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Tilak Ram v. Chhater Pal Singh .
Factual and Procedural Background
The defendant/appellant Tilak Ram executed an agreement on 7.6.2005 to transfer his bhumidhari land in village Govindpuri, Meerut, to the plaintiff/respondent Chhater Pal Singh, both being Scheduled Caste persons. The agreed sale consideration was Rs. 1 lac, with Rs. 30,000 paid as earnest money. The plaintiff/respondent filed a suit for specific performance alleging readiness and willingness to perform, but the defendant/appellant failed to execute the sale deed. The trial court partially decreed the suit, ordering refund of earnest money with interest, refusing specific performance on the ground that prior permission from the District/Assistant Collector was necessary under section 157-AA of the U.P Zamindari Abolition and Land Reforms Act, 1950, and such permission was uncertain. The plaintiff/respondent appealed, and the lower appellate court granted specific performance. The defendant/appellant filed this second appeal challenging that decree.
Legal Issues Presented
- Whether prior approval of the Assistant Collector is mandatory before effecting any transfer of bhumidhari land by a Scheduled Caste person in favour of another Scheduled Caste person under section 157-AA of the U.P Zamindari Abolition and Land Reforms Act, 1950.
- Whether the discretion exercised under section 20 of the Specific Relief Act, 1963 by the lower appellate court in granting specific performance can be interfered with.
Arguments of the Parties
Defendant/Appellant's Arguments
- Prior approval of the Assistant Collector is mandatory before executing a sale deed of bhumidhari land by a Scheduled Caste person, even in favour of another Scheduled Caste person, as per section 157-AA(4) of the Act.
Plaintiff/Respondent's Arguments
- No prior permission is required for transfer between Scheduled Caste persons.
- Even if permission is necessary, section 157-AA does not apply where the transfer is made by Court intervention.
- The question of permission arises only at the time of executing the sale deed and does not affect the grant of a decree for specific performance.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ganeshi Lal v. Bhagwan Swamp, 1983 ALJ 123 | Restriction of seeking previous approval of Collector applies only to voluntary transfers, not transfers by Court intervention. | Supported the view that transfers under Court orders do not require prior permission under section 157-AA. |
| Harmal v. Special/Additional District Judge, Saharanpur, 1993 RD 51 HC | Restriction on transfer of land by Scheduled Caste does not apply to sales made by Court in execution of decree of specific performance. | Reinforced that Court-ordered transfers are exempt from prior approval requirements. |
| Bhagwati v. Deputy Director, Consolidation, Ghaziabad, 1983 RD 201 HC | Bar on transfer of land applies to tenure holder but not to Civil Court executing sale deeds. | Confirmed that Civil Court can execute sale deeds without permission of Settlement Officer. |
| Moti Lal v. Nanhe Lal, AIR 1930 PC 287 | Suit for specific performance may be decreed even if permission is required; permission can be obtained before executing decree. | Supported the principle that permission need not precede decree but must be obtained before execution. |
| Pahanchu Lal v. Pan Singh, AIR 1971 All 444 | Similar principle as above regarding permission and decree for specific performance. | Followed the view that permission can be obtained post-decree. |
Court's Reasoning and Analysis
The Court first examined section 157-AA of the U.P Zamindari Abolition and Land Reforms Act, 1950, which restricts transfer of bhumidhari land by Scheduled Caste persons to only other Scheduled Caste or Scheduled Tribe persons in a prescribed order of preference, mandating prior approval of the Assistant Collector for any such transfer. The Court held that this prior approval requirement applies even to transfers between Scheduled Caste persons, rejecting the respondent’s argument based on section 157-A. The Court emphasized the protective purpose of section 157-AA to prevent exploitation of Scheduled Caste persons.
Next, the Court considered whether this prior approval is necessary when the transfer is effected by Court order. Citing authoritative precedents, the Court concluded that the statutory restriction and requirement of prior approval do not apply to transfers made under Court intervention, such as by decree of specific performance. The Court reasoned that a decree for specific performance declares rights but does not itself effectuate transfer; the permission can be obtained at the time of executing the sale deed post-decree. Thus, the trial court erred in refusing specific performance solely on the ground of absence of prior approval.
