# GOVINDBHAI GORDHANBHAI PATEL & ORS v. GULAM ABBAS MULLA ALLIBHAI & ORS

- **Citation:** [1977] 2 S.C.R. 511
- **Court:** Supreme Court of India
- **Decided:** 1976-12-17
- **Case number:** Civil Appeal No. 1860 of 1968
- **Bench:** A. N. Ray, M. H. Beg, Jaswant Singh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/govindbhai-gordhanbhai-patel-ors-v-gulam-abbas-mulla-allibhai-ors-7064
- **Pages:** 11

## Headnote

Indian
Comract Act, 1872, s. 56, doctrine of frustration, when
applicable.
Bombay Tenancy and Agricul~ural Lands Act, 1948, s. 63(1), Permission for
sale, whether administrative, iudicial or quasi-iudicial act.
Civil Procedure Code, doctrine of res judicata, whether applicable to proceeding dismissed for formal. defect-Wnet!ter debars authority exercising conC
current iurisdiction from emertajtJing subsequellt ·proceeding~ for same ~elief.
The respondents agreed to sell their agricultural land to the appellants. The
title deeds and possession of the land were given to the appellants and both
pa.rties jointly applied to the District Deputy Collector, Thana Prant, under
s. 63 of the Bombay Tenancy and Agricultural Lands Act, 1948, seeking per·
mission for the sale.
The permission was refused on the ground that
the
intending purchaser had failed to obtain a certificate from the Collector under
Rule 36(f) of the Bombay Tenancy and Agricultural Lands Rules 1956, that
D•
he intended to take to the profession of agriculture and was capable of cultivating land personally.
The appellants thereafter obtained the requisite sanction
from the Additional Collector, Thana, in spire of the respondents' non-cooperation. A suit by the respondents for declaring the agreement void in law was
decreed by the Trial Court. In appeal, the High Court opined that the Prant
Officer's refusal to permit the sale had rendered the agreement impossible of
performance.
Allowing the appeal, l'he Court.
HELD : (1) The parties are governed by s. 56 of the Contract Act according to which a contract becomes void only if something supervenes after its
execution which renders it impracticable or impossible of performance. The
ordeo; of the Prant Officer was raot of such a catastrophic character. [519A-C]
Satyabrata Chose v. Mugneeram Bangur & Co. & Anr. [~I SCR 310; Smt.
Sushi/a Devi & A11r. v. Hari Singh & Ors. [1971] 2 S.C.C. 288 and Ttimp/in
Steams/1ip Co. Ltd v. Anglo-Mexican Petroleum products Co. Ltd. [1916] 2
A.C. 397, 403, applied.
Joseph Constantine Steamship Line Ltd. v. Imperial Smelting Corporation
Ltd. [1942] A.C. 154 at 168, referred to.
(2) The function which the Collector or the authorised officer discharg~
under the proviso to s. 63 ( 1) of the Bombay Tenancy and Agricultural Landi
Act is o.n administrative one and not judicial or quasi-judicial.
[519G-H]
Tire Stare of Madras v. C. P. Saratlry & Anr. AIR 1953 S.C. 53; A. K.
Bhaskar v. Advocate General AIR 1962 Kerala 90; Shantanand v.
Advocate
General AIR 1955 All. 372; Shrimali Lal v. Advocate General AIR 1955 Raj. 166
and Abdul Kasim v. Md. Dawood AIR 1961 Mad. 242. similarity marked.
(3) The dismissal of a proceeding by an authority not on merits but merely
on account of a formal defect will not attract the applicability of the general
principles of res iudicata and will not debar the authority exercising concurrent
jurisdiction from entertaining the .wb~eqllent proceedings for the same
relief
and passing proper orders on merits.
[520 F-H]
Putali Mehati v. Tulia I.LR. 3 Born. 223 and Pethaparumal v.
Murugandl
18 Mad. 466, applied.
512
SUPREME COURT REPORTS
(1977} 2 S.C.R.
