dik 1 wp 1958.1997, & 2338.1997.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1958 OF 1997 1) Shri. Dattatraya Ganpatrao Divgi since deceased by his heir and legatee viz. 1A) Shri. Uday Ramdas Divgi, R/o at C-209, Panchratna Apartments S.No.18/2, Bhairoba Nala, Pune 411 023. 2) Shri.Suresh Ganpat Raut since deceased by his heirs and legal representatives namely a) Smt.Lilabai Suresh Raut, b) Kumar Sunikala Suresh Raut, c) Kumari Sunikala Suresh Raut, d) Kumari Sarita Suresh Raut, Nos.2(a) to 2(d) all minors through their natural guardian and mother 2(a) Smt. Lilabai Suresh Raut, residing at Dahiwali, Tal. Kalyan, Dist. Thane. ...Appellants. Versus. 1) The State of Maharashtra through the Commissioner, Konkan Division, Bombay. 2) The Sub-Divisional Officer, Thane Division, Thane. ...Respondents. ALONGWITH WRIT PETITION NO.2338 OF 1997 1) Shri. Dattatraya Ganpatrao Divgi since deceased by his heir and legatee viz. 1A) Shri. Uday Ramdas Divgi, dik 2 wp 1958.1997, & 2338.1997.sxw R/o at C-209, Panchratna Apartments S.No.18/2, Bhairoba Nala, Pune 411 023. 2) Shri.Kashinath Malu Raut since deceased by his heirs and legal representatives namely a) Smt.Ramchandra Kashinath Raut, Age 42 years. b) Damodar Kashinath Raut, Age 42 years. c) Jaitu Kashinath Raut, Age 40 years, d) Rajaram Kashinath Raut, Age 34 years. e) Shrinath Thambabi Marthan Bhavarthe, Age 38 years. f) Smt.Anubai Kisan Parde Age 36 yrs. g) Smt.Thakubai Daulat Harad, Age 32 yrs. Nos.2(a) to 2(d) all residing at Dahiwali Taluka:- Kalyan, District Thane, Nos.2(e) and 2(g) residing at and Post Karvela, Tal. Kalyan, Dist. Thane, No.2(f) residing at and post Raya, Tal. Kalyan, Dist. Thane ...Appellants. Versus. 1) The State of Maharashtra through the Commissioner, Konkan Division, Bombay. 2) The Sub-Divisional Officer, Thane Division, Thane. ...Respondents. Mr. Niranjan Mogre, for petitioner No.1. Mr. R.M.Patne, AGP for respondents CORAM : G.S.GODBOLE, J. Date : 9 December, 2011 dik 3 wp 1958.1997, & 2338.1997.sxw ORAL JUDGMENT At this stage, it must be noted that at the outset Mr. Mogre has informed the Court that he has filed Vakalatnama for petitioner No. 1 in both the petitions and does not have Vakalatnama for the heirs of petitioner No.2 in both the Writ Petitions. However since apparently there is no conflict between the petitioners inter-se, Shri. Mogre was heard on behalf of the petitioners. 2. Both these Writ Petitions raise common questions of fact and law and have been tagged by an earlier order. Hence both the Writ Petitions are being disposed of by common order. 3. The facts in Writ Petition No.1958/1997 are as under - a) Petitioner No.2 Suresh was admittedly the owner of lands bearing S.No.47/1 admeasuring 1 Hector 84 Are and S. No.46/4 admeasuring 0 Hector 2 Are totally admeasuring 1 Hector 86 Are at village Dahiwali, Tal. Kalyan, Dist. Thane. Both the lands were purchased U/s 32-G of The Bombay Tenancy and Agricultural Lands Act, 1948 ( Hereinafter referred to as “Tenancy Act”) and, hence, were subject to the restrictions contained in Section 43 of the Said Act. b) It is the case of the petitioners that the petitioner No.2 entered into an oral agreement for sale of the said land with the dik 4 wp 1958.1997, & 2338.1997.sxw petitioner No.1, and hence an application U/s 43 of the Tenancy Act was filed on 13.3.1991. During the course of inspection of the land, it was found that petitioner No.1 was in fact in cultivating possession. In view of this, proceeding u/s 84-C was initiated on 8th September 1993. Much prior to this date, on 13.3.1991, an application U/s 43 for seeking permission had already been filed. By an order dated 26.3.1994, Tahasildar Kalyan held that there was violation of provisions of Section 43, as possession was handed over to the petitioner No.1 who was the prospective purchaser. In view of this, the lands in question were forfeited u/s 84-C of The Tenancy Act and even the agreed consideration of Rs.8000/- was forfeited. c) Aggrieved by this order, the petitioners filed Tenancy Appeal No.20/1994 which was dismissed by the learned S.D.O. Thane Dn. Thane on 28.8.1995. Aggrieved by the said order, the petitioners filed Tenancy Revision Application No.39/1996 which has been partly allowed by the impugned judgment and order dated 3rd February 1997. By the said order, the order regarding forfeiture of the land was confirmed but the order regarding forfeiture of the purchase price has been set aside. 