An agreement to sell restricted tenure land without prior permission of the Collector as required under Section 43 of the Tenancy Act, 1948 is invalid and unenforceable, and the plaint seeking specific performance of such an agreement is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure.

JUDGEMENT

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

1. The present reference has been placed before this Bench under an order dated 13.01.2023 passed by the then Hon’ble the Chief Justice.

2. By order dated 13.12.2022 in Second Appeal No. 208 of 2021, the following questions have been referred to a Larger Bench : -

“(a) That there are two different opinion of the Hon’ble Division Bench of this Court with regard to the applicability of Section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948 wherein the issue involved is that Sub Section (1) of Section 43 of the Tenancy Act inter alia provides that no land or any interest therein purchased by a tenant under Section 17B, 32 etc. shall be transferred or shall be agreed by an instrument in writing to be transferred by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector. As per SubSection (2) of Section 43 of the Tenancy Act, any transfer or partition or any agreement of transfer or any land or any interest therein in contravention of Sub-Section (1) shall be invalid. Significantly, Section 43 does not make agreement to sale hit by Sub-Section (1) void. The applicability of Section 43 of the Tenancy Act to the agreement to sale in question and subsequent transactions entered into by the original land owners with respect to such land would be an issue which can be gone into by the Trial Court at the time of trying the suit.

(b) The next question is that subsequently, the very Hon’ble Division Bench issued notice as the Hon’ble Division Bench has also not aware with regard to earlier unreported decision of the Hon’ble Division Bench of this Court and, therefore, the Court issued notice in the case of Laljibhai Jivrajbhai Aslaliya Vs. Musabhai Yusuf Isufbhai Miya in First Appeal No. 1667 of 2021.”

3. It is noted by the learned Single Judge in the referral order that another Division Bench of this Court (without any details) had taken a contrary decision at an earlier point of time, which was not placed before the subsequent Division Bench in Ganpatlal Manjibhai Khatri1 , The question was, thus, framed as to whether there is conflict in the decision of two Division Benches given at different point of time and that the conflict is to be resolved by the Larger Bench.

4. Heard Mr. Maulik Nanavati, learned Advocate with Mr. Kishan Patel, Ms. Manvi Damle, learned Advocates for the Appellants, Mr Arjun M Joshi, Advocate for the Respondent No. 2, Mr Isa Hakim, Advocate for the Respondent No. 1, and Mr. Dhaval C. Dave, Senior Advocate with Mr. Jigar M. Patel, Advocate, Mr. Deven Parikh, Senior Advocate with Mr. Vimal Ganpatlal Manjibhai Khatri Vs. Maguben Babaji Thakor reported in 2019 (0) AIJEL – HC – 241533 Purohit, Advocate, Ms. Trusha K Patel, Advocate, Mr. Dhaval D. Vyas, Advocate, Mr. Amit V. Thakkar, Advocate, Mr. Pavan S. Godiawala, Advocate and Ms. Manisha Lavkumar Shah, learned Government Pleader with Mr. Utkarsh Sharma and Mr. Siddharth Rami, Assistant Government Pleaders were heard on the issues involved in the Reference and perused the record.

[I] Preface:-

5. At the outset, the learned counsels for the parties framed draft issues so as to facilitate the Court to frame question(s) of reference. There are two sets of Advocates in this matter. The first set is of the advocates arguing for the case of plaintiff-vendees and another for the defendants vendors or subsequent purchasers. The State is also a contesting party in the matter.

6. Before we set out the question(s) of reference on the rival submissions of the learned counsels for the parties, a brief look to the previous decisions of this Court on the question “whether the plaint can be rejected on the ground that the suit for specific performance of contract based on an illegal or invalid agreement to sell, being hit by Section 43 of the Gujarat Tenancy and Agricultural Lands Act, 1948 is not maintainable ?, will be helpful.

(A) - Amarben wd/o Ramjibhai Des