A

## Text

j
511
GOVINDBHAI GORDHANBHAI PATEL & ORS.
v.
GULAM ABBAS MULLA ALLIBHAI & ORS.
December 17, 1976
[A. N. RAY, C.J., M. H. BEG AND JASWANT SINGH, JJ.]
Indian
Comract Act, 1872, s. 56, doctrine of frustration, when
applicable.
Bombay Tenancy and Agricul~ural Lands Act, 1948, s. 63(1), Permission for
sale, whether administrative, iudicial or quasi-iudicial act.
Civil Procedure Code, doctrine of res judicata, whether applicable to proceeding dismissed for formal. defect-Wnet!ter debars authority exercising conC
current iurisdiction from emertajtJing subsequellt ·proceeding~ for same ~elief.
The respondents agreed to sell their agricultural land to the appellants. The
title deeds and possession of the land were given to the appellants and both
pa.rties jointly applied to the District Deputy Collector, Thana Prant, under
s. 63 of the Bombay Tenancy and Agricultural Lands Act, 1948, seeking per·
mission for the sale.
The permission was refused on the ground that
the
intending purchaser had failed to obtain a certificate from the Collector under
Rule 36(f) of the Bombay Tenancy and Agricultural Lands Rules 1956, that
D•
he intended to take to the profession of agriculture and was capable of cultivating land personally.
The appellants thereafter obtained the requisite sanction
from the Additional Collector, Thana, in spire of the respondents' non-cooperation. A suit by the respondents for declaring the agreement void in law was
decreed by the Trial Court. In appeal, the High Court opined that the Prant
Officer's refusal to permit the sale had rendered the agreement impossible of
performance.
Allowing the appeal, l'he Court.
HELD : (1) The parties are governed by s. 56 of the Contract Act according to which a contract becomes void only if something supervenes after its
execution which renders it impracticable or impossible of performance. The
ordeo; of the Prant Officer was raot of such a catastrophic character. [519A-C]
Satyabrata Chose v. Mugneeram Bangur & Co. & Anr. [~I SCR 310; Smt.
Sushi/a Devi & A11r. v. Hari Singh & Ors. [1971] 2 S.C.C. 288 and Ttimp/in
Steams/1ip Co. Ltd v. Anglo-Mexican Petroleum products Co. Ltd. [1916] 2
A.C. 397, 403, applied.
Joseph Constantine Steamship Line Ltd. v. Imperial Smelting Corporation
Ltd. [1942] A.C. 154 at 168, referred to.
(2) The function which the Collector or the authorised officer discharg~
under the proviso to s. 63 ( 1) of the Bombay Tenancy and Agricultural Landi
Act is o.n administrative one and not judicial or quasi-judicial.
[519G-H]
Tire Stare of Madras v. C. P. Saratlry & Anr. AIR 1953 S.C. 53; A. K.
Bhaskar v. Advocate General AIR 1962 Kerala 90; Shantanand v.
Advocate
General AIR 1955 All. 372; Shrimali Lal v. Advocate General AIR 1955 Raj. 166
and Abdul Kasim v. Md. Dawood AIR 1961 Mad. 242. similarity marked.
(3) The dismissal of a proceeding by an authority not on merits but merely
on account of a formal defect will not attract the applicability of the general
principles of res iudicata and will not debar the authority exercising concurrent
jurisdiction from entertaining the .wb~eqllent proceedings for the same
relief
and passing proper orders on merits.
[520 F-H]
Putali Mehati v. Tulia I.LR. 3 Born. 223 and Pethaparumal v.
Murugandl
18 Mad. 466, applied.
512
SUPREME COURT REPORTS
(1977} 2 S.C.R.
A
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1860 of 1968.
(Appeal by Special Leave from the Judgment and decree dated the
29th January, 1968, of the Bombay High Court in Appeal No. 472/
,60).
R. P. Bhatt, B. R. Agarwala and Janendra Lal, for the appellants.
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Sachin Chaudhary, Prakash Mehta, Ravinder Narain and K. L.
