2. THE JOINT SECRETARY, ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR, SECRETARIAT, PATNA
 3. THE EXECUTIVE ENGINEER, PATNA CITY ROAD DIVISION, GULZARBAGH, ROAD CONSTRUCTION DEPARTMENT, PATNA
 4. THE EXECUTIVE ENGINEER, ROAD DIVISION, DEHRI-ON-SONE, ROAD CONSTRUCTION DEPARTMENT, DEHRI-ON-SONE
 5. THE EXECUTIVE ENGINEER, ROAD CONSTRUCTION DEPARTMENT, ROAD DIVISION, SAMASTIPUR .... .... RESPONDENT/S 3 / 21 ====================================================== WITH CIVIL WRIT JURISDICTION CASE NO.12493 OF 2009 ======================================================
 1. VODAFONE ESSAR SPACETEL LIMITED, A PUBLIC LIMITED COMPANY DULY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT C-48, OKHLA INDUSTRIAL AREA, PHASE-II, NEW DELHI-110020 AND ITS BRANCH OFFICE AT 4TH FLOOR, MAHARAJA KAMESHWAR COMPLEX, FRASER ROAD, PATNA-800001


Vodafone Essar Spacetel Ltd.&A vs The State Of Bihar & Ors on 21 March, 2013

2. VODAFONE ESSAR SOUTH LIMITED, A PUBLIC LIMITED COMPANY DULY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT C-48, OKHLA INDUSTRIAL AREA, PHASE-II, NEW DELHI-110020 AND ITS BRANCH OFFICE AT 4TH FLOOR, MAHARAJA KAMESHWAR COMPLEX, FRASER ROAD, PATNA-800001 BOTH ARE DULY REPRESENTED THROUGH THEIR CONSTITUTED ATTORNEY SRI RANJAN KUMAR, SON OF SRI V. N. SINGH, RESIDING AT 171-A/2, NEW PATLIPUTRA, G. D. MISHRA PATH, POLICE STATION PATLIPUTRA, DISTRICT PATNA .... .... PETITIONER/S VERSUS
 1. THE STATE OF BIHAR THROUGH ITS CHIEF SECRETARY, PATNA
 2. THE ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR THROUGH ITS PRINCIPAL SECRETARY, NEW SECRETARIAT, OFF. BAILEY ROAD, PATNA
 3. THE PRINCIPAL SECRETARY, DEPARTMENT OF ROAD CONSTRUCTION, GOVERNMENT OF BIHAR, NEW SECRETARIAT, OFF BAILEY ROAD, PATNA
 4. THE JOINT SECRETARY TO THE GOVERNMENT OF BIHAR, ROAD CONSTRUCTION DEPARTMENT, NEW SECRETARIAT, PATNA
 5. THE EXECUTIVE ENGINEER, ROAD DIVISION, BHAGALPUR
 6. THE EXECUTIVE ENGINEER, ROAD CONSTRUCTION DEPARTMENT, ROAD DIVISION, BETTIAH .... .... RESPONDENT/S ====================================================== WITH CIVIL WRIT JURISDICTION CASE NO.9169 OF 2009 ======================================================


1. VODAFONE ESSAR SPACETEL LIMITED, A PUBLIC LIMITED COMPANY DULY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT C-48, OKHLA INDUSTRIAL AREA, PHASE-II, NEW DELHI-110020 AND ITS BRANCH OFFICE AT 4TH FLOOR, MAHARAJA KAMESHWAR COMPLEX, FRASER ROAD, PATNA-800001 4 / 21


2. VODAFONE ESSAR SOUTH LIMITED, A PUBLIC LIMITED COMPANY DULY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT C-48, OKHLA INDUSTRIAL AREA, PHASE-II, NEW DELHI-110020 AND ITS BRANCH OFFICE AT 4TH FLOOR, MAHARAJA KAMESHWAR COMPLEX, FRASER ROAD, PATNA-800001 BOTH ARE DULY REPRESENTED THROUGH THEIR CONSTITUTED ATTORNEY SRI RANJAN KUMAR, SON OF SRI V. N. SINGH, RESIDING AT 171-A/2, NEW PATLIPUTRA, G. D. MISHRA PATH, POLICE STATION PATLIPUTRA, DISTRICT PATNA .... .... PETITIONER/S VERSUS
 1. THE STATE OF BIHAR THROUGH ITS CHIEF SECRETARY, PATNA
 2. THE ROAD CONSTRUCTION DEPARTMENT, GOVERNMENT OF BIHAR THROUGH ITS PRINCIPAL SECRETARY, NEW SECRETARIAT, OFF. BAILEY ROAD, PATNA
 3. THE PRINCIPAL SECRETARY, DEPARTMENT OF ROAD CONSTRUCTION, GOVERNMENT OF BIHAR, NEW SECRETARIAT, OFF BAILEY ROAD, PATNA
 4. THE JOINT SECRETARY TO THE GOVERNMENT OF BIHAR, ROAD CONSTRUCTION DEPARTMENT, NEW SECRETARIAT, PATNA
 5. THE EXECUTIVE ENGINEER, NEW CAPITAL ROAD DIVISION, ROAD CONSTRUCTION DEPARTMENT, PATNA
 6. THE TOWN COMMISSIONER, MUZAFFARPUR MUNICIPAL CORPORATION, MUZAFFARPUR


7. THE EXECUTIVE OFFICER, NAGAR PARISHAD, BUXAR .... .... RESPONDENT/S ====================================================== Appearance :
 (In CWJC No.8317 of 2009) For the Petitioner/s : Mr. Y. V. Giri, Sr. Advocate Mr. Rajeev Ranjan Prasad, Advocate Mr. Ashish Giri, Advocate Mr. Akash Chaturvedi, Advocate For the Respondent/s : Mr. P. K. Verma, AAG V Mr. S. R. Saran, AC to AAG V (In CWJC No.13483 of 2009) For the Petitioner/s : Mr. S.D.Sanjay Mr. Gautam Kejriwal Mr. Sushila Agrawal For the Respondent/s : Mr. P. K. Verma, AAG V Mr. S. R. Saran, AC to AAG V (In CWJC No.7394 of 2009) For the Petitioner/s : Mr. Y. V. Giri, Sr. Advocae Mr. Anil Kumar Jaiswal, Advocate Mr. Ashok Giri, Advocate For the Respondent/s : Mr. P. K. Verma, AAG V Mr. S. R. Saran, AC to AAG V 5 / 21 (In CWJC No.12493 of 2009) For the Petitioner/s : Mr. Rajeev Ranjan Prasad, Advocate Mr. Nilanjan Chatterjee, Advocate Mr. Raghwendra Kumar Singh, Advocate For the Respondent/s : Mr. P. K. Verma, AAG V Mr. S. R. Saran, AC to AAG V (In CWJC No.9169 of 2009) For the Petitioner/s :


Mr. Rajeev Ranjan Prasad, Advocate Mr. Nilanjan Chatterjee, Advocate Mr. Raghwendra Kumar Singh, Advocate For the Respondent/s : Mr. P. K. Verma, AAG V Mr. S. R. Saran, AC to AAG V ====================================================== CORAM: HONOURABLE JUSTICE SMT. SHEEMA ALI KHAN CAV ORDER 14 21-03-2013 These batch of writ applications have been filed challenging the Government resolution dated 28.03.2008 by which a decision has been taken by the State Government through the Road Construction Department to levy Rs.


5,000/- per kilometer per year as land usage charges for allowing the petitioners to lay underground optical fibre cables on the lands belonging to the State Government.

 The Government of India formulated a new telecom policy in the year 1994 aimed at giving highest priority to the development of telecom services in the country in conformity and in furtherance of Government of India‟s Economic Policy. The mobile cellular telecommunication essentially requires laying down the optical fibre cables as per network planning for ensuring that signal of adequate length is available to all users and as such, the Government of India granted licenses under Section 4 of the India Telegraph Act, 1885 giving permission 6 / 21 to the companies in the said business to lay down underground telecom cable. The Government of India, Ministry of Road Surface Transport came out with a circular dated 29th September, 2000 whereby they provided mobile guidelines for streamlining the provisions of right of way to telecom service licensees and also to the infrastructure providers. This document has been annexed in almost all the writ applications. The mobile guidelines have been formulated, keeping in view the object of creating a robust telecommunication infrastructure with adequate bandwidth at affordable rates and in order to promote Development and Proliferation of Information Technology, Electronic Governance, E-Commerce, convergence of Information, Communication and Entertainment sectors so as to improve the state of economy, enhance the quality of life of the citizens and to ensure development of urban and rural areas with equity throughout the country. This document has recommended the broad guidelines under which right of way permissions may be granted to licensed telecom operators and registered infrastructure for laying telecom cables, ducts under, over, along, across, in or upon a property vested in or under the control or management of a local authority or of any other person including public authority, public corporation, autonomous body, State Government or Central Government in their respective licensed service area 7 / 21 during the pendency of their licence.


Initially, when permission was granted to the petitioners‟ companies to lay down the optical fibre cables, a resolution was passed on 11.07.2005 vide memo no. 4564(S) me, giving certain directions to the companies which were utilizing the right of way on the lands which belong to the Road Construction Department. Laying down of optical fibre cables essentially required that the earth/road had to be dug up at various points so that the optical fibre cables could be installed underground. The Government gave certain directions regarding the manner in which the companies should act for restoring the land/road to its original form, directing the companies to pay a certain cost so that the Road Construction Department can reconstruct the roads and restore them. It may be mentioned here that the Government of India has presently exempted the mobile companies from any charge with respect to usage of land belonging to the National Highway.

