The Agricultural Produce Marketing Vs. J Abdul Majeed S/o. Late Abdul Rahim - Court Judgment

SooperKanoon Citationsooperkanoon.com/1231856
CourtKarnataka Dharwad High Court
Decided OnMar-05-2020
Case NumberRFA 4111/2013
JudgeP.B.BAJANTHRI AND R.NATARAJ
AppellantThe Agricultural Produce Marketing
RespondentJ Abdul Majeed S/o. Late Abdul Rahim
Excerpt:
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® 1 in the high court of karnataka dharwad bench dated this the05h day of march, 2020 present the hon’ble mr. justice p.b.bajanthri and the hon’ble mr. justice nataraj rangaswamy regular first appeal no.4111 of2013(sp) between: the agricultural produce marketing, bandimote bangalore road, bellary -583101 by its secretary. … appellant (by mallikarjun c. basareddy, advocate) and:1. j.abdul majeed s/o late abdul rahim, age69years, indian oil dealers, partner of sayed filling station bangalore road, bellary-583101.2. j.abdul hamid, s/o j.abdul majeed, aged about41years, indian oil dealer partner of sayed filling station, 2 bangalore road, bellary-583101.3. the addl. director, department of agricultural produce marketing, no.16, iind rajbhavan road, p.b.no.5309, bengaluru-560001......
Judgment:

® 1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE05H DAY OF MARCH, 2020 PRESENT THE HON’BLE MR. JUSTICE P.B.BAJANTHRI AND THE HON’BLE MR. JUSTICE NATARAJ RANGASWAMY REGULAR FIRST APPEAL NO.4111 OF2013(SP) BETWEEN: THE AGRICULTURAL PRODUCE MARKETING, BANDIMOTE BANGALORE ROAD, BELLARY -583101 BY ITS SECRETARY. … APPELLANT (BY MALLIKARJUN C. BASAREDDY, ADVOCATE) AND:

1. J.ABDUL MAJEED S/O LATE ABDUL RAHIM, AGE69YEARS, INDIAN OIL DEALERS, PARTNER OF SAYED FILLING STATION BANGALORE ROAD, BELLARY-583101.

2. J.ABDUL HAMID, S/O J.ABDUL MAJEED, AGED ABOUT41YEARS, INDIAN OIL DEALER PARTNER OF SAYED FILLING STATION, 2 BANGALORE ROAD, BELLARY-583101.

3. THE ADDL. DIRECTOR, DEPARTMENT OF AGRICULTURAL PRODUCE MARKETING, NO.16, IIND RAJBHAVAN ROAD, P.B.NO.5309, BENGALURU-560001. …RESPONDENTS [BY SRI. ANIL KALE, ADVOCATE FOR RESPONDENT NOs.1 AND2 SRI. VINAYAK KULKARNI, ADDITIONAL GOVERNMENT ADVOCATE FOR RESPONDENT NO.3]. THIS APPEAL IS FILED UNDER SECTION96OF CPC AGAINST THE

JUDGMENT

AND DECREE DATED3003.2013, PASSED IN O.S.NO.102/2008, ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE, BELLARY, PARTLY DECREEING THE SUIT FILED FOR SPECIFIC PERFORMANCE. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR

JUDGMENT

ON1712.2019 AND COMING ON FOR PRONOUNCEMENT, THIS DAY NATARAJ RANGASWAMY J., DELIVERED THE FOLLOWING:

JUDGMENT

This regular first appeal is filed by the defendants in O.S.No.102/2008 who have assailed the Judgment and Decree dated 30.03.2013 passed by the Principal Senior Civil Judge, Bellary.

2. In this Judgment, the parties are referred to as they were arrayed before the Trial Court. The 3 appellant herein was the defendant No.1 before the Trial Court and the respondent Nos.1 to 2 herein were the plaintiffs, while the respondent No.3 was the defendant No.2.

3. It is found from the plaint filed in O.S.No.102/2008 that the plaintiff No.1 and his brother took on lease a piece of land measuring 200 ft x 200 ft in Sy.No.759A corresponding to T.S.No.643/3 of Bellary Town from Sri.Manjuswamy Matada Shivamurthy Swamy, son of Sri.Marayya and Smt.Chennabasamma in terms of a document dated 07.09.1969 (Ex.P1). This property is the subject matter of the suit. It is henceforth referred to as ‘suit property’. The plaintiff No.1 and his brother were appointed as dealers by Indian Oil Corporation and were authorized to vend Petrol and Diesel in the suit property. The plaintiff No.1 installed a petrol bunk in the suit property and was paying the rent to the lessors. Following thereafter 4 in the year 1969, the plaintiff No.1 and his elder brother constituted a partnership firm which continued the dealership of Indian Oil Corporation. The firm got the lease extended for a period of 30 years after the expiry of the original lease in the year 1978. It is stated that the plaintiff No.2, who is son of the plaintiff No.1, was admitted as an incoming partner and the name of the firm stood changed. The plaintiff Nos.1 and 2 continued the dealership of Indian Oil Corporation.