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John of M/s. !. B .. Dadachanji & Co. for the respoodents.
The Judgment of the Court was delivered byJ ASW ANT SINGH, J. This appeal by special leave which is directed
against the judgment and decree dated January 29, 1968, of the High
Court of Judicature at Bombay involves a question of the applicability
or otherwise of the doctrine of frustration embodied in section 56 of
the Contract Act which to use the words of Viscount Maugham in
Joseph Constantine Steamship Line Limited v. Imperial SmeltinR Corporation Ltd.(') "is only a special case of the discharge of contract
by an impossibility of performance arising after the contract was made"
or to use the language of Mukherjea, J. in Satyabrata Ghose v. Mugneeram Bangur & Co. & Anr.( 2 ) "is really an aspect or part of the law of
discharge of contract by reason of supervening impossibility or illegality of the act agreed to be dooe and hence becomes within the purview
of section 56 of the Indian Contract Act."
The facts giving rise to this appeal lie in a short compass and
may be briefly stated : The respondents who are the owners of four
plots of agricultural land admeasuring 7 acres and 13 gunthas and a
bungalow standing thereon situate in village Majwade, near Pokbtan
Talao Road, Thana, having bought the same from Homi D. Duba.sh
under a sale deed dated September 9, 1953 agreed to sell the sam~ to
the appellants in lieu of Rs. 25,000/- vide agreement dated May 16,
1957, relevant clauses whereof provided as follows :-
"5. If the purchasers shall insisV on any requisitions or
objections as to the title, evidence of title, conveyance, possessioo, receipt of rent or any other matters on the abstract
of or this agreement or connected with the sale which the
Vendors shall be unable or on any ground unwilling to remove or comply with, the Vendors shall be at liberty notwithstanding any negotiation or litigation in respect of such
requisition or objection, to give to the Purchasers or their
Solicitors notice in writing of their intention to rescind the
contract for sale unless such requisiti@n or objection be withdrawn and if such notice be given and the requisition or objection be not withdrawn within ten days after the day on
which the notice was sent, the contract shall, without further notice be rescinded.
The Vendors shall thereupon return to the purchasers the deposit but without any interest,
costs of investigating the title or other compensation or payment whatever.
(l) [1942] A.C. 154, 168.
(2) [1954] S.C.R. 310.
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G. G. PATEL v. G. A. MULLA (Jaswant Singh, J.)
513
6. If the title be not approved by the P'urchaser's attorneys
-or if the purchase is not completed within the said period of
two months owing to any default on the Vendors' part, it
shall be at the option of the Purchaser to rescind this agreement and in that event the Purchaser shall be entitled to
receive back the earnest money from the Vendors, together
with out of pocket costs incurred in the preparation of this
agreement and investigation of title, advertisement, Bataki,
·correspondence etc.
But in case of the Vendors wilful default
the Vendors shall also pay to the Purchasers interest at 6%
·per annum on the amount of earnest money from the date
hereof till the date of return of the earnest money and all
costs of the Purchasers.
7. If the sale is not completed within time provided for
completion owing to the fault of the Purchaser, the Vendors
shall be entitled to put an end to this contract and to forfeit
the earnest money."
Pursuant to the aforesaid agreement, the respondents' attorneys
delivered the documents of title to the appellants' attorneys on May
17, 1957 for investigation of title and in the third week of May, 195'Z1
the respondents gave possession of the aforesaid property to the appellants in part performance of
the said agreement.
On August 22,
1957, the respondents and the appellants made a joint .application to
the District Deputy Collector, Thana Prant, under section 63 of the
Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Act') ·seeking permission to sell and purchase the afore-
~aid agricultural land.
