- (1.) COMMON JUDGMENT In these four appeals the defendant is the same person. All the four appeals arise out of a common Judgment rendered by the trial court. The point that arises for consideration in the four appeals are similar. All the four appeals can be dealt with by a common Judgment.
(2.) THESE appeals A.S. Nos. 427 of 1981 to 430 of 1981 are respectively against the decree and Judgments in the suits O.S. Nos. 3811 of 3814 of 1978 on the file of the City Civil Court, Madras. O.S. No. 3311 of 1978 was filed by three brothers viz., T. Periasamy Nadar, T. Murugesan, and T. Thangaraj against T.D. Ramasubramaniam. The other three suits, namely O.S. Nos. 3812 to 3814 of 1978 were filed individually by the said three brothers against the same defendant, i.e. T.D. Ramasubramaniam respectively by T. Murugesan, T. Thangaraj and T. Periasamy. All the four suits were dismissed and therefore, these appeals are filed by the plaintiffs. The questions involved in all the four suits are almost similar. The defendant is the owner of the property bearing Door No. 15/8, Sir Thiagaraya Road, Pondy Bazaar, Madras. In respect of this property, on 10.8.1977 he entered into four agreements of sale, one with the three brothers T. Periasamy, T. Murugesan, and T. Thangaraj, another with T. Murugesan, third with T. Thangaraj and four with T. Periasamy. In all these agreements he agreed to sell certain extent of land in the above mentioned property to the respective persons. The extent and sale consideration of the land to be sold vary in the four agreements. Already on 31.1.1977 an advance of Rs. 2,500/- had been paid and on the date of agreement another sum of Rs. 13,500 was paid. Thus in all an advance of Rs. 16,000/- has been paid. In each of the agreement, it was provided that the defendant shall furnish a draft sale deed for approval within a stipulated time, which differ from agreement to agreement and upon such receipt of the sale deed, the defendant within one month therefrom shall apply to the competent authority under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978, for permission to sell and then within one month from the grant of such Eermission, the sales shall be completed. The balance of sale consideration shall be paid at the time of registration of the sale deed. The defendant received the draft sale deeds, and on 3.10.1977 he applied to the competent authority for permission. On 4.10.1977 the plaintiffs sent a notice to the defendant stating that his applications for permission did not contain the necessary particulars and called Upon him to do the needful. The defendant made some corrections in the application, but the competent authority rejected the application on l8.10.1977. On 19.10.1977 the defendant sent a notice to the plaintiff stating that since the application for permission to sell had been rejected by the competent authority, he was not in a position to execute the sale deed and therefore he repudiates the agreement. He has sent a cheque for Rs. 16,000/- in respect of each of the agreements to the plaintiffs in repayment of the advance amount paid to him. The plaintiffs have kept the cheque uncased. In these circumstances, the plaintiffs have filed these suits. The case of the plaintiffs is that there is an implied term in the contract that the defendant shall do all things necessary for obtaining sanction from the competent authority, but he failed to do so. Whereas he should have stated in the relevant column in the application the date of construction of the building, he has only stated Vacant land inspite of request by the plaintiffs. Further he failed to give a statement required under S. (1) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act 1978. For these reasons the permission was rejected. The defendant failed to comply with the requirements as regards the particulars deliberately. The plaintiffs therefore called upon the defendant to appeal against the order of rejection, but he would not do. Therefore, the plaintiffs themselves filed the appeals and the defendant even opposed that appeal. The appellate authority by its order dated 29.3.1978 dismissed the appeal. Since the permission was rejected because of the fault of the defendant he is bound to apply for permission afresh with all necessary correct particulars. The defendant unilaterally repudiated the contract and that is not valid and the contract, is still subsisting. On these grounds the plaintiffs have filed this suit for specific performance of the agreement and for direction to the defendant to apply afresh to the competent authority for permission with all correct particulars and to direct him to deliver vacant possession of the lands concerned in each of the suit. As against this, the defendant would contend that he had stated in the application for permission all the necessary particulars and there was no fault on his part and he was not in any way responsible for the rejection of the application. Since even at the time of agreements the difficulties in getting the permission were anticipated, clause (6) was introduced in the agreements according to which if the defendant was not in a, position to sell the property by reason of refusal of permission by the competent authority, the defendant should refund the advance sum of Rs. 16,000/- together with another sum of Rs. 8,000/- being the estimated damages for his inability to fulfil the agreement. Since the permission to sell was rejected, as there was no other option the defendant sent the advance amount of Rs. 16,000/- repudiating the contract. He further contended that he is not bound to file an appeal against the order of rejection passed by the competent authority. Though the entire land was to be purchased as one unit, the plaintiffs for the purpose of circumventing