1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE NAGPUR BENCH, NAGPUR WRIT PETITION No. 4854/2007 (Prashant Wasudeorao Mude Vs. State of Mah. & ors.) Appeal District : Application No. of 200 Writ petition Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders and Registrar's orders. Mr. R.L. Khapre, Adv. for the petitioner. Mr. S.Y. Deopujari, A.G.P., for R- 1 & 2. Mr. S.J. Khandalkar, Adv. for R-3. CORAM :D.D. SINHA & SMT. VASANTI A. NAIK, JJ. DATED : JANUARY 30, 2008. Heard the learned counsel for the parties. The present writ petition is directed against the order/communication dated 9/12/2005, whereby the application submitted by the respondent no.3 for grant of permission to sell his land admeasuring 1.95 hectares out of Survey No. 119 of Mouza Aajangaon, Tahsil Hinganghat, District Wardha, came to be rejected on the ground that as per the provisions of Section 12(1) of the Maharashtra Project Affected Persons' Rehabilitation Act, 1999, permission to sell the land from said survey number cannot be 2 granted since it come under the beneficial zone. Considered the contentions canvassed by the respective counsel. At the outset, we want to express that the present petition is not filed by the person aggrieved i.e. the respondent no.3 who is the owner of the land and whose application for permission to sell the land in question, was rejected vide the impugned order, by the District Rehabilitation Officer. The petition is filed by a person who has merely entered into an agreement of sale of the land in question dated 6/6/2005 with the respondent no.3. It is not in dispute that as per the provisions of Section 12(1) of the Maharashtra Project Affected Persons' Rehabilitation Act, 1999, the land which comes within the beneficial zone cannot be sold, without permission of the competent authority. The validity or otherwise of the said proviso is not challenged in the present writ petition and, therefore, the competent authority does have a power to reject the said 3 application if the land falls within the beneficial zone. In the backdrop of the above referred facts, on this short ground itself, we are of the view that the petitioner does not have a locus to call in question the validity of impugned order dated 9/12/2005 whereby the District Rehabilitation Officer, in view of the provisions of Section 12(1) of the Maharashtra Project Affected Persons' Act, rejected the application of the respondent no.3 for sale of the land in question. Mr. Khapre, the learned counsel for the petitioner, however, pointed out to us the decision of the Supreme Court reported in A.I.R. 2002 Supreme Court 2290 (Nirmala Anand Vs. Advent Corporation Pvt. Ltd. & ors.), particularly, some of the observations of the Apex Court in paragraph no. 17, which read thus: “17. On a careful consideration of the decisions brought to our notice, it can safely be recorded that it is too late in the day to deny a claim for specific performance of an agreement to sell an 4 immovable property in existence or to be brought into existence according to the specification agreed to merely because the Vendor had to make applications or move the concerned and competent authorities to obtain permission/sanction or consent of such authorities to make the sale agreed to be made an effective and full-fledged one. The principles laid down in the above decisions clearly indicate that unless the competent authorities have been moved and the application for consent/ permission/sanction have been rejected finally became irresolutely binding and rendered impossible the performance of the contract resulting in frustration as envisaged under Section 56 of the Contract Act, the relief cannot be refused for the mere pointing out of some obstacles.” The plain reading of the above referred observations of the Apex Court would demonstrate that in case of Nirmala Anand (cited supra), the Supreme Court was considering whether the claim of specific performance of contract can be denied at a belated stage merely in view of certain obstacles, whereas in 5 the instant case, the facts and circumstances are entirely distinguishable and different. In the present case, there is a statutory prohibition for sale of land which falls within beneficial zone, without permission and the application made by the respondent no.3 came to be rejected. The respondent no.3 has not come forward either to challenge the order of rejection of his application, nor is claiming any specific performance of contract against the petitioner. In that view of the matter, the above referred observations made by the Apex Court are of no help to the petitioner in the present case. Mr. Khapre, the learned counsel for the petitioner, also pointed out to us the observations of the Apex Court in the case of State of Punjab Vs. Amar Singh and another reported in A.I.R. 1974 Supreme Court 994 (particularly observations made by the Apex Court in paragraph no. 84 on page 1016), which read thus: “84. Firstly, there is a catena of 6 authorities which, following the doctrine of Lindley, L.J., in re Securities Insurance Co., (1984) 2 Ch 410 have laid down the rule that a person who is not a party to a decree or order may with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it. As a rule, leave to appeal will not be refused to a person who might have been made ex nominee a party------” The above referred law laid down by the Apex Court also will not help the petitioner since the respondent no.3 who, in fact, is aggrieved by the impugned order passed by the respondent- authority, has not come forward to challenge the said order nor has filed any proceedings or suit for specific performance of contract. If the authorities are required to grant permission for sale in routine manner, it would render the prohibition mentioned in Section 12 (1) of the Act ineffective and negatory. Hence, looking to the peculiar facts and circumstances of the present case, particularly, considering the statutory 7 provisions of Section 12(1) of the Maharashtra Project Affected Persons Rehabilitation Act, 1999 there is no merit in the petition. For the reasons stated above, the civil application for grant of leave to file writ petition against the impugned order, which is placed on record directly in the Court, by the petitioner, is rejected. For the reasons stated herein above, no case is made out for showing any indulgence. Petition is, therefore, dismissed. JUDGE JUDGE RMP