Section 63 of the Act reads :
"63. (1) Save as provided in this Act-
( a) no sale (including sales in execution of a decree of a
Civil Court or for recovery of arrears of land revenue or for
sums recoverable as arrears of land revenue), gift, exchange
or lease of any land or interest therein, or
(b) no mortgage of any land. or interest therein, in which
the possession of the mortgaged property is, delivered to the
mortgagee,
shall be valid in favour of a oerrnn who is not an agriculturist (or who being an agriculturist will after such sale, gift,
exchange, lease or mortgage, hold land exceeding two-thirds
of the ceiling area determined under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 or who is ·
not an agricultural labourer) :
Provided that the Collector or an officer authorised by
the State Government in this behalf may grant permission for
such sale, gift, exchange, lease or mortgage, on such condiA
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tions as may be prescribed .. ; ..... "
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It may be mentioned that the conditions alluded to in the proviso
to the above quoted section 63 have been prescribed by Rule 36
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514
SUPREME COURT REPORTS
[1977] 2 S.C.R.
of the Bombay Tenancy and Agriculutral Lands Rules, 1956 (hereinafter referred to as 'the Rules'), the relevant portion whereof is to the
following effect :
"36. Conditions on which permission for sale, etc., of land
under section 63 may be granted.-
( 1) The Collector or other officer authorised under the
proviso to sub-section ( 1) of section 63 shall not grant permission for sale, gift, exchange, lease or mortgage of any
land in favour of a person who is not either an agriculturist
or agricultural labourer or who, being an agriculturist, cultivates personally land not less than the ceiling area whether
as owner or tenant or partly as owner and partly as tenant
unless any of the following conditions are satisfied ...... .
(f) the land is required for cultivating it personally by a
person, who, not being an agriculturist, intends to take to
the profession of agriculture and to whom the Collector after
having regard to the order of pr:lority mention in clause
(c) of sub-section (2) of section 32-P, has given a certificate
that such person intends to take to the profession of agriculture and is capable of cultivating land personally; ...... "
By means of communication No. TNC.48 dated December 8, 1958,
the Prant Officer, Thana, informed the respondents that their request
to sell the aforesaid lands to appellant No. 1 could not be granted
as the intending purchaser had not obtained the certificate from the
Collector to the effect that "he intends to take to the profession of agriculture and is capable of cultivating land personally." On January 21,
1959, the respondents' attorneys wrote to the appellants informing
them that no effect could be given, to the aforesaid agreement of sale
dated May 17, 1957 as the permission under the Act to sell the suit
property had been refused by the Prant Officer by his letter dated
December 8, 1958 (supra) for appellant No. l's failure to obtain
the certificate to the effect that he intended to take to the profession
of agriculture and was capable of cultivating land personally.
The
respondents' attorneys also called upon the appellants by means of
the said communication to return the tite deeds adding that on the
return of the title deeds, the earnest money paid by them at the time
of execution of the aforesaid agreement would be returned to t.hem.
On March 4, 1959, the appellants' advocate wrote to the respondents'
attorneys requesting them to authorise the appellants to approach the
higher authorities for securing the necessary permission.
On March
14, 1959, the respondents' attorneys wrote to the appellants' attorneys
evasively replying that no useful purpooe would be served by approaching the higher authorities having regard to the provisions of the Act.
On the respondents' refusal to cooperate with the appellants in the
matter of obtaining permission or sanction under the Act, appellant
No. 1 made an application to the Collector, Thana District, Thana on
April 8, 1959, bringing the above mentioned facts to his notice and
requesting him to grant him a certificate Qf an agriculturist and the
necessary permission to purchase the aforesaid plots of land. Acceding to the request of appellant No. 1, the Additional Collector. Thana
.....
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G. G. PATEL v. G. A. MULLA (Jaswant Singh, J.)
515
by his order dated June 6, 1959 granted to the fonner the requisite
certificate under Rule 36 of the Rules as also the pennission to purchase the aforesaid plots of land from the respondents as required
under section 63 ( 1) of the Act read with Rule 36 of the Rules. The
said order ran as follows :-
No. CB/TNC, 1800
Collector's Office, Thana,
Thana, 6th June, 1959.