4. It is stated that plaintiff No.1 came to know in the year 1977 that an extent of 77 acres 58 guntas was notified for the extension of the Agricultural Produce Market Committee. Some of the persons interested in the lands notified for acquisition, challenged the same before this Court in W.P.Nos.10607/1980 and 18178/1981.

5. It is stated that one of the writ petitioners namely Sri.S.Thimmanna Gowda brought to the notice 5 of this Court that there existed a petrol bunk in a part of Sy.No.759 and that the owner of the petrol bunk namely, the plaintiffs, may be accommodated by not acquiring at least the portion on which the petrol bunk was located. It is stated that this Court while disposing of the said writ petition observed that the respondents may consider the claim made by said Sri.S.Thimmanna Gowda and examine the same to alleviate his claim to the extent possible. Further, during June, 1991 the plaintiffs found that the defendant No.1 had dumped metal and stones in a portion of the suit property and the plaintiffs came to know that the defendant No.1 wanted to enclose the suit property by a compound wall. It is stated that the plaintiffs in order to avoid any litigation, wrote to the Secretary of the defendant No.1 on 04.10.1989 offering to purchase the suit property and requested the Secretary not to put up any construction. Further on 07.10.1989, the defendant No.1 is stated to have passed a resolution 6 accepting the offer of the plaintiffs and agreeing to accept reasonable value of the suit property and to get it deleted from the extent of land acquired for extension of the market yard. It is stated that the plaintiffs approached the defendant No.1 on number of occasions, but to their shock and surprise, the defendant No.1 commenced excavation to lay foundation for a compound wall. The plaintiffs apprehending that they will be dispossessed, filed O.S.No.656/1991 before the Additional Munsiff and JMFC., Bellary who ordered grant of temporary injunction and the suit was later decreed for perpetual injunction.

6. The plaintiffs claimed that they requested the defendants to fix any reasonable value, so that they could pay the same and get the land allotted to them. The plaintiffs also claimed to have requested the defendant to allot a site measuring 200 ft. x 200 ft. for 7 the purpose of a petrol bunk that was being run by the plaintiffs from 1968 and onwards.

7. When things stood thus, it is claimed that on 07.10.1989, the defendant No.1 passed a resolution in view of the order passed in W.P.No.10607/1980 and resolved that an area measuring 200 ft x 200 ft shall be given to the plaintiff after receiving the sale price prevailing in the said area. The Secretary of defendant No.1 addressed a letter dated 21.02.2006 to the Senior Sub-Registrar, Bellary requesting him to inform the market value of the property. Senior Sub-Registrar replied by his letter dated 22.02.2006 that the suit property as on 01.01.2006 was valued at Rs.150/- per sq.ft. It is stated that the plaintiff had approached the defendant with the consideration amount as fixed and requested the defendant to receive the sale consideration and execute a deed. As the defendants failed to execute the sale deed, the plaintiffs got a notice 8 issued to the defendants on 16.11.2007 calling upon the defendants to receive the consideration. The defendant No.1 is stated to have replied stating that the subject matter of the legal notice was placed before the Committee of the defendant No.1 and that a resolution dated 22.01.2008 was passed stating that they will put the suit property for auction. With these facts, the plaintiffs sought for Judgment and Decree to declare the resolution dated 22.01.2008 as void and also to declare the order passed by the defendant No.2 dated 16/24.08.2006 as null and void and consequently, to direct the defendants to receive the sale consideration of `60.00 lakhs and to execute a deed of absolute sale in view of the resolution dated 07.10.1989 passed by the defendant No.1.

8. The defendant No.2 filed a detailed written statement contending that it was the owner of the suit property and that the plaintiffs have no right over it 9 either as a lessee or in any other manner whatsoever. The defendant No.1 out of sympathy negotiated the dispute and passed a resolution dated 07.10.1989 to alienate the suit property in favour of the plaintiffs, subject to approval of the defendant No.2. It is stated that the defendant No.2 rejected the proposal and therefore, the plaintiffs have no authority to continue either as a lessee or as a tenant in the suit property as the erstwhile owners had lost the challenge to the acquisition before this Court in W.P Nos.10607/2018 and 18178/1981. It is contended that the resolution dated 07.10.1989 would not result in a concluded contract between the plaintiffs and the defendant No.1 and therefore, the plaintiffs had no right, title or interest to seek specific performance or challenge the order dated 22.01.2008 or the order dated 16/24.08.2006.

9. Based on the aforesaid pleadings of the parties the Trial Court framed the following issues:

10. “1. Whether the plaintiff proves that as per the resolution passed by respondent No.1 committee on 07.10.1989 the plaintiff is ready and willing to perform his part of contract?.

2. Whether the resolution passed on 07.10.1989 is binding on the defendant?.

3. whether the defendant proves that it has not title or right over the suit schedule property?.

4. Whether the plaintiff proves that he is already ready and willing to perform his part of contract?.

5. Whether the plaintiff is entitled for the relief sought for?.

6. What order or decree?.

10. Before the Trial Court, the plaintiff No.1 was examined as PW1 and he marked Exs.P1 to P26, while 11 the official of the defendant No.1 was examined as DW1 and they marked Exs.D1 to D10.

