Q. Who were the advocates involved in the case SOM KIRTI ALIAS SOM K. NATH AND OTHERS vs STATE OF H.P. AND OTHERS ? USHA CHOPRA ? Appellant?

For Petitioner : R.L. SoodMr. Arjun K. Lall in CWP Nos. 443, 1068 of 1995, 1088 of 2003, 8441500 of 2010Mr. K.D. SoodMr. Sanjeev Sood, in CWP No. 484 of 2006, for the Appellant; Shrawan Dogra, Advocate General, Mr. Romesh VermaMr. Anup Rattan, Addl. A.Gs.Ms. Parul Negi, Dy. A.G. for respondent No. 1 in CWP No. 443 of 1995, respondents No. 13 in CWP Nos. 8441500 of 2010respondents No. 12 in CWP No. 1088 of 2003, Mr. Sandeep Sharma, ASGI, in CWP No. 443 of 1995, CWP Nos. 8441500 of 2010Mr. B.C. Negi, Advocate, in CWP No. 1088 of 2003, for the Respondent

Q. What are the equivalent citations for SOM KIRTI ALIAS SOM K. NATH AND OTHERS vs STATE OF H.P. AND OTHERS ? USHA CHOPRA ? Appellant ?

The equivalence citation areLQ/HimHC/2013/771 ;

Q. What was the bench assigned for the case SOM KIRTI ALIAS SOM K. NATH AND OTHERS vs STATE OF H.P. AND OTHERS ? USHA CHOPRA ? Appellant?

A.M. Khanwilkar, C.J; Kuldip Singh, J

SOM KIRTI ALIAS SOM K. NATH AND OTHERS Vs. STATE OF H.P. AND OTHERS ? USHA CHOPRA ? Appellant On 01 October, 2013

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Som Kirti Alias Som K. Nath And Others v. State Of H.p. And Others ? Usha Chopra ? Appellant

(High Court Of Himachal Pradesh)

CWP No. 443 of 1995 and CWP No. 484 of 2006 | 01-10-2013

Kuldip Singh, J.This judgment shall dispose of CWP No. 443 of 1995, CWP Nos. 1068 of 1995, 1088 of 2003, 484 of 2006, 844 and 1500 of 2010 as common and over-lapping questions of law are involved in the petitions.

CWP No. 443 of 1995:

The petitioners have prayed mainly the following declarations and directions:-

(i) That the provisions of Section 118 and 121A of the H.P. Tenancy and Land Reforms Act, void as being violative of the basis structure of the Constitution of India and the rule of law;

(ii) That the provisions of Rule 38-A (as notified by the impugned Annexure PX i.e. notification in the H.P. Rajpatra bearing No. BA(3)-5/2000-1 dated the 23rd December, 2011 and Rule 38-B as being void and violative of the basic structure of the Constitution of India and the Rule of law;

(iii) Be further pleased to issue an appropriate writ, order or directions in the nature of:

(a) a writ of mandamus directing the respondents not to give effect to Section 118 and 121A of the Himachal Pradesh Tenancy and Land Reforms Act and the rules framed under the said Act as well as rules 38A and 38B framed under the Act.

(b) writ of certiorari to quash the provisions of Section 118 and 121A of the Act.

2. The petitioners have given brief history of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (for short Act unless context is otherwise) as amended from time to time. It has been alleged that impugned Act was originally enacted under entry No. 18, List-II, Schedule-VII of the Constitution. The original unamended Act was put in Ninth Schedule of the Constitution at entry No. 138 by the Constitution 40th Amendment Act, 1976 on 27.5.1976. The Rules under the Act were framed in the year 1975 and were amended from time to time.

3. The original purpose of the Act was to control the transfer of agricultural land to non-agriculturist. But the Himachal Pradesh Tenancy and Land Reforms (Amendment) Act, 1994 (for short 1994 Act) has distorted the definition of land by defining all properties including urban, residential as well as commercial built up property as agricultural land. The High Court had adjudicated upon the question of built up immoveable property and other land not falling within the definition of agricultural land in RFA No. 83 of 1991 decided on 6.7.1993 and CWP No. 1717 of 1993 decided on 11.1.1994. The State had completely lost site of the original aims and objects of the Act and 1994 Act and rushed through to set at naught the aforesaid judgments of the High Court by bringing all the properties under the definition of agricultural land whether such properties are built-up, residential or commercial and whether such properties are situate in urban areas and were never linked to or subservient to agriculture.

4. The Act was earlier challenged in CWP No. 298 of 1975 which was dismissed. It has been pleaded that challenge to the vires of the Act after various amendments carried out in the Act is again available to the petitioners even after the dismissal of CWP No. 298 of 1975. It has been alleged that agriculturist has been defined in sub section (2) of Section 2, to cultivate personally has been defined in sub-section (4) of Section 2 and land has been defined in sub-section (7) of Section 2 of the Act. In the un-amended Act, u/s 118 a total bar was imposed on transfer of land by way of sale, gift, exchange, lease, mortgage with possession to one who was not an agriculturist, but subsection (2) of the original un-amended Act made an exception in favour of landless labourers, landless persons belonging to Scheduled Castes and Scheduled Tribes, village artisans, landless persons carrying on an allied pursuit, State Government, Co-operative Societies and the Nationalized Banks. The Act was amended by the Himachal Pradesh Tenancy and Land Reforms (Amendment) Act, 1976 (for short 1976 Act) and then by the Himachal Pradesh Tenancy and Land Reforms (Amendment) Act, 1987 (for short 1987 Act) thereafter by 1994 Act and then by the Himachal Pradesh Tenancy and Land Reforms (Amendment) Act, 1997 (for short 1997 Act).

5. It has been pleaded that drastic changes have been made in the original Section 118 of the Act by carrying out several amendments. The original purpose of the Act was to protect the farmers and also to amend and consolidate the laws relating to tenancy and agricultural land and to provide for certain measures of land reforms in Himachal Pradesh. The entire purpose as well as the aims and objects have been lost when Section 118 of the original Act has been drastically amended from time to time. The Section 118 now does not aid to achieve the objects of the Act. The definition of land was narrow before 1987 Act. After 1994 Act, the expression land includes even built up structure and land not subservient to agriculture also. In this way, non-agriculturists in Himachal Pradesh have been absolutely debarred from buying any land. The aims and objects of the Act were not to create the bar which has been introduced in the Act by carrying out several amendments which cannot be termed as an act of an agrarian reform or to protect the interest of an agriculturist or to conserve or preserve the nature of agricultural land. The explanation added to sub-section (4) of Section 118 includes land recorded as Gair-Mumkin, Gair-Mumkin Makan by whatever name in the revenue record including the land which is a site of a building in a town or village and is occupied or let out not for agricultural purposes or purposes subservient to agriculture.

6. It has been pleaded that by adding the explanation to sub section (1) of Section 118 of the Act, the expression transfer of land has been enlarged to include a Benami transaction to an agriculturist for a consideration paid or provided by a non-agriculturist. It also includes transfer by way of special or general power of attorney or by an agreement with the intention to put a non-agriculturist in possession of land and allow him to deal with the land in the like manner as if he is the real owner of the land. Any contravention of Section 118 entails the forfeiture of the land in favour of the Government if transferred contrary to the Act.

7. The procedure for acquiring land by a non-agriculturist is prescribed under Rule 38A. A monopoly has been created in favour of agriculturist alone to acquire land in Himachal Pradesh whether the land is agricultural land or subservient to agriculture or not. It has become virtually impossible for the non-agriculturists even though they may belong to the poorest section of the Society to buy any land whether in a town and village and even where no agriculture operation is carried out in or upon the land concerned and even though the land is occupied or not let out for agricultural purposes. There is no rationale qualification between agriculturists and non-agriculturists. This has created discrimination and is violative of basic structure of the Constitution, more particularly Articles 14, 15, 19(e) and (g) of the Constitution.

8. The amendments carried out in the Act after decision in CWP No. 298 of 1975 have taken away the purpose of agrarian or land reforms from the Act. Article 31A only protects laws which are designed to protect land and agrarian reforms. The Act as it stands now, has only one purpose relating to alienation or transfer of the land used or not used for agriculture and to prevent the non-agriculturist from acquiring land in Himachal Pradesh.

9. The amendments carried out in the Act, after the Act was put in 9th Schedule, have not been put in the 9th Schedule. The amendments do not enjoy the protection under Article 31B. In any event, Article 14 is a basic feature of the Constitution and the protection of equality and discrimination constitutes basic feature of the Constitution.

10. The Section 118 of the Act is violative of Article 14 of the Constitution of India inasmuch as while any Indian or a non-resident Indian can buy flats/plots/shops from Government Development Agencies, yet the same persons would have to be either agriculturist or seek permission from the Government if he is not an agriculturist to purchase similar properties from private Developers or Builders.

11. The Section 118(4) of the Act has been enacted to provide a handle to State Government to usurp the property of non-agriculturist. But there is no provision for restoration of the vested property to its original form or to make it available for poor farmers or landless persons, agriculturists, labourers etc. nor time period has been fixed within which the Government is to take action for vesting of the land u/s 118 of the Act.

12. The explanation added to sub-section (1) of Section 118 of the Act has given recognition to a Benami transaction against the express provision of Benami Transactions (Prohibition) Act, 1988. A conflicting stand has been created by Section 118 as against Sections 3 and 4 of the Benami Transactions (Prohibition) Act, 1988. After the bar provided in Section 4 of the Benami Transactions (Prohibition) Act, 1988, the person in whose favour the land or property actually stands registered or bought is the actual or legal owner.

13. The Section 118(1) of the Act alongwith its explanation is repugnant to the provisions of the Transfer of Property Act, 1982, Indian Registration Act, 1908, Power of Attorneys Act, 1882. The Section 118 of the Act puts a bar on a person to Will his property in favour of a person other than an agriculturist. The Section 59 of the Indian Succession Act, 1925 provides a right to a person to make a Will of his property. The Section 118 has put fetters to such right of a person u/s 59 of the Indian Succession Act, 1925. The Section 118 destroys the basic federal character of the Constitution. The Section 118(3A)(b) violates the principle of natural justice and equity. The first proviso and second proviso to Section 118(2)(h) of the Act are liable to be struck down on the grounds of discrimination under Articles 14, 15 and 19 of the Constitution. The Section 121-A has no nexus with the preamble, aims and objects of the Act nor it can be said to further agrarian or land reforms. As a matter of fact, unbridled and unfettered and arbitrary powers have been given to the Collector to act u/s 118 of the Act without framing proper guidelines. The Rules 38-A and 38-B are violative of principles of natural justice. The notification No. BA(3)-5/2000-1 dated 23.12.2011 is violative of Articles 14, 15 and 19 of the Constitution. The Rule 38A being a delegated legislation is in contradiction to Section 118 of the Act.