the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act 1978, splitting the land into four parts, got four agreements executed. Therefore, the agreements are against law and hence they are illegal, void and unenforceable. So contending, the defendant has prayed for dismissal of the suits. The learned trial Judge has framed similar issues in all the suits and holding a joint trial, in a common judgment he has held that the plaintiffs got four agreements instead of one and this was with a view to escape from the provisions of the Tamil Nadu Urban Land (Ceiling and Regulation) Act 1978, and therefore the agreements are illegal. He further held that there was no fault on the part of the defendant for the rejection of the application for permission to sell. He also held that for the reason that the permission was not granted by the competent authority, the plaintiffs cannot enforce specific performance of the contract and the plaintiffs would be entitled to have their remedy under clause (6) of the agreements which provides for refund of the advance amount and Rs. 8,000/- as the estimated damages. On these findings, the trial court dismissed all the four suits. Mr. K.T. Palpandian learned counsel appearing for the appellants plaintiff contends that (i) though it is written in Exs. A1 to A4 agreements that the defendant shall obtain permission to sell from the competent authority, such a permission, as a matter of fact, is not required in law and therefore even though the permission sought for is rejected the defendant can execute the sale deeds and hence the plaintiffs are entitled to specific performance; (ii) even if the permission is required in law, the defendant by his own want on misrepresentation and suppression of necessary facts manoeuvred to get the rejection order and therefore the defendant taking advantage of his own fault cannot refuse to execute the sale deeds (iii) on the mere rejection of the application for permission to sell the agreements do not come to an end, and the liability of the defendant is not absolved and he should have taken further steps such as filing an appeal to get the permission and that he did not do; (iv) Whatever might be the position under the old (Act 34 of 1976), under the new Act (At 24 of 1978) no permission is necessary to sell and the old Act having been repealed and the new Act substituted in its place with effect retrospectively from 3.8.1976 on which date the old Act came into force, and the suit having been filed on 17.4.1978 the defendant even without permission to sell is liable to execute the sale deeds; and (v) the finding of the trial court that the agreements are illegal and therefore they are not enforceable is wrong and is not sustainable.
(3.) IT is argued by the learned counsel as regards first point that the only provision of law that requires permission to sell is S. 26 of the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 34 of 1976 hereinafter referred to as the Act, but a reading of the Section would show that it does not apply to the lands in question. The material portion of the section reads thus: ?no person shall transfer by way of sale, mortgage, gift, lease for a period exceeding ten years, or otherwise, any urban or urbanism land with a building (whether constructed before or after the commencement of this Act) or a portion only of such building for a period of ten years of such commencement from the date on which the building is constructed whichever is later, except with the previous permission in writing of the competent authority.? IT is clear from this that permission to sell is necessary only for sale of an urban and urbanisable land with a building or a part of building. IT is argued that under the agreements Exs. Al to A4 only the lands are agreed to be sold and no building whatsoever and therefore S. 26 is not attracted to the suit agreements. The learned counsel appears to be correct. IT is possible that the parties did not understand the section clearly and therefore they thought that permission is necessary or that it would be better by way of abundant caution permission is obtained. IT must be noted that the lands agreed to be sold are contiguous and form part of one land and there is a building in it which has been raised by the tenant of the land. However it may be, it appears that definitely both the parties had the view that permission must be obtained and therefore they inserted a clause therefor in the agreement. Even subsequently throughout until the time it is now argued so in the appeal, it was never said by the plaintiffs that no permission was necessary. Therefore if the agreements have become void or even terminated by the defendant for the reason that permission could not be obtained the argument that permission is not necessary in law cannot be countenanced. In my Judgment, for the reasoning I would give infra while dealing with the point No.(iv) raised by the learned counsel, the agreements have become void and unenforceable. As regards the second point raised by the learned counsel that the defendant himself contriving wantonly got a rejection order with a view to avoid execution of the sale deeds, it is contended that he purposely omitted to give necessary particulars in the application forms and that was the reason that permission was refused. In support of this contention the learned counsel relief on a decision in New Zealand Shipping Co. Ltd. v. Societe Des Ateliers Et Chantiers De France 1919 Appeal cases 1= 1918-1919 All. Eng. Rep. 552 wherein it has been held to the effect that the person who seeks to treat the contract as void or unenforceable should not have himself brought about the event giving rise to the avoidance. In this connection it would be convenient to refer to what is exactly stated in the agreements with regard to obtaining