11. The Trial Court after considering the pleadings, oral and documentary evidence, decreed the suit and directed the defendants to execute a sale deed in favour of the plaintiffs in respect of the suit property by receiving a sale consideration of Rs.60,00,000.00 (Sixty lakh Rupees), in terms of its Judgment and Decree dated 30.03.2013.

12. Feeling aggrieved by the aforesaid Judgment and Decree, the defendant No.1 is in appeal in this regular first appeal.

13. Heard the plaintiffs and the defendants, perused the lower Court records and the Judgment and Decree of the Trial Court. The following points arise for our consideration:

12. (i) Whether this Court in W.P.No.10607/1980 had directed either the defendants or the State to transfer the suit property or protect the possession of the plaintiffs in the suit property?. (ii) Whether the resolution dated 07.10.1989 confers any right upon the plaintiffs to sue for specific performance?. (iii) Whether the resolution dated 07.10.1989 has resulted in a concluded contract that is capable of being enforced in a Court of law?. (iv) Whether the plaintiffs are entitled for suit reliefs?.

14. Before we consider the aforesaid points, we shall first refer the provisions of law relating to sale and or allotment of plots lying within a market yard as stipulated in the Karnataka Agricultural Produce 13 Marketing (Regulation and Development) Act, 1966 as well as the Karnataka Agricultural Produce Marketing (Regulation of Allotment of Property in Market Yards) Rules, 2004. Section 9 of the Karnataka Agricultural Produce Marketing (Regulation and Development) Act, 1966 reads as under: “9. Establishment of Market Committee and its incorporation.- (1) Save as provided in Chapter IX, for every market area, there shall be a market committee having jurisdiction over the entire market area. (2) Every market committee established under this Act shall be a body corporate by such name as the State Government may by notification specify. It shall have perpetual succession and a common seal and may use and be used in its corporate name and shall, subject to such restrictions as are imposed by or under this Act, be competent to contract and to acquire, hold, lease, sell or otherwise transfer any property and to do all other things necessary for the purpose for which it is established:

14. Provided that no immoveable property shall be acquired or transferred without the permission of the Director of Agricultural Marketing: Provided further that the Director of Agricultural Marketing may, for reasons to be recorded in writing, revoke such permission before the completion of the acquisition or the execution of the deed of transfer as the case may be. Provided also that Market Committee may, with the prior approval of the Director of Agricultural Marketing and after obtaining valuation certificate from the Deputy Commissioner, enter into agreement with the owner of any land or building and purchase such land or building. xxx.” Rules 3, 4, 5, 7, 9A and 10 of the Karnataka Agricultural Produce Marketing (Regulation of Allotment of Property in Market Yards) Rules, 2004 “3. Offer of sites, etc., for allotment on lease-cum-sale basis:- (1) The Market Committee 15 may subject to these rules and the general or special orders of the State Government offer for allotment of sites, shops, godowns or shop-cum- godowns in the market yard on lease-cum-sale basis. (2) Due publicity shall be given in respect of such allotment specifying the location, number of sites, godowns, shop-cum-godowns, if any, last date for submission of application and such other particulars by affixing a notice to the notice board of the office of the market committee and by publication in not less than two Kannada newspapers widely circulated in the market area. (3) Whenever the Market Committee calls for applications in respect of allotment of sites, godowns, shops or shop-cum-godowns on lease- cum-sale basis, any licensed market functionary who is registered under Rule 6 may apply to the market committee in Form III along with an initial deposit which shall not be less than twenty-five per cent of the value of the site, godown, shop or shop-cum-godown as the case may be. (4) If any applicant registered with the market committee fails to get the allotment of a site, godown, shop or shop-cum-godown on lease- 16 cum-sale basis, the registration so made shall be valid for the subsequent allotments also unless the applicant withdraws the registration by surrendering registration certificate. (5) The market committee having regard to the provisions of Rules 4,5,7 and 8 may allot a site, shop, godown or shop-cum godown on lease- cum-sale basis.

4. Determination of value of site etc., (1) The Market Committee shall get a valuation certificate of the site, shop, godown or shop-cum- godown to be allotted on lease-cum-sale basis from the concerned Assistant Executive Engineer (Market Development Project) of the Department who shall give certificate having regard to the provisions of sub-rule (2). The Market Committee for valid reasons to be recorded in writing may enhance the value so fixed by the Assistant Executive Engineer. The value so fixed by the Assistant Executive Engineer or enhanced by the Market Committee shall be subject to the approval of the Director, Agricultural Marketing who may give approval with such modifications after recording reasons. 17 (2) While determining the value of the site, shop, godown or shop-cum-godown to be allotted on lease-cum-sale basis, the following factors shall be considered:- (i) The amount spent on acquisition of land including higher compensation paid and interest at the rate of five per cent per annum from the date of acquisition; (ii) The amount spent on providing basic infrastructure facilities in the market yard like roads, drains, culverts, electrification, water supply, compound wall / fencing, auction platform, bank, post office building, Shramik Bhavan, Raitha Bhavan, Samudaya Bhavan, office building, guest house, drying platform, check post, weigh bridge, veterinary, hospital, canteen building etc. and: interest on such amount calculated at the rate of five per cent per annum from the year of expenditure. (iii) In case of shop, shop-cum-godown or godown, the cost of construction of the shop, shop-cum-godown or godown shall also be included in addition to the amount mentioned in the above clauses. 18 (iv) Depreciation of the building shall be calculated as per the Public Works Department Code.