 In the State of Bihar, the Petitioners‟ Companies were permitted to lay down the optical fibre cables without any demand for usage of the land. While doing so, the Road Construction Department vide memo no. 575(E) me, dated 05.02.2002 addressed a letter to the M/s Reliance Telecom and others by different memo numbers, which gave them permission to lay down optical fibre cables. As per the letter, 8 / 21 which is contained in Annexure-A to the counter affidavit, which speaks of the development in the field of telecommunication and the Government‟s intention to frame a policy regarding laying down of optical fibre cables. It specifically states that the Petitioners‟ Companies are being granted temporary permission with the condition that once the State Government frames the policy, the Petitioners‟ Companies would be bound by the said policy and would have to act and accept the provisions of the said policy. Accordingly, the Petitioners‟ Companies were allowed to lay down their optical fibre cables.


In pursuance of the aforesaid permission, a resolution was taken by the State Government issued vide letter no. 4501(S) dated 28.03.2008, wherein the State Government has stated that since the telecom companies have developed, grown and established themselves as business enterprises, they no longer come under the category of being granted a subsidy as such they would have to pay Land Usage Charges at the rate of Rs. 5000/- per kilometer per year. Subsequent to the issuance of this letter, notices were issued individually to all the stake holders, which is under challenge on various grounds, which are as follows:- 1. Whether the land usage charges is a rent or not?

 2. Whether the land usage charge is impost if not rent?

 9 / 21

 3. Whether any impost in nature of tax, fees, cess can be levied without any authority of law merely on executive orders?

 4. Whether the said impost is not on the usage of land, but on laying of optical fibre cables, which is governed under entry 31 read with entry 96 and 97 of the Union List in the 7th Schedule?

 5. Whether even if assuming that the State has power to demand such impost, whether the same is bad in law on ground of there being no reason to justify the rates so imposed by it?

 All these issues have been amalgamated in the judgment.


All these issues have been amalgamated in the judgment.

 I shall begin with the power of the State Government to demand Land Usage Charge for utilization of its land by companies/individuals. It has been argued that the Union Government has the power to enact laws with respect to Post and Telegraph; telephones, wireless, broadcast and other like forms of communications under Entry 31 of Schedule-VII of the Constitution. It is further being argued that it is the Union Government, under Entry 96, has the power to charge fees in any matter under the Union List, as such, the State Government could not have raised the demand asking for Land Usage Charge. In this context, it is also argued that the demand is by way of 10 / 21 tax/fees/impost and as such, it can only be demanded or charged from a company/individual if there is a corresponding law enacted by the State Government which allows it to make such a demand. Admittedly, the State Government has not taken the help of any law enumerated regarding the said demand.


At the outset, it is quite obvious and requires no citation of any case to point out that the State Government has not made any law or granted any license under the topics covered by Entry 31 in the 7th Schedule of the Union List, rather if at all, it would come under Entry 18 of the State List, which reads as "Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization", which are the subject matters for which the State Government has the power to take decisions, legislate and issue policies with regard to the administration and management of land which belongs to the State Government or any of its local bodies. Thus, there should be no confusion regarding this aspect of the matter and the State is well within its rights to take a policy decision regarding the lands belonging to it.

 The next question that has been argued is that the demand of Rs. 5000/- per kilometer per year for land 11 / 21 usage is by way of a tax. In this context, I would like to first begin by making a distinction between a lease and a license and a fee and a tax. It has been argued that the said demand would come within the definition of a tax/license/fee.


In the case of Associated Hotels Of India Ltd vs R. N. Kapoor [AIR 1959 SUPREME COURT 1262], the Supreme Court has distinguish between a license and a fee. One R. N. Kapoor filed an application before the Rent Controller, New Delhi, alleging that he was a tenant of the spaces in the cloak rooms under the Hotel (appellant) and asking that standard rent might be fixed in respect of them. The Hotel opposed the application, contending that the Act did not apply and no standard rent could be fixed. Section 11 of the Delhi Rent Control Act defines "premises" as any building or part of a building which is or is intended to be let separately.............. but does not include a room in a dharamsala, hotel or lodging house." It was contended that a room in a hotel need not necessarily be a bed room, but may be for example be a dining room, a beauty parlour etc. It has been argued that such spaces provide amenities to the persons to use the hotel and, therefore, are part of the hotel. The Apex Court held that there is a mark distinction between a lease and the license.


Section 105 of the Transfer of Property Act 12 / 21 defines a lease of immovable properties as transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under Section 108, the licensee is entitled to be put in possession of the property, a lease is, therefore, a transfer of an interest in the land. The interest transfer is called a lease hold interest. On the other hand, Section 52 of the Indian Easement Act defines a licence as "Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right, be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a licence." The Apex Court laid down the following propositions.

 " (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form ;
 (2) the real test is the intention of the parties-whether they intended to create a lease or a licence;

 (3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive 13 / 21 possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease."


Thus, in the present case, it cannot be said that the State Government had granted a license to the Petitioners‟ Companies nor can it be lawfully said that they had leased the properties as the Companies did not come into exclusive possession over the lands that were utilized or are to be utilized by them.


Another judgment which would be relevant for the purposes of explaining what is a tax or fee is the case of Commissioner, Hindu Religious Endowments, Madras vs. Lakshmindra ThirthSwamiar, [AIR 1954 SC 282]. The facts of this case are not very relevant for the purposes of the present dispute. The power of the State Government to enact laws on subject of religious and charitable endowments which is covered by Entry 28 of List-III, Schedule-VII of the Constitution was not under challenge, the challenge was to the demand of an annual contribution contained in Section 76 of the Charitable Endowment Act which was invoked at the time when the matter was taken up. It was argued that the provisions was amounting to a tax as Section 76 of the Act empowered the Government to charge the amount that they were required to pay by way of the salaries, pensions and other remuneration to the 14 / 21 Commissioner, Deputy Commissioners, Assistant Commissioners and other officers of the religious institutions employed for the purposes of this Act including the expenses incurred by the Area Committees. The Apex Court has referred to the definition of tax by Lathan, C.J. of the High Court of Australia in Matthews v. Chicory Marketing Board [60 C.L.R. 263, 276]. A "tax", according to the learned Chief Justice, "is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered". The main essence of a tax is that it is compulsorily payable, it is imposed by a statutory body without the tax payer consent and the payment is enforceable by law. It does not confer any special benefit to any particular individual i.e. to say there is no element of quid pro quo between the taxpayer and the public authority. A fee, on the other hand, is generally defined to be a charge for a special service rendered to individuals by some


the other hand, is generally defined to be a charge for a special service rendered to individuals by some governmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service. The distinction between a tax and a fee, lies primarily in the fact that a tax is levied as part of common burden while a fee is payment for special benefit or privilege.


Counsel also refers to the judgment of Gupta Modern Breweries vs. State of J &K and Others [(2007) 6 SCC 15 / 21 317]. The Excise Commissioner under rule 17 of the Jammu & Kashmir Distillery Rule sought to impose charges on account of salary of Excise Department staff which were to be recovered from the management to the extent of 50 per cent of the total expenditure. In several decisions, such as CCE vs. Chhata Sugar Co. Ltd. [(2004) 3 SCC 466, The Apex Court has held that the stand of the concern authority that they were rendering services by deputing staff for the purposes of ensuring proper manufacture cannot be held to be a fee as there is no quid pro quo between the fee charged and the services rendered. This case referred to really does not help the Petitioners‟ Companies except that it highlights the differences between a tax and a fee. It is obvious that in the present case, the demand of Land Usage Charge cannot come within the ambit of a tax or a fee.


The decision cited by the Counsel for the Petitioners‟ Companies, which I may merely mention in passing would not be applicable in the facts of this case as they deal with the imposition of tax and fees, are, Consumer Online Foundation and Others vs. Union of India and Others [(2011) 5 SCC 360], Commissioner of Income Tax, Udaipur. Rajasthan vs. McDowell and Company Limited [(2009) 10 SCC 755], Bholanath Gupta and Others. Vs. the State of Bihar and Another [1975 BBCJ 397], Bimal Chandra Banerjee vs. State of Madhya Pradesh [AIR 1971 SC 517], 16 / 21 Shree Digvijay Cement Co. Ltd. And another vs. Union of India and another [AIR 2003 SC 767]. All these cases have been cited for the propositions that the power to impose tax or fee can only be exercised under any law authorizing such levy and not by the executive power of the State. Especially, Counsel has referred the case of Union of India and another vs. Association of Unified Telecom Service Providers of India and other [(2011) 10 SCC 543. The relevant facts are that the licenses granted to the service providers stipulated a license fee, which was payable by the service providers within a stipulated time. The licensees defaulted during the period 1994 to 1999, in payment of license fee and made a representation to the Government of India, Ministry of Telecommunications for relief against the license fee for the survival of the telecom industry. The Government of India considered their representations and offered a new package. There were disputes regarding the terms of the license, which was referred to the Tribunal for adjudication. The points that were considered by the Supreme Court in this judgment do not cover any part of the issues raised by the petitioners in these cases. The findings of the Apex Court that only the Central


issues raised by the petitioners in these cases. The findings of the Apex Court that only the Central Government and no other has a right to carry telecommunication activities cannot be doubted. In the present cases, the licenses have been granted by the Central Government. The State Government is not taking 17 / 21 any fee for grant of license; rather the demand is with respect to usage of land belonging to the Road Construction Department or the local authorities. It is also clear that the State Government is not making a demand of any tax as Land Usage Charge cannot come within the purview of a tax.