Read : Application of the applicant Shri G. G. Patel, dated the
8th April, 1959.
Read : Papers ending with Mamlatdar, Thana's No. TNC. SR.
400 dated the 11th May, 1959.
ORDER
A certificate is hereby granted to Shri Govindbhai Gordhanbhai Patel residing at Houser No. 404, Majiwade, Taluka
Thana on his application dated 8th April, 1959 under subclause 'C' of clause 1 of Rule 36 that he intends to take to
the profession of Agriculture. After having gone through the
merits of the priority list mentioned in clause (C) of section
2 of section 32-P, through the Mamlatdar Thana, pennission
is hereby granted to Shri Govindbhai Gordhanbhai Patel to
purchase the land mentioned below from Shri Ibrahim Ismail
Jetpurwala etc. under section 63(1) read with Rule 36 under
the Bombay Tenancy and Agricultural Lands (Amendment)
Act, 1955 on the conditions as mentioned under :-
Village
S.No.
H.No.
Area
Ma.ii wade
415
Part
6-5 l /4
289
2 (Part)
0-36 I /2
280
I (Part)
0-7
280
4
0-5
7-13 3/4
Conditions:-
Permission to purchase the land mentioned above is
granted subject to the condition that if the applicant Shri
G. G. Patel ceases to cultivate the land personally or transfers his interest m the said land by sale, gift, exchange, lease
or mortgage without the previous sanction of the Collector,
the permission given under sub-section ( 1) of section 63 shall
be deemed to have been cancelled.
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For Additional Collector,
Thana"
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516
SUPREME COURT REPORTS
(1977] 2 S.C.R.
A
On June 25, 1959, the appellants' attorneys addressed a communication to the respondents' attorneys forwarding therewith a copy of
the aforesaid order No. CB /TEC/ 1800 dated June 6, 1959, made
by the Additional Collector, Thana granting permission to
appellant
No. 1 for the purchase of the aforesaid plots of land and requesting
the respondents to let them know as to when their clients would desire
to complete the sale and further asking them whether they had got
B
the property transferred to their names in the records of the Collec~
tor of Thana, whereupon the respondents' advocate by his letter dated
June 30, 1959 addressed to the appellants' attorneys replied saying
that his clients could not take notice of the aforesaid permission. Thereafter the respondents served a notice on the appellants on August 25,
1959 calling upon them to return the title deeds and to restore possession of the aforesaid property. Thereupon, the appellants' advocate
c
wrote to the respondents attorneys on November 24, 1959 pointing·
out to them that appellant. No. 1 having obtained the requisite sanction from the Collector, the respondents were bound to complete the
sale and to execute the conveyance in favour of appellant No. l and
that the aforesaid agreement could not be put an end to in the manner
, in which the respondents were attempting to do.
Not heeding the
aforesaid communication of the appellants dated November 24, 1959,
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the respondents filed a civil suit, being suit No. 36 of 1959 on November 17, 1959 in the Court of the Civil Judge, Senior Division, Thana,
for declaration that the aforesaid agreement dated May 16, 1957 was
void in law and of no legal effect and for possession of the aforesaid
property as also for compensation at the rate of Rs. 150/- per mensem for wrongful retention of the property from June, 1957 till delivery of possession thereof.