5. Criteria for fixing the value of site:- (1) For the purpose of determining the value of a site, the Agricultural Produce Market Committees are classified based on market fee collected in the proceeding financial year and the minimum guidance value for allotment under Rule 3 as shown in the Annexure. (2) While approving the value under rule 4, the Director of Agricultural Marketing shall consider the highest value among the following, namely:- (i) The current value for site; (ii) The minimum guidance value for site, as shown in the Annexure; (iii) The value determined under Rule 4. Provided that the minimum guidance value shall be revised once in every five years.

7. Eligibility:- (1) No site, shop, godown or shop-cum-godown, in the market yard shall be 19 allotted either on lease-cum-sale basis or leave and license basis to a person or an institution or organization who is not a licensed market functionary and who is a defaulter in payment of any dues either to the Seller or to the Market Committee and not engaged either in the marketing of notified agricultural produces or the allied activities connected with Agriculture, Horticulture or Animal Husbandry except the State or Central Warehousing Corporation, Service institutions, registered associations of market functionaries or Banks or for setting up of petrol bunks or site measuring 10C x 10C for establishing only STD booths or milk parlors or for construction of common amenities for the market users. (2) Allotment under these rules shall not be made to a licensed market functionary who already owns a site, shop, godown or shop-cum- godown or other building in the market yard either in his name or in the name of the firm in which he is a partner. (3) If the shop, shop-cum-godown or godown is lying vacant after the allotment process under Rule 13 is over and the market committee receives any application for allotment 20 of the same from private institutions etc., the market committee after considering whether such allotment affects the trading activity in the yard etc., may submit proposal to the Director of Agricultural Marketing for approval. The Director of Agricultural Marketing after satisfying himself and recording reasons for the same may give approval to such proposal. 9-A. Allotment of sites or vacant space for petroleum retail facilities:- (1) Notwithstanding anything contained in Rule 3 but subject to Rules 4 and 5 and sub rule (1) of Rule 9, sites or vacant space for petroleum retail facilities in the market yard shall be allotted through public auction on lease-cum-sale basis to any petroleum retailers.. The procedure specified in sub-rules (1) and (2) of Rule 3 shall apply mutatis mutandis for such allotment. (2) Any person desirous of making an application under this rule shall make an application in Form-III along with an initial deposit which shall not be less than twenty-five per cent of the value of the site. (3) The highest bidder shall remit twenty five percent of the bid amount quoted by him after 21 deducting the initial deposit already made within one week from the date of auction failing which the initial deposit made by highest bidder shall be forfeited and the second highest bidder will be given a chance for payment of such amount. In case the second highest bidder also fails to pay the amount the market committee shall hold re- auction. While allotting sites or vacant space for setting up of petrol bunk, the minimum site dimension shall be considered as per the guidelines of Ministry of Road Transport and Highways (MORT and H), Government of India issued from time to time.

10. Conditions of allotment of site, godown or shop-cum-godown on Lease-cum- Sale:- (1) Allotment of a site, including a corner site, sites or vacant space for setting up of petrol bunk, godown, shop or shop-cum-godown made by the market committee on lease-cum-sale shall be subject to the approval of the Director of Agricultural marketing and shall also be subject to the following conditions namely:- (i) The allottee shall pay to the Market Committee the balance amount of the value of 22 the site, godown, shop or shop-cum-godown after deducting the amount already paid under sub-rule (3) of rule 3 within a period of 90 days from the date of receipt of order of allotment. If the said value is not paid within a period of 90 days, further extension of time for a period not exceeding 60 days may be given by the market committee and the allottee shall pay, in addition, interest at the rate of twelve percent per annum on the said amount for the extended period; (ii) After payment of the value under clause (i) is made, the Market Committee shall call upon the allottee in writing to execute an agreement in Form IV in case of site and in Form V in case of shop or shop-cum-godown or godown and get it registered. If the agreement is not executed within 45 days after the market committee has called upon the allottee to execute such agreement, the registration fee paid by the allottee shall be forfeited and the allotment be cancelled and the amount paid by the allottee under sub-rule 0(3) of Rule 3, after deducting such expenditure that might have been incurred by the Market Committee, be refunded to him; 23 (iii) Until the site, godown, shop or shop- cum-godown is conveyed to the allottee, the amount paid by the allottee for such allotment shall be held by the Market Committee as security deposit (without any interest thereon) for the due performance of the terms and conditions of the allotment and the lease-cum- sale agreement entered into between the Market Committee and the allottee; (iv) In case of allotment of site, the allottee shall construct a godown or shop or shop-cum-godown within a period of one year or within such extended period, not exceeding one year as may be granted by the Market Committee; (v) Every allottee shall not alienate the site, godown or shop or shop-cum-godown on the site in accordance with the plans and designs approved by the Market Committee; (vi) The allottee shall not alienate the site, godown or shop or shop-cum-godown within a period of ten years from the date of allotment except by way of mortgage in favour of Government of India, Government of 24 Karnataka or its undertakings, Life Insurance Corporation of India, Corporate bodies or Banks to secure loan, subject to the prior permission of and terms and conditions imposed by the Market Committee; (vii) On the expiry of the period of ten years from the date of execution of lease-cum- sale agreement and if the allotment has not been cancelled or the lease is not determined, the Market Committee shall by notice, call upon the allottee to get the sale deed executed at his own cost within the time specified in the said notice. (viii) With effect from the date of taking possession of the allotted property, the allottee shall be liable to pay the taxes, fees and cesses payable in respect of the property. (ix) Where allotment is made in favour of a partnership firm, any change in the constitution of the firm shall be brought to the notice of the Market Committee. If the Market Committee, after such enquiry as it deems fit, decides that the change in the constitution of the firm results in transfer of shop or godown or shop-cum-godown or any interest there in 25 by all or any one of the partners no such transfer shall take place without complying with Rule 12. Explanation: For the purpose of this clause and sub-rule (3) of Rule 16, there is a change in the constitution of the firm if, one or more of the partners cease to be partners or one or more new partners are admitted, in such circumstances that the persons who were partners of the firm before the change do not continue as partner or partners after the change.