14. The respondent No. 1 has contested the petition by filing reply and by way of preliminary objections, it has been pleaded that to establish an egalitarian social order through the enactment of land reforms laws, State is duty bound under Article 39(b) and (c) of the Constitution not to allow the control/concentration of material resources in the hands of a few. In order to fulfill this obligation, the State has made provision by way of Section 118 of the Act to avoid the concentration of scares landed resources in the hands of moneyed class. This is the main object behind the scheme for agrarian reforms sought to be attained under the Act. The Section 118 is in accordance with the Constitution. The constitutionality of Section 118 has been upheld in CWP No. 298 of 1975 decided on 22.6.1978. The Act has been included in 9th Schedule of the Constitution vide entry No. 138. The petitioners cannot challenge the Act.

15. There is no bar on the purchase of land by non-agriculturists and they can purchase land in the State with the prior permission of the State Government u/s 118. The amendments have been carried out in the Act which have been assented to by the President of India. In CWP No. 971 of 1993 decided on 5.7.1994, the Court had suggested to the State Government to amend Section 118(2) of the Act for compulsory prior permission in all cases where non-agriculturists intend to purchase land in Himachal Pradesh. The non-agriculturist can purchase the land for construction of house, shop or built up house or shop from the Himachal Pradesh Housing and Urban Development Authority, Development Authority constituted under the Himachal Pradesh Town and Country Planning Act, 1977 or from any other statutory Corporation set up for framing and execution of house accommodation schemes in the State under the State or Central enactment.

16. In CWP No. 700 of 2011 certain observations were made by the Court in the order dated 24.4.2011. In view of said observations, the Government has amended the Himachal Pradesh Tenancy and Land Reforms Rules, 1975 vide notification dated 23.12.2011 fixing eligibility criteria to purchase land in the State which shall be the guidelines to consider the permission u/s 118 of the Act. On merits, the respondent No. 1 has defended the Act and all amendments carried out in the Act.

17. The petitioners after the last reply filed by respondent No. 1, have not filed rejoinder. However, the petitioners earlier filed rejoinder dated 23.6.2008 reiterating the stand taken in the petition till that stage.

CWP No. 1068 of 1995

18. The petitioner has prayed for following reliefs:

(a) That the provisions of Section 118 and 121-A of the H.P. Tenancy and Land Reforms Act void as being violative of the basic structure of the Constitution of India and the Rule of law;

(b) That the provisions of Rule 38-A (as notified by the impugned Annexure P-5 i.e. notification in the H.P. Rajpatra bearing No. BA(3)-5/2000-1 dated the 23rd December, 2011 and Rule 38-B as being void and violative of the basic structure of the Constitution of India and the Rule of law;

(c) Be further pleased to issue an appropriate writ, order or directions:

(i) To quash Annexure P-4 and to declare the proceedings initiated by the Collector, Kullu u/s 118 of the H.P. Tenancy and Land Reforms Act, as being bad in law and void;

(ii) Issue a writ of mandamus directing the respondents not to give effect to Section 118 and 121A of the H.P. Tenancy and Land Reforms Act, as well as Rules 38A and 38B;

(iii) To issue a writ of certiorari to quash the provisions of Section 118 and 121A of the Act etc. etc.

19. The pleaded case of the petitioner is more or less on the lines as in CWP No. 443 of 1995. The petitioner has additionally pleaded that petitioner belongs to Bihar and family of the petitioner is agriculturists from generations and had been tilling land in the State of Bihar as owners in possession. The petitioner on account of animosity harboured by a large section of the Society in Bihar against traditional agriculturists and on account of health grounds elected to settle down in peaceful State of Himachal Pradesh. He took steps to buy land in Manali in order to make a hotel-cum-residence. The petitioner approached one Smt. Rukmani Devi Sharma, who agreed to sell to petitioner built up property and land measuring 7 biswas comprised in Khasra Nos. 2165, 2166 and 2167 Phati Nasggi, Kothi Manali as per jamabandi 1987-88. The petitioner entered into an agreement to sell with Smt. Rukmani Devi Sharma on 30.8.1993. Smt. Rukmani Devi Sharma also executed a General Power of Attorney in favour of the petitioner which was registered on 1.11.1993 before Sub Registrar, Kullu. In order to strengthen the hands of the petitioner, Smt. Rukmani Devi Sharma executed a Will dated 1.11.1993 which was also registered. The petitioner after acquiring the possession of the property, developed the same for raising construction thereupon for the purpose of making a hotel.

20. It has been pleaded that built up property was not covered under the Act. The petitioner was encouraged to enter into the transaction to purchase the property in question. He paid `12,00,000/- to Smt. Rukmani Devi Sharma by way of sale consideration for built up structure alongwith land appurtenant thereto. The petitioner received notice dated 16.5.1995 u/s 118 of the Act which was issued without application of mind. The notice is bad in law and is not covered by the amended provisions of the Act. The transaction entered into by the petitioner with Smt. Rukmani Devi Sharma is not covered by the Act. Therefore, in these circumstances, the petitioner has made prayer, noticed above.

21. The respondents have contested the petition and filed the reply more or less on the same lines as reply in CWP No. 445 of 1995. The respondents have additionally pleaded that Will, General Power of Attorney of Smt. Rukmani Devi Sharma in favour of the petitioner were got registered on 1.11.1993 and the agreement to sell the land by Smt. Rukmani Devi Sharma to petitioner was got attested as per Notary Register on 1.11.1993. The agreement for sale is illegal. The matter came to the light of Deputy Commissioner about illegal transaction and thereafter on direction, show cause notice was served to the petitioner. The petitioner got three documents executed from Smt. Rukmani Devi Sharma after paying full consideration. The respondents have prayed for dismissal of the petition.

CWP No. 1088 of 2003:

22. The petitioners have prayed mainly the following reliefs:

(i) Issue a writ of certiorari to quash the provisions of Section 118 and 121-A of the H.P. Tenancy and Land Reforms Act void as being ultra vires and violative of the basic structure of the Constitution of India and the rule of law;

(ii) Declaring the provisions of Rule 38-A (as notified by the impugned Annexure P-14 i.e. notification in the H.P. Rajpatra bearing No. BA (3)-5/2000-1 dated the 23rd December, 2011 and Rule 38-B as being void and violative of the basic structure of the Constitution of India and the Rule of law;

(iii) Issue a writ of mandamus directing the respondents not to give effect to Section 118 and 121A of the Himachal Pradesh Tenancy and Land Reforms Act and the rules framed there under the said Act as well as Rules 38A and 38B framed under the Act;

(iv) Quash the impugned Show Cause Notices Annexure PAA (colly.) dated 7th March, 2001 and 10th April, 2001, issued by the Collector (Solan) to the petitioner-Company;

(v) Quash the impugned order dated 19.3.2010 i.e. Annexure PAK, issued by the Financial Commissioner, Himachal Pradesh with all consequential reliefs in favour of the petitioner Company and against the respondents.

(vi) Direct the respondents to complete the ministerial act of issuing a formal permission in favour of the petitioner to divert the use of the land in question from establishing a mushroom unit thereupon to a resort/hotel unit instead.

23. The petitioners have given brief history of the Act alongwith the various amendments carried out in the Act. It has been pleaded that vires of the Act were challenged in CWP No. 298 of 1975 but the petition was dismissed. The scope of the agriculture land has been considered by this Court in RFA No. 88 of 1991 decided on 6.7.1993 and in CWP No. 1717 of 1993 decided on 11.1.1994. The original purpose of the Act was designed to protect the farmers and to consolidate the laws relating to tenancy and agriculture land and to provide for certain measures of land reforms in Himachal Pradesh. The entire purpose as well as the aims and objects of the Act have been lost by amending Section 118 repeatedly. The challenge to the Act after dismissal of CWP No. 298 of 1975 is again available to petitioners in view of amendments to Section 118 subsequent to the decision in CWP No. 298 of 1975. The amending acts of 1995 and 1997 are not retrospective and do not apply to the transactions prior to enforcement of amending Acts of 1995 and 1997. The State Legislature has no legislative competence to make laws relating to transfer and alienation of non-agricultural land. The Section 118 provides transfer made in violation of Section 118 to be void. Simultaneously, the Section further provides that such land would vest in the State free from all encumbrances, such provision in the Section is wrong and illegal. The State cannot be permitted to usurp the property of the citizen.

24. The respondents are estopped from taking action against the petitioners u/s 118 of the Act inasmuch as the State authorities including the Collector of District Solan by their acts of omissions and commissions directed the petitioners to expand and invest huge amounts in the property in question. The petitioners were under bonafide belief that transaction entered into by them were lawful, legal and binding. The right to sell the property is part of the citizens liberty granted to him under Article 21 of the Constitution of India. Section 118 is violative of such constitutional protection. The vesting of the property in the State without compensation is arbitrary, unreasonable and in contravention of Article 21. The petitioner and any citizen of India is entitle to buy, sell and deal with agricultural property and also other property of any other nature in the State of Himachal Pradesh.

25. The petitioner No. 1 is an agriculturist in Himachal Pradesh. One Prem Singh was owner of 14 bighas of land comprised in Khasra Nos. 228 and 229 in village Manoon, Tehsil Kasauli. Out of the aforesaid 14 bighas of land, the petitioner No. 1 purchased 7 bighas of land by two sale deeds dated 12.7.1990 and 15.6.1990. The petitioner No. 1 had purchased the aforesaid land in order to establish a tourist resort. The respondent No. 4 is a Director of the Company. The petitioner No. 1 is also Director of the Company. The petitioner No. 1 and respondent No. 4 are related to each other. The petitioner No. 1 on account of his busy engagements could not devote his personal time for construction of tourist resort, he approached M/s. Astra Estates Pvt. Ltd. through respondent No. 4 for constructing the resort. The investment was to be made by M/s. Astra Estates Pvt. Ltd.. The profits were to be shared in the ratio of 85: 15 between M/s. Astra Estates Pvt. Ltd. and petitioner No. 1. In order to facilitate the process of construction, management and supervision of the same, the petitioner No. 1 executed General Power of Attorney in favour of respondent No. 4 since he was also a Director of the Company.

