skn 1 1156.11-ao-- IN THE HIGH COURT OF JUDICATURE AT BOMBAY. APPELLATE JURISDICTION. APPEAL FROM ORDER NO. 1156 OF 2011 Shri Nayab Mithailal Gupta. ... Appellant. V/s. M/s.Amrut Builders and others. ... Respondents. WITH APPEAL FROM ORDER NO. 1157 OF 2011 Shri Nayab Mithailal Gupta. ... Appellant. V/s. M/s.Amrut Builders and others. ... Respondents. M.P.Wamorkar i/b. Maravoor Wamorkar & Co. for the appellant. P.K.Dhakephalkar, Senior Advocate with A.P.Mhatre for respondent No.1. CORAM: R.M.BORDE, J. DATED : 25th November 2011. P.C. : This appeals from order filed by the appellant/ original defendant No.14 are taking exception to the order passed below applications at Exh.5 tendered in Special Civil Suit Nos.399/2011 and 400/2011 by Third Joint Civil Judge, Senior Division, Kalyan. skn 2 1156.11-ao-- 2. The suits are presented by respondent Nos.1- original plaintiff claiming specific performance of the development agreements. The plaintiff is a registered partnership firm. The properties in dispute are Survey No.42, Hissa No.4 to the extent of 1,300 sq.mtrs and Survey No.40, Hissa No.2A to the extent of 9,500 sq.mtrs situated at Gouripada, Taluka- Kalyan, District- Thane. Defendant Nos.1 to 13 are the owners of the suit property. Defendant Nos.1 to 13 decided to develop the aforesaid properties. Defendant No.1 to 7 were having 2/3rd common share in the suit property whereas defendant Nos.8 to 13 were having 1/3rd share. On 28th June 2006, all the defendants received valuable consideration on execution of the development agreements. There is also recital of handing over of the possession of the properties to the developer and irrecoverable power of attorney was also executed in favour of the plaintiff by defendant Nos.1 to 13 for execution of development agreements of the properties and for carrying out development work. As per the settlement between the plaintiff and the defendants, the defendants were to secure permission under section 43 of the Bombay Tenancy and Agricultural Land Act, 1948 (“Tenancy Act” for short) and that the sale-deed was to be executed after taking appropriate permission. There was failure on the part of the defendants to secure permission and execute sale-deed, as such two different suits came to be filed by the plaintiff seeking specific performance of the agreements. 3. The defendant No.10 claiming himself as power of attorney of defendant Nos.1 to 9 and 11 to 13 executed a sale-deed of the suit properties in favour of defendant No.14. The said sale-deed is skn 3 1156.11-ao-- got registered at Sr.No.3142 on 20th April 2011 i.e. after few years after execution of the power of attorney. According to some of the defendants, they have not executed power of attorney in favour of defendant No.10 and that the document in question is forged and fabricated. Defendant Nos.1 to 5 and 7 supported the case of the plaintiff and admitted to have entered into a development agreement so also admitted to have handed over possession of the suit properties to the plaintiff. 4. Defendant No.14 appeared and resisted the application by filing his say. According to defendant No.14, if the recital in the development agreements is to be considered, it is nothing but a sale transaction and the sale transaction in violation of provisions of section 43 of the Tenancy Act cannot be taken note of. According to defendant No.14, defendant No.10- the power of attorney holder of other defendants has executed sale-deed in his favour for a valuable consideration. The transaction entered into by defendant Nos.1 to 13 with the plaintiff being in violation of section 43 of the Tenancy Act, the plaintiff is not entitled to an equitable relief of injunction and application deserves to be rejected. 5. The trial Court, after considering rival submissions placed by the parties, allowed the applications in both the suits and restrained defendant No.14 through his partners, agents, servants or any person claiming through him by an order of injunction to carry out any kind of work of development or construction in any manner on the suit properties. skn 4 1156.11-ao-- 6. I have perused the impugned orders passed by the trial Court and heard the arguments advanced by the counsel for the respective parties. 