15. Our answer to the aforesaid points is as follows: Point No.(i) Ex.P17 is the order passed by this Court in Writ Petition Nos.10607/1980 and 18178/1981. It is noticed that the acquisition of portion of Sy.No.643/4 (759A portion) and Sy.No.668/2 (759B portion) for the purpose of formation of the market yard committee was challenged before this Court. This Court upheld the 26 acquisition by the Order dated 08.03.1984. This Court noticed the contention of the petitioner in Writ Petition No.10607/1980 that the petitioner therein was running a petrol bunk on the land in dispute and that the petitioner may be accommodated by not acquiring at least a small bit of the land to install his petrol bunk. Taking note of this, this Court held “before taking possession of the lands from these petitioners, it is undoubtedly open to the authorities to consider the claims made by these petitioners, examine them and alleviate their case to the extent the authorities find it possible and feasible. But, if the authorities find that it was not possible to alleviate the claims of the petitioners, then the authorities will proceed on the basis of the impugned notifications, the validity of which have been upheld in this order”. Therefore, there was no order directing the defendant No.1 in the present suit to either regularize or allot or convey the property where the plaintiffs had established the petrol bunk. Further, the 27 plaintiffs in this suit were not parties in the aforesaid writ petition. Ex.P1 is the initial agreement to lease executed in favour of the plaintiffs by Gurumurthaiah, Gaja Dandaiah, Basamma and the same was renewed in terms of Ex.P2. It is not known as to how the plaintiffs in the present suit are related to Thimmanna Gowda who was the petitioner in W.P.No.10607/1980. It is also not known how Thimmanna Gowda is concerned with the suit land since the owners of the suit property from whom the plaintiffs secured lease was Gurumurthaiah, Gaja Dandaiah, Basamma. This therefore, means that the plaintiffs have attempted to leverage the observations made by this Court in W.P.No.10607/1980 filed by a person who is not connected to the plaintiffs in any way. Therefore, Point No.(i) is held in the negative as this Court had not directed either the defendant or the State to transfer the suit property to the plaintiffs or protect the possession of the plaintiffs in the suit property. 28

16. Point No.(ii): Ex.P1 is the agreement to lease dated 07.09.1968 executed by Shivamurthaiah and Channabasamma acting on behalf of Gurumurthaiah, Bhogaiah, Gaja Dandaiah, Basamma in favour of J.Mohammed Sayeed. Ex.P2 is the renewal of the lease for a term of 30 years with effect from 30.12.1978. Ex.P3 is an instrument of partnership between J.Mohammed Sayeed and J.Abdul Majeed and Ex.P4 is the dealership agreement by Indian Oil Corporation. Ex.P5 is the partnership agreement by which the plaintiff No.2 was introduced into the Firm along with the plaintiff No.1. Ex.P6 is the dealership agreement made with the reconstituted partnership Firm. Ex.P7 is a notice issued by the City Surveyor to the defendant No.1 dated 22.08.1991. Ex.P8 is the Survey Sketch showing the existence of petrol bunk belonging to the plaintiffs. Ex.P9 is a letter addressed by defendant No.1 to the Assistant Director of the Department of Agricultural Produce Marketing 29 Committee to verify whether the property where the petrol bunk is situated could be given away. Ex.P10 is the notification under Section 4(1) of the Land Acquisition Act, acquiring the land bearing Sy.No.643/4 formed in Sy.No.759. Ex.P11 is a letter addressed by the plaintiffs to the defendant No.1 offering to pay the cost of acquisition of 200 ft x 200 ft area of land. Ex.P14 is a letter addressed by the defendant No.1 to the plaintiffs to visit the office of the Secretary and Ex.P13 is the crucial resolution dated 07.10.1989 which reads as follows: “¢£ÁAPÀ 07-10-89 gÀAzÀÄ £ÀqÉzÀ §¼Áîj ªåÀªÀ¸ÁAiÆÉ ÃvÀà£ßÀ ªÀiÁgÀÄPÀmÉÖ ¸À«Äw ¸À¨ÉsAiÄÀ wêÀiÁð£À 10 gÀ £ÀPÀ®Ä. * * * «µÀAiÀÄ:-