Regarding the exercise of discretion under section 20 of the Specific Relief Act, 1963, the Court found that the lower appellate court was justified in correcting the trial court’s erroneous exercise of discretion and granting specific performance, as it was fair, just, and equitable. The appellant’s plea of hardship was insufficient to deny the decree.
Holding and Implications
The Court DISMISSED THE APPEAL, upholding the lower appellate court’s decree of specific performance in favour of the plaintiff/respondent.
The decision clarifies that prior approval of the Assistant Collector under section 157-AA is mandatory for transfers of bhumidhari land by Scheduled Caste persons to other Scheduled Caste or Scheduled Tribe persons only for voluntary transactions. However, such approval is not required when the transfer is effected by Court order, including a decree for specific performance. The ruling affirms that permission may be obtained prior to execution of the sale deed, not necessarily before granting the decree. No new precedent was set beyond the application of existing principles to the facts.
Pankaj Mithal, J.:— In this second appeal the Court has been called upon to answer as to whether previous approval of the Assistant Collector concerned is necessary before effecting any transfer of a bhumidhari land by a Scheduled Caste person in favour of another Scheduled Caste person as contemplated by section 157-AA of the U.P Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as ‘the Act’). An ancillary point with regard to exercise of discretion under section 20 of the Specific Relief Act, 1963 and interference with such discretion by the lower appellate Court also arises for determination.
2. It is said that the defendant/appellant Tilak Ram executed an agreement dated 7.6.2005 to transfer his land of Khasra No. 13 Minjumla area 0.405 hectare situate in village Govindpuri, Pargana, Tehsil and District Meerut, in favour of plaintiff/respondent Chhater Pal Singh. According to agreement the total sale consideration agreed upon happens to be Rs. 1 lac out of which Rs. 30,000/- was paid and the balance was payable at the time of execution of the sale deed. Admittedly, both the parties to the agreement are Scheduled Caste persons. The plaintiff/respondent on the basis of the aforesaid agreement instituted a suit for specific performance alleging that he was always ready and willing to get the sale deed executed but the defendant/appellant failed to perform his part of the agreement. The suit was decreed in part by the Court of first instance for the relief of refund of earnest money of Rs. 30,000/- with 6% interest within a period of 30 days of the decree. The decree of specific performance was refused on the ground that for the purposes of making transfer of the land by a Scheduled Caste, permission of the District Collector/Assistant Collector is necessary and since it is not certain that such permission would be granted, there is no justification to grant the decree for specific performance. The execution of the agreement, payment of earnest money and the readiness and willingness on the part of the plaintiff/respondent to perform his part of the agreement was held to be proved. However, not being satisfied, the plaintiff/respondent preferred an appeal before the Lower Appellate Court which has been allowed vide judgment and order dated 14.5.2008 and a decree of specific performance in favour of the plaintiff/respondent has also been granted. Thus, the defendant/appellant has come up in this second appeal against the decree of specific performance passed by the Lower Appellate Court.
3. I have heard Sri Murlidhar, Senior Advocate assisted by Sri R.P Singh for defendant/appellant! and Sri B.N Agarwal along with Sri Santosh Kumar Srivastava for plaintiff/respondent on the above substantial question of law. Parties have agreed and consented for the final disposal of the appeal at the stage of admission itself.
4. The submission of Sri Murlidhar, Senior Advocate is that prior approval of the Assistant Collector is mandatory before executing a sale deed of Bhumidhari land by a Scheduled Caste person even though, it happens to be in favour of another Scheduled Caste person in view of section 157-AA(4) of the Act. In reply, it has been argued by Sri B.N Agarwal that no such previous permission is required while making transfer by one Scheduled Caste person to another person of Scheduled Caste. Moreover, even if such permission is necessary the provisions of section 157-AA of the Act would not apply where the transfer is made at the intervention of the Court. Besides, the question of taking permission would only arise at the time of executing the sale deed and, as such, it does not affect the grant of decree for specific performance.
