M.R.CALLA - (1.) The facts of this case depict a lis between an Ex-Ruler turned politician on one side and a builder developer - organizer on the other side who joined hands at the beginning apparently showing concern for the members of the weaker sections of the society through a highly ambitious project of raising 64,306 dwelling units in the city of Baroda as a joint venture to implement and further the 20-point programme of the then Prime Minister Mrs. Indira Gandhi. One was prepared to give the land which he was even otherwise likely to part with as an excess land under the Urban Land (Ceiling and Regulation) Act, 1976 and the other offered his efforts, resources and initial expenditure for getting the scheme approved under S.21 of the above referred Ceiling Act, of course not without any profit motive.
(2.) This is the defendant's First Appeal under S.96 of the C.P.C. against the judgment and decree dated 12-3-1992 passed by the learned Second Joint Civil Judge (S.D.), Baroda decreeing the Special Civil Suit No. 70 of 1980 with costs. The questions involved in this appeal mainly hinge around the provisions of the Specific Relief Act, 1963, Urban Land (Ceiling and Regulation) Act, 1976 and Urban Land (Ceiling and Regulation) Rules, 1976 and the relevant notifications and guidelines issued thereunder, the Bombay Town Planning Act, 1954, the Gujarat Town Planning & Urban Development Act, 1976, the Contract Act, 1872, the Evidence Act, 1872 and the Civil Procedure Code, 1908.
(3.) Briefly stated the relevant facts of this case are as under : I. Shrimant Fatehsinh Rao P. Gaekwad (Maharaja) Ex-Ruler of Baroda owned an immovable property popularly known as Laxmi Vilas Palace Estate situated in the city of Baroda admeasuring about 707 Acres of land bearing S. No. 1 of Tika No. 9C and.C of Baroda Taluka and District Baroda. This property is situated within the limits of Baroda Municipal Corporation. II. The Municipal Corporation, Baroda had prepared a development plan in respect of the lands within its jurisdiction under the provisions of Bombay Town Planning Act, 1954, invited objections against the same and after considering the objections submitted the said development plan for sanction of the Government of Gujarat. III. The Govt. of Gujarat issued a Notification dated 21-9-1970 under S.10(1) of the Bombay Town Planning Act, 1954, finalising the modification in the said development plan for the city of Baroda subject to modifications so finalised. The date 1-12-1970 was specified as the date on which final development plan was to come into force. According to the development plan the part of the Laxmi Vilas Palace Estate or compound was under reservation for three purposes in three parts - (a) agriculture subsequently altered to recreation, (b) sports stadium and (c) bus terminus. The remaining part of the estate or compound was designated for residential use. The City Survey map shows that in Tika No. 8/1C there is a jail and Tika No. 8/2C is to the north of Tika No. 8/1. IV. The Govt. of Gujarat then issued a Notification dated 17-5-1975 under S. 10A(1) of the Bombay Town Planning Act, 1954 proposing to modify the aforesaid development plan dated 21-9-1970. The variations included at item No. 23 is the land of Laxmi Vilas Palace shown as "residential zone" in the sanctioned development plan of Baroda to be released from the said use and the land so released to be reserved for "open space" under S.7(b) of the Act. As per the accompanying plan; item No. 24(1) the lands under reservation of "bus terminus No. 4" towards the west of Rajmahal in the sanctioned development plan of Baroda to be released from the said reservation and the land thus released to be designated for "residential use" under S.7(a) of the Act as shown in the accompanying plan and item No. 24(2) the lands marked as "W", "X", "Y", "Z" in the accompanying plan designated for "residential use" in the sanctioned development plan of Baroda to be released from the said use and the land thus released shall be released for "bus terminus No. 4" under S.7(b) of the Act as shown in the accompanying plan. V. The Urban Land (Ceiling and Regulation) Act, 1976 was published in the Gazette of India dated 17-2-1976, which will be hereinafter referred to as "the Ceiling