Nagar Mahapalika, Kanpur v. Punjab Association — 1980 DIGILAW 808 (ALL)

JUDGMENT S.D. Agarwal, J. - This is a defendant's second appeal. The plaintiff-respondent Punjab Association, filed a suit against the appellant Nagar Mahapalika, Kanpur, for the following reliefs;- (a) a decree for specific performance calling upon the Nagar Mahapalika to perform the agreement of lease dated 19th June, 1963. (b) a decree for declaration that the plaintiff-respondent is in possession as the lessee in accordance with the conditions of the agreement dated 19th June, 1963 and is entitled to build the community hall and the open air theatre in accordance with the proposed plan without any obstruction by the Nagar Mahapalika or its employees and (c) for a decree for a permanent injunction restraining the Nagar Mahapalika and its employees from obstructing the building operation on the plot in dispute or interfering with the possession of the plaintiff respondent over the disputed plot of land. 2. The basis of the suit is the agreement dated 19th June, 1963 entered into between the Punjab Association and the Kanpur Nagar Mahapalika. The Punjab Association approached the Nagar Mahapalika to give them some land for the purpose of constructing and establishing a community hall and an open air theatre in plot No. 5, Block P, Scheme VII Gutaiya, Kanpur situate in Brijendra Swaroop Park of an area of 2.844 acres. The Nagar Mahapalika agreed to this proposal and an agreement was entered into between the parties on 19th June, 1963. This agreement is Ex. 4 on record. Two most important terms of the agreement were:- 1. That the said land be demised to the Association for the purpose of establishing a community hall etc. and an open air theatre, on 99 years lease with a premium of Rs. 100 per acre and a lease rent of Rs. 50 per acre per annum, the rent being subject to enhancement by 50% after every 33 years. 2. That the said land should be utilised by the Association within 2 years from the date of this agreement for constructing and establishing a community hail etc. and an open air theatre according to the layout, design, setbacks, and building plans approved by the Mukhya Nagar Adhikari of the Mahapalika and start building the same for the said purpose 3. There were other conditions of the agreement also but it is not necessary to mention each of them. and an open air theatre according to the layout, design, setbacks, and building plans approved by the Mukhya Nagar Adhikari of the Mahapalika and start building the same for the said purpose 3. There were other conditions of the agreement also but it is not necessary to mention each of them. The only other important term was that if within two years from the date of the execution of the agreement the said land is not fully utilised for the purpose it is proposed to be demised then the association would have no claim whatsoever on the Mahapalika. The plaintiff respondents case was that after the execution of the agreement they submitted a plan for sanction on 5th August, 1964. This plan along with the cheque was returned to the plaintiff respondent on 8th October, 1964 along with an objection memo. The said plan was again submitted after due rectification for sanction on 23rd October, 1964 along with the requisite fee of Rs. 1,000. The plan was not sanctioned by the Mukhya Nagar Adhikari and as such the constructions, as were agreed upon, could not be made. In view of the default of the Nagar Mahapalika the plaintiff respondent filed the suit. 4. The defence of the Nagar Mahapalika was that the plaintiff-respondent could have started constructions of the building on the disputed land in accordance with Section 320 of the U. P. Nagar Mahapalika Adhiniyam, 1959 and since the buildings have not been constructed nor the plaintiff respondent has started using the same for the purpose for which the agreement was entered into, the plaintiff respondent was not entitled to any of the reliefs claimed in the suit. A further plea was taken that the notice given by the plaintiff respondent was invalid. 5. The trial court dismissed the suit on 28th September, 1967 holding that the plaintiff respondent ought to have avail- ed of the provisions of Section 320 of the Adhiniyam and as such they could have proceeded to construct a building in accordance with the plan within the period stipulated therein and since the plaintiff-respondent had failed to perform its part of the agreement it was not entitled to a relief of specific performance. The trial court further held that the notice under Section 571 of the Adhiniyam was necessary in the case and since no proper notice was served the suit was barred Against the judgment of the trial court dated 28th September, 1967 the plaintiff-respondent filed an appeal before the lower appellate court. The lower appellate court held that the provisions of Sections 319 and 320 of the Adhiniyam were not applicable in this case with the result that there was no default on the part of the plaintiff-respondent as no actual sanction was given by the Mukhya Nagar Adhikari. The view of the lower appellate court was that in view of the specific agreement that the sanction has to be given by the Mukhya Nagar Adhikari according approval to the plan submitted to him the applicability of Sections 319 1 and 320 of the Adhiniyam was ruled out. The lower appellate court further found that since it was not necessary to serve a