5. To examine the above aspect, it is better to reproduce the provisions of section 157-AA of the Act:
“157-AA. Restrictions on transfer by member of Scheduled Castes becoming bhumidhar under section 131-B.—(1) Notwithstanding anything contained in section 157-A and without prejudice to the restrictions contained in sections-153 to 157, no person belonging to a Scheduled Caste having become a Bhumidhar with transferable rights under section 131-B shall have the right to transfer the land by way of sale, gift, mortgage or lease to a person other than a person belonging to a Scheduled Caste and such transfer, if any, shall be in the following order of preference:
(a) landless agricultural labourer,
(b) marginal farmer,
(c) small farmer; and
(d) a person other than a person referred to in clauses (a), (b) and (c).
(2) A transfer in favour of a person referred to in clause (a) of subsection(1) shall be made in order of preference given below. If a person referred to in clause (a) is not available then transfer may be made to a person referred to in clause (b) of the said sub-section and if a person referred to in clause (b) is also not available then to a person referred to in clause (c) of the said sub-section if a person referred to, in clause (c) is also not available then to a person referred to in clause (d) of the said subsection in the same order of preference:
(a)first, to the resident of the village where the land is situate;
(b) secondly, if no person referred to in clause (a) is available, to the resident of any other village within the Panchayat area comprising the village where the land is situate;
(c) thirdly, if no person referred to in clause (a) and (b) is available, to the resident of a village adjoining the Panchayat area comprising the village where the land is situate.
(3) If no person referred to in subsection(1) belonging to a Scheduled Caste is available, the land may be transferred to a person belonging to a Scheduled Tribe in the order of preference given in subsection(1) and (2).
(4) No transfer under this section shall be made except with the previous approval of the Assistant Collector concerned.”
6. The provisions of section 157-AA provides that no Scheduled Caste person shall have a right to transfer his land to a person other than a person belonging to Scheduled Caste and such transfer, if any, shall be in order of the preference prescribed and further that in case of nonavailability of a Scheduled Caste person the land may be transferred to a person belonging to Scheduled Tribe, again in the same order of preference. Thus, the above provision imposes a complete bar on the transfer of land by a Scheduled Caste person in favour of a person other than Scheduled Caste or Scheduled Tribe, i.e in favour of a person of a higher caste.
7. Sub-section (4) of the aforesaid section further provides that no such transfer under the aforesaid provision shall be made except with the previous approval of the Assistant Collector concerned. The restriction imposed by sub-section (4) of the aforesaid section is applicable to all trans fers of land as contemplated under section 157-AA of the Act. The language employed in sub-section (4) of section 157-AA of the Act qualifies the transfer of land by Scheduled Caste person to another Scheduled Caste person or to a person belonging to Scheduled Tribe. In the said section mere is no provision for making any transfer of land by a Scheduled Caste in favour of a person of higher caste. Therefore, it means that even in the case of transfer of bhumidhari land by a Scheduled Caste candidate either in favour of a Scheduled Caste or a Scheduled Tribe person prior permission of the Assistant Collector concerned is mandatory.
8. The analogy drawn by the learned Counsel for the respondent on the basis of section 157-A of the Act to the effect that such a restriction is only with regard to a transfer of land by a Scheduled Caste to a person of higher caste and is not applicable to transfers between the persons of the Scheduled Caste cannot be accepted. There is a marked difference between the language used in section 157-A of the Act and the language deployed in section 157-AA of the Act. The provisions of section 157-A of the Act provides that a Scheduled Caste person shall have a right to transfer any land to a person not belonging to Scheduled Caste with the previous approval of the Collector. A plain reading of the aforesaid provision indicates that it does not put a complete embargo upon transfer of land by a Scheduled Caste person in favour of a person belonging to a higher caste. He can make such transfer but with previous approval of the Collector. There is no restriction in making intra vivous transfer. On the other hand, under the provisions of section 157-AA of the Act a Scheduled Caste is only permitted to make a transfer of such land either in favour of a Scheduled Caste person or in his absence in favour of a person belonging to Scheduled Tribe and it is for such transfer that previous approval of the Assistant Collector concerned is required under sub-section (4) of section 157-AA of the Act.
9. The purpose of adding the aforesaid provision in the Act is to protect the rights of Scheduled Caste persons so that no person can take advantage of their backwardness, illiteracy and socially week background so as to grab their land.