7. It is vehemently contended by the learned counsel for the appellant that the properties in dispute are tenanted properties and in view of provisions of section 43 of the Tenancy Act permission is required for alienation of the properties. According to him, even an attempt to alienate the property would call for permission as required under section 43 of the Tenancy Act. He, therefore, submits that the trial Court fell in error in according equitable order of injunction in favour of the plaintiff. It cannot be controverted that the transaction for execution of power of attorney by the defendants in favour of plaintiff is earlier in point of time and right is created in favour of the plaintiff in relation to the property by execution of registered power of attorney by the defendants in favour of the plaintiff. The subsequent transaction allegedly entered into by defendant No.10 as power of attorney holder on behalf of other defendants in favour of appellant/defendant No.14 is later in point of time. Apart from this aspect, the original owners i.e. some of the defendants have seriously controverted the capacity of defendant No.10 to act as power of attorney holder on their behalf. 8. The only objection raised to the order is on the ground of bar contained in section 43 of the Tenancy Act for entering into transaction by the defendants with the plaintiff. Learned counsel for the appellant placed reliance on the judgment of this Court in the case skn 5 1156.11-ao-- of Lotan Ramchandra Shimpi v. Shankar Ganpat Kayasth, 1994 (4) Bom.C.R. 575 and contended that there is total and complete bar on alienation of agricultural land in question without previous sanction of the Collector. The bar includes any attempt of doing so or execution of document in pursuance thereof. 9. In the matter of Himatrao Ukha Mali v. Popat Devram Patil, 1998 (3) Bom.C.R. 680, it is observed by learned single Judge of this Court that the statutory mandate indicates that even after the ownership certificate is issued under section 32-G in favour of the tenant, the tenant is required to cultivate the land personally and his failure to do so results in his eviction from the said land. The ownership vested in favour of the purchaser tenant is, thus, not absolute but is conditioned and does not have absolute right to enter into an agreement even after the certificate of ownership under section 32-G was issued to him. While the Tenancy Act has provided for rights in favour of the tenant, it has also made provisions for the protection of the tenant and to ensure that the tenant cultivates the land himself as far as possible. Section 43 has been incorporated in the Tenancy Act for very good reasons and the Legislature has prescribed a total and complete bar on alienation of the agricultural lands without the previous sanction of the Collector. The contract for sale of such land of which the tenant has become the owner will be invalid in view of the provisions of section 23 of the Indian Contract Act because it contravenes the provisions of section 43(1) of the Tenancy Act. 10. It is, thus, contended that the transaction by the defendants in favour of the plaintiff of entering into a development skn 6 1156.11-ao-- agreement is opposed to section 43 of the Tenancy Act. Moreover, it also contended that the terms of the said development agreement are in the nature of sale transaction and, as such, bar of section 43 of the Tenancy Act is attracted. A similar proposition is also propounded in the judgment of the Gujarat High Court in the case of Rameshbhai Chaturbhai Prajapati v. Minaxiben Wd/o Rasiklal Tilakram delivered in Special Civil Application 9400/2009. 11. The issue of creation of bar under section 43 of the Tenancy Act in respect of transaction of agreement to sell was specifically considered by the learned single Judge of this Court in the case of Atul Projects India Ltd. v. Babu Dewoo Farle, in the notice of motion taken out in Suit (L) No.581/2011 decided on 25th March 2011. The issue before leaned single Judge was as regards the applicability of bar contained in section 36A of the Maharashtra Land Revenue Code, 1966 and section 43 of the Tenancy Act. Learned single Judge observed that mere agreement to sell, which does not create any interest in the property, would not attract provisions of section 43 of the Tenancy Act as it is only at the stage of sale-deed when the property is actually transferred and then and thereafter the provisions of section 43 would be attracted. It would advantageous to refer to para 16 of the judgment, which reads thus: 16. Now in the present case, the Agreement that was entered into on 1 December 2003 provided that upon execution of the