It is next argued that there is no statutory law under which the term "Land Usage" would be included. It is submitted that even if it is argued that the State is the landlord and it is charging rent, then it should be under the provisions of the law laid down under which the State can demand a rent. An attempt has been made to refer to the Acts governing the field with respect to the power of the State Government to charge any form of tax, fee, rent for the usage of land to indicate that the State Government has no authority by an executive action to demand the Land Usage Charge. Referring to the provisions of the Bihar Tenancy Act, it has been submitted that the Act came into being to consolidate certain enactments relating to the law of landlord and tenant. The regulations earlier regarding the subject matter stood only in favour of the Zamindars and Tenure holders, which had nothing in it to safeguard the interests of tenants who were nothing but tenants at will. The Act sought to bring into existence "the occupational right and fixation of fair and equitable rent" and to 18 / 21 regularize the status of raiyats after the Zamindari rights were abolished. Under the Bihar Tenancy Act, sub-Section (3) of Section 3, the tenant has been defined as a person who holds land under another person and is, or but for a special contract would be liable to pay rent for that land to that person. Sub-section (4) of Section defines a landlord which mean " a person immediately under the tenant under whom a tenant holds, and includes the Government." Rent mean whatever is lawful payable or deliverable in money or kind be a tenant to his landlord on account of use or occupation of the land held by the tenant. It has been submitted that the Bihar Tenancy Act defines in detail the manner in which the landlord or for that matter a proprietor may charge for the land. It may be noted that the Bihar Tenancy Act


that matter a proprietor may charge for the land. It may be noted that the Bihar Tenancy Act refers to the right of the raiyat as well as the under-raiyat of land and the State Government charges a rent under the Act from the tenant or an under-raiyat for occupation of the land. In the present case, the provision of the Bihar Tenancy Act would not be applicable as the State Government is not charging the "rent" within the meaning of the Bihar Tenancy Act from the Petitioners‟ Companies. The demand under the Bihar Tenancy Act would not make the demand illegal by virtue of not being covered under the Act. The application of the Bihar Tenancy Act is in different circumstances and for different purposes.


19 / 21 There is no dispute about the fact that the State Government or the agencies under it are the owners or in other words the landlords and anyone seeking to derive any benefit from the lands owned by the State Government must pay under the general law. The demand is raised depending on the purpose for which the land is being utilized. Obviously, the Acts such as the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 would not be applicable under a situation such as this.

 The introduction and expansion of telecommunication services and facilities have grown up in the last decade or two, have facilitated easy communication and access to information. The requirements to facilitate smooth functioning of the modern telecommunication system require certain measures which were not envisaged 20 years back. There can be no doubt that use of a facility confers a benefit to the persons who is using the said facility, naturally such benefits cannot come for free either for the beneficiaries or the providers of such facilities. The Government in these extraordinary circumstances is not required to frame laws, rather it would appear that Land Usage Charge is a type of a rent demanded by the Government for conferring certain benefits to the users. The outcome of the facility i.e. providing telecommunication is for the benefit of the public at large.


20 / 21 Simply put „rent‟ is compensation for the use of land. In this particular case, the Government has taken a policy decision to impose rent which is charged for use of street by Telegraph Companies. The term „rental‟ is properly applied to the charge imposed by a city (in this case the Government) on a telegraph company for the privilege of using the street, allies, and public places of the city, graduated by the amount of such use; for it is not a privilege of licence tax, the amount paid for not being graduated by the amount of business, no sum fixed for the privilege of doing business, it is more in the nature of a charge for use of property belonging to a town, city and the like.

 It may be noted here that the petitioners in these cases were issued a letter that they would be allowed to use the lands belonging to the Government in whatever department, subject to framing of a policy. The petitioners utilized the lands with their eyes and ears open understanding the impact of the said letter, and, therefore, they cannot be heard to say that the policy framed is de hors the law.

 Referring to the submission on behalf of the petitioners that there are no fixed criteria that the amount charged is excessive is a stand, which can be redressed by the petitioners if they are so advised by approaching the concerned department. On this ground, the Court cannot 21 / 21 hold that the policy framed by the Government charged for use of the roads is beyond the scope of the powers of the State Government.

 In the result, these writ applications are dismissed.

 (Sheema Ali Khan, J) Prabhakar Anand/-


Phuljharia Devi & Anr vs The State Of Bihar & Ors on 18 September, 2009

IN THE HIGH COURT OF JUDICATURE AT PATNA
                                CWJC No.3483 of 2007
      1.   Phuljharia Devi, w/o Late Munka Rai.
      2.   Bhola Rai, S/o Late Munka Rai.
                     Both   resident   of   Mohalla-Paharpur,   P.S.-
                     Gardanibagh, Town and district-Patna.
                                         ............................................ Petitioners
                                       Versus
      1.   The State of Bihar through the Collector, Patna.
      2.   The Police Employees House Construction Society Ltd.,
           through   its   Secretary,   Anisabad,   P.S.-Gardanibagh,
           District-Patna.
      3.   The Secretary, Police Employees House Construction
           Society Ltd. Anisabad, P.S.-Gardanibagh, District-Patna.
                                         ............................................ Respondents
      For the Petitioner   :   Mr. Anurag Shukla, Advocate
      For the State        :   Mr. Lalit Kishore, A.A.G.-III.
      For the Society      :   Mr. K.K. Upadhyay, Advocate.
                            P R E S E N T
                   HON'BLE JUSTICE MIHIR KUMAR JHA
                               -----------
5. Mihir Kr. Jha, J. In this writ application the two petitioners claiming to be the land owners have prayed for the following relief:


"A    writ    of    Mandamus        or    any     other
                                   appropriate          writ        or       order     or
                                   direction      be    issued       commanding        the
 respondent authorities to pay to the petitioner the balance of due compensation for their lands, which were acquired by the State of Bihar for the benefit of the respondent society, at the rate determined by this Hon‟ble Court and affirmed by the Hon‟ble Supreme Court."


It is the case of the petitioners, as projected with full sincerity by Mr. Anurag Kumar Shukla, learned counsel for the petitioners, that the piece of land belonging to the husband of petitioner no.1 was acquired way back by the State of Bihar for the benefit of Police Employees House Construction Society (hereinafter referred to as „the Society‟) way back in the year 1977-78 under the provisions of Land Acquisition Act (hereinafter referred to as „the Act‟). The award under section 11 of the Act was prepared in the name of petitioner no.1 and the land holders including petitioner no.1 had thereafter sought reference under section 18 of the Act leading to institution of L.A.Case No. 73/1982. The award given by the Land Acquisition Judge in the aforesaid L.A.Case was also made subject matter of several first appeals and they were disposed of by a common judgment dated 3.2.1994 in F.A.No. 121/1985 whereby and whereunder the award given by the Land Acquisition Judge was modified fixing rate of compensation at the rate of Rs. 4400/- per katha besides payment of some additional statutory amount in terms of the Act. It is not in dispute that the State of Bihar had also taken the matter to the Apex Court by filing S.L.P.No. 14886-938 of 1995 (Civil Appeals No. 2889-2941 of 1997) and they were disposed of by a common order dated 12.4.1997 affirming the judgment of this Court dated 3.2.1994 in its entirety.


It is the case of the petitioner no.1 that in terms of the judgment of this Court as affirmed by the Apex Court she was entitled for payment of Rs. 4,45,161.16 paise (principal amount Rs. 1,17,069.81 paise and interest as on 3.4.2000 Rs. 3,28,091.35 paise), but on an impression created by the Society, respondent no.3, that the amount payable to them was only Rs. 3,57,450/- they had accepted a cheque of Rs. 3,57.450/-, whereafter the execution case pending before the Execution Court was withdrawn.

 The petitioners, therefore, have claimed that by fraudulent action of respondent no.3 society they were deprived of payment in terms of the judgment of this Court and were forced to accept the payment of lesser amount which led them looser of a sum of Rs. 87,711.16 paise. Thus, the whole case of the petitioners is that this Court should now direct the respondents to pay the petitioners the balance of compensation of Rs. 87,711.16 paise with interest as they were/ are still entitled for full payment of Rs. 4,45,161.16 paise, an amount payable under the order of this Court in terms of judgment in F.A. No. 121/1985.


In this case two separate counter affidavits have been filed, one by respondent no.1 the State of Bihar and the other by the Society, respondent no.3. From the reading of the counter affidavit of the State it would appear that a preliminary objection has been taken that since the petitioners had in terms of the agreement between them and respondent no.3 society accepted the payment through cheque dated 15.3.2001 for a sum of Rs. 3,57,450/- and had withdrawn the execution case No. 10/1996, they cannot be permitted to now raise this issue after a period of six years and that too by filing a writ petition. The State somehow has also tried to put up a picture that while it was taking steps for arranging the funds of the society for payment of compensation in terms of the award as modified by this Court and affirmed by the Apex Court, the petitioners by their own action having entered into the negotiation with the society respondent no.3 had accepted the payment and as such, there would be no liability for the State to make payment of compensation.