10) ¸À«ÄwAiÀÄ ¥ÁæAUÀtzÀ «¹ÛÃtðUÁV ¸ÀªÉð ¸ÀASÉå:

643. 4(759J ¨ÁsUÀ) gÀ°è£À 5.05 JPÀgÉ ¥ÀÆtð d«ÄãÀ£ÄÀß ¨ÆÀs ¸Áé¢üãÀ ¥Àr¹PÆÉ AqÀÄ CzÀgÀ°è ºÁ° ¥ÉmÆÉ æÃ¯ï §APï £ÀqɸÄÀwÛgÄÀªÀ ªÄÉ: eÉ.ªÀĺÀªÀÄzï ¸ÉÊAiÀÄzï CAqï §æzÀ¸ïð, EArAiÀÄ£ï D¬Ä¯ï rîgïì, §¼Áîj EªÀjUÉ ¸ÀzÀj ¸ÜÀ¼ÀPÉÌ 30 ¨sÀƸÁé¢üãÀPÁÌV RZÀð ªiÀÁrzÀ ºÀtªÀ£ÄÀß ¥ÀqÉzÀÄPÉÆAqÀÄ 200’ x 200’ d«ÄãÀ£ÄÀß ©lÄÖPÉÆqÀĪÀ «ZÁgÀ. wêÀiÁð£À:- ¢£ÁAPÀ:

22. 7-89 gÀ ¸À¨sÉAiÀÄ £ÀqÀªÀ½PÉ ¸ÀASåÉ:

11. gÀ°è jmï ¦n±À£ï ¸ÀASåÉ:

10607. 80gÀ ªÄÉð£À GZÀÑ £ÁåAiÀiÁ®AiÀÄzÀ ¤tðAiÄÀzÀ ¥æÀPÁgÀ ºÁ° EgÀĪÀ ¥ÉmÉÆæÃ¯ï §AQUÉ 200’ x 200’ Cr eÁUÀ ©lÄÖ G½zÀ eÁUÀªÀ£ÀÄß ¸Áé¢üãÀ ¥Àr¹PÆÉ ¼îÀ®Ä oÀgÁ¬Ä¹gÀÄvÀÛzÉ. DzÀgÉ ¸ÀªÉð ¸ÀASåÉ:

643. 4 (759 J ¨sÁUÀ) 5.05 JPÀgÉ ¥ÆÀ tð d«ÄãÀ£ÄÀß (CAzÀgÉ ¥ÉmÉÆæÃ¯ï §AQ£À ¹ÜvÀgÀ¹ÛUÀ¼À£ÀÄß ©lÄÖ) ¸À«ÄwUÉ ¸Áé¢üãÀ¥Àr¹PÆÉ AqÀ £ÀAvÀgÀ 200’ x 200’ Cr eÁUÀªÀ£ÀÄß ºÁ° ¥ÉmÆÉ æÃ¯ï §APï £ÀqɸÄÀwÛgÀĪÀ ²æà ªÀĺÀªÀÄzï ¸ÀAiÄÀzï CAqï §æzÀ¸ïð, EArAiÀÄ£ï D¬Ä¯ï rîgï, §¼Áîj EªÀjUÉ ¸ÀzÀj ¸ÀܼÀPÉÌ vÀUÀ®ÄªÀ ¨É¯ÉAiÄÀ£ÄÀß ªÀ¸ÆÀ ° ªiÀÁrPÆÉ AqÀÄ PÉÆqÀ¨ÉÃPÉAzÀÄ wêÀiÁð¤¸À¯Á¬ÄvÀÄ. ¸À» ¸À» PÁAiÀÄðzÀ²ð CzsÀåPÀëgÀÄ - £ÀPÀ®Ä -” 31 17. Ex.P15 is the extract of the register of Firms and Ex.P17 is the order passed by this Court in W.P.Nos.10607/1980 and 18178/1981. The relevant portion of the order passed in these writ petitions which is necessary for the purpose of deciding the suit is extracted below: “Before taking possession of the lands from these petitioners, it is undoubtedly open to the authorities to consider the claims made by these petitioners, examine them and alleviate their case to the extent the authorities find it possible and feasible. But if the authorities find that it was not possible to alleviate the claims of the petitioners, then the authorities will proceed on the basis of the impugned notifications, the validity of which have been upheld in this order.