26. The respondent No. 2 issued show cause notice to petitioner No. 1 and respondents No. 3 and 4 u/s 118 calling upon them to show cause as to why the aforesaid land alongwith structures standing thereupon should not vest in State. In the show cause notice the area of the land was wrongly given, therefore, respondent No. 4 issued corrigendum dated 23.8.1995. The petitioner No. 1 and respondent No. 4 filed their replies to the show cause. The respondent No. 2 passed an order dated 20.9.1995 against petitioner No. 1 ordering vesting of aforesaid 7 bighas alongwith structures standing thereupon in the State free from all encumbrances. The petitioner filed Revenue Appeal No. 181 of 1995 which was dismissed by the Commissioner on 13.5.1996. The petitioner No. 1 filed revision before Financial Commissioner, which was dismissed on 12.7.1999. The Collector, Solan issued warrant of possession on 30.10.1996 which was executed by the Tehsildar, Kasauli on 1.11.1996 and the possession of the property was taken over by him and it vested in the State. This action of respondents No. 1 and 2 is highly improper, unethical besides being illegal. The petitioner No. 1 met with an accident on 1.5.1999 and was treated at several places and, therefore, he could not file the petition earlier.

27. The show cause would show that respondent No. 1 decided to proceed against petitioner and respondent No. 4 on the ground that petitioner No. 1 had transferred land in favour of respondent No. 4 by way of General Power of Attorney and petitioner No. 1 had purchased the property Benami. The show cause notice and the orders of Collector, Commissioner and Financial Commissioner are wrong, illegal and possession of the property in question is liable to be restored to petitioner No. 1. The Section 118 at the relevant time did not prohibit the execution of any agreement by an agriculturist in favour of a non-agriculturist for purpose of construction at the expense of former. It also did not prohibit the execution of a power of attorney by the former in favour of the later. Therefore, there is no violation of Section 118.

28. The Section 118 at the time of issuance of show cause notice and initiation of proceedings in October, 1991 did not provide that transfer of land shall include a Benami transaction or an authorization made by the owner of the land by way of Special or General Power of Attorney or by an agreement with the intention to put a non-agriculturist in possession of the land and allow him to deal with the land in the like manner as if he is real owner of that land. The Section 118 as it existed at the relevant time was not appreciated properly. The transaction between petitioner No. 1 and respondent No. 4 was wrongly taken to be Benami transaction.

29. The petitioner No. 1 has now learnt that respondent No. 4 is a bonafide agriculturist of Himachal Pradesh. The respondent No. 4 is married to Smt. Tara Chopra D/o Brig. Gurbax Singh S/o Sobha Singh, who owned and possessed land situate in Mauza Dhalli as per jamabandi 1977-78. Smt. Tara Chopra is an agriculturist and consequently her husband respondent No. 4 is also an agriculturist in Himachal Pradesh. Thus, all the three Directors of M/s. Astra Estates Pvt. Ltd. are agriculturists of Himachal Pradesh and therefore, there is no violation of Section 118 of the Act. The remaining challenge of the petitioners in the petition is more or less on the same lines as pleaded in CWP No. 443 of 1995. The amended petition dated 30.11.2012 has been filed, prayers made in the amended petition include quashing of Annexure PAA dated 7.3.2001 and 10.4.2001 and Annexure PAK order dated 19.3.2010 passed by Financial Commissioner, Himachal Pradesh including the direction to respondents to grant permission for diverting the land use from mushroom unit to Resort/Hotel. These prayers are not in consonance with the pleaded case of the petitioners.

30. The respondents No. 1 and 2 have contested the petition by filing reply. It has been pleaded that in pursuance of the directions given in CWP No. 971 of 1993 dated 5.7.1994 the Government had appointed a commission headed by Justice Roop Singh Thakur, who held enquiries of the Benami transactions and the case of petitioner No. 1 was detected and found Benami u/s 118 of the Act. The petitioners have no locus-standi to file the petition. Prem Singh had bought 14 bighas of land in village Manoon and sold 7 bighas land to G.S. Chopra through petitioner No. 1 a non-agriculturist in Himachal Pradesh under the Act. The land has been rightly vested in the State free from all encumbrances vide order dated 20.9.1995 of Collector which order was affirmed by Commissioner and Financial Commissioner. The respondent No. 1 has denied the claim of the petitioners. G.S. Chopra a non-agriculturist could not have acquired the land in his own name in State of Himachal Pradesh, therefore, he set up petitioner No. 1 Sarvjot Singh as his Benami and acquired the land in question in contravention of the Act. The respondent No. 1 has denied the claim of the petitioners and has taken more or less the same stand as has been taken in the reply filed in CWP No. 443 of 1995.

CWP No. 484 of 2006:

31. The petitioner has prayed mainly the following reliefs:

(a) Strike down Section 118(1) of the H.P. Tenancy and Land Reforms Act as amended from time to time which prohibits the transfer of land (including transfer by decree of civil court or by recovery of arrears of land revenue) by way of sale, gift, will, exchange, lease, mortgage with possession, creation of tenancy or in any other manner, in favour of a person who is not an agriculturist of Himachal Pradesh;

(b) Strike down provisions which prohibits the registration of transfer deeds prohibited by Section 118(1) of H.P. Tenancy and Land Reforms Act or treat the transfers as void;

(c) Strike down the Section 121A of H.P. Tenancy and Land Reforms Act which excluded the jurisdiction of Civil Court or other authorities from questioning the validity of the orders passed challenging the striking down the transfer in favour of non agriculturists;

(d) Direct that the term legal heir in the explanation to Section 118 of the Act shall mean and include all categories of legal heirs of an agriculturist in particular including brothers and sisters.

32. The pleaded case of the petitioner is that she is owner of half share of the land measuring 16-8 bighas in village Dunti, Pargana Chail, Tehsil Kandaghat, District Solan, which was purchased by her long before the commencement of the Act. She wanted to transfer a part of the said land by way of gift or Will in favour of her younger sister Mrs. Rajrani Chopra. She had made a representation to Principal Secretary (Revenue) to the Government of Himachal Pradesh for clarification whether she could do so u/s 118 and without permission of the State Government through the application dated 5.10.2005. The respondent through communication dated 23.1.2006 clarified that no transfer could be made without the permission of the State Government u/s 118 as the sister of the petitioner was not an agriculturist within the meaning of the Act. The petitioner has thus challenged the vires of the Act.

33. The petitioner gave the history of the Act and various amendments carried out in the Act. In substance, the pleaded case of the petitioner is similar to the pleaded case in CWP No. 443 of 1995.

34. It has been pleaded that term legal heir has not been defined in the Act. The petitioner is a Hindu and governed by Hindu law and the definition of legal heir as far as the petitioner is concerned will have to be found under the Hindu Succession Act. The Section 15 of the Hindu Succession Act provides for determining as to who is legal heir in the case of a female Hindu. Clause (d) of Section 15 of the Hindu Succession Act would include brothers and sisters as they are heirs of the father. Thus the sisters would be legal heir in terms of Section 15(1)(d) of the Hindu Succession Act, in so far petitioner is concerned. The expression any or legal heirs in law means all categories of legal heirs specified in Section 15. Thus, the transfer by way of gift by petitioner to her sister would not constitute transfer for the purpose of Section 118 of the Act. The contention of the respondent that said transfer would constitute transfer and would require the permission of the State Government is contrary to law.

35. The amendments carried out in the Act in the year 1987, 1995 and 1997 are not put in the 9th Schedule, therefore, these amendments do not enjoy the protection under Article 31B. The Article 14 is a basic feature of the Constitution. The amendment u/s 118 of the Act violates the protection of equality under Article 14 of the Constitution.

36. The respondent has contested the petition by filing reply which is on the same lines as reply in CWP No. 443 of 1995. It has been denied that the petitioner can gift the land in favour of sister considering her as legal heir u/s 15(1)(d) of the Hindu Succession Act. The provision of clause (d) of sub section (1) of Section 15 of the Hindu Succession Act, 1956 shall come into play only when the other legal heirs defined in clauses (a), (b) and (c) of sub-section (1) of the said section are not available or not in existence. The petitioner was intimated to obtain permission of the State Government for the purpose but instead of applying to the State Government for permission, the petitioner has filed the petition without any reasonable grounds.

CWP No. 844 of 2010:

37. The petitioner has prayed mainly the following reliefs:

(i) Issue a writ of certiorari to quash the provisions of Section 118 and 121-A of the H.P. Tenancy and Land Reforms Act void as being ultra vires and violative of the basic structure of the Constitution of India and the rule of law;

(ii) Declaring the provisions of Rule 38-A (as notified by the impugned Annexure PG i.e. notification in the HP Rajpatra bearing No. BA (3)-5/2000-1 dated the 23rd December, 2011 and Rule 38-B as being void and violative of the basic structure of the Constitution of India and the Rule of law;

(iii) Issue a writ of mandamus directing the respondents not to give effect to Section 118 and 121-A of the Himachal Pradesh Tenancy and Land Reforms Act and the rules framed there under the said Act as well as Rules 38A and 38B framed under the Act;

(iv) Quash the impugned Notice dated 30th January, 2008 i.e. Annexure PE issued by respondent No. 3 with all consequential relief in favour of the Petitioner No. 1 Trust and against the Respondents.

38. It has been pleaded that the petitioner is a Charitable Trust duly registered with the Sub Registrar of Assurances, Calcutta. The petitioner has given brief history of the Act and the amendments carried out in Section 118 of the Act. In addition to the petitioner Charitable Trust, there is another Charitable Trust known as Ishran Devi Oberoi Family Trust. The petitioner was originally desirous of establishing an Old Peoples Home and a charitable Dispensary in District Solan. Therefore, Ishran Devi Oberoi Family Trust was approached by petitioner to transfer land in its favour out of land which was owned by Family Trust in District Solan. The permission of the State Government to acquire some land from Family Trust was sought. The Government accorded the permission in favour of the petitioner as per communication No. REV. 2F(10) 12/88 addressed by the Deputy Secretary (Revenue) to the Govt. of Himachal Pradesh to the Divisional Commissioner, Shimla and copy addressed to the petitioner. Therefore, the petitioner acquired the property comprised in Khasra Nos. 806 and 807 measuring 3762 sq.mtrs. in Mauza Deon, Village Salogra from the Family Trust for setting up Old Peoples Home and a Dispensary. The petitioner was not possessed of sufficient funds and, therefore, could not undertake the construction of Old Peoples Home as well as Dispensary. The land could not be put to use for which it was purchased. In the permission no time limit was prescribed within which the purpose for which the land was purchased had to be achieved.