 Respondent no.3, on the other hand, in its counter affidavit has taken a plea that after the judgment of the Apex Court an agreement was arrived into between the petitioners and the respondent society and in terms of the agreement the payment of Rs. 3,57,450/- was made to the petitioners. It is the case of the respondent society that the petitioners having undertaken in the said agreement that after receiving payment of Rs. 3,57,400/- they shall have no claim grievance against the judgment debtors i.e. Respondents and its being acted upon in letter and spirit cannot be permitted to raise much less re-open the issue for payment of compensation.


The respective stands in the pleadings of the parties, therefore, lead to the first and foremost question as to whether this writ petition for payment of amount of award under the Act after disposal of execution case in the Court below is maintainable?

 Since the plea of alternative remedy was raised by the respondents by way of a Preliminary objection, this Court has to note the submission of Mr. Lalit Kishore, learned Addl. Advocate General No.III, who has submitted that the provisions of the Act being self contained, would stand as a bar to the remedy under Article 226 of the Constitution of India would for payment of compensation under the Act. In this respect he has relied on the provisions of section 53 of the Act which makes the Code of Civil Procedure applicable to the proceedings under the Act. Taking a clue from section 53 of the Act learned counsel has proceeded that once the award is made under section 18 of the Act and gets confirmed in appeal in terms of section 54 of the Act, the remedy for the land holder to claim the amount of compensation under award is only by way of execution of the award which is a decree in terms of section 26(2) of the Act. It is, thus, the submission of the learned AAGIII that if there is any iota of evidence of fraud as pleaded by the petitioners for claiming payment of balance amount of award, the remedy for the petitioners would be under section 47 of the Code of Civil Procedure (C.P.C.) read with its Order 23. In nut shell the submission of the learned counsel is that the petitioners ought to have moved the same executing court and having elected a forum of the executing court they cannot be allowed to change it by now taking recourse to the remedy under Article


226. In this context reliance was placed by him on the judgment of the Apex Court in the case of Swetamber Sthanakwasi Jain Samiti vs. Alleged Committee of Management Sri R.J.I. College, Ara, reported in (1996) 3 SCC 11 and the Division Bench judgment of this Court in the case of Sachidanand Roy & ors. vs. the State of Bihar & ors., reported in 1998(1) PLJR 889, as also in the case of Abijit Ganguly vs. Sri Md. Jalaluddin, reported in 1997(2) PLJR 1007. It was finally submitted by the learned AAGIII that in a given situation, the petitioners could have also availed the remedy under section 48 C.P.C. and in any event there would be no limitation for impeaching the order of the executing court with regard to disposal of the execution case without payment of full amount of award. In this context he has placed reliance on a judgment of Privy Council in the case of Oudh Commercial Bank Ltd., Fyzabad vs. Thakurain Bind Basni Kuer & ors., reported in AIR 1939 P.C. 80.


Rebutting the aforementioned submissions of the learned AAG III Mr. Shukla has submitted that the payment of award being part of a fundamental right guaranteed under Article 31 of the Constitution as was available in the year 1977-78 in view of acquisition of the land made in that period, there would be no waiver of fundamental right and to support himself he would place reliance on the judgment of the Apex Court in the case of Olga Tellis & ors. vs. Bombay Municipal Corporation & ors., reported in AIR 1986 S.C. 180. He has also placed reliance on paragraph 79 of the judgment of the Apex Court in the case of Minerva Mills Ltd. & ors. vs. Union of India & ors., reported in AIR 1980 S.C. 1789 and the judgment of the Apex Court in the case of M.P.State Agro Industries Development Corporation vs. Jahan Khan, reported in AIR 2007 S.C. 3153. He has also placed strong reliance on a judgment of Full Bench of Andhra Pradesh High Court in the case of Bhimidipati Annapoorna Bhavani vs. The Land Acquisition Officer, Peddapuram & ors., reported in AIR 2005 A.P. 365 as also another judgment of the Apex Court in the case of Kamleshwar Prasad vs. Pradumanju Agarwal, reported in 1997(2) PLJR 86 (S.C.).


In the opinion of this Court the preliminary objection raised by the Respondents as pressed by the learned Addl. Advocate General No. III must be upheld that the present writ application seeking enforcement of an award under the Act is not maintainable. The reasons for the same are quite simple. As noted above, in the submission of the learned AAGIII there is a complete mechanism for payment of compensation after acquisition of land of the land holder by the State for public purposes or for a company. Such mechanism includes reference to a civil court on the quantum of compensation and making of an award by the civil court after considering the evidence of the parties which in terms of section 26(2) of the Act is a decree. Section 26 of the Act reads as follows:
 "26. Form of awards.-(1) Every award under this Part shall be in writing signed by the Judge, and shall specify the amount awarded under clause first of sub-section (1) of section 23, and also the amounts (if any) respectively awarded under each of the other clauses of the same sub- section, together with the grounds of awarding each of the said amounts. (2) Every such award shall be deemed to be a decree and the statement of the grounds of every such award a judgment within the meaning of section 2, clause (2) and section 2, clause (9) respectively, of the Code of Civil Procedure, 1908."


The moment such an award is deemed to be a decree and the Civil Procedure Code is made applicable to the proceedings of the Act in terms of section 53 thereof, there would be hardly any scope for the petitioners to contend that a person aggrieved against any portion of the award or its execution would be entitled to maintain a writ petition. There being statutory remedy available in terms of the Act through the aegis of the Civil Court, the petitioners cannot be heard to say that they may have still a remedy under Article 226 of the Constitution after the execution case has been dropped on payment of amount of award under execution. This is precisely what has been decided by the Apex Court in the case of Swetamber Sthanakwasi Jain Samiti (supra) wherein the Apex Court noticing that the suit filed by the Samiti was pending before the Civil Court had held that a writ petition against an order of interim injunction and rejection of prayer for impleadment of a party was not maintainable and the order of the High Court allowing the writ petition was unsustainable. The relevant portion of the aforesaid judgment which would be directly applicable to the facts of the present case reads as follows:


" ... ... Though the jurisdiction of the High Court under Article 226 of the Constitution is not confined to issuing the prerogative writs, there is a consensus of opinion that the High Court will not permit this extraordinary jurisdiction to be converted into a civil court under the ordinary law. When a suit is pending between the two parties the interim and miscellaneous orders passed by the trial court against which the remedy of appeal or revision is available cannot be challenged by way of a writ petition under Article 226 of the Constitution of India. Where the civil court has the jurisdiction to try a suit, the High Court cannot convert itself into an appellate or revisional court and interfere with the interim/ miscellaneous orders of the civil court. The writ jurisdiction is meant for doing justice between the parties where it cannot be done in any other forum".


Here also position is somewhat the same. There is no dispute that the petitioners after finality of the award and the rate as determined by this Court and affirmed by the Apex Court had levied execution payment of amount in Execution Case No. 10/1996 and the executing court by an order dated 20.7.2001 had recorded that:


^^ fMdzhnkj dh vksj ls fnukad 2-2-2001 dks nkf[ky vkosnu i= lapkfyr dj fMdzhnkj ds fon~ vf/koDrk fuosnu djrs gSa fd muds iw.kZ fcdk, jkf"k dk Hkqxrku ejhmu la0&2 }kjk dj fn;k x;k gS rFkk fMdzhnkj dk vc fdlh ejhmu ds fo:) dksbZ laca/k ugha jg x;k gsS A vr% mUgsa bl ckn dks okil ysus dh vuqefr nh tk; A lquk rFkk vfHkys[k dk vcyksdu fd;k A fMdzhnkj dk vc fdlh ejhmu ds fo:) dksbZ cdk;k ugha jg x;k gS rFkk fMdzhnkj bl btjk; okn dks okil ysuk pkgrs gsaS A vr% fMdzhnkj dh izkFkZuk Lohd`r dh xbZ A ckn iw.kZ Hkqcrku esa fMdzhnkj }kjk okil fy, tkus ds dkj.k [kkfjt fd;k x;k A ** It has to be noted that this order is now being said to be a fraudulent order as the petitioners claiming to be illiterate person are said to be misled by the society. It would be, however, difficult to accept even this submission because the agreement between the society and petitioner no.1, on record in the counter affidavit of the society, not only takes note of the entire history of the land acquisition as also the rate of enhancement of the award given by the civil court but also its modification by this Court and affirmance by


enhancement of the award given by the civil court but also its modification by this Court and affirmance by the Apex Court in the preamble of the agreement and under the relevant portion of the agreement it was clearly mentioned that irrespective of the claim of the decree holder she had settled the matter outside the court by arriving at the compromise by accepting payment of Rs.