18. Ex.P19 is the Judgment and Ex.P18 is the decree in O.S.No.656/1991. Ex.P20 is the appeal filed in R.A.No.54/2002 by the defendant No.1. Ex.P21 is the decree in R.A.No.54/2002. Ex.P21 is the statutory 32 notice addressed by the plaintiffs to the defendant No.1 under Section 137 of the Karnataka Agricultural Produce Marketing Act, 1966. Ex.P23 is a interim reply issued by the defendant No.1 and Ex.P24 is the intimation enclosing the resolution dated 22.01.2008 (Ex.P25). Ex.P26 is the order passed by this Court in W.P.No.65561/2009 along with Misc.W. No.61353/2010.

19. We have extracted the resolution dated 07.10.1989 passed by the defendant No.1 in the above paragraphs. It is no doubt true, as contended by the appellant, that the resolution dated 07.10.1989 was based upon a misreading and a wrong understanding of the order passed by this Court in W.P.No.10607/1980. However, this resolution was always subject to approval by the defendant No.2 as mandated under Section 9(2) of the Karnataka Agricultural Produce Marketing (Regulation and Development) Act, 1966. The defendant 33 No.2 considered the resolution dated 07.10.1989 and rejected the same in terms of Ex.P25. Therefore, the resolution dated 07.10.1989 did not confer any right upon the plaintiffs.

20. Point (iii): In so far as the present case is concerned, the resolution dated 07.10.1989 is clearly based on a misreading of the order passed by this Court in W.P.No10607/1980 and the resolution does not fix the consideration at which the suit property was to be conveyed to the plaintiffs. It also did not fix the time within which the property had to be conveyed. The resolution was itself subject to approval by the defendant No.2. The respondent No.2 having considered the same, had rejected the proposal to convey the suit property to the plaintiffs. The plaintiffs hinged their case on the ground that the defendant No.1 had already addressed a letter to the Sub-Registrar enquiring the guidance value of the suit property and that the Sub- 34 Registrar had intimated the guidance value to be Rs.150/- per sq.ft. and therefore, the plaintiffs contended that the sale consideration was Rs.60,00,000-00 (Sixty lakhs Rupees only). There is no material on record to show that either of the defendants at any point of time offered to convey the suit property to the plaintiffs for a total sale consideration of Rs.60,00,000-00.

21. It is well settled that existence of a concluded contract is an essential pre-condition for seeking relief of specific performance. The Hon’ble Apex Court in the case of Ganesh Shet Vs. Dr.C.S.G.K.Setty and Others reported in (1998) 5 SCC381 has held as follows: “13. It is again well settled that in a suit for specific performance, the evidence and proof of the agreement must be absolutely clear and certain. 35

14. In Pomeroy on Specific Performance of Contracts (3rd Edn.) (para

159) it is stated clearly, that a "greater amount or degree of certainty is required in the terms of an agreement, which is to be specifically executed in equity, than is necessary in a contract which is to be the basis of an action at law for damages. An action at law is founded upon the mere non- performance by the defendant, and this negative conclusion can often be established without determining all the terms of the agreement with exactness. The suit in equity is wholly an affirmative proceeding. The mere fact of non- performance is not enough; its object is to procure a performance by the defendant, and this demands a clear, definite, and precise understanding of all the terms; they must be exactly ascertained before their performance can be enforced. This quality of certainty can best be illustrated by examples selected from the decided cases...” 36 22. Similarly, the Hon’ble Apex Court while considering the efficacy of granting specific performance of a resolution which remained tentative, in the case of M.P.Mathur Vs. D.T.C. reported in AIR2007SC414held as follows: “15. Therefore, the Court has to consider - the nature of obligation in respect of which performance is sought, circumstances under which the decision came to be made, the conduct of the parties and the effect of the Court granting the decree. In such cases, the Court has to look at the contract. The Court has to ascertain whether there exists an element of mutuality in the contract. If there is absence of mutuality the Court will not exercise discretion in favour of the plaintiffs. Even if, want of mutuality is regarded as discretionary and not as an absolute bar to specific performance, the Court has to consider the entire conduct of the parties in relation to the subject-matter and in case of any disqualifying circumstances the Court will not grant the relief prayed for [Snell's Equity, 31st Edn., page 366].. In the present case, applying the above test, we do not find an iota of mutuality. There is no contract 37 between DTC and the plaintiffs. There is no communication at any point of time between DTC and the plaintiffs. No sale-consideration was ever fixed. The plaintiffs were never called upon to make payment. The decision to allot remained tentative. In the circumstances, neither contract nor equity existed at any point of time so as to compel DTC to convey the tenements to the plaintiffs.

23. Similarly, the Hon’ble Apex Court in the case of M/s. L.K.Trust Vs. EDC Ltd. reported in AIR2011SC2060held as follows: “24. Applying the principles of law laid down by this Court in the above-quoted decisions this Court is of the opinion that no sale worth the name of the mortgaged property had taken place in favour of the appellant because there is no agreement of sale on the record of the case nor the facts indicate that the same was registered. Having regard to the decision of this Court mentioned above, it will have to be held that right to redeem the mortgage property which was available to the respondent No.3 had never extinguished at all and, therefore, the acceptance of proposal of the respondent No.3 by the 38 respondent No.1 to permit it to redeem the property dated April 8, 2008 cannot be said to be illegal in any manner.