10. In view of above legal position, in my considered opinion no Scheduled Caste person is entitle to transfer his bhumidhari with transferable rights which he had acquired under section 131-B of the Act in any manner i.e by sale, gift, mortgage or lease even to a Scheduled Caste or a Scheduled Tribe person without the previous approval of the Assistant Collector concerned.
11. It may be noted that as per the record and the submissions made the land in dispute is a land leased out to the defendant/appellant or his predecessors who has perfected his rights thereof as Bhumidhar with transferable rights under section 131-B of the Act and, therefore/the entire discussion is based on upon such a premise.
12. Now comes the second limb of the argument of Sri B.N Agarwal, learned Counsel for respondent, i.e section 157-AA of the Act would not be applicable where the transfer is being made under the order/decree of the Court.
13. In Ganeshi Lal v. Bhagwan Swamp 1983 ALJ 123., this Court while considering the provisions of section 157-A of the Act held that the restriction of seeking previous approval of the Collector under the aforesaid provisions applies only to a voluntary transfer and not to sale on the intervention of the Court. It was further held that a decree for specific performance of an agreement would not fall in the category of voluntary transfer but would be in the nature of sale by Court.
14. A similar view was taken by another Single Judge of this Court in the case of Harmal v. Special/Additional District judge, Saharanpur 1993 RD 51 HC. and it has been provided that restriction or bar on transfer of land by a Scheduled Caste cannot be applied to a sale made by the Court in execution of a decree of specific performance.
15. In yet another decision of this Court Bhagwati v. Deputy Director, Consolidation, Ghaziabad 1983 RD 201 HC. while considering similar provisions of section 5 of the U.P Consolidation of Holdings Act, the Court held that the bar imposed on transfer of land therein is only upon the tenure holder and would not be applicable upon the Civil Court with the result that it is competent to execute the sale deed without seeking permission of the Settlement Officer, Consolidation.
16. Thus, from the above authorities, it can safely be concluded that though section 157-AA of the Act imposes an obligation upon a Scheduled Caste person to seek previous approval of the Assistant Collector before making a transfer of his bhumidhari land with transferable right but such a permission would not be required when the transfer is being made by the Court or under the order or decree of the Court.
17. Besides above, it is acknowledged legal preposition that a decree for specific performance by itself does not cause transfer of property but it merely declares the rights of the parties. Therefore, at the time of passing of a decree for specific performance permission of the Assistant Collector need not be in existence and the same can be obtained before executing the sale deed. Therefore, the question of approval of the Assistant Collector is an issue which is not relevant or is premature to be considered while granting the decree of specific performance and the same cannot be a ground for refusing such a decree, if it is otherwise, lawful to grant the same. Therefore, the Court of first instance patently fell in error in declining to pass the decree of specific performance on the above ground alone.
18. Section 20 of the Specific Relief Act stipulates that a discretion to grant such a decree of specific performance is exercisable on sound and reasonable judicial principles and is capable of correction by the Court of appeal. Therefore, when the discretion exercised by the Trial Court was ex facie illegally, the Lower Appellate Court was well within its jurisdiction to correct the same after having come to a conclusion that it is fair, just and equitable to grant the decree and therefore, has rightly ordered for specific performance of the agreement. The hardship pleaded by the defendant/appellant cannot in itself be sufficient to refuse the decree under the facts and circumstances of the case.
19. Moreover, it has been the constant view that in cases where statutes provide for obtaining permission of the authority concerned before executing a transaction or sale the suit for specific performance may be decreed and the permission of the authority concerned may be obtained before executing such a decree. This has been held in Moti Lal v. Nanhe Lal AIR 1930 PC 287. and Pahanchu Lal v. Pan Singh AIR 1971 All 444.. The aforesaid view has been followed by the Division Bench of this Court in the case of Patiala Flour Mills Co. Ltd. v. U.P State Industrial Corporation Ltd..
20. Accordingly, I find that the discretion exercised by the Appellate Court is in consonance with law. Thus, the substantial question of law having been answered as above the Appellate Court has not committed any error of law in granting the decree of specific performance as it was not bound to refuse the decree of specific performance merely for the reason that there was no permission of the Assistant Collector.
21. Accordingly, the appeal lacks merit and is dismissed. Parties to bear their own costs.
22. Appeal Dismissed.
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