notice under Section 571 of the Adhiniyam the validity of the notice was wholly immaterial. The lower appellate court, however, did not grant the relief of specific performance nor did it grant relief of declaration that the plaintiff-respondent was entitled to build the community hall and an open air theatre on the land in dispute nor did it give an injunction to the appellant or its employees from obstructing the building operations. The only relief granted by the lower appellate court was that the plaintiff-respondent is declared to be in possession and is entitled to retain possession of the disputed land in future until the subsistence of the agreement dated 19th June, 1963. In the operative portion of the judgment of the lower appellate court dated 9th February, 1968 the lower appellate court specifically directed that the suit is dismissed in regard to other reliefs. Against the judgment dated 9tb February, 1968 only the Nagar Mahapalika has filed the present second appeal in this Court. The plaintiff-respondent, however, did not file any appeal against the dismissal of the reliefs by the lower appellate court which were claimed by them. 6. Learned counsel for the appellant has urged that the provisions of Sections 319 and 320 of the Nagar Mahapalika Adhiniyam, 1959 hereinafter referred to as the Adhiniyam. The plaintiff-respondent, however, did not file any appeal against the dismissal of the reliefs by the lower appellate court which were claimed by them. 6. Learned counsel for the appellant has urged that the provisions of Sections 319 and 320 of the Nagar Mahapalika Adhiniyam, 1959 hereinafter referred to as the Adhiniyam. were applicable to the instant case and the view to the contrary taken by the lower appellate court is clearly erroneous in law. Secondly it was further urged that since the provisions of Sections 319 and 320 of the Adhiniyam applied, the finding of the lower appellate court that the plaintiff respondent was not a defaulter in terms of the agreement is a finding vitiated in law. Lastly, it was urged by the learned counsel for the appellant that since the main reliefs were not granted by the lower appellate court and the suit for specific performance was dismissed the lower appellate court could not have granted the relief which it has done in the instant case. Learned counsel for the respondent, however, has supported the judgment of the lower appellate court on all the above grounds but has further contended that though he did not file any appeal against the dismissal of the reliefs claimed by him by the lower appellate court this court can grant the said reliefs under the powers conferred upon it under O. 41, Rule 33, C.P.C. 7. Section 58 of the Adhiniyam empowers the State Government to appoint a Mukhya Nagar Adhikari for a Mahapalika. The office of the Mukhya Nagar Adhikari, therefore, is a statutory office. Section 117, sub-clause (5) of the Adhiniyam, specifically provides that this executive power for the purposes of carrying out the provisions of the Act shall be vested in the Mukhya Nagar Adhikari who shall also perform all the duties and exercise all the powers specifically imposed or conferred upon him. Sub-cl. (6) of Section 117 of the Adhiniyam further lays down specific powers of the Mukhya Nagar Adhikari. Section 128 of the Adhiniyam, further empowers the Mahapalika to sell, let on hire, lease, exchange, mortgage, grant or otherwise dispose of any property or any interest therein acquired by or vested in the Mahapalika under the Act. Sub-cl. (6) of Section 117 of the Adhiniyam further lays down specific powers of the Mukhya Nagar Adhikari. Section 128 of the Adhiniyam, further empowers the Mahapalika to sell, let on hire, lease, exchange, mortgage, grant or otherwise dispose of any property or any interest therein acquired by or vested in the Mahapalika under the Act. In view of the above provisions it is clear that when the Mukhya Nagar Adhikari entered into the agreement with the plaintiff respondent on 19th June, 1963 he was exercising the powers which are vested in him under the provisions of the Act. The execution of the agreement was not dehors the Act. It cannot, therefore, be said that by the mere fact that in the agreement there was a clause that the constructions shall be made on the basis of plans approved by the Mukhya Nagar Adhikari, the provisions of the Adhiniyam would not apply to the agreement. The Mukhya Nagar Adhikari acted under the powers vested with him under the Adhiniyam, and therefore, all the provisions of the Adhiniyam would apply to proceedings for approval of the plan. In the circumstances the provision of Sections 319 and 320 of the Adhiniyam, would clearly apply to the instant case. The view to the contrary taken by the lower appellate court is clearly erroneous in law. 8. It was open to the plaintiff respondent to make an application to the Executive Committee to determine by written order whether such approval or permission would be given or not as the Mukhya Nagar Adhikari had neither given nor refused his permission to erect the building in question. In case the Executive Committee did not within one month from the receipt of such written request pass an order granting permission or not the permission would be deemed to have been given under Section 320, sub-clause (2) of the Adhiniyam. 