39. The petitioner applied to respondent No. 1 for sub division of land into plots for purpose of sale. The State granted permission vide communication dated 31.8.2004. The petitioner moved an application before District Judge, Solan u/s 34 of the Indian Trust Act seeking permission to sell the plot.

40. The respondent No. 3 issued show cause notice dated 30.1.2008 for violating Section 118 why the land in question should not be ordered to vest in the State. The show cause is vague without indicating the specific violation. The land was purchased with the permission of the State. The land was never subservient to agriculture at any time. The land was never agriculture land. The show cause is liable to be quashed. The petitioner has taken other contentions in the petition more or less on the same lines as pleaded by petitioners in CWP No. 443 of 1995.

41. The respondents No. 1 and 3 have contested the petition by filing reply. It has been pleaded that petitioner has violated Section 118 of the Act by not putting the land comprised in Khasra Nos. 806 and 807 measuring 3762 sq.mtrs. Mauza Deon to use for the purpose for which it was allowed to be purchased within the time limit prescribed under the Act. Therefore, the Collector, Solan issued notice to petitioner for violating Section 118 of the Act. The petitioner instead of contesting the matter before the Collector filed the petition. It has been pleaded that show cause notice issued to the petitioner is legal and valid. The petitioner failed to utilize the land for the purpose for which permission was granted. The petitioner has violated Section 118 of the Act. Rest of the reply of respondents No. 1 and 3 is like the reply filed in CWP No. 443 of 1995.

CWP No. 1500 of 2010:

42. The petitioner has prayed mainly the following reliefs:

(i) Issue a writ of certiorari to quash the provisions of Section 118 and 121-A of the H.P. Tenancy and Land Reforms Act void as being ultra vires and violative of the basic structure of the Constitution of India and the rule of law;

(ii) Declaring the provisions of Rule 38-A (as notified by the impugned Annexure PAK i.e. notification in the H.P. Rajpatra bearing No. BA (3)-5/2000-1 dated the 23rd December, 2011 and Rule 38-B as being void and violative of the basic structure of the Constitution of India and the Rule of law;

(iii) Issue a writ of mandamus directing the respondents not to give effect to Section 118 and 121-A of the Himachal Pradesh Tenancy and Land Reforms Act and the rules framed there under the said Act as well as Rules 38A and 38B framed under the Act;

(iv) Quash the impugned Show Cause Notices Annexure PAA (Colly) dated 7th March, 2001 and 10th April, 2001, issued by the Collector (Solan) to the petitioner-Company;

(v) Quash the impugned order dated 19.3.2010 i.e. Annexure PAK (sic PAH), issued by the Financial Commissioner, Himachal Pradesh with all consequential reliefs in favour of the petitioner Company and against the Respondents.

(vi) Direct the respondents to complete the ministerial act of issuing a formal permission in favour of the Petitioner to divert the use of the land in question from establishing a mushroom unit thereupon to a Resort/Hotel unit instead.

43. It has been pleaded that the petitioner had applied for and was granted permission u/s 118 by the State to purchase land comprised in Khasra Nos. 52, 111/57, 58, 261/60, 229/169/166/109/57, 168/109/57, 165/109/57, 110/57, 59, 175/113/61 and 112/61 measuring 15-15 bighas situated in Mauza Khali, Tehsil and District Solan vide letter dated 12.2.1996 for setting up a Mushroom Unit. The petitioner purchased the land comprised in Khasra Nos. 52, 111/57, 58, 261/60, 229/166/109/57, measuring 14-05 bighas out of the aforesaid land. The petitioner took several steps for setting up a Mushroom Manufacturing Unit. The Mushroom project was also got approved from the IPARA as is evidenced by letter dated 21.5.1997 of Directorate of Industry. The petitioner genuinely wanted to establish a Mushroom production unit primarily for export purposes for which the land was purchased.

44. In the meantime, there was a recession in the demand for Mushrooms in the International market. The petitioner submitted a proposal for grant of loan from the State Bank of India, Solan. The bank declined to grant loan on account of recession in the market. The petitioner approached alternate financers like the Himachal Pradesh Financial Corporation and Himachal Pradesh State Industrial Development Corporation etc. for grant of loan. The petitioner vide letter dated 15.10.1997 addressed to the Chief Minister of Himachal Pradesh requested him to lay foundation stone of the Unit. The petitioner got itself registered with the Himachal Pradesh Sales Tax Department. The petitioner addressed letters to various Companies abroad to solicit their consent for purchase of Mushrooms to be produced by the petitioner. However, due to recession in the market, the project of the petitioner did not receive financial support in the form of loans from the banks and other financial institutions.

45. The petitioner was forced to change its plans and Mushroom project had to be changed to a resort/hotel project. The authorities were informed and their consent was sought. The petitioner applied for change of the project from production of Mushroom to that of a resort/hotel. The Collector, Solan after receiving the request of the petitioner for allowing the change, addressed a communication dated 14.6.1999 to the Financial Commissioner-cum-Secretary (Revenue) to the Government of Himachal Pradesh undertaking no objection for setting up of G.P. Resorts by the petitioner instead of Mushroom project.

46. The petitioner obtained no objection certificate from the Directorate of Industries Himachal Pradesh dated 9.7.1999 indicating that in case the land in question was not utilized by the petitioner for an industrial purpose, then the same would be liable to be resumed. The petitioner received letter dated 20.8.1999 from the Collector, Solan pointing out that in order to establish resort, it should obtain no objection from the Tourism Department in order to enable it to forward the case to the State. On 26.8.1999 a communication was issued by the Director Tourism and Civil Aviation to the H.P. Financial Corporation recommending the case of the petitioner for grant of a loan of `161 lacs in order to enable it to set up a resort instead of a Mushroom unit. The petitioner vide communication dated 11.11.1999 forwarded no objection to the Collector for further action in the matter. The petitioner bonafide believed and had reasonable expectations that the codal formalities have been completed and the approval had been granted in principle to the change in the project. The petitioner did not receive anything to the contrary nor the respondents rejected its proposal. The petitioner in any event was entitled to receive such formal permission for diverting the change in the use of the land from Mushroom unit to that of establishing a resort/hotel.

47. The petitioner was shocked and surprised when the Collector, Solan issued show cause notices dated 7.3.2001 and 15.5.2001 for alleged violation of Section 118 of the Act. The petitioner filed reply before the Collector. The respondent No. 3 himself filed the reply in the proceedings and became a judge of his own cause. The respondent No. 3 did not forward the case further to the State Government. The respondent No. 3 conducted the proceedings in a highly biased and prejudiced manner.

48. The Collector decided the matter against the petitioner on 21.9.2004. The appeal filed by the petitioner was dismissed by the Commissioner on 25.5.2009. The revision filed by the petitioner has been dismissed by the Financial Commissioner on 19.3.2010. The reasoning adopted by the Collector, Commissioner and Financial Commissioner is wrong and illegal and their orders are liable to be set-aside. The petitioner in the petition has raised other grievances which are similar to the case pleaded by the petitioners in CWP No. 443 of 1995.

49. The respondents No. 1 and 3 have contested the petition by filing reply. It has been pleaded that permission was granted u/s 118 to the petitioner for setting up a Mushroom Unit but instead of establishing Mushroom unit, the petitioner constructed hotel in contravention of law. The petitioner has violated the terms and conditions of permission granted. The petitioner has concocted a story to derive undue benefit. The petitioner failed at the Government level in getting the all codal formalities completed to obtain the permission for change of land use. The proceedings u/s 118 were legally and rightly initiated against the petitioner. The petitioner in arbitrary and illegal manner has changed the use of the land for a purpose other than the purpose for which the permission was granted. The permission was granted for setting up a Mushroom unit. However, the petitioner constructed a hotel over the same. The respondents have defended the decisions of the Collector, Commissioner and Financial Commissioner. The respondents with respect to other contentions of the petitioner have taken more or less the same stand as taken by the respondents in reply to CWP No. 443 of 1995.

50. We have heard learned counsel for the parties. Mr. R.L. Sood, Senior Advocate led arguments on behalf of the petitioners. Mr. Shrawan Dogra, learned Advocate General made submissions on behalf of the respondents in all the petitions. It has been submitted by Mr. Sood that the State Legislature had no competence to legislate amendments carried out in the Act vide Act No. 6 of 1988, Act No. 6 of 1995, Act No. 9 of 1997 and Act No. 10 of 2007. The constitutional validity of the Act was upheld in decision dated 22.6.1978 in Sudershna Devi vs. State of H.P., ILR 1978 H.P. 355, but thereafter Section 118 of the Act has been amended several times by over-stepping legislating mandate provided in Seventh Schedule of the Constitution. The entry No. 18 List-II confers legislative competence on State on matters relating to transfer and alienation of agriculture land alone. The State lacks legislative competence under entry No. 18 List-II in relation to transfer and alienation of non-agriculture land and built up structure. There is no transfer of property by way of will, agreement to sell, power of attorney whether possession is handed over to intended purchaser or not. The transfer of property can take place by way of sale, mortgage with possession, lease, exchange, gift or creation of a tenancy only. The learned Senior Advocate has relied Suraj Lamp and Industries Private Limited (2) through Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Another, while making submission that agreement to sell, irrevocable General Power of Attorney, General Power of Attorney and Will are not to be equated with normal transfer of property. The State cannot legislate on transactions in respect of land, lands and buildings which are not subservient to agriculture, which if allowed will render entry 6 List-Ill otiose.

51. There is repugnancy in the Act and the Central Acts. The Act has been amended by various amending Acts but specific repugnancy of the Central Acts infra and the Act was not pointed out to draw the attention of the President before assent was given by the President to the amending Acts. The Act has repugnancy with Transfer of Property Act, 1882, Specific Relief Act, 1963, Indian Registration Act, 1908, Indian Succession Act, 1925, Indian Stamps Act, 1899, Power of Attorneys Act, 1882, Benami Transactions (Prohibition) Act, 1988 and Urban Land (Ceiling and Regulation) Act, 1976 and, therefore the aforesaid Acts shall over-ride the Act. The learned counsel has relied Kaiser-I-Hind Pvt. Ltd. and Others Vs. National Textile Corporation (Maharashtra North) Ltd. and Others,

52. After amendments carried out in the Act in the year 1987 onwards, the Act is now no more an agrarian reforms legislation. The land; has been defined in section 2(7) of the Act but in explanation-I to sub section (4) of Section 118, the land which is site of a building in a town or a village and is occupied or let out not for agricultural purpose or purpose subservient to agriculture has also been included. Thus, practically every type of land is covered by the Act, and therefore, the Act cannot be termed an agrarian reform legislation. The amendments carried out in the Act are not included in 9th Schedule of the Constitution.

