1998 Supreme(Guj) 273

Gujarat High Court
Judgename :M.R.Calla, R.M.Doshit
HER HIGHNESS SHANTADEVI PRATAPSINH RAO GAEKWAD - Appellant
Versus
SAVJIBHAI H.PATEL - Respondent
C.A. 1164 of 1992
Decided On : 06/15/1998

Headnote:(a) Specific Relief Act, 1963 - Sec. 10 - Urban Land (Ceiling & Regulation) Act, 1976 - Sec. 21 - Contract for construction of dwelling units for weaker section of the society - Enforeiability - Owner of the land pleading bar on sale & purchase of lands being excess vacant land under ceiling Act - Held, in view of the object sanction can be granted for construction of dwelling to units for weaker section of the society - In the facts however conditional decree of specific performance can be granted subject to permission under Sec. 20 of 1976 Act.The point of distinction raised on behalf of the defendant appellant stands answered by the Full Bench decision of this Court in the case of Shah Jitendra Nanalal vs. Patel Lallubhai Ishverbhai & Ors., reported in AIR 1984 Gujarat 145 = 1984 (2) GLR 1001 (FB) and it cannot be said that in such cases specific performance cannot be granted. The Full Bench has also considered that in appropriate cases the decree for the specific performance may be made conditional on the exemption obtained and it has been categorically held that a conditional decree for specific performance subject to exemption being obtained under Sec. 20 of the Ceiling Act is permissible. The only difference is that in the case at hand, the question of exemption is under Sec. 21 of the Ceiling Act instead of Sec. 20. The possibility of obtaining exemption survives till the notification is issued under Sec. 10 of the Act and, therefore, before the issuance of the notification under Sec. 10 of the Act, a plaintiff seeking specific performance cannot be told that the terms of the contract cannot be fulfilled and there is no bar against the decree being passed for specific performance and it may also be made conditional subject to the grant of exemption.[Para 42](b) Specific Relief Act, 1963 - Sec. 10 - Urban Land (Ceiling & Regulation) Act, 1976 - Sec. 21 - Specific performance of agreement - Construction of houses for weaker section - On the date Act of 1976 came into force lands were vacant land - Subsequent modification in master plan land specified to be open space - Held, it does not mean that such land can not be permitted to be used for construction of dwelling units for weaker sections of society - Agreement between owner of such land & building contractor for construction can not be held impossible to perform.In view of the proposition of law as it emerges from the various authorities the matter has to be examined on the basis of the position as it was in existance with reference to the master plan on the date when the Ceiling Act came into force on 17th February, 1976, the date on which the rights of the parties had become crystallised and therefore, at that time if the land in question could be utilised for residential purposes, the more change in the development plans subsequenlty would not create any legal impediment against the use of the same for the same land purpose, which too is a public purpose and it would not amount to any contravention of law, if such land is permitted to be used for raising the construction of the dwelling units for the weaker sections of the society. In the facts and circumstances of this case, therefore, it cannot be said that, the MOA was no more capable of being enforced and that the concerned authorities could not sanction the scheme as such even if they wanted to sanction and the plaintiff respondent could claim to enforce the MOA.[Para 34](c) Contract Act, 1872 - Sec. 202 - Irrevocable agency - Death of Principal - Effect of - In absence of express contract for termination even death of Principal would not result in termination of agency.The position of law with reference to Sec. 202 of the Contract Act is very clear that the cases in which the agency is coupled with interest and there is no express contract for termination, there cannot be any termination even by death and, therefore, the factum of death of the principal during the pendency of the suit cannot lead to the termination of the agency. The necessary ingradients required under Sec. 202 of the Contract Act so as to hold that the agency could not be terminated in the facts of the present case are therefore, clearly established and we also find that even the factum of death of the principal cannot bring about the temination of the agency.[Para 19](d) Contract Act, 1872 - Secs. 201 & 202 - Termination of agency - Interest of an agent in subject matter - Such agency can not be revoked to the prejudice of such interest unless there is express contract to that effect.Once it is found that the interest is created in the subject matter of the agreement, may be by the agreement itself, it would still be a case of an agency coupled with interest, such interest may be created simultaneously and by the agreemnt itself and we also find that in such a case if the rescinding of the contract is held to be permissible, it would frustrate the very purpose for which the agreement was made, obviously, the plaintiff respondent had an interest to see that the scheme is executed. Of course, the scheme could be executed only after it had been sanctioned in accordance with law. Nevertheless, the interest in the execution of the scheme subject to the condition as aforesaid, which was created by the agreement, does create a valuable interest in favour of the plaintiff respondent and on the basis of the principles and on the basis of the ratio of the judicial pronouncements, it is clear that in the case at hand, an agency was created in which the plaintiff respondent had an interest and, therefore, it could not be terminated to the prejudice of such interest in view of Sec. 202 of the Indian Contract Act.[Para 14]The second requirement under Sec. 202 of the Contract Act against the termination of the agency is the absence of an express contract. In this regard, strong reliance has been placed by the learned Counsel for the defendant appellant on Clause 17 of the MOA and an argument was raised that this Clause implies that the agreement could be unilaterally rescinded by either party at any time before the licencee of the second part had been put into possession and admittedly, the plaintiff respondent had never been put into possession of the said property. Except Clause 17, we do not find any Clause in the MOA enabling the principal to rescind the agreement. The argument that Clause 17 impliedly authorises the principal to rescind the MOA, itself shows that there is absence of an express contract. Express contract would mean expressed by words in terms of the agreement itself. It is the settled principle of law of Interpretation of Statute that, when the Statute itself uses a particular word, such word has to be given its full meaning in contradiction to its negative aspect. By using the word `express contract the implied stands automatically excluded and, therefore, the authority to rescind the agreement cannot be by implication on the basis of Clause 17. [Para 15](e) Civil Procedure Code, 1908 - Sec. 96 - Appeal from original decree - Scope - Question of joining of parties already stand answered in revision application against the order of Trial Court - No regelation of the same question can be allowed in appeal against decree.Court find ourselves unable to agree with the contention raised on behalf of the defendant appellant that the questions which have been decided on merits by the High Court itself in revision application are still open to be raised in this first appeal. The order passed by the High Court in revision on merits against the order dated 2.11.1982 whereby defendants No. 2, 3 and 4 were arrayed as parties, by no stretch of imagination, can be said to be an interlocutory order or an order passed remanding the matter or an order in remanded proceedings and therefore, the question which have been decided by the High Court while deciding the revision application between the same parties in the same subject matter cannot be said to be open to be raised against in appeal before the High Court.[Para 51](f) Civil Procedure Code, 1908 - Order 6, Rule 14 & Order 27, Rule 1 - Suit by or against Govt. - Signing of pleadings - Written statement on behalf of Govt. Signed by concerned officers & verified by Govt. pleader - Defects are curable.In the facts and circumstances of this case, we find that this object is not of any consequence and on such ground, neither the defence could be struck off nor the decree can be reversed. Even if the pleadings are not verified, the Court has to grant the opportunity to the party to cure such defect, such defect is curable and in the facts of this case, ultimately, the defendants No. 2, 3 and 4 have signed and verified the pleadings and accordingly this objection is rejected.[Para 52]