9. The above position of law will, however, not solve the controversy in the present case. Section 320 of the Adhiniyam is only an enabling provision. It does permit a person to whom permission has not either been given or refused to apply to the Executive Committee. But in case such an application is not made it cannot be said that the person concerned was acting in contravention of the provisions of the Act. Section 320 of the Adhiniyam is only an enabling provision. It does permit a person to whom permission has not either been given or refused to apply to the Executive Committee. But in case such an application is not made it cannot be said that the person concerned was acting in contravention of the provisions of the Act. It is open to the applicant to waive this clause as the 'deemed permission is not an absolute permission. Sub-clause (2) of Section 320 further provides that in accordance with the deemed permission the applicant could proceed to execute the work but not so as to contravene any of the provisions of the Act or any rules or bye-laws made under the Adhiniyam. In the instant case the plaintiff respondent Punjab Association is a public body. The President and the Secretary of the said body have taken upon themselves to do honorary public work. Their conduct for not applying under this section is fully justifiable as in the normal course they would not be prepared to execute a work of a permanent character involving huge public revenue unless specific permission had been granted by the Mukhya Nagar Adhikari. This conduct is further fortified because of a specific agreement between the Nagar Mahapalika that the constructions would only be started after the Mukhya Nagar Adhikari approves the same. In the circumstances the mere fact that the benefit of Section 320 of the Adhiniyam was not availed of by the plaintiff respondent it cannot be said that they had defaulted in complying with the terms of the agreement and that they could have started constructions without specific permission of the Mukhya Nagar Adhikari. 10. The agreement was entered into on 19th June, 1963. Since it was a big plan it took some time for submitting the proposed plan for sanction. The plan was submitted for sanction on 5th August, 1964. This was returned by the Mukhya Nagar Adhikari with his objections. AH the objections as raised by the Mukhya Nagar Adhikari were removed by the plaintiff respondent and after the rectification the plan was again re-submitted for sanction on 30th October, 1964. There is on the record no reply of the Mukhya Nagar Adhikari thereafter as to whether he had sanctioned the plan or not. It is clear from Ex. AH the objections as raised by the Mukhya Nagar Adhikari were removed by the plaintiff respondent and after the rectification the plan was again re-submitted for sanction on 30th October, 1964. There is on the record no reply of the Mukhya Nagar Adhikari thereafter as to whether he had sanctioned the plan or not. It is clear from Ex. 24, which is a letter from the President of the Punjab Association to the Mukhya Nagar Adhikari that on 27th November, 1964 a reminder was sent to the Mukhya Nagar Adhikari to sanction the plan. Thereafter another letter was written on 3rd April, 1965 in which it was specifically mentioned that materials like bricks etc. have been collected at the spot and the plaintiff respondent wants to complete the work at the earliest and desired that the Mukhya Nagar Adhikari should immediately finalise the plan. It was further mentioned in this letter that funds to raise the building had already been collected. The Mukhya Nagar Adhikari did not reply to this letter. Again another reminder was submitted on 3rd April, 1965. In these circumstances in spite of repeated requests the Mukhya Nagar Adhikari did not sanction the plan within the period of two years as given in the agreement. It cannot, therefore, be said that the plaintiff respondent was in default and was not ready to perform the terms of the agreement. It was in fact the Nagar Mahapalika who was in default in not giving sanction to the plan in order to enable the plaintiff respondent to make the constructions in accordance with the terms of the agreement. The ultimate finding recorded by the lower appellate court that the plaintiff respondent is not in default is a finding in accordance with, law and I agree with the same. 11. Section 14 of the Specific Relief Act, 1963, lays down contracts which cannot be specifically enforced. Section 14, sub-section (1), clauses (b) and (d) lays down:- "(1) The following contracts cannot be specifically enforced namely:- (a) ............. (b) a contract which runs into such minute or numerous details or which is so dependent on the personal qualification or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms; (c) .............. (d) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise. (d) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise. 12. In the instant case the agreement provides that if within two years from the date of the execution of the agreement the said land is fully utilised for the purposes of community hall etc. and open air theatre as per building plan to be approved by the Mukhya Nagar Adhikari of the Mahapalika and the association is found to be working them satisfactorily of which fact the Mukhya Nagar Adhikari will be the sole judge, he will at the cost of the association execute a lease deed in favour of the association in respect of the said land for a period of 99 years. 