53. The Act has taken away jurisdiction of the Civil Court and is thus illegal. The Act does not specify the public purpose for which the vested land would be put to use. The amendments carried out in the Act are not retrospective. The Act is not protected under Articles 31A, 31B and 31C of the Constitution. The vestment of the land free from all encumbrances in favour of the Government provided under the Act, is illegal and is in conflict with Article 300A of the Constitution.

54. The vestment of land in the Government for not utilizing the land within the period provided for the purpose for which the permission was granted is also wrong and illegal. Rule 38A has supplanted Section 118 and, therefore, the same is wrong and illegal. The State should not be permitted to take any action after expiry of period of three years of alleged violation. It has been submitted that in CWP No. 1068 of 1995 the Financial Commissioner (Appeals) in Revenue Revision No. 71 of 1997 on 18.8.2005 has quashed the order dated 5.4.1997 of the Commissioner and order dated 21.10.1995 of the Collector. The order dated 18.8.2005 of the Financial Commissioner has attained finality.

55. The learned Advocate General has defended the Act and various amendments carried out in the Act. He has submitted that State Legislature has competency to legislate on the subject covered by the Act and the amendments under entry 18 List-II of the 7th Schedule. The Act has been put in the 9th Schedule and is, therefore, immune from challenge. The vires of the Act were affirmed by the Division Bench in CWP No. 298 of 1975 on 22.6.1978. The Act and amendments have been assented to by the President and they have over-riding effect under Article 254(2) over any Central Legislation if found repugnant to the Act and the amendments. The act and amendments are for agrarian reforms and protected under Articles 31A, 31B and 31C.

56. The statement of objects and reasons of the Himachal Pradesh Tenancy and Land Reforms Bill, 1972 provides as under:-

STATEMENT OF OBJECTS AND REASONS:

As a result of the re-organisation of the erstwhile State of Punjab in November, 1966, some areas were integrated in Himachal Pradesh u/s 5 of the Punjab Re-organisation Act, 1966. There are different enactments regarding tenancy and agrarian reforms in force in new and old areas of the Pradesh. In the areas as comprised in Himachal Pradesh immediately before 1st November, 1966, the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953, is in force which is a progressive legislation about the security of tenures of tenants and their other rights. In the areas added to Himachal Pradesh u/s 5 of the Punjab Re-organisation Act, 1966, however, occupancy tenants have been vested with proprietary rights under two Acts on the subject namely, the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953 and the Pepsu Occupancy Tenants (Vesting of Proprietary Rights) Act, 1954. In the old areas the occupancy tenants have to apply for ownership u/s 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act.

It has, therefore, been considered necessary to unify the various laws relating to tenancies as in force in the Pradesh and to provide for a measure of land reforms to remove disparities.

Restrictions have been imposed to purchase land by the non-agriculturists to avoid concentration of wealth in the hands of non-agriculturists moneyed class.

The Bill is to achieve the above objects.

57. Statement of Objects and Reasons of the Himachal Pradesh Tenancy and Land Reforms (Amendment) Bill, 1987 provides as under:

STATEMENT OF OBJECTS AND REASONS:

Under the existing provisions contained in the Himachal Pradesh Tenancy and Land Reforms Act, 1971 the right, title and interest of the Government in the lands owned by it and leased out to a person vest in tenants. It is imperative that the proprietary rights in Government lands, by and large regenerated through public funds, should not pass to private persons. It has, therefore, become necessary to make suitable amendment in section 104 of the said Act.

Under the proviso to section 113 of the said Act, the land in respect of which proprietary rights have been acquired by a non-occupancy tenant, can be transferred by way of sale, mortgage gift or otherwise only for productive purposes with the permission of the Collector. In orders to avoid misuse of this provision and to ensure that such permission should be accorded rarely and only under genuine circumstances, it has been decided that the said permission be given by the State Government alone.

Section 118 of the principal Act, which restricts transfer of land to non-agriculturists, does not apply to the transfer of lands situated in urban areas, nor does it apply to transfer of lands not used for purposes subservient to agriculture. The lands classified as "Gair-mumkin makan", "Gair-mumkin dhank" can be transferred in favour of non-agriculturists and thus the provisions as they exist leave a loophole in law which is designed to prevent the transfer of land to non-agriculturists.

It has, therefore, become necessary to make suitable amendments in the existing law.

The Bill seeks to achieve the aforesaid objectives.

58. The Section 118 of the Act now is as follows:

118. Transfer of land to non-agriculturists barred: (1) Notwithstanding anything to the contrary contained in any law, contract, agreement, custom or usage for the time being in force, but save as otherwise provided in this Chapter, no transfer of land (including transfer by a decree of a Civil Court or for recovery of arrears of land revenue) by way of sale, gift, will, exchange, lease, mortgage with possession, creation of a tenancy or in any other manner shall be valid in favour of a person who is not an agriculturist.

Explanation:- For the purpose of this sub-section, the expression "Transfer of land" shall not include-

(i) Transfer by way of inheritance;

(ii) Transfer by way of gift made or will executed, in favour of any or all legal heirs of the donor or the testator, as the case may be;

(iii) Transfer by way of lease of land or building in a municipal areas: but shall include-

(a) a benami transaction in which land is transferred to an agriculturist for a consideration paid or provided by a non-agriculturist; and

(b) an authorization made by the owner by way of special or general power of attorney or by an agreement with the intention to put a non-agriculturist in possession of the land and allow him to deal with the land in the like manner as if he is a real owner of that land.

(2). Nothing in sub-section (1) shall be deemed to prohibit the transfer of land by any person in favour of;

(a) a landless labourer; or

(b) a landless person belonging to a scheduled caste or scheduled tribe; or

(c) a village artisan; or

(d) a landless person carrying on an allied agricultural pursuit; or

(dd) a person who, on commencement of this Act, worked and continues to work for gain in estate situated in Himachal Pradesh; for the construction of a dwelling house, shop or commercial establishment in a municipal area, subject to the condition that the land to be transferred does not exceed:-

(i) in case of dwelling house.....500 square meters; and

(ii) in the case of shop or commercial establishment...300 square meters:

Provided that such person does not own any vacant land or a dwelling house in a municipal area in the State;

(e) the State Government or Central Govt., or a Government company as defined in Section 617 of the companies Act, 1956 or a Company incorporated under the Companies Act, 1956 for which land is acquired through the State Government under the Land Acquisition Act, 1894 or a statutory body or a corporation or Board established by or under a statue and owned and controlled by the State or Central Government; or

(f) a person who has become non-agriculturist on account of:-

(i) acquisition of his land for any public purpose under the Land Acquisition Act, 1894; or

(ii) vestment of his land in the tenants under this Act; or;

(g) a non-agriculturist who purchases or intends to purchase land for the construction of house or shop, or purchases a built up house or shop, from the Himachal Pradesh State Housing and Urban Development Authority, established under the Himachal Pradesh Housing and Urban Development Authority Act, 2004 or from the Development Authority constituted under the Himachal Pradesh Town and Country Planning Act, 1977, or from any other statutory Corporation set up for framing and execution of house accommodation schemes in the States under any State or Central enactment; or

(h) a non agriculturist with the permission of the State Government for the purposes that may be prescribed: Provided that a person who is non-agriculturist but purchase land either under clause (dd) or clause (g) or with the permission granted under clause (h) of this sub-section shall, irrespective of such purchase of land, continue to be a non-agriculturist for the purposes of this Act:

Provided further that a non-agriculturist who purchases land under clause (dd) or in whose case permission to purchase land is granted under clause (h) of this sub section, shall put the land to such use for which the permission has been granted within a period of two years or a further such period not exceeding one year, as may be allowed by the State Government for reasons to be recorded in writing to be counted from the day on which the sale deed of land is registered and if he fails to do so or diverts, without the permission of the State Government, the said use for any other purpose or transfer by way of sale, gift or otherwise, the land so purchased by him shall, in the prescribed manner, vest in the State Government free from all encumbrances.

(3) No Registrar or the Sub-Registrar appointed under the Indian Registration Act, 1908(16 of 1908), shall register any document pertaining to a transfer of land, which is in contravention to sub-section (1);

Provided that the Registrar or the Sub-Registrar may register any transfer:-

(i) where the lease is made in relation to a part or whole of a building; or

(ii) where the mortgage is made for procuring the loans for construction or improvements over the land either from the Government or from any other financial institution constituted or established under any law for the time being in force or recognized by the State Government.

(3 A) Where:-

(a) the registrar or the sub-registrar appointed under the Indian Registration Act, 1908, before whom any document pertaining to transfer of land is presented for registration comes to know or has reason to believe that the transfer of land is in contravention of sub-section (1); or

(b) a Revenue Officer either on an application made to him or on receipt of any information from any source, comes to know or has reason to believe that any land has been transferred or is being transferred in contravention of the provisions of sub-section (1);

such Sub Registrar, the Registrar or the Revenue Officer, as the case may be, shall make reference to the Collector of the District, in which land or any part thereof is situate, and the Collector, on receipt of such reference or where the Revenue Officer happens to be the Collector of the District himself, he either on an application made to him or on receipt of any information from any source, comes to know or has reason to believe that any land has been transferred or is being transferred in contravention of the provisions of sub-section (1), shall after affording to the persons who are parties to the transfer, a reasonable opportunity of being heard and holding an enquiry, determine whether the transfer of land is or, is not in contravention of sub section (1) and he shall, within six months from the date of receipt of reference made to him or such longer period as the Divisional Commissioner may allow for reasons to be recorded in writing, record his decision thereon and intimate the findings to the Registrar, Sub-Registrar or the Revenue Officer concerned.

(3B) The person aggrieved by the findings recorded by the Collector, that a particular transfer of land is in contravention of the provisions of sub-section (1), may, within a period of 30 days from the date on which the order recording such findings is made by the Collector or such longer period as the Divisional Commissioner may allow for reason to be recorded in writing file an appeal to the Divisional Commissioner, to whom such Collector is subordinate, and the Divisional Commissioner may, after giving the parties an opportunity of being heard and, if necessary, after sending for the records of the case from the Collector reverse, alter or confirm the order made by the Collector and the order made by the Divisional Commissioner shall be final and conclusive.

(3C)(a) The Financial Commissioner may, either on a report of a Revenue Officer or on an application or of his own motion, call for the record of any proceedings which are pending before, or have been disposed of by, any Revenue Officer subordinate to him and in which no appeal lies thereto, for the purpose of satisfying himself as to the legality or propriety of such proceedings or order made therein and may pass such order in relation thereto as he may think fit

(b) No order shall be passed under this sub-section which adversely affect any person unless such person has been given a reasonable opportunity of being heard.