3,57,450/-. The agreement dated 30th January, 2001 being somewhat significant and in fact having a direct bearing to the issue involved in this writ application needs to be quoted hereinbelow:
 "BEFORE NOTARY PATNA SADAR PATNA AGREEMENT This agreement made and entered into at Patna this 30th day of month of January 2001 between Smt. Fuljharia Devi, W/o Munaka Rai and Bhola Rai, S/o Munaka Rai of Paharpur, P.S. Gardanibagh, District Patna, hereinafter referred to as DECREE HOLDER in L.A. Execution Case No. 10 of 1996 (which expression shall, unless excluded by or repugnant to the context mean and include his heirs, administrators, assigns, legal representatives and/or successors-in- interest) of the ... FIRST PARTY.
 AND POLICE EMPLOYEES CO-OPERATIVE HOUSE CONSTRUCTION SOCIETY LTD., Gandhi Vihar, Anisabad, Patna (Regd. No.20/ Patna, dated 23rd December, 1996) through its Secretary, Sri Krishnadeva Prasad Sinha resident of A-14 Gandhi Vihar, P.S. Gardanibagh, District Patna hereinafter referred to as the INTERVENOR, JUDGMENT DEBTOR NO.2 in L.A. Execution Case No. 10 of 1996 (which expression shall, unless it be repugnant to the context or meaning thereof mean and include its administrators, legal representatives, assigns nor nominee or nominees or successors-in-interest of ... SECOND PARTY.                    Whereas
(A)        The      decree           holder        solemnly


(A)        The      decree           holder        solemnly
affirms and declares that an area of 46.795 acres, of land in village PAHARPUR, P.S. Phulwari, District Patna has been acquired by the State of Bihar for the Police Employees Co- operative House Construction Society Ltd., Patna (hereinafter referred to as the Society) for the construction of houses of Police Employees.


(B) AND whereas total land meaning approximately 1.08 Acre i.e. 34.56 Kathas at Mauza Paharpur, Plot Nos. 366, 367, 373, 385, 386, 405, 407, 434, 435 P.S. Gardanibagh, District Patna is involved in this case.

(C) AND whereas the Decree Holder Covenant that the aforesaid land was in his exclusive possession with absolute right, title and interest in the year.

(D) AND whereas the collector under Land Acquisition Act categorized 35.420 acres of land as Class „Ka‟ Block and rest of 11.35 acres of land as class „Kha‟ Block. The compensation for class „Ka‟ land was fixed at the rate of Rs. 66,434/- per acre equivalent to Rs. 2075/- per katha whereas the compensation for class „Kha‟ land was fixed at the rate of Rs. 64,000/- per acres, equivalent to Rs.2000/- per Kathas. (E) AND whereas the Decree Holder applied for Reference under section 18 of the Land Acquisition Act.

(F)      AND        whereas          by     the       impugned
judgment        and       awards          dated    15.1.1991
the learned special Land Acquisition Judge II, Patna has enhanced the compensation amount to Rs. 6,500/- per Katha.


(G) AND whereas of the State of Bihar has filed F.A.No. 148 of 1985 against the judgment of enhancing the compensation of acquired land. The aforesaid appeal has partly been allowed by the Hon‟ble High Court vide order dated 3.2.1994 by which the Hon‟ble High Court reduced the compensation for the land acquired from 6,500/- per Katha to Rs. 4,400/- .

(H) AND whereas the State of Bihar has filed S.L.P.No. 14886 to 14939 in the Hon‟ble Supreme Court of India against the payment of additional compensation under section 23(IH) of the Land Acquisition Act vide order dated 14.7.1995 and the Hon‟ble Supreme Court has allowed the aforesaid S.L.P.

(I) AND whereas the Police Employees House Construction Society Ltd. was one of the party in the aforesaid First Appeal and S.L.P.


(J) AND whereas the Police Employees House Construction Society Ltd. filed a petition under Order 1 Rule 10 of C.P.C. in L.A.Ex.Case No. 10 of 96 and Hon‟ble L.A. Judge II, Patna has made necessary party on 25.1.2001. NOW THIS WITNESSETH AND IS HEREBY AGREED AND DECLARED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS:-
1. The Decree Holder and Police Employees House Construction Society Ltd. has compromised the case outside court and the parties have agreed to settle the dispute on payment of Rs.3,57,450.00             through          account           payee
cheque          in     the    name       of     the      Decree
Holder irrespective of the claim of the Decree Holder. On payment of the said amount the Decree Holder will have no claim with the judgment Debtor No. 1 and 2 (The State of Bihar through Collector Patna and the Police Employees House Construction Society Ltd.

2. That the decree Holder will receive the consideration amount for the aforesaid L.A.Ex.Case No. 10 of 1996, and on such receipt the Decree Holder and his legal heirs shall have no further claims and they shall not further demand any interest in future.

3.        The        Decree        Holder       agree        and
undertake              that         he        shall        file
withdrawal petition in the court of Sub Judge II, Patna after receiving an amount of Rs. 3,57,450.00 from Police Employees House Construction Society Ltd.

4. That the Decree Holder agree and undertake that after receiving the said amount i.e. Rs. 3,57,450.00 shall also have no grievance from the Judgment Debtors.


5. The Police Employees House Construction Society Ltd. also agree that the matter has already been compromised outside the court and he has agreed to pay through account payee cheque a sum of Rs. 3,57,450.00 to the Decree Holder.                   SCHEDULE I
 DESCRIPTION            OF      LAND      UNDER      THIS
AGREEMENT.
Khata No. Plot No.                       Area
     153            367                  0.14
     200            373                  0.10
     202            386                  0.22
     254            405                  0.09
                    407                  0.08
     200            434                  0.10
                    435                  0.05
     175            366                  0.07
     202            385                  0.23
                                         1.08
                              i.e.34.36 Kathas
In witness whereas the parties hereto have set and subscribed their respective hands on the day month and year aforesaid.

Above written in presence of the witness.

 Sd/- Illegible Signature of Decree Holder Witnesses Sd/- Illegible Signature of J.D.No.2 Police Employees House Construction Society Ltd.

 Through its Secretary."


Through its Secretary."

 (underlining for emphasis) This Court has purposely quoted the entire agreement in extenso and underlined relevant portion to emphasis that whatever was stated before the executing court on 20.7.2001 by filing an application on 2.2.2001 was a natural fall out of the aforementioned agreement dated 30.1.2001. In presence of the aforementioned agreement followed by the order of the executing court dated 20.7.2001, it would be thus very difficult for this Court to accept the story of either fraud or misrepresentation which has been made the only basis by the petitioners to file this writ application. To this Court it appears that the petitioners have subsequently become wiser after six years receiving full and final payment only for filing of this writ petition for claiming additional amount which they had voluntarily given up in terms of the compromise petition. It has to be noted that the signature thereon of both the petitioners and the thumb impression with attestation of petitioner no.1 with attestation of petitioner no.2 in presence of two witnesses and the signature and thumb impression on all the pages of the agreement on a stamp paper purchased on 21.12.2000 for the purpose of writing an agreement can hardly even leave a scope for introduction of story of fraud. In that view of the matter, it appears to this Court that the petitioners are shy in approaching or taking resort to the remedy under section 47 C.P.C. which lays down as follows :
 "47. Questions to be determined by the court executing decree.- (1) All questions arising between the parties to the suit in which the decree was passed, or there, representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit."

 Thus if in terms of Section 47 C.P.C.


the petitioners had any grievance even after alleged discovery of fraud on account of the proceedings of general body of committee dated 25.2.2001 (Annexure 1 to the writ application), they had to approach the said executing court which had passed the order on 20.7.2001 dismissing the execution case on recording the satisfaction of the decree. This Court must hasten to add that even the proceedings of the general body does not improve the case of the petitioners as even there the issue of compromise with the landholders including the petitioners has been clearly mentioned as would appear from the following relevant text thereof:


^^ Hkw&vtZu lEcaf/kr 53 eqdnes loksZPp U;k;ky; ls fu'ikfnr gks pqds gSa vkSj mlesa vf/kdka"k esa lc&tt ¼2½]iVuk ds U;k;ky; esa fMdzh dh jkf"k dh olwyh ds fy;s Hkw&Lokfe;ksa }kjk btjk;okn nkf[ky fd;s x;s gSa A iwoZ dh dk;Zdkfj.kh lfefr;ksa us bl Js.kh ds 22 eqdneksa esa t;?kks'k dh jkf"k vius Lrj ls fglkc dj Hkw&vtZu dk;kZy; esa tek dj nh gS A buesa 19 eqdneksa esa t;?kks'k jkf"k dk Hkqxrku fMdzh /kkfj;ksa dks ugha gqvk gS vkSj 3 eqdneksa esa xyr O;fDr;ksa }kjk t;?kks'k dh jkf"k U;k;ky; ls fudky fy;k x;k gS A blds fo:) vlyh fMdzh /kkfj;ksa us flfoy fjfHktu nk;j fd;k gS A orZeku lfefr us fuEufyf[kr btjk;okn esa fnukad 03-4- 95 rd loksZPp U;k;ky; }kjk fu/kkZfjr lwn dh jkf"k tksM+ dj fMdzh /kkfj;ksa ls le>kSrk fd;k gS vkSj