4. The facts in Writ Petition No.2338/1997 are as under; dik 5 wp 1958.1997, & 2338.1997.sxw a) Petitioner No.2 was the owner of the agricultural land bearing survey No.47/1 admeasuring 1 Hector 84 Are and survey No. 47/9 admeasuring 1 Hector 25 Are, together admeasuring 2 Hector 09 Are, situated at village Dahiwali, Tal. Kalyan, Dist. Thane. The lands were purchased by petitioner No.1 U/s 32-G of the Tenancy Act and were, therefore, subject to the provisions of Section 43 of the Tenancy Act. There was oral agreement for sale under which Rs.20,000/- was paid as an earnest money. b) Thereafter on 13.9.1991 an application was filed with the Sub-Divisional Officer for granting permission U/sec 43 and depositions of the parties were recorded on 26.10.1993. Instead of passing final order, S.D.O. directed commencement of proceeding U/s 84-C of the Tenancy Act. Inspection of the land was done and it was found that, the petitioner No.1 was in cultivating possession. c) In Case No.8/1993 Tahasildar Kalyan passed an order dated 26.3.1994 and directed forfeiture of the land and earnest money. Tenancy Appeal No.21/1994 which was filed by the petitioner was dismissed by the learned S.D.O. Thane by the judgment and order dated 28.8.1995. Aggrieved by this judgment, the petitioners filed Tenancy Revision Appeal No.40/1996 in M.R.T. As stated above, by the dik 6 wp 1958.1997, & 2338.1997.sxw common judgment and order dated 3.2.1997, Revision Application was partly allowed and the order regarding forfeiture of the land was confirmed, but the order regarding forfeiture of the earnest money was set aside. Aggrieved by this order Writ Petition No.2338/1997 has been filed. 5. At the hearing of the petition Shri. Mogre submitted that a) The proceeding U/s 84-C had been commenced at belated stage and hence same could not have been continued. b) In any case a mere agreement for sale does not create any interest in the immovable property and what is prescribed in Section 43 is the sale or transfer of the property. Mere agreement for sale does not amount to transfer. c) Since the petitioners had already filed application for seeking permission U/s 43, there was no intention to defeat the provisions of Section 43, and hence, at that stage proceeding U/s 84-C could not have been initiated. d) Relying on the judgment of Dr. D.Y. Chandrachud J. in Balu B. Zarole Vs. Shaikh Akbar & others 2001 (3) Bom. C.R. 255 he submitted that the question of law is decided and mere agreement for sale does not contravene the provisions of Section 43. dik 7 wp 1958.1997, & 2338.1997.sxw 6. Learned AGP supported the judgments of the Tahasildar, S.D.O. and M.R.T. and relied upon the judgment of M.F. Saldanha J. in the case of Shri.Parshuram Kathod Gaikar Vs. Pandu Mahadu Hard and another 1994(1) Bom. C.R. 715 and also judgment of V.H. Bhairavia J. in case of Lotan Ramchandra Shimpi Vs. Shankar Ganpat Kayasth, 1994(4) Bom. C.R. 575. 7. In re-joinder Shri. Mogre, relied on judgment of Honourable Supreme Court in the case of Nathulal Vs. Phoolchand A.I.R. 1970 Supreme Court 546 and Mrs. Chandnee Widya Vati Madden Vs. Dr. C.L. Katial and others A.I.R. 1964 Supreme Court 978. 8. I have carefully considered the rival submissions. In this case the parties were conscious that the conveyance can be executed only after the permission from the Collector under the Tenancy Act. Such applications for permission were already filed. It is admitted position that no sale-deed had been executed. Section 54 of the Transfer of Property Act clearly stipulates that mere agreement for sale does not create any interest in the immovable property. Therefore, merely because the parties had entered in to an oral agreement and possession had been handed over to the petitioner No.1 by the petitioner No.2 in both the cases, it could not have been held that dik 8 wp 1958.1997, & 2338.1997.sxw interest had been created in favour of the petitioner No.1 by virtue of said agreement. 9. The learned single Judge ( M.F. Saldhana J.) in the case of Parshuram (supra), there is no doubt, had taken a view that “while considering the provisions of Section 43 of the Tenancy Act, no distinction can be drawn between agreement to sell and the conclusion of the sale.” However thereafter it was observed in para 9 that “observations made in that order were for the limited purpose of that petition.” The other judgment in the case of Lotan Shimpi (supra) has merely followed the earlier judgment of M.F. Saldhana J. and there the question regarding availability of protection under Section 53-A of T. P. Act 1882 was being considered. 