(3D) Where the Collector of the District under sub section (3A), in case appeal is not made within the prescribed period, or the Divisional Commissioner in appeal under sub-section (3B), or the Financial Commissioner in revision, under sub-section (3C), decides that the transfer of the land is in contravention of the provisions of sub-section (1), such transfer shall be void ab initio and the land involved in such transfer together with structures, buildings or other attachment, if any, shall in the prescribed manner, vest in the State Government free from all encumbrances; and

(4) It shall be lawful for the State Government to make use of the land which is vested or may be vested in it under sub section (2) or sub section (3D) for such purposes as it may deem fit to do so.

Explanation-I-For the purpose of this section, the expression "land" shall include-

(i) land recorded as "Gair-mumkin", "Gair-mumkin Makan" or any other Gair-mumkin land, by whatever name called in the revenue records; and

(ii) land which is a site of a building in a town or a village and is occupied or let out not for agricultural purposes or purposes subservient to agriculture but shall not include a built up area in the municipal area.

Explanation-II-For the purpose of this section the expression "municipal area" means the territorial area of a Nagar Panchayat, Cantonment Board, Municipal Council or a Municipal Corporation constituted under any law for the time being in force.

59. Now reverting to the Legislative competence of State u/s 118. The contention raised on behalf of the petitioners is that subject matter of Section 118 is covered by entries 5, 6 and 7 of List-III and not entry 18 of List-II. The Central Legislations namely Transfer of Property Act, 1882, Specific Relief Act, 1963, Indian Registration Act, 1908, Indian Succession Act, 1925, Indian Stamp Act, 1899, Power of Attorneys Act, 1882, Benami Transactions (Prohibition) Act, 1988 and Urban Land (Ceiling and Regulation) Act, 1976 are already occupying the field. The field covered by Section 118 with respect to built up structures or land which is not agricultural land or subservient to agriculture is covered by the aforesaid Acts and therefore, Section 118 is repugnant to the aforesaid Acts and in view of Article 254(2), the aforesaid Acts have over-riding effect over Section 118 of the Act. The learned counsel for the petitioners has relied on Accountant and Secretarial Services Pvt. Ltd. and Another Vs. Union of India (UOI) and Others, He has argued that the State has not pointed out repugnancy to the President before seeking his assent to various amending Acts and, therefore, the assent given by the President to the amending Acts is not of any help so far repugnancy and over-riding effect of the aforesaid Acts over Section 118 is concerned. The learned Advocate General has contended that subject matter of the Act is referable to entry 18, List-II of Seventh Schedule.

60. The Constitution Bench in Union of India (UOI) and Others Vs. Valluri Basavaiah Chowdhary and Others, has held as follows:

We are afraid, the contention cannot be accepted. It is not disputed that the subject-matter of Entry 18, List II of the Seventh Schedule i.e. land covers land and buildings and would, therefore, necessarily include vacant land. The expression urban immovable property may mean land and buildings, or buildings or land. It would take in lands of every description, i.e. agricultural land, urban land or any other kind and it necessarily includes vacant land.

In Accountant & Secretarial Services Pvt. Ltd. (supra), the vires of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 were considered by the Supreme Court. The contention was the said Act is ultra vires as it was beyond the legislative power of the Parliament. The Supreme Court held as follows:

For the reasons discussed above, we are of opinion that all the legislations coming up for consideration in the present case are referable to entries in the Concurrent List and the topic of legislation is not referable to entry 18 of List II. The provisions of the 1971 Act, in so far as they are made applicable to the premises of the respondent bank are, therefore, intra vires and valid.

The Supreme Court, however, in para 22 of the report has observed as follows:-

We agree that entry 18 should be given as wide a construction as possible consistent with all the other entries in all the three legislative lists. The entry deals with four main topics: land, transfer and alienation of agricultural land, land improvement and agricultural loans and colonization. The second and third of these clearly pertain to agricultural land. Perhaps the last also does, because, usually, by colonization we mean conversion into building and industrial sites of what was previously agricultural land but, may be, it is wider and includes colonization of vacant non-agricultural land as well. Any way, as the decisions have unanimously held there is no reason why the first topic viz. land should be narrowly interpreted. It should be understood as including all types of land rural or urban, agricultural or non-agricultural, arid, cultivated, fallow or vacant.

61. In view of the exposition of law made by the Supreme Court there is no manner of doubt that land includes rural or urban, agricultural or non-agricultural, arid, cultivated, fallow or vacant and in view of Union of India vs. Valluri B. Chaudhary land covers land and buildings also. The construction to a particular entry of the 7th Schedule is to be widely interpreted keeping in view other entries of the 7th Schedule. The pith and substance rule is to be given due weight.

62. The entry 18 List-II has also been considered by the Supreme Court in Lingappa Pochanna Appelwar Vs. State of Maharashtra and Another, . The question relating to constitutional validity of Sections 3 and 4 of Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974 and the question whether Sections 3 and 4 of the said Act which provided for annulment of transfers made by the members of the Scheduled Tribes and for restoration of lands to them on certain conditions were ultra vires, the State Legislature as being beyond the purview of entry 18 List II of 7th Schedule or were otherwise violative of Articles 14 and 19(1)(f) and Article 31 of the Constitution. The Supreme Court observed as follows:

The submission as regards lack of legislative competence of the State to enact the impugned Act stems on a misconception of nature and content of the legislative power of the State under Entry 18 in List II which reads:

18. Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.

The contention advanced fails to take note that the impugned Act strikes at transactions relating to agricultural lands effected between members of Scheduled Tribes who admittedly belong to the weaker section of the society and persons not belonging to Scheduled Tribes. Experience in the past showed that members of the Scheduled Tribes had been exploited due to their ignorance and poverty by members belonging to the affluent and powerful sections of the society to obtain transfer of their lands by way of sale, gift, mortgage, exchange etc. for a nominal consideration or for no consideration at all rendering them practically landless.

The Supreme Court held as follows:

The words other than agricultural land in Entry 6 and the words but not including contracts relating to agricultural land in Entry 7 in List III have the effect of delimiting the legislative power of the Union to make a law with respect to transfers and alienations of agricultural lands or with respect to contracts in relation thereto. The power to legislate cannot be denied to the State on the ground that the provisions of sections 3(1) and 4 of the Act incidentally trench upon the existing law, namely, the Transfer of Property Act, 1882 and the Contract Act 1872 or a law made by Parliament namely the Specific Relief Act, 1963. The power of the State Legislature to make a law with respect to transfer and alienation of agricultural land under Entry 18 in List II carries with it not only a power to make a law placing restrictions on transfers and alienations of such lands including a prohibition thereof, but also the power to make a law to reopen such transfers and alienations. Such a law was clearly within the legislative competence of the State Legislature being relatable to Entry 18 in List II of the Seventh Schedule.

The declaration of law made by Supreme Court in Lingappa Pochanna Appelwar and others (supra) is fully applicable in respect of Section 118 which prohibits transfer of land in favour of a person who is not an agriculturist.

63. The original un-amended Section 118 of the Act was as follows:

118. (1) Save as provided in this Chapter, no transfer (including sales in execution of decree of a civil court or for recovery of arrears of land revenue) by way of sale, gift, exchange, lease or mortgage with possession shall be valid in favour of a person who is not an agriculturist.

(2) Nothing in sub section (1) shall be deemed to prohibit the transfer of any land by an agriculturist in favour of:-

(a) landless labourers; or

(b) landless persons belonging to scheduled caste and scheduled tribe; or

(c) Village artisans; or

(d) Landless persons carrying on an allied pursuit; or

(e) State Government; or

(f) Co-operative Societies and new banks constituted under the Banking Companies (Acquisition and Transfer of undertakings) Act, 1970.

64. The prohibition of transfer by way of sale in execution of decree of a civil court or for recovery of arrears of land revenue, sale, gift, exchange, lease, mortgage with possession in favour of a person, who is not an agriculturist, was part of original un-amended Section 118 and was upheld in Smt. Sudarshna Devi vs. Union of India and another, ILR 1978 HP. 355, it has been held as follows:

5. The impugned Act is thus obviously enacted under the subject mentioned in Entry No. 18 of the State List of Schedule VII which speaks of "land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization". This Act is put in Ninth Schedule of the Constitution at Entry No. 138 by the Constitution (40th Amendment) Act, 1976 on 27th May, 1976, in the following forms:

138. Himachal Pradesh Tenancy and Land Reforms Act, 1972 (Himachal Pradesh Act 8 of 1974).

Rules under the Act were framed in the year 1975 and they came into force on 4.10.1975. We shall refer to the relevant provisions of the rules at a suitable stage in this judgment.

The Court further held:

36. Coming to point No. 7, it raises two types of contentions with regard to Section 118 of the Act, the amendments to which we have quoted in extenso in the foregoing portion of this judgment. The first contention with regard to this section was that it infringes Article 15 of the Constitution inasmuch as it makes discrimination on the ground of place of birth, and in support of this contention it was urged that a non-agriculturist, who belongs to a State other than Himachal Pradesh in India, would not be able to acquire any agricultural land by transfer. Another fact of the contention relating to this point was that section 118 infringes the fundamental right to reside and settle in any part of the territory of India contemplated by clause (e) of Article 19(1), as also the right to acquire, hold and dispose of the property contemplated by clause (f) thereof, and the right to practice any profession or to carry on any occupation, trade or business contemplated by clause (g) of the said Article.

37. So far as the contentions arising from Article 19 are concerned, the same can be disposed of in one line by stating the challenge under Article 19 is not available to the petitioners in view of Articles 31B and 31C of the Constitution. But apart from that, the fundamental rights conferred by Article 19 are not absolute, because the right to reside and settle in any part of the territory of India conferred by clause (e), can be reasonably restricted in the interest of general public. Similarly, right to acquire, hold and dispose of property contemplated by clause (f) can also be reasonably restricted in the interest of general public. Right to practice any profession, or to carry on any occupation, trade or business contemplated by clause (g) also can be similarly restricted. Therefore, if Articles 31B and 31C were absent from the Constitution, the question which would have arisen would be whether the restrictions contemplated by Section 118 are reasonable or not.

38. As we shall discuss/subsequently, we are of the opinion that the impugned Act is nothing but an agrarian reform. Its principal object is to regulate the relationship between tenant and his landlord with regard to agricultural lands, and to abolish absentee landlordism. The Act wants to establish direct contact between the person who actually cultivates the land and the ultimate owner of the land, namely, the State. By abolition of absentee landlordism the Act obviously wants to give incentive to those who sweat for the improvement of land and thus another object which it seeks to achieve is to increase agricultural production.