/kkfj;ksa ls le>kSrk fd;k gS vkSj t;?kks'k dh jkf"k dk Hkqxrku ys[kkns;


psdksa }kjk fd;k gS A bl lEcU/k esa fMdzh /kkfj;ksa ls ,djkjukek gqvk vkSj mlds ckn psd izkIr dj muyksxksa us lc tt ¼2½ iVuk ds U;k;ky; esa btjk;okn okilh ds fy;s vkosnu ns fn;k gS A ;s vkosnu U;k;ky; dh Lohd`fr gsrq yfEcr gS A btjk;okn la0 ,okMhZ dk uke lqygukesa dh jkf"k 1- [email protected] Jh yfyr jk; la0 58]360-00 2- [email protected] Jherh Qqy>fj;k nsoh la0 3]57]450-00 3- [email protected] Jh pfUnzdk jk; la0 58]360-00 blds vfrfjDr 28 eqdnes ,sls gSa ftuesa lc&tt ¼4½ iVuk ds U;k;ky; ls HkwLokfe;ksa ds i{k esa fMdzh gks x;h gS A muesa ljdkj dh vksj ls mPp U;k;ky; esa vihy nk;j dh x;h gS A bl Js.kh ds 11 eqdneksa esa fnukad 16-12-2000 dh dk;Zdkfj.kh dh cSBd esa lfpo dks Hkw&vtZu okn lEcU/kh btjk; ds lqygukes ds fy;s fn"kk&funsZ"k fn;s x;s Fks A mu funsZ"kksa ds


fn;s x;s Fks A mu funsZ"kksa ds vkyksd esa lfpo us lkr fMdzhnkjksa ls lqygukesa dh ckrphr dh vkSj bldh lwpuk dk;Zdkfj.kh dks fnukad 27-01-2001 dks nh rFkk dk;Zdkfj.kh us fnukad 28-01-2001 dh cSBd esa lqyg djus dk fu.kZ; fy;k A ijUrq tc fnukad 31-01-2001 dks fMdzh/kkjh lqygukesa ds fy;s vk;s rks muds le{k ;g "krZ j[kh xbZ fd lqygukes dh jkf"k dk psd mUgsa ckn dh frFkh esa fn;k tk;xk A bl ij rhu mijksDr fMdzh/kkjh ckn dh rkjh[k dk psd ysus ds fy, lger gks x, vkSj muls lqygukek dj fy;k x;k ijUrq rhu fMdzh/kkjh dk dguk Fkk fd og okn okilh lEcU/kh ;kfpdk nk;j djrs le; gh mlh rkfj[k dk psd ysaxs A v/;{k }kjk lger ugha gksus ij muls lqygukesa dk djkj VwV x;k A ,d fMdzh/kkjh dh vksj ls dgk x;k fd psd cukdj lfefr ds vf/koDrk ds ikl j[k fn;k tk; vkSj tc eqdnek okilh dk U;k;ky; dk vkns"k gks tk; rks mUgsa psd


dk vkns"k gks tk; rks mUgsa psd fn;k tk; A v/;{k us bl vuqjks/k dks ;g dgrs gq;s vLohdkj dj fn;k fd ml ds"k ls lEcfU/kr lnL;ksa esa dqN ds ikl vfHkof)Zr jkf"k cdk;k gS ,slh gkyr esa psd fuxZr ugha fd;k tk ldrk A bl izdkj lfefr yxHkx 2]00]000]00 :Ik;s ds ykHk ls oafpr gks xbZ vkSj Hkfo'; esa lqygukesa dk ekxZ Hkh can gks x;k A ** From the reading of the aforementioned proceedings of the Committee, which was in form a report to the general body, it would appear that not only in the case of the petitioners but in the case of all other land holders similar agreement seeking to compromise on the issue of the payment of amount of compensation was arrived at between the society and the concerned land holders and therefore, it would be difficult for this Court to accept the story of fraud played by the society only against the petitioners. In the circumstances, the very plea of the petitioners for reopening the whole issue of payment of further compensation having been found to be wholly false and frivolous the prayer in writ application is even otherwise fit to be rejected.


While doing so this Court must also accept the submission of the learned counsel for the respondents who has rightly placed his reliance on two Division Bench judgments of this Court that the writ Court cannot convert itself into a civil court for entertaining purely civil matter and that forum of civil court once elected cannot be abandoned in midstream for availing the remedy under Article 226 of the Constitution.

 This Court in fact after discussing a large number of judgment of the Apex Court as also this Court in the case of Sachidanand Roy (supra) had held as follows:
 "Therefore, in the opinion of this Court, under the principle of doctrine of election, once a forum is elected by a litigant, without getting that remedy exhausted or withdrawn on a reasonable ground, he cannot switch on at his own sweet- will or whims during the pendency of that proceeding to any other forum particularly remedy under Article 226 of the Constitution cannot be resorted to".
 In fact this Court also in the case of Abijit Ganguly (supra) has also clearly held that the writ Court cannot be converted into a civil court for entertaining purely civil matter and in fact filing of a writ petition where a remedy under the C.P.C. before the civil court is available would amount to abuse of the process of Court. As a matter of fact this Court in Abijit Ganguly‟s case (supra) has also put a note of caution on the duty of the lawyers which is cast upon them in advising their clients in right prospective. This Court can do no better but to quote on the following apt passages of the judgment on the issue in the case of Abijit Ganguly (supra):


"4. In our considered opinion, the appellant has abused the process of the law. This Court cannot be converted into a civil court for entertaining such matters. The Apex Court in a decision in the case of Durga Prasad vs. Naveen Chandra and others, reported in JT 1996(3) S.C. 564, has held that the procedures prescribed under the Code of Civil Procedure cannot be bypassed and that in such matter writ petition is not maintainable.

         5.    In       the    case        of    Dr.       Buddhi   Kota
         Subbarao             vs.     Mr.K.          Parasaran        and
 others, reported in JT 1996(7) S.C. 265, the Apex Court has observed that no litigant has a right to unlimited drought on the Court time and public money by filing false and frivolous petitions invoking the extraordinary jurisdiction of the Court under Article 226 of the Constitution, which is a discretionary one in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived or frivolous petitions.
 6. In the instant case admittedly after the judgment and decree dated 9.12.1996 passed by the lower court, the appellant could have vindicated his grievance by taking the recourse to the provisions of Section 96 of the Code of Civil Procedure by filing an appeal; but instead of that, he has filed writ petition.


7. In this regard we may also observe that an onerous duty is cast upon the counsel in such matters to advise their clients in the right perspective. In this regard we are reminded of the observations made by the Apex Court in the case of "In Re Sanjiv Datta, Deputy Secretary Ministry of Information and Boardcasting" reported in 1995(3) SCC 619, that legal profession is a solemn and serious occupation. It is a noble calling and all those who belong to it are its honourable members. The legal profession is different from other professions in that what the lawyers do, affects not only an individual but the administration of justice which is the foundation of the civilized society. Both as a leading member of the intelligentsia of the society and as a responsible citizen, the lawyer has to conduct himself as a model for others both in his profession and in his private and public life. The Apex Court has also observed that "Of late, we have been coming across several instances which can only be described as unfortunate both for legal profession and the administration of justice. It becomes, therefore, our duty to bring into the notice of the members of the profession that it is in their hands to improve the quality of the service they render both the litigant public and to the courts, and to brighten their image in the society". It has further been held by the Apex Court that "the society has a right to expect of him such ideal behaviour. It must not be forgotten that the legal profession has always been held in high esteem and its members have played an enviable role in public life. The regard for the legal and judicial systems in this country is in no small measure due to the tireless role played by the stalwarts in the profession to strengthen them. If the profession is to survive, the judicial system has to be vitalized."


8. Therefore, frivolous and misconceived petitions should not be filed invoking extraordinary jurisdiction of writ Court."

 (Underlining for emphasis) At this stage this Court also must take into account somewhat a plea in desperation raised by the learned counsel for the petitioner while equating the right to receive payment of compensation under the Act to be fundamental right and thus, the maintainability of the writ petition on the ground that there would be no waiver for the fundamental right. This Court would find that the payment of amount of compensation under the Act is a statutory right under the Act and not a fundamental right in true sense of term because after deleting the provisions of Article 31, the legislature has made provision under Article 300A of the Constitution which itself lays down that no person shall be deprived of his property save by the authority of law.

              It    has       to    be        noted      that       this   was

inserted       by       the     Constitution                 (Forty-fourth


inserted       by       the     Constitution                 (Forty-fourth

Amendment) Act, 1978 with effect from 20.6.1979 whereas the award of the petitioners became final that the order of the Apex Court in the year 1995 and the order of the executing court in the year 2001. In that view of the matter, the provisions of the Land Acquisition Act itself were sufficient to deny the alleged right to property of the petitioners and as such, the reliance placed on the judgment of the Apex Court in the case of Olga Tellis (supra) or in the case of M.P.State Agro Industries Development Corporation (supra) is wholly misplaced. It has to be noted that while Olga Tellis‟s case was relating to under Articles 14 and 19 of the Constitution pertaining to rights of equality to others who were sought to be evicted by Mumbai Municipal Corporation and in the case of M.P.State Agro (supra) the issue involved was pertaining to Article 16 where the service of a permanent employee of the Corporation was dispensed with without following the principles of natural justice. This Court in fact would also find no applicability of the judgment in the case of Kamleshwar Prasad (supra), inasmuch as in paragraph no.3 the Apex Court had made it clear that it was under special facts and circumstances of the case that the Apex Court had not interfered under Article 136 against an order of Allahabad High Court entertaining a writ petition in a decree of eviction. Such judgment/order of the Apex Court in the opinion of this Court being totally one under Article 142 of the Constitution rendered in the peculiar facts of a particular case and for doing complete justice between the parties are not law laid down in terms of Article 141 of the Constitution of India and cannot be used as a binding precedent.


