulted in proceedings between MHADA and defendant nos. 1 to 18. However, in support of his statement, he has not produced anything on record. Be that as it may, the impugned order is not prejudicial to the interest of defendant no.9. In fact, same is in favour of defendant no.9, inasmuch as plaintiff’s notice of motion was dismissed. Defendant no.9, in our view, cannot make any grievance about the said order. We are of the opinion that affidavit of defendant no.9 is not bonafide, and the same is filed with an ulterior motive, and therefore, we are not inclined to accept his request. 13. Having considered the submission and having gone through the impugned order along with compilation of the appeal, we find that there is no dispute about the following facts: 1. Defendant nos. 1 to 18 are tribals and became owner of the suit property under Section 32G read with Section 32M of the Tenancy Act. SSK/ 12 appl 250.11 2. Defendant nos. 1 to 18 initially entered into Development Agreement with the plaintiff on 1st December, 2003. A confirmation agreement was entered into between defendant nos. 1 to 18, Bagve Housing Private Limited, J.B.Associates and the predecessor of the plaintiff on 24th December, 2004. 3. Defendant nos. 1 to 18 executed power of attorney dated 14th May, 2004 in favour of plaintiff and thereafter another fresh power of attorney dated 22nd December, 2005 was also executed. 4. Defendant nos. 1 to 8 and 14 to 18 cancelled the agreement dated 1st December, 2003. 5. Permission came to be granted in favour of defendant nos. 19 to 22 under Section 36A of the MLRC by Collector on 19th May, 2010. 6. On 23rd July, 2010, defendant nos.1 to 8 and 23 to 27 executed a conveyance in favour of defendant nos. 19 to 22. SSK/ 13 appl 250.11 15. In order to understand the controversy, it would be appropriate to reproduce the text of Section 36A of the MRLC which reads as follows: “36A. Restrictions on transfers of occupancies by Tribals:- 1) Notwithstanding anything contained in sub-section (1) of Section 36, no occupancy of a tribal shall, after the commencement of the Maharashtra Land Revenue Code and Tenancy Laws (Amendment) Act, 1974, be transferred in favour of any non-tribal by way of sale (including sales in execution of a decree of a Civil Court or an award or order of any Tribunal or Authority), gift, exchange, mortgage, lease or otherwise, except on the application of such non-tribal and except with the previous sanction- (a) in the case of a lease, lease mortgage for a period not exceeding 5 years, of the Collector; and (b) in all other cases, of the Collector with the previous approval of the State Government. Provided that, no such sanction shall be accorded by the Collector unless he is satisfied that no tribal residing in the village in which the occupancy is situate or within five kilometres thereof is prepared to take occupancy from the owner on lease, mortgage or by sale or otherwise. SSK/ 14 appl 250.11 (2) The previous sanction of the Collector may be given in such circumstances and subject to such conditions as may be prescribed. (3) On the expiry of the period of the lease or, as the case may be, of the mortgage, the Collector may, notwithstanding anything contained in any law for the time being in force or any decree or order of any court or award or order of any Tribunal or Authority, either suo motu or on application made by the Tribunal in that behalf restore possession of the occupancy to the tribal. (4) Where, on or after the commencement of the Maharashtra Land Revenue Code and Tenancy Laws (Amendment) Act, 1974, it is noticed that any occupancy has been transferred in contravention of sub-section (1), [the Collector shall, notwithstanding anything contained in any law for the time being in force, either suo motu or on an application made by any person interested in such occupancy, within thirty years] from the date of the transfer of occupancy hold an inquiry in the prescribed manner and decide the matter. (5) Where the Collector decides that any transfer of occupancy has been made in contravention of sub-section (1), he shall declare the transfer to be invalid, and thereupon, the occupancy together with the standing crops SSK/ 15 appl 250.11 thereon, if any, vest in the State Government free of all encumbrances and shall be disposed of in such manner as the State Government may, from time to time, direct. (6) Where an occupancy vested in the State Government under sub-section (5) is to be disposed of, the Collector shall give notice in writing to the tribal-transferor requiring him to state within 90 days from the date of receipt of such notice whether or not he is willing to purchase the land. If such tribal-transferor agrees to purchase the occupancy, then the occupancy may be granted to him if he pays prescribed purchase price and undertakes to cultivate the land personally; so however that the total land held by such tribal-transferor whether as owner or tenant, does not as far as possible exceed an economic holding.” Perusal of sub-section 1 of Section 36A makes it clear that occupancy of tribal cannot be transferred in favour of any non- tribal by way of sale, gift, exchange, mortgage, lease or otherwise, except with previous sanction of the Collector or as the case may be with previous approval of the State