39. The statement of objects and reasons (quoted above) makes a further reference to restrictions imposed on purchase of land by non-agriculturists with a view to avoid concentration of wealth in the hands of non-agriculturists moneyed class. It is obvious that the agricultural land in the State like Himachal Pradesh would be very much limited in view of its mountainous terrain. If this land is allowed to go indiscriminately in the hands of those who can over bid an usual customer, it is very obvious that ultimately the very object for which the Act was enacted would be lost. Non-agriculturists, who have not evinced any interest in the agriculture uptil now, would, by the sheer strength of their money power be able to over bid the agriculturists, and a class of society would emerge which would be interested not so much in the improvement of agriculture but in the investment of un-used, and in some cases, undisclosed, finances. Such an incentive would be more to them in view of the fact that income from agriculture is exempt from income tax. Therefore, if one of the objects of the legislature was to prevent the limited land resources of the State from going in the hands of financial sharks, it cannot be said that that objective was purposeless. Under the circumstances, the restrictions which are placed on the fundamental rights contemplated by clauses (e), (f) and (g) must be held to be quite reasonable. Therefore, in our view, even in absence of Articles 31B and 31C challenge to Section 118 of the Act would not have succeeded on the ground of the infringement of the fundamental rights contemplated by clauses (e), (f) and (g) of Article 19.

The Challenge to the Act under Article 15 of the Constitution has been discussed by the Court and held as follows:

43. Article 15 provides that State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. The remaining portions of this Article are not relevant for our purpose. From a bare perusal of the above referred provisions of Article 15 it becomes apparent that discrimination cannot be made on the solitary ground of religion, caste, sex or place of birth. Therefore, the first question which arises to be considered is whether discrimination, if any, contemplated by Section 118 can be said to be existing "only" on the ground of place of birth. Our answer to this question is clearly in the negative. If again definition of the word "agriculturist" is taken into account it is obvious that it applies to all persons who are not personally cultivating land in Himachal Pradesh irrespective of the fact whether they are Himachalis or non-Himachalis. Therefore, the section operates irrespective of the place of birth. It cannot be said to be operative only on those who are born outside the State of Himachal Pradesh, because the added qualification which is required to be an agriculturist is that the person concerned should be found cultivating land personally in Himachal Pradesh.

44. Another aspect of the matter is that either under Article 14 or under Article 15 it is always permissible to the legislature to resort to reasonable classification provided the said classification has some sort of nexus with the object which the Act wants to achieve. Here, the Legislature has made classification in favour of agriculturists as distinguished from non-agriculturists. Such a classification has an obvious nexus with the object of the Act which, as stated above, is to introduce a land reform with wide ramifications covering landlord-tenant relationship, improvement of agriculture and abolition of absentee landlordism.

45. The third aspect of the matter is that, according to the amended section, the rigour of the ban which was found in the old section has been substantially reduced, and now even a non-agriculturist can acquire agricultural land from an agriculturist subject to certain reasonable limitations.

46. Under the circumstances, we are of the opinion that Article 15 is not infringed in any manner by Section 118 of the Act.

The Court in paragraph 53 of the report has held that the impugned Act is nothing but the consolidation of various enactments on the agrarian reform, even without considering the other aspects of the matter, the Court came to the conclusion that it is an Act of agrarian reform and would therefore be covered by the provisions contained in Article 31A of the Constitution.

65. In Smt. Sudarshna Devi (supra) this Court has upheld the vires of the original unamended Section 118 which prohibited the transfer by way of sale, gift, exchange, lease or mortgage with possession in favour of a person, who is not an agriculturist. The Division Bench held that Act is referable to entry 18, List-II. Therefore challenge to prohibition by way of sale, gift, exchange, lease or mortgage with possession in favour of a person who is not an agriculturist is not available to the petitioners.

66. The contention of the learned counsel for the petitioners that the Act is repugnant to the aforesaid existing Central Legislations and, therefore, even if the Act and various amendments carried out in the Act have been assented to by the President still the assent is meaningless and the existing Central Legislations shall have over-riding effect over the field covered by the Act as the State while seeking assent of the President had not drawn the attention of the President to the repugnancy of the Act with the existing Central Legislation, cannot be taken forward in absence of necessary pleadings. There is no averment in any petition that State at the time of obtaining assent of the President on the Act and various amendments had not drawn the attention of the President on the point of repugnancy of the Act to various Central Legislations. In these circumstances, petitioners cannot take any help from Kaiser-I-Hind Pvt. Ltd. and another (supra).

67. It has been contended that the Act is repugnant to Benami Transactions (Prohibition) Act, 1988 which is a Central Legislation. As per Section 118, a benami transaction in which land is transferred to an agriculturist for a consideration paid or provided by a non-agriculturist, has been prohibited. In S. Mohammad Anwaruddin Vs. Sabina Sultana and Others, , it has been held that Benami Transactions (Prohibition) Act, 1988 cannot also be treated as an enactment relating to transfer of property. Applying the doctrine of pith and substance it is a law relating to trusts and trustees. It can, in no sense be related to the legislative head "Transfer of property" in entry 6 of List-III. It cannot also be said that enactment is one relating to land. It does not deal with land. It is concerned with benami transactions. The Act is referable to entry 18 List-II. The Benami Transactions (Prohibition) Act, is not referable to entry 6 List-III. There is no repugnancy in the Act and the Benami Transactions (Prohibition) Act, 1988.

68. It has also been argued on behalf of the petitioners that Section 118 is repugnant to Section 59 of the Indian Succession Act, 1925. The Section 59 provides every person of sound mind not being a minor may dispose of his property by Will. The Section 59 provides competency of a person to dispose of his property by Will, but the said Section nowhere provides in whose favour the Will can be executed. The Will is included in entry 5 List-III which is not referable to transfer of land. The Section 118 prohibits transfer by way of Will in favour of a person who is not an agriculturist. The Section 59 of the Indian Succession Act, 1925 refers to dispose of property as against transfer ordinarily understood under the Transfer of Property Act, 1882. In Mahboob Sirfraz Vanth Sri Rajah Parthasarathy Appa Rao Savai Asva Rao Bahadur Varu, Zamindar of Bhadrachalam and Palavancha Vs. Sri Rajah Venkatadri Appa Rao Bahadur Zemindar Garu and Others, Sri Raja Venkataramayya Appa Rao Bahadur Zamindar Garu and Sri Rajah Sobhanadri Appa Rao Bahadur Zamindar Garu, it has been held that the Transfer of Property Act applies only to alienations inter vivos and has no application to disposal of property by will. In AIR 1944 65 (Oudh) it has been held that Transfer of Property Act does not relate to wills, and transfer is defined in the Oudh Estates Act as an alienation inter vivos. A will on the other hand is not in form a transfer, but means "the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death". Thus, the disposal of immoveable property by Will would not amount to transfer as the property does not pass on to the beneficiary at the time the will is executed. It is merely an intention expressed by the testator with regard to his property that after his death it should devolve on the beneficiary.

69. The learned counsel for the petitioners has submitted that the Act was repugnant to the Urban Land (Ceiling and Regulation) Act, 1976 (for short Ceiling Act) till the Ceiling Act remained on the statute book. He has fairly stated that Ceiling Act has been repealed by the Urban Land (Ceiling and Regulation) Repealing Act, 1999 w.e.f. 22.3.1999 but submitted that during the continuation of the Ceiling Act, the amendments carried out in the Act could not be carried out by the State Legislature in view of over-riding effect of the Ceiling Act on the subject matter covered by various amendments. He has relied preamble, definitions of land pertinent, to hold, urban land and vacant land defined in Section 2 of the Ceiling Act. He has also relied Section 4(11) and Section 6(1) of the Ceiling Act. The ceiling limit was provided in Section 4 whereas Section 6 had provided persons holding vacant land in excess of ceiling limit to file statement. On behalf of the State, Schedule-I of the Ceiling Act has been referred and it has been submitted that it is clear from the preamble of the Ceiling Act that Act provided for imposition of ceiling on vacant land in urban agglomerations which was defined in Section 2(n). The ceiling limit of vacant land in urban agglomerations falling in categories (A), (B), (C), (D) specified in Schedule-I of the Act was provided in Section 4. The perusal of Schedule-I to Ceiling Act would show that the State of Himachal Pradesh was not included in Schedule-I. In other words practically Ceiling Act was not applicable in State of Himachal Pradesh. In any case now the Ceiling Act has been repealed w.e.f. 22.3.1999. In these circumstances, there is no question of repugnancy of the Act with Ceiling Act during the period the Ceiling Act was in force. The Act is not repugnant to aforesaid Acts. The petitioners have not dilated how the Act is repugnant to Indian Stamp Act, 1899 and Indian Registration Act, 1908.

70. The connected question is whether authorization made by owner of land by way of will, agreement to sell, special power of attorney, general power of attorney and benami transaction with intention to put a non-agriculturist in possession of the land and allow him to deal with the land in the like manner as if he is a real owner of the land amounts to transfer of land. The expression transfer of land has not been defined in the Act but it has been dealt with and explained in Section 118 as follows:

118. Transfer of land to non-agriculturists barred: (1) Notwithstanding anything to the contrary contained in any law, contract, agreement, custom or usage for the time being in force, but save as otherwise provided in this Chapter, no transfer of land (including transfer by a decree of a Civil Court or for recovery of arrears of land revenue) by way of sale, gift, will, exchange, lease, mortgage with possession, creation of a tenancy or in any other manner shall be valid in favour of a person who is not an agriculturist.

Explanation:- For the purpose of this sub-section, the expression "Transfer of land" shall not include-

(i) Transfer by way of inheritance;

(ii) Transfer by way of gift made or will executed, in favour of any or all legal heirs of the donor or the testator, as the case may be;

(iii) Transfer by way of lease of land or building in a municipal areas: but shall include-

(a) a benami transaction in which land is transferred to an agriculturist for a consideration paid or provided by a non-agriculturist; and

(b) an authorization made by the owner by way of special or general power of attorney or by an agreement with the intention to put a non-agriculturist in possession of the land and allow him to deal with the land in the like manner as if he is a real owner of that land.