The reliance placed by the learned counsel for the petitioner on a Full Bench judgment of Andhra Pradesh High Court in the case of Bhimidipati Annapoorna (supra) is also somewhat misplaced inasmuch as in that case it was found that where the amount of compensation, finally determined had not been paid, a person must first resort to the alternative efficacious remedy of taking out execution and when despite taking out execution proceedings, if there is any delay caused on the part of authorities, resort can be had to filing of a writ petition. This Court, therefore, must hold that Andhra Pradesh High Court had only reiterated the settled principle of law that the existence of an alternative remedy by itself would not be a bar for maintaining a writ petition and in fact when the land holders were already finding themselves to have been frustrated in their legitimate expectation to have received their amount of compensation even after levying of the execution case, due to frivolous objection of the State, the writ Court under Article 226 of the Constitution could definitely come to the rescue of such land holders. No such case however has been made out by the petitioner before this Court inasmuch as the execution proceedings levied by them have been finally disposed of and in view of their prayer before the executing court as noted in the order dated 20.7.2001. The petitioners now allege fraud on the part of the society and are thereby indirectly questioning the order passed in the execution proceeding. For doing so the petitioners definitely have a remedy under section 47 of the Code of Civil Procedure and that is how this Court would find that the ratio of the Full Bench Judgment of Andhra Pradesh High Court in the case of Bhimidipati Annapoorna (Supra) would not be applicable in the facts of this case.


This Court in fact is fully satisfied that if in the long drawn proceedings of determination of compensation of more than 26 years the petitioners had accepted the amount of compensation by reaching to a compromise outside the court by sacrificing certain amount of interest only for being paid the balance amount of Rs.3,57,450/-, their claim for payment of remaining amount of interest of Rs. 87,711.16 paise on the ground of alleged fraud and/or misrepresentation of respondent no.3 the Society is wholly untenable either on fact or in law. It is always open for a decree holder to reach to a compromise during the pendency of the execution proceedings and the petitioners having made such a compromise with their open eyes cannot now resile from that situation and at least cannot take recourse to the filing of a writ petition alleging fraud on the part of the Society.

 That being so, this Court must hold that the writ application filed by the petitioners is wholly misconceived and the same must be and is hereby dismissed.

 Though this Court was initially tempted to award an exemplary cost against the petitioners for filing this frivolous writ petition but then taking into account the social status of the petitioners and their ignorance of law as also some misconceived advice given to them for filing this writ petition, this Court would make no order as to costs.

 (Mihir Kumar Jha,J.) Patna High Court Dated the 18th September, 2009 Surendra/


Md. Anzar vs Md. Manzar Ali @ Kali on 9 May, 2016

Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016                              1

                       IN THE HIGH COURT OF JUDICATURE AT PATNA
                             Civil Writ Jurisdiction Case No.8216 of 2013
                   ======================================================
                   1. MD. ANZAR S/OLATE WALI MOHAMMAD R/O VILLAGE- RATANPURA, P.S.
                   MORO, DISTRICT- DARBHANGA THROUGH MD. QAMRUZZAMA, S/O LATE
                   WALI MOHAMMAD, R/O VILLAGE- RATANPURA, P.S. MORO, DISTRICT-
                   DARBHANGA HOLDING POWER OF ATTORNEY

                                                                 .... .... PETITIONER/S
                                                VERSUS
                   1. MD. MANZAR ALI @ KALI S/O LATE ZAINUL ABEDIN R/O VILLAGE-
                   RATANPURA, P.S. MORO, DISTRICT- DARBHANGA, THROUGH MD. MAZHAR
                   ALI @ GORE, S/O LATE ZAINUL ABEDIN, R/O VILLAGE- RATANPURA, P.S.-
                   MORO, DISTRICT- DARBHANGA HOLDING POWER OF ATTORNEY


.... .... RESPONDENT/S
                   ======================================================
                   Appearance :
                   For the Petitioner/s :   Mr. Sukumar Sinha-Sr. Advocate
                                            Mr. Abinash Kumar-Advocate
                   For the Respondent/s   : Mr. Najmul Hoda-Advocate
                                            Mr. Md. Ataul Haque-Advocate
                   ======================================================
                   CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
                   ORAL ORDER04 09-05-2016 Heard learned counsel for the petitioner as well as learned counsel for the respondent.

 2. Petitioner is the defendant. A suit for Specific Performance of Contract Act has been filed at the end of the respondent/ plaintiff wherein after appearance of defendant/ petitioner, a petition has been filed on his behalf before the learned lower Court in terms of Order-VII, Rule-11 of the C.P.C. asking for rejection of the plaint in the background of presence of Section 17(1-A) of the Registration Act stating that the document purported to be in support of activities governed under Section 53(A) of the T. P. Act, requires registration. As the present suit has been filed on the basis of alleged unregistered deed of  Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 2 agreement, hence no suit under banner of Section 53(A) of the T. P. Act (Part Performance) is permissible, whereupon plaint is fit to be rejected.

 3. The learned lower Court after hearing both the parties has rejected the prayer by the order impugned. Hence this petition.


4. In order to substantiate his plea, the learned counsel for the petitioner has submitted that after amendment of the Section 17 of the Registration Act, Section 17 (1-A) has been introduced in order to put safeguard upon the interest of the proposed transferor from being duped, impersonated, cheated, deceived and further, for that purpose registration of the document has been made compulsorily. Once, there happens to be intention of the legislature to have the act performed in particular way in order to justify or accrual of a particular right, then in that event, that act is to be exercised in same manner to achieve such right and so, the document unless and until being registered one, would not give any substantive or legal right to the plaintiff to draw a suit for Specific Performance of Contract. Further, in order to substantiate such plea, relied upon Ashok Goenka vs. Chandra Bhushan Singh and Others reported in 2010(1) P.L.J.R. 317 as well as Gurbachan Singh v. Raghubir Singh reported in A.I.R.  Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 3 2010 Punjab and Haryana 77. So, submitted that the order impugned passed by the learned lower Court happens to be bad and is accordingly, fit to be set aside.

 5. Per contra, it has been submitted on behalf of learned counsel for the respondent that in terms of Section 53(A) of the T. P. Act, the transferor is found duly forbidden to raise such plea and on account thereof, he is precluded in getting any sort of relief in terms of Section 17(1-A) of the Registration Act.


6. Before adjudicating upon the order impugned, certain factual events is to be taken note of. There happens to be no controversy with regard to the admitted status of the land under dispute to be mortgaged property and for that, plaintiff happens to be the mortgagee while the petitioner/ defendant happens to be the mortgagor. The land was given in possession of respondent/ plaintiff and so, basically it happens to be an usufructuary mortgage. As the petitioner/ defendant was unable to pay the mortgaged amount on account thereof, both the parties entered into negotiation, which was finalized on a particular consideration amount and in token thereof, deed of agreement was prepared and as, the petitioner/ defendant failed to execute the sale deed within the stipulated period, attracted institution of the instant suit under the banner of Specific Relief Act.

 7. In the aforesaid factual aspect, now the relevant law having applicability over the aforesaid dispute is to be taken note of.


8. The first one happens to be the T. P. Act relating to transfer of the immovable property. Section 5 of the T.P. Act defines the transfer of property:-
 5. ―Transfer of property‖ defined.- In the following sections ―transfer of property‖ means an act by which a living person conveys property, in present or in future, to one or more other living persons, [Inserted by Act 20 of 1929, S.6] and one or more other living persons; and ―to transfer property‖ is to perform such act.
 Inserted by Act 20 of 1929, S.6 [In this section ―living person‖ includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.]


9. The second important Section is Section 53(A) of the T.P. Act:-
 ―Inserted by Act 20 of 1929, S.16 [ 53A. Part  Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 5 performance-53A. Part performance Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
 Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.‖


10. And the third one is the sale in terms of Section 54 of the T. P. Act:-
 "54. "Sale" defined "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made: Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing,  Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 6 can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

 Contract for sale: A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
 It does not, of itself, create any interest in or charge on such property.‖

 11. Now, comes to the another event and that happens to be Section 17 of the Registration Act whereunder document so enlisted therein have been identified to be properly registered for the purpose of its due acknowledgement. For better appreciation Section 17 is quoted below:-


"17. Documents of which registration is compulsory:-
 (1) The following documents shall be registered. if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866 (XX of 1866) or the Registration Act, 1871 (VIII of 1871) or the Indian Registration Act, 1877 (III of 1877) or this Act came or comes into force, namely:-
 (a) instruments of gift of immoveable property;
 (b) other non-testamentary instruments which purport or operate, create, declare, assign, limit or extinguish, whether in present or in future any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
 (c) non-testamentary instruments which  Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 7 acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
 (d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; The Registration Act 1908 6


(e) non -testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:
 Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub - section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rent reserved by which do not exceed fifty rupees.


(f) agreement relating to the Deposit of title deeds, where such deposit has been made by way of security for the repayment of a loan or an existing or future debts ;
 (g)sale certificate issued by any competent officer or authority under any recovery Act ;
 (h) irrevocable Power of Attorney relating to transfer of immovable property in any way, executed on or after the commencement of the Registration (Maharashtra Amendment) Act, 2010.

 (I-A) The documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53A of the Transfer of property Act, 1882 shall be registered if they have been executed on or after the commencement of the Registration and other related laws (Amendment) Act, 2001 and is such documents are not registered on or after such commencement, then, they shall have no effect for the purposes of the said section 53A.