13. It would be seen that before the A Mahapalika is obliged to execute a lease deed in favour of the Punjab Association firstly the land has to be utilised for the purposes of community hall etc. and open air theatre. These constructions have to be made in accordance with the plan to be approved by the Mukhya Nagar Adhikari. Secondly the said building so constructed has to be further found working and in use of the association of which fact also the Mukhya Nagar Adhikari is the sole judge. The agreement, therefore, requires many things to be performed before a lease deed could be executed, the constructions of the building in accordance with the plan approved by the Mukhya Nagar Adhikari, its use thereafter which has to be also approved, to the satisfaction of the Mukhya Nagar Adhikari. The agreement therefore, is of such a nature which clearly is dependent upon the volition of the parties. If the plan is approved then it may be that the building may not be constructed by the respondent. If building is constructed then it may not be used by the respondent, the user of which also has to be within the sole satisfaction of the Mukhya Nagar Adhikari. The contract, therefore, runs into such numerous details dependent upon volition of the parties and also involves the performance of a continuous duty which the court cannot possibly supervise. In view of the terms of the agreement in my opinion the lower appellate court was right in not passing a decree for specific performance of the contract. In Union Construction Co. In view of the terms of the agreement in my opinion the lower appellate court was right in not passing a decree for specific performance of the contract. In Union Construction Co. v. Chief Engineer, E. C., AIR 1960 All 72 the question of enforcing a building contract came up for consideration before this Court. Jagdish, J. held:- "A building of engineering contract requires technical knowledge and long experience in the line for executing the works covered by the contract. It is thus a contract which is dependent on the personal qualifications and volition of the parties and is also of such a nature that the court cannot enforce specific performance of its material terms." 14. I respectfully agree with the principle laid down in the case of Union Construction Co., AIR 1960 All 72 (supra). This case, however, is not a case of specific performance of a building contract as such but on a consideration of the terms of the agreement it is clear that it is in the nature of a building contract which is dependent upon the volition of the parties, as I have already observed above. In view of the above the lower appellate court was justified in not passing a decree for specific performance of the contract. As I have already mentioned above, the respondent has not appealed against the refusal by the lower appellate court to specifically enforce the agreement in a question. 15. There were three reliefs claimed in the suit. Reliefs (a) and (c) were not granted by the Court. Relief (b) was to the effect that a declaratory decree be granted in favour of the plaintiff-respondent that they are in possession and are entitled to build the community hall and the open air theatre. Once the specific performance of the contract was refused by the lower appellate court, relief (b) could not have been granted. The lower appellate court has not granted the full relief (b) but has only directed that the Punjab Association, the plaintiff respondent is entitled to retain possession of the disputed land in suit until the subsistence of the agreement dated 19th June, 1963. This relief is of no effect. If the relief for specific performance could not have been granted the question of remaining in possession of the plaintiff respondent of land admittedly belonging to the Nagar Mahapalika, Kanpur, did not arise. This relief is of no effect. If the relief for specific performance could not have been granted the question of remaining in possession of the plaintiff respondent of land admittedly belonging to the Nagar Mahapalika, Kanpur, did not arise. The only relief which could' possibly have been granted in favour of. the plaintiff respondent is a decree for damages which they might have suffered because of the default on the part of the Nagar Mahapalika. This relief was not prayed for by the plaintiff respondent nor any evidence has been led on this score. In the circumstances I agree with the submission made by the learned counsel for the Nagar Mahapalika that once-the main relief for specific performance was refused the lower appellate Court could not have granted decree for possession in terms in which it has been granted. This relief is misconceived and is wholly ineffective. 16. Since I am of the view that the lower appellate court was right in refusing to exercise discretion in favour of the plaintiff respondent for decreeing the suit for specific performance it is not necessary for me to consider the argument raised by the plaintiff respondent that the plaintiff respondent in either case is entitled to a decree for specific performance under the provisions of Order 41, Rule 33, C.P.C. though it did not file any appeal against the refusal by the lower appellate court of such a relief. 17. In the result I allow the appeal set aside the judgment of the lower appellate court and restore that of the trial court. In the circumstances of the case parties are dejected to bear their own cost.