permission. A reading of the agreement would show that there is no doubt that as per clause (3) thereof the defendant shall apply for permission for sale. It is not in dispute that he did apply. But the charge is that he did not properly apply and he did so purposely. It appears there is a form prescribed for application for permission and the defendant has applied in such forms. According to the plaintiffs column (2) in the annexure to the application form requires Date of construction of building (whether constructed before or after the commencement of the Act) but the defendant wrongly and merely stated vacant land and when the plaintiffs protested to this he just added Building owned by lessee which they are entitled to remove vide copy of sale deed enclosed herewith.? To this the defendant would state that since the subject-matter of the sale in the agreement is only vacant lands, he first stated vacant land and when the plaintiffs wanted him to mention about the building he mentioned that too. The defendant would further say that the building has been put up by the lessee and when the lease period expires they will have to demolish the same. It must be noted that in column (5) of the application he has mentioned part of Door No. 15/10. From these it appears to me that the charge that the defendant purposely omitted to mention necessary particulars is baseless. May be the defendant was in confusion as to what he had to do since column (2) in the form dos not relate to sale of vacant land but it relates to sale of a building with land or part of a building but no building or art of a building is agreed to be sold. It is then contended that he omitted to mention anything in column (2) as regards the requirement whether the building was constructed before or after the commencement of the Act. As to this, his explanation is that it was because the building had been put up by the lessee and not by him. Whatever it may be, the particulars regarding the date of the building does not appear to be material at all for the permission. A reading of S. 26 would show that while stating what is prohibited from conveying it is mentioned. ?any urban or urbanisable land with a building (whether constructed before or after the commencement of this Act) or a portion only of such building. It is clear from this that what the legislature intended to state is that no building constructed before or after the commencement of the Act shall be conveyed without permission. Therefore the non mentioning of the fact whether the building was constructed before or after the commencement of the Act does not at all in any way affect the chance of getting the permission,. As pointed out by the trial court, in the form for permission to sell some particulars are required to be given by the seller and a statement is required from the purchaser also. Both of them have to state the necessary facts and sign thereunder. All the applications Exs. A21 to A24 have been signed by both the seller and the purchasers. The plaintiffs would know the particulars stated by the defendant, and in fact some of the particulars wanted to be given by the plaintiffs even after the submission of the applications, were subsequently mentioned. Therefore the contention of the plaintiffs that purposely necessary particulars have not been given by the defendant and therefore the application were defective and that led to the rejection of the applications does not appeal to me. It is argued that the defendant should have deleted the words ?vacant land.? But since as a matter of fact what is agreed to be sold is only vacant land and further as wanted by the plaintiffs the defendant has also mentioned the words building owned by lessee which they are entitled to remove vide copy of sale deed enclosed herewith? it cannot be said by any stretch of imagination that by stating ?Vacant land ?defective particulars have been given with a view to mislead the authority.? It is then said that form No. VIII particulars have not been annexed to the application. But S. 26 does not require any such annexure. It is also argued that when the applications were filed the site plan and the draft sale deeds were not signed by the defendant and this he did purposely. But when demanded by the plaintiff this also has been complied with, and moreover there is no rule that requires that the vendor shall submit a site plan and draft sale deeds signed by him. It is again said that the defendant has not filed a statement along with the application as one namely Ex. A30 which was filed by him in support of Ex. A29 application in respect of some other land to some other person. Here again by not filing any such a statement the defendant has not contravened any rules since no rule requiring furnishing of such a statement has been brought to my notice. Further in the case of Ex. A29 what was sought to be sold was a building and appurtenant land unlike land only in our case. It is then argued that as seen from Ex. A33 report of the enquiring Deputy Tahsildar the defendant has refused to give a statement to the Enquiry Deputy Tahsildar and this shows the mala fide intention of the defendant. But as pointed out by the trial court the defendant has refuted this statement in Ex. A33 and this particular statement in Ex. A33 is the last one and is in different ink. In this position the principle that the official act must be presumed to have been regularly performed and they are true, cannot be resorted to. The Officer who has given the report has not been examined. Therefore it cannot be believed that the defendant really refused to give a statement as required by the Enquiry Deputy Tahsildar. The trial Court has also pointed out that in Ex. A34 proceedings of the Assistant Commissioner which was subsequent to Ex. A33 it has been written