(2) Nothing in clauses (b) and (c) of sub - section (1) applies to - :
 (i) any composition - deed; or
 (ii) any instrument relating to shares in a Joint Stock Company, not withstanding that the  Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 8 assets of such Company consists in whole or in part of immovable property; or
 (iii) any debenture issued by any such Company, and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder of the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property, or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
 (iv) any endorsement upon or transfer of any debenture issued by any such Company; or
 (v) any document ―any document other than the documents specified in sub-section (1- A)‖not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards, to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
 (vi) any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject- matter of the suit or proceeding ; or
 (vii) any grant of immovable property by the State Government ;or


(vii) any grant of immovable property by the State Government ;or
 (viii) any instrument of partition made by a Revenue - officer; or
 (ix) any order granting a loan or Instrument of collateral security granted under the Land Improvement Act, 1871, (XXV of 1871) or the Land Improvement Loans Act, 1883 (XIX of 1883); or The Registration Act 1908 7
 (x) any order granting a loan under the Agriculturists Loan Act, 1884 (XII of 1884) or under the Bombay Non -Agriculturists Loans Act 1928, or instrument for securing the repayment of a loan made under either of those Acts; or (x-a) any order made under the Charitable Endowments Act, 1890 (VI of 1890), vesting any property in a Treasurer of Charitable Endowments or divesting such Treasurer of any property; or* The state amendment w.e.f. 1/4/2013.


(xi) any endorsement on a mortgage - deed  Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 9 acknowledging the payment of the whole or any part of the mortgage - money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
 (xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue officer. [Explanation:- A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest
 - money or of the whole or any part of the purchase money.] (3) Authorities to adopt a son, executed after the first day of January 1872 and not conferred by a will shall be registered.
 12. Section 49 of the Registration Act, which has got pivotal role in deciding the issue is also to be taken note of and is quoted below:-
 ―49. Effect of non-registration of documents required to be registered.--No document required by section 17 Added by Act 21 of 1929, S. 10. [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall--
 (a) affect any immovable property comprised therein, or
 (b) confer any power to adopt, or
 (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:


Added by Act 21 of 1929, S. 10. [Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance  Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 10 under Chapter II of the Specific Relief Act, 1877 (3 of 1877) Now see the Specific Relief Act, 1963, The words ―or as evidence of part performance of a contract for the purposes of section 53-A of the Transfer of Property Act, 1882‖ omitted by Act 48 of 2001, S. 6 (w.e.f. 24.09.2001).[***] or as evidence of any collateral transaction not required to be effected by registered instrument.] State Amendment Uttar Pradesh: In section 49,--
 (i) in the first paragraph, after the words ―or by any provision of the Transfer of Property Act, 1882‖ insert the words ―or of any other law for the time being in force‖,
 (ii) substitute clause (b) as under: ―(b) confer any power or create any right or relationship, or‖,
 (iii) in clause (c), after the words ―such power‖, insert the words ―or creating such right or relationship‖,


(iv) in the proviso, omit the words ―as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or‖. [Vide Uttar Pradesh Act 57 of 1976, sec. 34 (w.e.f. 1-1-1977)].‖


13. At the present moment, another act, Specific Relief Act 1963 is also to be looked into. As per Section 10 of the Specific Relief Act, the following criteria have been perceived wherein Specific Performance of Contract is found enforceable for better appreciation, the same is quoted below:-


‖10. Cases in which specific performance of contract enforceable.--Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced--
 (a) when there exists no standard for ascertaining actual damage caused by the non- performance of the act agreed to be done; or
 (b) when the act agreed to be done is such that compensation in money for its non- performance would not afford adequate relief. Explanation.--Unless and until the contrary is proved, the court shall presume--
 (i) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and
 (ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases:--
 (a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;
 (b) where the property is held by the defendant as the agent or trustee of the plaintiff.‖ ***************************** ―12. Specific performance of part of contract.--
 (1) Except as otherwise hereinafter provided in this section the court shall not direct the specific performance of a part of a contract. (2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed by only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency.


(3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either--
 (a) forms a considerable part of the whole,  Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 12 though admitting of compensation in money; or
 (b) does not admit of compensation in money, he is not entitled to obtain a decree for specific performance; but the court may, at the suit of other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party--
 (i) in a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and a case falling under clause
 (b), 1[pays or had paid] the consideration for the whole of the contract without any abatement; and
 (ii) in either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant.


(4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part.
 Explanation.--For the purposes of this section, a party to a contract shall be deemed to be unable to perform the whole of his part of it if a portion of its subject matter existing at the date of the contract has ceased to exist at the time of its performance.‖
 14. The status of the plaintiff is found duly acknowledgeable under Section 15 of the Act. Sections 20, 21 and 22 are the relevant provisions guiding the power of the Court and  Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 13 for better appreciation those Sections are quoted below:-


―20. Discretion as to decreeing specific performance.--
 (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. (2) The following are cases in which the court may properly exercise discretion not to decree specific performance:--
 (a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
 (b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non- performance would involve no such hardship on the plaintiff; or


(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance. Explanation 1.--Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b). Explanation 2.-- The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases  Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 14 where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract. (3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.


(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.

 21. Power to award compensation in certain cases.--
 (1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance. (2) If, in any such suit, the court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly.

 (3) If, in any such suit, the court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly.

 (4) In determining the amount of any compensation awarded under this section, the court shall be guided by the principles specified in section 73 of the Indian Contract  Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 15 Act, 1872 (9 of 1872).

 (5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint: Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation. Explanation.--The circumstance that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred by this section.


22. Power to grant relief for possession, partition, refund of earnest money, etc.-- (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for--
 (a) possession, or partition and separate possession, of the property, in addition to such performance; or
 (b) any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or 1[made by] him, in case his claim for specific performance is refused.

 (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.
 (3) The power of the court to grant relief  Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 16 under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21.‖


15. Furthermore, one another enactment, the Indian Contract Act is also to be taken note of at the present moment. As per Section 10 of the Act, following agreement have been identified as a contract:-
 ―10. What agreements are contracts.--All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void. --All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void."
 Nothing herein contained shall affect any law in force in 1[India], and not hereby expressly repealed, by which any contract is required to be made in writing 2or in the presence of witnesses, or any law relating to the registration of documents.‖


16. After parallel scrutiny of those relevant Sections as indicated above, it is evident that there happens to be specific requirement in terms of Section 54 of the T.P. Act to have registration of document for the purpose of effectuating sale having the consideration amount more than Rs.100. Side by side, it is apparent from Section 54 of the T. P. Act itself, that  Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 17 agreement to sell does not create any interest in or charge on such property. When no interest in terms of agreement for sale is found duly acknowledgeable, then in that event, registration is not all found necessary, and that happens to be reason behind that neither under Section 53(A) nor under Section 54 of the T.P. Act, amendment has been made in consonance with the amendment having been made under Registration Act whereunder under Section 17, Sub-section (1-A) has been introduced.


17. Now, there should be parallel scrutiny of Section 17(1-A) as well as Section 49 of the Registration Act. As per Section 17(1-A) of the Registration Act, it has been mandated that the document relating to contracts to transfer for consideration any immovable property, is to be registered, and if not registered, its effect relating to part performance as envisaged under Section 53(A) of the T.P. Act would be worthless. However, if it is taken together with proviso of Section 49 of the Registration Act, it is evident that the unregistered deed of contract is found admissible with regard to the suit having filed in accordance of Specific Relief Act. That means to say, some sort of demarcation is found in terms of Section 53(A) of the T.P. Act, as well as Specific Relief Act. So, it has become crystal clear from the aforesaid analysis that gust of Section 53(A) of the T.P. Act is an event  Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 18 which visualizes before execution of sale as per Section 54 of the T. P. Act while desirability of application of Specific Relief of Contract Act is to coerce the party through process of the Court to follow up the terms so agreed amongst them under the banner of lawful contract. And that happens to be reason behind having presence of proviso of Section 49 of the Registration Act.


18. Part performance is an event preceding sale whereunder delivery of possession is given and the incidence of delivery of possession is only accountable, in case, the document is registered while specific performance of contract is an outcome of an agreement having arrived in between the parties whereunder one could bring a suit for performance in terms of contract arrived in between the parties and for that purpose, handing over possession of immovable property is not a condition precedent. So, from analytical approach of the relevant law, it is evident that handing over the property in pursuance of agreement will be considered only on the basis of having the document registered, while for the purpose of launching a suit under Specific Performance of Contract, no such barrier is found in terms of Proviso 49 of the Registration Act. Therefore, both have got two distinct identity and commands two different sphere. Furthermore, be ascertained after due adjudication.

 19. In Suraj Lamp and Industries Private Limited (2) through Director vs. State of Haryana and another reported in (2012) 1 SCC 656, it has been held:-
 "16. Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam and Anr. (1977) 3 SCC 247, observed:
 ―32. A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act.


See Rambaran Prosad v. Ram Mohit Hazra [1967]1 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein."

 33. In India, the word `transfer' is defined with reference to the word `convey'. The word `conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership.

 37. ...that only on execution of conveyance ownership passes from one party to another...."

 17. In Rambhau Namdeo Gajre v. Narayan Bapuji Dhotra [2004 (8) SCC 614] this Court held:
 "10. Protection provided under Section 53A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the proposed transferee who is put in possession in pursuance to such an agreement. It has nothing to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party."


18. It is thus clear that a transfer of  Patna High Court CWJC No.8216 of 2013 (04) dt.09-05-2016 21 immoveable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immoveable property can be transferred.

 19. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53-A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance.
 Section 54 of TP Act enacts that sale of immoveable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.‖