Act". The Gujarat Town Planning and Development Act, 1976 was enacted on 19- 6-1976. VI. As required under the Ceiling Act which came into force on 17-2-1976 and as it became applicable to the State of Gujarat every owner of the vacant land, as defined in the said Act, was required under S.6 of the said Act to make a declaration as to the vacant land held in excess of the ceiling limit prescribed therein. Accordingly, on or about 14-9-1976 Shrimant Fatehsinh Rao P. Gaekwad made a declaration for an area admeasuring about 250 Acres out of the said immovable property and it was declared by him as excess vacant land. In this declaration made under S.6(1) of the said Act, he indicated that exemption was being sought in respect of the said vacant land. VII. On or about 11-11-1976 Shri F. P. Gaekwad moved an application for exemption under S.20 of the said Act. VIII. It appears that at this juncture Shri Savjibhai Haribhai Patel, a main partner of builders and organizers of M/s. Ashok Associates and Shrimant F. P. Gaekwad met and discussed about a Scheme for construction of dwelling units for the accommodation of the weaker section of the society to be presented for consideration under S.21 of the Ceiling Act. They arrived at some understanding and accordingly Savjibhai Haribhai Patel after some spade work and after entering into correspondence with certain financial institutions conceived and prepared the Scheme for constructing 64,306 dwelling units for members of the weaker section of the society estimating a cost of nearly 89 crores 3 lacs and 88 thousand rupees and the Draft Scheme was submitted to Shrimant F. P. Gaekwad for his own scrutiny. IX. On 15-3-1977 the Scheme with Plan and a Vakalatnama of one Shri Kureshi Advocate under signatures of Shri F. P. Gaekwad were submitted for consideration under S.21 of the Act. X. On 24-3-1977 the Memorandum of Agreement which will be hereinafter referred to as "MOA" was executed between Shri F. P. Gaekwad as "the owner" of the first part and said Shri Savjibhai Haribhai Patel as "the licensee" of the second pArt.This MOA refers to the owner's property popularly known as Laxmi Vilas Palace Estate, situate in the city of Baroda admeasuring about 707 Acres of land bearing S. No. 1 of City, Tika Nos. 9C and.C of Taluka and District Baroda mentioning further that the licensee of the second part had evolved a Scheme for the construction of dwelling units for the accommodation of the weaker section of the society as envisaged by S.21(1) of the Ceiling Act on a portion of land of owner's property; i.e., property popularly known as Laxmi Vilas Palace Estate, save and except Laxmi Vilas Palace, Motibaug Palace and Nazar Baug Palace to be referred to as "the said property" (which expression shall include standing structures, pucca as well as kutcha, and all natural growths thereon and all trees and plants etc.) and the parties agreed to 19 terms in all, as set out in this MOA at Nos. 1 to 19, and this MOA was signed by Shri F. P. Gaekwad and Shri S. H. Patel. XI. On this very date, i.e., 24-3-1977 Shri F. P. Gaekwad also executed a Power of Attorney (which will be hereinafter referred to as "POA") in favour of Shri S. H. Patel to be his true and lawful Attorney and to do and caused to be done on his behalf all or any of the acts, deeds, matters and things detailed out at Item Nos. 1 to 13 of this POA duly signed and delivered by Shri F. P. Gaekwad. XII. Acting under this Memorandum of Agreement and representing Shri F. P. Gaekwad under this POA the Scheme which had been earlier submitted on 15-3-1977 (when there were no guidelines) was revised on 5-10-1977 in view of the first guidelines which were issued on 1-10-1977 pending the finalisation of the guidelines by the Central Government. XIII. On 19-12-1977 Central Government finalised the guidelines and, therefore, another Scheme dated 6-2-1978 was submitted. Town Planning notification dated 16-1-1978 was to be effective from 15-3-1978 with regard to the change from residential to open space. This was also kept in view in the Scheme dated 6-2-1978. XIV. On.