In spite of the stout resistance put up by
the appellants, the trial Court decreed the suit in favou_r of the resE
pondents subject to their paying to the appellants or depositing in
Court
the earnest money of
Rs. 5,000/- and
the compensation
amount of Rs. 882.25 holding inter alia that the aforesaid agreement
dated May 16, 1957 which was void ab initio being violative of
section 63 of the Act was discovered by the respondents to be void in
June, 1957 when they found that the permission under .section 63 of
the Act was necessary. Aggrieved by the judgment and decree of
F
the trial Court, the appellants took the matter in appeal to the High
Court of Bombay but their appeal remained unsuccessful. The High
Court held that the aforesaid agreement to sell was not void ab initio ~
ns section 63 of the Act itself envisaged sale etc. in favour of a nonagriculturist with the permission of the Collector or an officer authorised
by the State Government in that behalf subject to the conditions which
may be prescribed and Rule .36 of he Rules prescribed only a certifiG
cate by the relevant authority to the effect that the intending purchaser
intended to adopt the profession of an agriculturist. The High Court,
however, opined that the aforesaid agreement became incapable of
being performed on December 8, 1959 when the Prant Officer declined permission to the respondents to sell the property to the appellants. Rejecting the contention advanced on behalf of the appellants to
the effect that the aforesaid letter dated January 21, 1959 written by
H
the respondents to the appellans did not terminate or rescind the agr~
ment, the High Court further held that the said letter amounted to
cancellation of the agreement.
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G. G. PATEL v. G. A. MULLA (Jaswant Singh, J.)
51 7
Appearing in support of the appeal, Mr. Bhatt, counsel for the
appellants, has vehemently urged that the aforesaid order passed by
the Prant Officer refusing permission to the respondents to sell the
lands did not make the contract impossible of performance; that the
said order was merely administrative in character and did not bar the
making of the second application by the appellants under section 63
of the Act; that the said agreement was subsisting on June 25, 1959
when the appellants obtained the requisite permission and the certificate from the Additional Collector, Thana, and that section 56 of
the Indian Contract Act was not attracted in the present case as the
contract had not become impossible of performance.
Mr. Sachin Chaudhary, counsel for the respondents, has, on the
other hand, contended that the agreement became impossible of performance and as such void on December 8, 1958, when the Prant
Officer refusea to permit the respondents to sell the suit property to
the appellants, and that the Prant Officer who had co-ordinate jurisdiction with the Collector under section 63 of the Act having refused
to grant permission to the respondents to sell the suit property by his
order dated December< 8, 1958, which was of quasi-judicial character
and had not been set aside either in appeal or revision, it was not open
to the Collector to grant the permission to the appellants.
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Two ques~ons arise for determination in this case-(1) whether
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the order of the Prant Officer dated December 8, 1958, rendered the
aforesaid agreement dated May 16, 1957 impossible of performance
and ftS such void under section 56 of the Indian Contract Act and
· (2) whether in view of the aforesaid order of refusal by the Prant
E
Officer, Thana dated December 8, 1958, the Additional Collector,
Thlllla., was not competent to grant the sanction and the certificate
under section 63 ofl the Act aml Rule 36 of the Rules. The answer
to the first question depends on the construction of the expression
'impos.sible of performance' occurring in section 56 of the Indian
,
Contract Act which lays down :
"56. An agreement to do an act impossible in itself is
void-A contract to do an act which after the contract is
made, becomes impossible, or, by reason of some event which
the promisor could not prevent, unlawful, becomes void
when the act becomes impossible or unlawful.
Where one person has promised to do something which
he knew, or, with reasonable diligence, might have known,
and which the promisee did not know to be impossible or
unlawful, such promisor must make compensation to such
promisee for any loss which such promise sustains through
the non-performanc\: of the promise."
The meaning of the aforesaid expression 'impossible of performance' as used in the above quoted section would be clear from the
following observation m~de by Lord Lorebum in Tamplin Steamship
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SUPREME COURT REPORTS
(1977) 2 S.C.R.
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Co. Ltd. v. Anglo-Mexican Petroleum Products
Co.
Ltd(') 403
which is generally considered to contain a classic and terse exposition of the law relating to frustration :
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"The parties sha!l be excused if substantially the whole
contract becomes impossible of performance or in other
words impracticable by some cause for which neither was
responsible."
We find ourselves in complete accord with this view which also
finds support from the decisions of this Court in Satyabrata Ghose v.