consent terms the Plaintiff would be placed in possession of the property. The Agreement records that the tribals who are parties of the first part had constructed structures on the property. The occupants of the structures would have to vacate skn 7 1156.11-ao-- the structures and the Plaintiff would bear the cost of rehabilitation. It is in this background, that the Court would have to consider as to whether the Agreement involved a transfer of occupancy right in violation of Section 36A. Section 36A provides that no occupancy of a tribal shall be transferred in favour of a non tribal. Under Section 36A it is not necessary that the land itself should be envisaged to be transferred. Transfer of occupancy is sufficient to meet the prohibition in Section 36A. In contrast, it would be necessary to advert to the provisions of Section 43 of the Tenancy Act under which no land purchased by a tenant under Section 32, 32F, 32I, 32O, 33C or 43-ID or sold to any person under Section 32P or 64 “shall be transferred by sale, gift, exchange, mortgage, lease or assignment without the previous sanction of the Collector”. A comparison of Section 43 of the Tenancy Act with Section 36A of the MLRC would reveal the clear distinction in language made by the legislature. Section 43 of the Tenancy Act applies to a transfer of land purchased by a tenant or sold to any person. Section 36A which is a provision on the other hand which has been especially engrafted to deal with tribal holdings does not refer to the transfer of land but to the transfer of the occupancy of a tribal. While Section 43 of the Tenancy Act confines itself to the five recognised modes of the transfer of property, Section 36A of the MLRC contemplates those modes “or otherwise”. While considering the provisions of Section 43, it has been held in judgments of learned Single Judges of this Court that a mere agreement to sell which does not create interest in property would not attract Section 43 and it is only at the stage of the execution of the sale deed when the property is actually transferred that the provision would be attracted. (Balu Baburao Zarole & Ors. vs. Shaikh Akbar Shaikh Bhikan & Ors. 2001 (3) Bom. C.R. 255) In taking this view I had skn 8 1156.11-ao-- followed an earlier judgment of D. K. Deshmukh, J. in a judgment dated 1 October 1997 in Appeal from Order No. 713 of 1977. In another case that has been decided by the Supreme Court the provisions of the J & K Prohibition on Conservation of Land and Alienation of Orchards Act 1975 came up for consideration in Manzoor Ahmed Magray vs. Gulam Hassan Aram and Ors. 4. Section 3 of the J & K Act imposes a bar on the alienation of a Orchard except with the previous permission of the Revenue Minister. The Supreme Court emphasized that the prohibition on the transfer of Orchards was not absolute and the question of obtaining previous permission under Section 3(1)(a) would arise at the time of execution of the sale deed on the basis of a decree for a specific performance. The provisions of Section 36A of the MLRC are even more stringent when they are compared with the provisions of Section 43 of the Tenancy Act to which a reference has been made earlier or to those of the J & K Act which fell for determination before the Supreme Court. Section 36A imposes a prohibition on the transfer of occupancy rights from a tribal to a non tribal, without prior permission. 12. Thus, on consideration of the ratio laid down by the learned single Judge in the judgment cited above, it would be clear that bar contemplated under section 43 of the Tenancy Act would not be attracted in the case of mere execution of agreement to sell and sanction contemplated under section 43 would be necessary at the time of execution of sale-deed. 13. As the plaintiff in the instant matters, has asked for specific performance of the agreement for sale, while passing the decree the skn 9 1156.11-ao-- trial Court can make the same conditional to fulfillment of statutory requirement contemplated by section 43 of the Tenancy Act in respect of securing permission from the competent authority under the Tenancy Act. As such, the objection raised by the appellant regarding legality and correctness of the order fails. The appeal from order is devoid of any substance. 14. In the result, appeal from order is dismissed. In view of dismissal of appeal from order, pending civil application does not survive and stands disposed of accordingly. (R.M.BORDE, J.)