-2-1978 an affidavit-cum-declaration was sworn in by Shri F. P. Gaekwad before the Chief Judicial Magistrate, Baroda which will be hereinafter referred to as "ACD". XV. On 14-3-1978 the competent authority under the Ceiling Act issued notices for the date 22-3-1978 to Shri F. P. Gaekwad as well Shri Savjibhai Haribhai Patel. XVI. On 22-3-1978 Shri Ranjitsinh P. Gaekwad the holder of the constituted Power to Attorney of Shri F. P. Gaekwad appeared before the competent authority. He was accompanied by lawyer and he also submitted that the Scheme dated 6-2- 1978 which has been accepted as such by the owner Shri F. P. Gaekwad may be sanctioned. XVII. On 1-4-1978 the Government of Gujarat published the guidelines under the Ceiling Act elaborating the guidelines issued by the Government of India. XVIII. On 8-1-1979 the Scheme dated 5-1-1979 was submitted and the revised drawing was submitted on 16-1-1979. XIX. On 29-1-1979 alternative scheme was submitted reducing the number of houses to 4,000 only because the authorities considered that the number of houses under the scheme should be reduced keeping in view the practical aspects. This scheme was processed by Municipal Corporation, the Town Planning Deptt. and the City Engineer. XX. On 15-11-1979 the specified authority under the Ceiling Act accorded its approval to the alternative Scheme dated 29-1-1979. XXI. On 2-2-1980 the Deputy Secretary, Revenue Department of the Government of Gujarat sent the confidential letter to the competent authority and Additional Collector, Urban Land Ceiling as also to the Superintending Engineer, Roads and Buildings with reference to Government letter dated 15-12-1978, final confidential letter dated 19-2-1979 of the competent authority and Government letter dated 31-9-1979 and the confidential letter dated 3-12-1979 of the competent authority calling upon the competent authority that it should accord sanction to the scheme under S.21 of the Act immediately and he should not mention confidential instructions of the Government therein. XXII. On 7-2-1980 the specified authority sent the letter to the competent authority mentioning therein that the scheme may be approved after scrutinising the same with reference to the Circular dated 22-5-1979 and particularly para 6 thereof. In this letter reference was also made to the Revenue Department confidential letter dated 2-2-1980 and that the land under reservation for stadium, bus terminus and Akota Road cannot be acquired under the Ceiling Act but Shri S. H. Patel had submitted the housing scheme with all the required amenities on Laxmi Vilas Palace Estate ground land admeasuring 2,391,125 sq.mts. by providing agricultural zone, stadium, bus terminus and road (Akota) which conforms with the development plan of Baroda City and that since it is a satellite township request was made to the competent authority to exempt this 2,391,125 sq.mts. of land declared in Form No. 5 for the purpose of S.21(1) of the Ceiling Act. The plans duly signed by the architect and specified authority were also enclosed therewith. XXIII. It appears that at this juncture Shri F. P. Gaekwad became non-desirous of proceeding with the scheme and on 23-2-1980 sent his Advocate's letter to Shri S. H. Patel stating therein that MOA dated 24-3-1977, the irrevocable power of attorney dated 24-3-1977 and ACD dated.-2-1978 were void, illegal and inoperative in law so as to cancel or revoke the said agreement and irrevocable power of attorney. An advertisement to this effect was also issued in newspapers. This was followed by letter dated 25-2-1980 to the competent authority by the Advocate of Shri F. P. Gaekwad requesting him not to proceed further with any applications in respect of his property under S.21, whether pending or which may be made in future by Shri S. H. Patel, who had no authority to act on behalf of Shri F. P. Gaekwad. XXIV. Shri S. H. Patel through his Advocate's letters dated 4-3-1980 and dated 3-4-1980 refuted the allegations contained in the letter dated 23-2-1980 which had been sent by the Advocate of Shri F. P. Gaekwad and called upon Shri F. P. Gaekwad to withdraw the letter dated 23-2-1980. XXV. On 7-4-1980 the present Civil Suit being Special Civil Suit No. 70 of 1980 was filed in the Court of Civil Judge (S.D.) at Baroda by Shri Savjibhai H. Patel (who will be hereinafter referred to as "the plaintiff-respondent) seeking the specific performance of the agreement, the injunction and interim and