Mugneeram Bangur and Co. and Anr. (supra) and Smt. Sushila Devi
and Anr. v. Hari Singh and Ors.(2) where it was held that the performance of a contract becomes impossible if it becomes impracticable
from the point of view of the object and the purpose which the parties
had in view and if an untoward event or change of circumstances totally
upsets the very foundation upon which the parties rested their bargain, it can very well be said that the promisor found it impossible to
do the act which he promised to do. It would be advantageous at this
stage to refer to the following observations made by Mukherjee, J.
Satyabrata. Ghose v. Mugneeram Bangur and Co.
and Anr (supra)
which is a leading authority on the subject of frustration :
"The first paragraph of the section lays down the law in
the same way as in England. It speaks of something which
is impossible inherently or by its very nature, and no one can
obviously be directed to perform such an act.
The second
paragraph enunciates the law relating to discharge of contract
by reason of supervening impossibility or illegality of the act
agreed to be done.
The wording of this paragraph is quite
general and though the illustrations attached to it are not at
all happy, they cannot derogate from the general words used
in the enactment. This much is clear that the word "impossible" has not been used here in the sense of physical or literal
impossibility.
The performance of an act may not be literally impossible but it may be impracticable and useless from
the point of view of the object and purpose which the parties
had in view; and if an untoward event or change of circumstances totally upsets the very foundation upon which the
parties rested their bargain, it can very well be said that the
promisor found it impossible to do the act which he promised
to do.
Although various theories have been propounded by the
Judges and jurists in England regarding the judicial basis of
the doctrine of frustration, yet the essential idea upon which
the doctrine is based is that of impossibility of performance
of the contract : in fact impossibility and frustration
are
often used as interchangeable
expressions.
The changed
circumstances, it is said, make the performance of the con-
.tract impossible and the parties are absolved from the further
(1) 11916] 2 A.C. 397.
(2) 11971] 2 S.C.C. 288.
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G. G. PATEL v. G. A. MULLA (Jaswant Singh, J.)
519
performance of it as they did not promise to perform an
impossibility."
In the instant case, there is no term or condition in the agreement
in question which stipulates that the agreement would be treated as
having become impracticable on the refusel of the Prant Officer to grant
the permission under section 63 of the Act. The parties are, therefore, governed purely by section 56 of the Contract Act according to
which a contract becomes void only if something supervenes after its
execution which renders it impracticable. On the contention advanced
on behalf of the respondents, the question that arises is whether the
above quoted order of the Prant Officer, Thana Prant, dated December 8, 1958, rendered the contract impracticable.
The answer to this
question is obviously in the negative.
The .said order, it will be noted,
was not of such _a catastrophic character as can be said to _have struck
at the very root of the whole object and purpose for which the parties
had entered into the bargain in question or to have rendered the contract impracticable or impossible of performance.
A careful perusal
of the order would show that it was neither conclusive nor was it
passed on the merits of the aforesaid application.
The permission was
refused by the Prant Officer only on the technical· ground that
the
appellants had not obtained the requisite certificate as contemplated
by rule 36(f) of the Rules.
It did not in any way prohibit the appellants from making a fresh application to the Collector, Thana Prant,
who in view of the phraseology of section 63 of the Act read with
clause (f) of rule ~6 of the Rules appears to be the only authority
competent to grant the requisite certificate.
The said order also did
not put any fetter on the appellants to apply to the Collector or the
Additional Collector for grant of the requisite permission for sale and
purchase of the land after obtaining the aforesaid certificate.
We,
are, therefore, clearly of the opinion that no untoward event or change
of circumstances supervened to make the agreement factually or legally
impossible of performance so as to attract section 56 of the Contract
Act.
The answer to the second question turns on the answer to two
subsidiary questions (i) whether in according or declining to accord
permission under the proviso to section 63 ( 1) of the Act, the Collector or the officer authorised by the State Government in that behalf
acts in an administrative capacity or a judicial or a quasi-judicial
capacity and (ii) whether the aforesaid order dated December 8, 1958
passed by the Prant. Officer, Thana was one on merits or otherwise.