10. The judgment of Dr. D.Y. Chandrachud J. relied upon by the petitioner is directly on the point and deals with agreement to sell and clearly holds that mere agreement for sale does not create any interest in the property. Dr. D.Y. Chandrachud J. had followed earlier judgment delivered by single Judge D.K. Deshmukh J. Following observations in para 3 & 4 in the judgment of Dr. D.Y. Chandrachud are relevant and I quote the same - “Section 43 of the Act provides, in so far as is material that no land purchased by a tenant inter dik 9 wp 1958.1997, & 2338.1997.sxw alia under section 32 “shall be transferred by sale, gift, exchange, mortgage, lease or assignment without the previous sanction of the Collector”. The requirement of taking the previous sanction of the Collector would apply to a transfer by sale or by any of the other modes specified therein. In so far as the requirement of taking the sanction of the Collector under the provisions of section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948 is concerned, the trial Court and the Appellate Court correctly held that the decree for specific performance would be subject to the condition of the sanction being obtained to the sale from the Collector under section 43. In the event of the Collector not granting sanction, the plaintiff would be entitled to a refund of the purchase price together with interest only as, in the absence of sanction under section 43 the sale cannot be concluded. In taking this view, no error has been committed by the trial Court and by the Appellate Court. In (Nathulal V. Phoolchand), reported in A.I.R. 1970 S.C. 546. a Bench of the Supreme Court, consisting of Mr. Justice J.C. Shah ( as the Learned Chief Justice then was ) and Mr. Justice K.S. Hegde held that where by a statute property is not transferable without the permission of an authority, an agreement to transfer the property must be deemed to be subject to the implied condition that the transferor will obtain the sanction of the authority concerned. While laying down the aforesaid proposition in paragraph 5 of its judgment, the Supreme Court referred to the judgment of the Supreme Court in (Chandnee Widya Vati Madden V. Dr. C.L. Katial ), A.I.R. 1964 S.C. 978. 4. Section 43 of the Act would be attracted at the stage of execution of the conveyance since upon the execution of the sale deed, the property is transferred by sale. An agreement to sell does not create any interest in property. In this regard, a reference may be made to a judgment of a Learned Single Judge of dik 10 wp 1958.1997, & 2338.1997.sxw this Court, D.K. Deshmukh, J., delivered on 1st. October, 1997, in Appeal from Order No.713 of 1977. The earlier judgment delivered by M.F. Saldanha., reported in (Parshuram Kathod Gaikar V. Pandu Mahadu Hard) 1994(1) Bom. C.R. 715 which was subsequently referred to in the judgment of V.H. Bhairavia, J., reported in (Lotan Ramchandra Shimpi V. Shankar Ganpat Kayasth) , 1994(4) Bom. C.R. 575 will have to be construed with reference to the observation of the Learned Judge in para 9 of the judgment where the learned Judge clarified that the observations which were made in the order were for the limited purpose of the petition before the Court, which arose against an interim order. Since the suit was pending before the trial Court, the learned Judge held that it would be open to the parties in the said case to urge all contentions before the trial Court “without being prejudiced even in the least by any of the observations made” in that judgment. In view of the subsequent judgment of a learned Single Judge, D.K. Deshmukh, J., it would be clear that the provisions of section 43 of the Act would be attracted at the stage of the execution of the conveyance. Before the conveyance is executed in pursuance of a decree for specific performance the previous sanction of the Collector under section 43 would have to be sought and the execution of the conveyance can only take place after and subject to the grant of sanction by the Collector. If the Collector grants sanction, the terms and conditions laid down therein have to be observed. If sanction is refused, no conveyance can be executed. Section 43 would unquestionably be attracted to the execution of the conveyance in respect of the land and it is, therefore, that both the courts in the present case came to the conclusion that the decree will have to be subject to the condition that permission of the Collector would have to be sought under the provisions of section 43. The judgments of both the Courts below do not suffer from any infirmity. There is, therefore, no merit in dik 11 wp 1958.1997, & 2338.1997.sxw the Second Appeal.” 11. It is well established that, mere agreement for sale does not create any right in the property, but only creates enforceable rights in the parties. This proposition is laid down by the Honourable Supreme Court in the case of State of U.P. Vs. The District Judge & ors (1997) 1 S.C.C. 496, Namdev Vs. The Collector A.I.R. 1996 Supreme Court 975, Rambhau Gajre Vs. Narayan Bapuji Dhotra (2004) 8 S.C.C. 614. Therefore, merely because there was an oral agreement coupled with possession, it could not have been held that there was complete transfer or sale which alone would attract Section 43 of the Tenancy Act. 12. For all the aforesaid reasons, both the petitions deserve to be allowed and are accordingly allowed. Rule is made absolute in terms of prayer clause (a) in both the petitions. G. S. GODBOLE J.