ad interim reliefs etc. The exact reliefs claimed in the plaint are at item Nos. (a) to (j) under para 35 of the plaint. In this plaint, as it was filed on 7-4-1980, Shri F. P. Gaekwad was the sole defendant. Later on the specified authority, the competent authority and the State of Gujarat were impleaded as defendant Nos. 2, 3 and 4. During the pendency of the suit, Shri F. P. Gaekwad expired on 1-9-1988 and, therefore, while keeping his name as such as defendant No. 1 his legal representative Her Highness Maharani Shantadevi P. Gaekwad was arrayed as defendant No. 1/1. XXVI. On 14-7-1980 the written statement dated 12-7-1980 had been filed on behalf of Shri F. P. Gaekwad under the signatures of his constituted attorney Shri F. P. Gaekwad. XXVII. Thereafter, the supplementary written statement dated 20-4-1985 appears to have been filed on 24-6-1985 by the defendant Shri F. P. Gaekwad. XXVIII. On 19-12-1985 the written statement was filed on behalf of defendant Nos. 2 to 4, i.e., specified authority, competent authority and State of Gujarat. XXIX. On 30-6-1989 the written statement was filed on behalf of defendant No. 1/1 i.e., Her Highness Maharani Shantadevi. XXX. On 21-4-1990 amended written statement was filed on behalf of defendant No. 1/1 Her Highness Maharani Shantadevi. XXXI. On the basis of the pleadings of the parties the following 25 issues were framed vide Exh. 235 dated 30-4-1990. 1. Whether deft. No. 1/1 proves that the Memorandum of Agreement and/or Power of Attorney and/or declaration deed dated.-2-1978 is illegal, null and void and not binding on the parties thereto for the reason stated in para 2(xiv) executed by deft. No. 1 is not valid and not binding on the original deft. No. 1 ? 2. Whether deft. No. 1/1 proves that the Memorandum of Agreement read with irrevocable Power of Attorney or declaration is vague, uncertain and unmeaningful and/or meaning thereof is capable of being accepted on the grounds stated in para 2 (xii) of the written statement ? 3. Whether deft. No. 1/1 proves that Cl. 17 of the Memorandum of Agreement expressly and/or impliedly refers a right of the parties inclusive of original deft. No. 1 to unilaterally rescind the said agreement at any time before the plaintiff was put in the possession of the said property as contended in para 2(xiii) of written statement ? 4. If yes, whether rescission of the agreement is legal and valid ? 5. Whether deft. No. 1/1 proves that the declaration deed dated.-2-1978 by original deft. No. 1 was made in ignorance of facts as alleged in para 2(x) of written statement Ex. 46 ? 6. Whether deft. No. 1/1 proves that the agreement Ex. 4/1 is unlawful or contrary to the provision of S. 26 and 27 of Urban Land (Ceiling and Regulation) Act, 1976 as contended in para (xvi) of the written statement Ex. 46 ? 7. Is it proved that in view of the Urban Land (Ceiling and Regulation) Act, 1976 schemes submitted by the plaintiff before the authorities under Urban Land (Ceiling and Regulation) Act, 1976 and action taken thereon by the authorities are legal ? 8. If yes, does deft. No. 1/1 proves that the scheme submitted before the authorities were ineffective and not binding on the deft. as contended in para 2(xi)(1) ? 9. Does first deft. proves that there is no concluded or enforceable agreement arrived in between the parties as contended in para 2(xii) of the written statement ? 10. Was the original first deft. entitled to rescind and/or termination and/or revoke the suit memorandum of agreement and/or suit power of attorney and/or declaration dated.-2-1978 as contended in para 2 of the written statement ? 11. Whether original first deft. is estopped from rescinding agreement and/or raising contention against the scheme submitted by the plaintiff under the irrevocable power of attorney Ex. 4/2 ? 12. Whether deft. No. 1 proves that 2nd, 3rd and 4th defts. have acted beyond their powers and illegally in receiving letters dated 15-11-1979, 5-2-1980 and 2-2-1980 as per para 6 of the written statement Ex. 46 and as contended in para 18 of supplementary written statement Ex. 127 ? 1534 GUJARAT LAW REPORTER Vol. XXXIX (2) 13. Whether plaintiff proves that he has paid about Rs. 16,75,000.00 for the purpose of execution and/or implementation of the scheme and/or agreement as alleged in plaint para 29 ? 