Turning to the question (i), it has to be observed that there is nothing
in section 63 of the Act to indicate that in exercising his jurisdiction
under the proviso to sub-section ( 1) of the section, the Collector or
the authonsed officer has to act judicially or in confotmity with the
recognised judicial norms.
There is also nothing in the aforesaid Section of the Act requiring the Collector or the authorised officer to
determine any question affecting the right of any party. The function
which the Collector or the authorised officer discharges under • the
aforesaid proviso is, therefore, an administrative one and not judicial
or quasi-judicial. It will be apposite to advert to a few decisions
17-1546 SCI/76
A
B
c
D
F
G
H
A
B
c
D
E
F
G
H
520
SUPREME COURT REPORTS
[1977] 2 S.C.R.
bearing on the matter. In A. K. Bhaskar v. Advocate General(').
a full Bench of the Kerala High Court held that the decision of the
Advocate General granting or refusing to grant the sanction under
section 92 of the Civil Procedure Code was neither judicial nor quasijudicial notwithstanding the fact that he has to form an opinion and
come to conclusion one way or the other.
To the similar effect are
the decisions of Allahabad and Rajasthan High Courts in Shantanand
v. Advocate General( 2 ) and Shrimali Lal v. Advocate General(3). In
Abdul Kasim v. Md. Dawood(4 ), it was held that in granting or withholding sanction to file a suit under section 55 (2) of the Muslim
Wakfs Act, 1954, the Wakf Board does not act in a judicial or quasijudicial capacity but only in an administrative capacity. In The State
of Madras v. C. P. Sarathy and Anr.( 5). It was held by this Court that
the act of the Government in making a reference under section 10 of
the Industrial Disputes Act was merely an administrative act and the
fact that the Government before making a reference under section
10 (1) of the Act had to satisfy itself on the facts and circumstances
brought to its notice that an industrial dispute existed did not make
the act judicial or quasi-judicial.
In regard to question (ii), it may be stated that although the
Prant Officer may have been exercising concurrent jurisdiction with
the Collector, Thana Prant, he did not pass any orders on the merits
of the previous application made by the respondents and endorsed
by the appellants seeking permission to sell and purchase the suit property. The order, as already stated, was passed by him on the ground
that the intending purchaser had not obtained the certificate required
under rule 36(f) of the Rules. It is well recognised that the dismissal of a proceeding by an authority not on merits but merely on
account of a formal defect will not attract the applicability of the
generat principles of Res judicata and will not debar the authority
exercising concurrent jurisdiction from entertaining the subsequent
proceedings for same relief and passing proper orders on merits. (See
Pu tali Meheti v. Tulja. (6) where the rejection of a previous suit for
the plaintiff's omission to produce a certificate of the Collector under
section 6 of the Pensions Act was held not to bar a second suit on the
same cause of action, and Pethaperumal v.
Murugandi( 7 )
where
rejection of the first suit for recovery of money for plaintiff's failure
(1) A.LR. 1962 Ker. 90.
(3) A.LR. 1955 Raj. 166.
(5) A.LR. 1953 S.C. 53
(7) 18 Mad. 466.
(2) A.LR. 1955 All. 372
(4)-A.I.R. 1961 Mad. 244.
(6) I.LR. 3 Born. 223.
l
t
G. G. PATEL v. G. A. MULLA (Jaswant Singh, !.)
521
to produce succession certificate was held not to bar a second proceeding for the same relief.
We are, therefore, of the opinion that
. the previous order passed by the Prant Officer being merely an administrative order and not having been passed on the merits of the
case, it did not, in the absence of a statutory prohibition, impair the
power of the Collector to pass the impugned order on the merits of
the matter under proviso to section 63 ( 1) of the Act on the grant of
the requisite certificate under rule 36 (f! of the Rules.
For the foregoing reasons, we allow the appeal, set aside the
judgments and decrees pas:;ed by the Courts below and dismiss the
respondents' suit but in the Circumstances of the case without any
order as to costs.
·
M.P.
Appeal allowed.
A
B
c