that the applicant has declined to give a statement before the Enquiry Officer, but this has been stricken off with a red ink pen. The permission has been refused as seen from Ex. A34 on the ground that the applicant is in possession of vacant land in excess of the ceiling limit. May be because it is true that applicant refused to give a statement as to true facts. Lastly it is argued that if it had been mentioned that the entire land has been leased out and there is a building in it the land agreed to be sold would not have been treated as vacant land and permission would have been given. But as aforeseen, on objection raised by the plaintiffs, the defendant has mentioned in the application that vacant land Building owned by lessee which they are entitled to remove vide copy of sale deed enclosed herewith.? It is also contended that the defendant did not file a statement under S. 6 of the Act. But as per this Section persons holding vacant land in excess of the ceiling limit have to file a statement. This provision is generally applicable to all persons who are having excess land. If such a statement has not been filed by the defendant, consequences that would arise therefrom would follow but this has no relation to the agreements between the parties. It is not required in the agreements that the defendant should file such a statement. Therefore I do not think there is any substance in this contention. For all these reasons the contention of the learned counsel for the appellants plaintiffs that the defendant purposely giving defective application got an order of rejection and he cannot be allowed to take advantage of his own wrong has no force, Next coming to the third contention that there is implied condition in the agreements that the defendant must do all that is necessary to get permission and therefore he cannot, just filing an application without doing anything further such as filing an appeal against the rejection order, avoid the agreements by saying that permission has been refused, a reading of clause (3) of the agreements would show that the defendant has been enjoined to file an application for permission to sell, but beyond this nothing else is stated. In the following clause i.e., clause (4) it is provided that the sale shall be completed within one month from the date of grant of permission. In Clause (6) it is provided as to what should be done in the event of refusal of permission i.e., the defendant shall refund the advance amount of Rs. 16,000/- and pay a further a sum of Rs. 8,000/- as damages for non-performance of the agreements. Therefore clear provisions have been made as to what should follow when permission is granted or when permission is refused. What follows from this is that when an application for permission is refused no question of sale of the property arises and the parties should respect what is stated in clause (6). The parties never contemplated any appeal being tiled in the event of refusal of permission. There is absolutely no room for thinking that filing of an appeal is implied in the terms of the agreement. In support of his contention the learned counsel relied on a decision in Seth Motilal and others v. Seth Narhelal I and another AIR 1930 P.C.=60 M.L.J. 223 In this case cultivating rights in certain lands were to be transferred. To effectuate such transfer sanction of the Revenue Officer was necessary. For that the defendant shall make an application. On these facts the Court held that application by the defendant to the Revenue authorities to transfer the land is an implied covenant in the agreement to sell. In this view the Court directed the defendant to make an application to the Revenue authorities. But in our case there is an express covenant that the defendant shall apply for sanction, and the defendant did so apply. I do not think that by any stretch of imagination it can be stated that there is an implied covenant that he must file an appeal against the order of rejection. If for example the defendant is satisfied with the order of rejection as correct how can he be expected to file an appeal against that order? It is then contended that because the defendant did not file an appeal the plaintiffs themselves appealed and the defendant himself opposed that appeal and on account of that only the appeal was dismissed. It appears the contention raised by the defendant in that appeal is that it is he who is the party aggrieved by the rejection order and not the plaintiffs. The appellate authority, who had been satisfied that the appeal cannot be allowed for some other reasons, has stated that there is some force in the contention raised by the defendant also. Therefore there is no point in saying that only because the defendant opposed, the appeal was dismissed. Even otherwise if the defendant is satisfied that the rejection was justified (sic) he cannot be found fault with for stating that the appeal at the instance of the plaintiff will riot lie. It is even contended that the defendant should have obtained an exemption under S. 19 of the Act. Here again what was contemplated was to obtain sanction to sell(Under S. 26 of the Act) and not exemption (under S. 19). Hence this contention is irrelevant. S. 19 is attracted only to cases where the Government is satisfied that it would be in the Public interest, or when the application of the provisions of the Act would cause undue hardship to the person concerned if the Provisions of the Act are applicable to any vacant land, the Government may exempt the provisions of the Act to such vacant land. Therefore there is no substance in the contention that the defendant should have asked for exemption under S. 19. Therefore there is no merit in the contention that the defendant failed to perform any part of his which is implied in the agreement. ;