14. Whether plaintiff proves that he was at all times material and is yet ready and willing to perform as part of the contract as alleged in plaint para 26 ? 15. Whether alleged Power of Attorney dated 24-3-1977 and/or alleged agency or authority created or conferred by the original deft. No. 1 in favour of the plaintiff come to an end or stood revoked and/or is deemed to have come to an end and/or stood revoked on the death of original defendant No. 1 as alleged in para 4 of the written statement of deft. No. 1/1 ? 16. Whether the plaintiff is entitled to perpetual injunction as alleged in para 27 of the plaint ? 17. Whether plaintiff is entitled to an order directing the original deft. No. 1 to withdraw and or cancel any letter to any authority as alleged in para 26 of the plaint ? 18. Whether the plaintiff is entitled to a decree or order directing original deft. No. 1 to specifically perform an agreement as alleged in para 26 of the plaint ? 19. Whether in view of absence of any relief being claimed against deft. No. 1/1 a suit as against the deft. is liable to be dismissed ? 20. Whether deft. No. 1/1 proves that the plaintiff has no right to modify, alter or revise the agreed scheme ? 21. Whether the breach is committed by the plaintiff alleging to the termination of the suit agreement vide letter/notice dated 1-9-1980 ? 22. Whether the plaintiff is not entitled to decree for specific performance and injunction ? 23. Whether the plaintiff is entitled to a decree of specific performance and injunction as prayed in para 35 of the plaint ? 24. Whether the plaintiff is not entitled to specific performance as prayed for, for the reasons alleged in para 8 of the written statement of the deft. No. 1/1 ? 25. What order and decree ? XXXII. On the basis of the trial the judgment was delivered on 12-3-1992 by the Second Joint Civil Judge (S.D.), Baroda whereby the suit had been decreed. The operative part of the order is as under :- "ORDER The plaintiff's suit is decreed with costs, as prayed for. It is hereby declared that Memorandum of Agreement dated 24-3-1977, irrevocable power of attorney dated 24-3-1977 and affidavit- cum-declaration dated.-2-1978 are valid and subsisting and those were binding on original deceased deft. No. 1 and are binding on deft. No. 1/1 also. The specific performance of Memorandum of Agreement dated 24-3-1977 is granted in favour of the plaintiff. The deft. No. 1/1 is ordered to specifically perform the Memorandum of Agreement dated 24-3-1977. The deft. No. 1/1 is restrained by a permanent injunction from committing breach of agreement, irrevocable power of attorney and acting contrary to the said agreement and said power of attorney and representing to competent authority or any other authority that authority of plaintiff to act as a constituted attorney of original deft. No. 1 is withdrawn and obstructing the plaintiff from acting as constituted attorney of deft. No. 1 for the purpose and period mentioned in the said power of attorney and preventing the plaintiff from taking any action regarding the execution of the scheme under the said agreement and doing any act so as to prejudice the rights of the plaintiff under the said agreement dated 24-3-1977, power of attorney dated 24-3-1977 and affidavit-cum-declaration dated.-2-1978 and making any application for revocation or cancellation of the scheme presented or which may be presented by the plaintiff to the competent authority and from selling, mortgaging, exchanging, leasing or assigning the suit property and from creating any charge or interest in favour of any person in respect of suit property. Thus, the deft. No. 1/1 is restrained by permanent injunction as prayed for in para 35(d) of the plaint. The deft. No. 1/1 is hereby ordered to forthwith withdraw or cancel the letter written by original deft. deceased No. 1 to the competent authority or other authority intimating them about the termination of the agreement and irrevocable power of attorney as prayed for in para 35(e) of the plaint. The deft. No. 1/1 shall pay the costs of the plaintiff and defendant Nos. 2 to 4. The deft. No. 1/1 shall bear her own costs. Decree be drawn accordingly." XXXIII. On 18-6-1992 this First Appeal was presented before this Court.;