Government. There is no dispute that though the plaintiff had applied for sanction, no such permission is granted in its favour by the Collector/State Government. Section 36-A is inserted by way of amendment in the SSK/ 16 appl 250.11 year 1974. The object of the Legislature in introducing this section seems to be to reach out to all modes by which the occupancy of tribal may be conveyed to non-tribal. The provisions of Section 36 are enacted with a view to protect interest of the tribal. In the absence of any sanction under Section 36A, the Development Agreement in favour of the plaintiff becomes void ab-intio. The plaintiff, therefore, cannot get any relief of specific performance on the basis of agreement which is void ab-initio. The interim relief is always in aid of final relief. If the final relief i.e. decree for specific performance cannot be granted to the plaintiff, then, in our opinion, interim relief also cannot be granted as the same is in aid of final relief. That apart, Section 36A permission is already granted in favour of defendant nos. 19 to 22 by the competent authority, and thereafter, they have entered into an agreement with defendant nos. 1 to 8 and 14 to 18. Though this permission is objected to by the plaintiff, same as of today is not set-aside. 16. We will now consider Mr. Sakhare’s argument that defendant nos. 1 to 8 and 14 to 18 could not have entered into conveyance with defendant nos. 19 to 22 and in any case, the said conveyance is void in view of the provisions of sub-sections 4, 5 SSK/ 17 appl 250.11 and 6 of Section 36A of the MLRC. Mr. Sakhare, in this regard, contended that under sub-section 4, the Collector can hold an inquiry either suo motu or on an application made by an interested person. Under sub-section 5, in the event, the Collector forms an opinion that transfer of occupancy has been made in contravention of sub-section 1, he shall declare the transfer to be invalid, and thereupon, the occupancy together with the standing crops thereon, if any, shall vest in the State Government free of encumbrances. The sum and substance of Mr. Sakhare’s argument is that even assuming that the plaintiff’s agreement is void for want of permission under Section 36A, the land in question stands vested in the Government automatically and the transaction made by defendant nos. 1 to 8 and 14 to 18 with defendant nos. 19 to 22 is void. We are not impressed by the submission. A conjoint reading of sub-sections 4, 5 & 6 makes it clear that in order to find whether the transfer is in contravention of provisions of sub-section 1, the Collector has to hold an inquiry, either on the basis of an application or suo motu; and if he comes to the conclusion that the transfer is in contravention of sub-section 1, he has to declare the same to be invalid and thereafter occupancy shall vest in the State Government free of all encumbrances. SSK/ 18 appl 250.11 17. In the present case, the Collector has not resorted to the provisions of sub-sections 4, 5 & 6 of Section 36A and neither has he passed any declaration to the effect that the suit property is vested in the State Government. Therefore, we are of the prima- facie opinion that the subsequent agreement between defendant nos. 1 to 8 and 14 to 18, and defendant nos. 19 to 22 cannot said to be void especially when same was entered into after obtaining permission under Section 36A of the MLRC from the competent authority. This sanction/permission is objected to by the plaintiff and the proceedings in that regard are pending before the Collector. However, as of today, we have to proceed on the basis that there is a valid permission in favour of defendant nos. 19 to 22. In the above circumstances, we are of the opinion that the plaintiff has failed to prove prima-facie case in his favour. 18. Taking totality of the circumstances into consideration, we are of the opinion that even assuming the case to be true, the plaintiff is not entitled for specific performance, and therefore, not for interim relief. The learned single Judge has considered the case of the plaintiff and defendants in proper perspective and arrived at correct conclusion. Having given a fresh look to the facts and SSK/ 19 appl 250.11 circumstances of the case, we do not find any error in the impugned order warranting our interference with it in the present appeal. The appeal is dismissed accordingly. (RANJIT MORE, J.) (SMT. RANJANA DESAI, J.) SSK/ 20 appl 250.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL(LODGING) NO.250 OF 2011 IN NOTICE OF MOTION NO.1187 OF 2011 IN SUIT NO.875 OF 2011 Atul Projects India Ltd. ....Appellant Versus Babu Dewoo Farle & Ors. ...Respondents Mr. A.Y.Sakhare, Senior Advocate with Mr. R. M. Vasudeo for the Appellant. Mr. A. V. Anturkar i/b. Mr. Sandesh Patil, Advocate for respondent nos. 1 to 8. Mr. Vishal Kasbekar, Advocate for respondent no.9 to 13 Mr. P. K. Dhakephalkar, Sr. Advocate with Mr. Jagdish Aradwad for respondent nos. 19 to 22. CORAM : SMT. RANJANA DESAI & RANJIT MORE,JJ. DATE : 17th AUGUST, 2011. P.C.: At this stage, learned counsel for the appellant seeks stay of this order. Learned counsel appearing for the respondents oppose this prayer. However, in the circumstances of the case, order is stayed for a period of six weeks from today. (RANJIT MORE, J.) (SMT. RANJANA DESAI, J.)