24. Section 2 of the Indian Contract Act defines as to what is a concluded contract. A contract is said to be concluded when (i) the terms of sale are mutually agreed upon (ii) the consideration payable by the purchaser is definite and agreed upon (iii) if approval is to be obtained from any other authority, that the same should be obtained (iv) if something else had to be done to result in a binding contract, when that happens (v) time for conclusion of the transaction is fixed. If a contract contains the above, it is said that a mutually binding and an enforceable contract results between the parties. In the case on hand, except the resolution dated 07.10.1989 there is nothing on record to show that the consideration was agreed upon. 39

25. In fact, the Karnataka Agricultural Produce Marketing (Regulation of Allotment of Property in Market Yards) Rules, 2004 provide for the offer of sales etc., for allotment on lease cum sale basis. There is an elaborate mechanism for determination of the value of site in Rule 5. In so far as the principles for selection of application for allotment is provided under Rule 8 while Rule 9-A relates to allotment of sites or vacant space for petroleum retail facilities. Rule 10 stipulates the condition of allotment of sites, go down or shop-cum-go- down on lease-cum-sale. Such allotment is subject to the approval of the Director of Agricultural Marketing and shall also be subject to other conditions mentioned in Rule 10.

26. In addition to the above, Section 9(2) of the Karnataka Agricultural Produce Marketing (Regulation and Development) Act, 1966 provides that the Marketing Committee is competent to acquire, hold 40 lease sell or otherwise transfer any property and to do all other things necessary for the purpose for which it is established, provided that no immovable property shall be acquired or transferred without the permission of the Director of Agricultural Marketing. In the case on hand, the Director of Agricultural Marketing has considered the same and rejected the proposal in terms of Ex.P25. In other words contract is incomplete, since resolution was not approved by unauthorized officer in terms of provision of law.

27. Since, the resolution dated 07.10.1989 does not ipso facto result in a concluded contract which is the sine-qua-non in a suit for specific performance, the plaintiffs are not entitled to seek enforcement of the resolution dated 07.10.1989. 41

28. PW1 in his evidence has stated as follows: “89£Éà ¸Á°£À°è £Á£ÄÀ ¥æÀwªÁ¢ 1 EªÀjUÉ Cfð PÉÆlÖ DzsÁgÀzÀ ªÄÉÃ¯É zÁªÁ D¹ÛAiÄÀ£ÄÀß £À£ÀUÉ PÉÆqÀ¨ÉÃPÉAzÀÄ £ÀqÀªÀ½PÉ ªiÀÁr ªÄÉïÁ¢üPÁjAiÄÀªÀjUÉ PÀ½¹ PÉÆnÖgÀÄvÁÛgÉ. ¸ÀzÀj ªÄÉïÁ¢üPÁj PÀbÉÃj CAzÀgÉ ¨ÉAUÀ¼ÀÆgÀÄ£ÀªÀgÀÄ £À£Àß CfðAiÄÀ£ÄÀß wgÀ¸ÁÌgÀ ªiÀÁrgÄÀvÁÛgÉ. ¸ÀzÀj Cfð wgÀ¸ÁÌgÀ DzÀ ªÄÉÃ¯É £À£ßÀ ªÄÀvÄÀÛ ¥æÀwªÁ¢ 1 EªÀgÀ ªÀÄzsÉå zÁªÁ D¹Û Rjâ §UÉÎ AiÀiÁªÅÀzÉà PÀgÁgÀÄ ¥ÀvÀæ DVgÀĪÀÅ¢®è.

29. In the light of the above oral evidence, it is clear that there is no contract of sale of the suit schedule property and the mere resolution dated 07.10.1989 cannot be construed to be a concluded contract between the parties. Hence, the plaintiffs are not entitled to the relief sought for.

30. The Court below has wrongly applied the law and has ignored that there is no concluded contract between the parties which is capable of being enforced. 42

31. In so far as the challenge to the orders dated 22.01.2008 and 24.08.2006, passed by the defendant No.2, there is an appeal remedy contained in Section 137-A of the Karnataka Agricultural Produce Marketing (Regulation & Development) Act, 1966, which the plaintiffs have failed to avail. Since, we have held that there is no concluded contract between the plaintiffs and defendants, the plaintiffs are not entitled to the relief prayed for in the suit.

32. Under the circumstances, this appeal succeeds and the impugned Judgment and Decree of the Court below is liable to be set-aside. Hence, the following:

ORDER

(i) This appeal is allowed. (ii) The Judgment and Decree dated 30.03.2013 passed by the Court of Principal Senior Civil Judge, 43 Bellary, in O.S.No.102/2008 is set-aside and suit is dismissed with costs, which is payable by the plaintiffs to the defendant No.1. Sd/- JUDGE Sd/- JUDGE GH