71. In Suraj Lamp (supra), it has been held as SA/GPA/will transaction do not convey any title nor create any interest in an immovable property. SA/GPA/will transactions are not "transfers" or "sales" and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing agreements of sale. However, in the same judgment, the Supreme Court has also observed:

2. The modus operandi in such SA/GPA/will transactions is for the vendor or person claiming to be the owner to receive the agreed consideration, deliver possession of the property to the purchaser and execute the following documents or variations thereof:

(a) An agreement of sale by the vendor in favour of the purchaser confirming the terms of sale, delivery of possession and payment of full consideration and undertaking to execute any document as and when required in future

or

An agreement of sale agreeing to sell the property, with a separate affidavit confirming receipt of full price and delivery of possession and undertaking to execute the sale deed whenever required.

(b) An irrevocable general power of attorney by the vendor in favour of the purchaser or his nominee authorizing him to mange, deal with and dispose of the property without reference to the vendor.

or

A general power of attorney by the vendor in favour of the purchaser or his nominee authorizing the attorney-holder to sell or transfer the property and a special power of attorney to manage the property.

(c) A will bequeathing the property to the purchaser (as a safeguard against the consequences of death of the vendor before transfer is effected).

3. These transactions are not to be confused or equated with genuine transactions where the owner of a property grants a power of attorney in favour of a family member or friend to manage or sell his property, as he is not able to manage the property or execute the sale, personally. These are transactions, where a purchaser pays the full price, but instead of getting a deed of conveyance gets an SA/GPA/will as a mode of transfer, either at the instance of the vendor or at his own instance.

72. The Supreme Court as a general proposition of law has held that SA/GPA/will are not transfers or sales and cannot be treated as completed transfers or conveyances. In Suraj Lamp (supra), the Supreme Court was not dealing with a provision like Section 118 of the Act. It is common knowledge that sometimes transactions are entered to meet the loop-holes in law with a purpose to defeat the law and to avoid registration charges. The Legislative intention in enacting Section 118 is explicit to check all possible transactions to circumvent the law on the subject. The nomenclature of the document is immaterial, what is material is facts and circumstances which led to execution of sale agreement/general power of attorney, will and benami transaction in favour of a person with the intention to put a non-agriculturist in possession as if he is the real owner. The veil is to be pierced to find out real transaction behind sale agreement/general power of attorney, will and benami transaction. The transfer or transfer of land in Section 118 of the Act is to be understood in that context and not as provided in the Transfer of Property Act or any other similar enactment. In Suraj Lamp (supra) also the Supreme Court has noticed modus operandi for executing sale agreement/general power of attorney and will is to receive the agreed consideration, deliver possession of the property to the purchaser and then to execute the documents like agreement to sell, irrevocable general power of attorney, general power of attorney, will, affidavit etc.

73. The Supreme Court in Pandey Orson Vs. Ram Chander Sahu and others, has noticed Section 71-A of Chotanagpur Tenancy Act which provides as under:

..If at any time it comes to notice of the Deputy Commissioner that transfer of land belonging to a raiyat who is a member of the Scheduled Tribes has taken place in contravention of Section 46 or any other provision of this Act or by any fraudulent method (including decrees obtained in suit by fraud or collusion) he may, after giving reasonable opportunity to the transferee who is proposed to be evicted, to show cause and after making necessary enquiry in the matter, evict the transferee from such land without payment of compensation....

The Supreme Court held as follows:

5. Transfer has not been defined in the Act. The term has a definition in Section 5 of the Transfer of Property Act which states:

5. Transfer of Property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons and to transfer property is to perform such act.

6. In Section 71-A in the absence of a definition of transfer and considering the situation in which exercise of jurisdiction is contemplated, it would not be proper to confine the meaning of transfer to transfer under the Transfer of Property Act or a situation where transfer has a statutory definition. What exactly is contemplated in the provision is where possession has passed from one to another and as a physical fact the member of the Scheduled Tribe who is entitled to hold possession has lost it and a non-member has come into possession would be covered by transfer and a situation of that type would be amenable to exercise of jurisdiction within the ambit of Section 71-A of the Act.

7. The provision is beneficial and the legislative intention is to extend protection to a class of citizens who are not in a position to keep their property to themselves in the absence of protection. Therefore when the legislature is extending special protection to the named category, the court has to give a liberal construction to the protective mechanism which would work out the protection and enable the sphere of protection to be effective than limit by (sic) the scope. In fact, that exactly is what has been said by a three Judge bench of this Court in almost a similar situation in Manchegowda and Others Vs. State of Karnataka and Others, and what was said by a three Judge bench followed by a later decision of this Court in Lingappa Pochanna Appelwar Vs. State of Maharashtra and Another, To the same effect is the observation of this Court in Gamini Krishnayya and Others Vs. Curza Seshachalam and Others, The House of Lords in D (a minor) v. Berkshire County Council (1987) 1 All ER 20 (HL) said that broad and liberal construction should be given to give full effect to the legislative purpose. We would, therefore, in the facts and circumstances appearing in this case, hold that the authorities under the Act were justified in extending the provision of Section 71-A of the Chotanagpur Tenancy Act to the situation which emerged and the High Court took a wrong view in limiting the concept of transfer to the statutory definition in the T.P. Act and holding that Section 71-A was not applicable in a case of this type. On this basis, it must follow that the action of the statutory authority was justified and the conclusion of the Full Bench must not be sustained. We accordingly allow the appeal and reverse the decision of the High Court.

74. In Lala Devi Dass Vs. Panna Lal , it was noticed that land is not specifically defined in the Land Alienation Act, but a definition of permanent alienation is given in sub section (3) of Section 2 of the Act which includes sale, gift, bequest grant of occupancy rights and exchange other than an exchange made for the purpose of consolidation of holdings. It was held that a bequest is specifically included in permanent alienation which is synonymous to the term transfer so the permanent alienation of land as defined in the Land Alienation Act by bequest is prohibited under the provisions of the Land Alienation Act. As noticed above, the expression transfer of land has not been defined in the Act, but it has been used and explained in Section 118 of the Act. In this situation, the ratio of Pandey Oraon (supra) is fully applicable where in absence of definition of transfer keeping in view the legislative intention the Supreme Court has not confined the meaning of transfer to transfer under the Transfer of Property Act. The transfer of land in Section 118 is to be interpreted in consonance with legislative intent while considering an agreement to sell, general power of attorney, will, benami transaction executed with the intention to put a non-agriculturist in possession as real owner of the land transferred. Therefore, the contention that agreement to sell, general power of attorney, will, benami transaction do not amount to transfer of land and restriction imposed for such transactions u/s 118 of the Act is beyond the legislative competence of the State Legislature, has no force and is rejected.

75. It has been next argued that the vestment of land in the State free from all encumbrances as provided in Section 118 is in contravention of Article 300A of the Constitution which provides, no person shall be deprived of his property save by authority of law. The vestment of land of a citizen u/s 118 in favour of State is nothing but acquisition of the property of a citizen without payment of any compensation which is not permissible. This contention has no force for more than one reason. The State u/s 118 does not acquire any land. The Legislature u/s 118 of the Act has provided that land shall not be transferred to a person who is not an agriculturist. In case of violation, contravention of Section 118 it has been provided that such land alongwith built up structure shall vest in the State free from all encumbrances. In Manchegowda and Others Vs. State of Karnataka and Others, it has been held as follows:

We have earlier noticed that the title which is acquired by a transferee in the granted lands, transferred in contravention of the prohibition against the transfer of the granted lands, is a voidable title which in law is liable to be defeated through appropriate action and possession of such granted lands transferred in breach of the condition of prohibition could be recovered by the grantor. The right or property which a transferee acquires in the granted lands, is a defeasible right and the transferee renders himself liable to lose his right or property at the instance of the grantor. We have further observed that by the enactment of this Act and particularly Section 4 and Section 5 thereof the Legislature is seeking to defeat the defeasible right of the transferee in such lands without the process of a prolonged legal action with a view to speedy resumption of such granted lands for distribution thereof the original grantee or their legal representatives and in their absence to other members of the Scheduled Castes and Scheduled Tribes Communities. In our opinion, this kind of defeasible right of the transferee in the granted lands cannot be considered to be property as contemplated in Article 31 and 31A. The nature of the right of the transferee in the granted land on transfer of such lands in breach of the condition of prohibition relating to such transfer, the object of such grant and the terms thereof, also the law governing such grants and the object and the scheme of the present Act enacted for the benefit of weaker sections of our community, clearly go to indicate that there is in this case no deprivation of such right or property as may attract the provisions of Articles 31 and 31A of the Constitution.

The Supreme Court has further held:

With the enactment of the Act, voidable right or the title of the transferee in the granted lands becomes void and the transferee is left with no right or property in the granted lands. The lands which are sought to be recovered from the transferees of the granted lands are lands in which the transferees cease to have any interest or property. The effect of the provisions contained in Sections 4 and 5 of the Act is that the defeasible right or interest of the transferees in the granted lands is defeated and the voidable transaction is rendered void. We have earlier held that it is clearly open to the Legislature to declare void the transfers of granted lands in contravention of the condition of prohibition on transfer. As soon as such transfers are rendered void by virtue of the provisions of the Act, the transferee does not have any right in the granted lands so transferred, and possession is sought to be recovered of such lands in which the transferees have lost their right and interest. Therefore, the question of acquisition of any property by the State or any modification or extinguishment of right of property does not really arise and Article 31A cannot be applied. We are, therefore, of the opinion that there is no infringement of Article 31 and Article 31A of the Constitution. We may further observe that this aspect has been carefully and elaborately considered by the learned Judges of the High Court while holding that Articles 31 and 31A are not violated.

In view of law laid down by the Apex Court, it is open to the Legislature to declare a transfer in contravention of the condition of prohibition on transfer as void. Once transfer is rendered void by the implication of the Act, the transferee does not acquire any right in the land so transferred. In these circumstances, neither the acquisition of any property by the State nor extinguishment of right of property is involved and Article 31A cannot be applied and for the same reasons Article 300A is also not applicable.

76. The petitioners have assailed the third proviso to sub section 2 to Section 118 which provides that a non-agriculturist who purchases land under clause (dd) or in whose case permission to purchase land is granted under clause (h) of this sub section, shall put the land to such use for which the permission has been granted within a period of two years or a further such period not exceeding one year, as may be allowed by the State Government for reasons to be recorded in writing to be counted from the day on which the sale deed of land is registered and if he fails to do so or diverts, without the permission of the State Government, the said use for any other purpose or transfer by way of sale, gift or otherwise, the land so purchased by him shall, in the prescribed manner, vest in the State Government free from all encumbrances. It has been contended that the third proviso is very harsh for putting to use the land purchased by a non-agriculturist within the stipulated period or extended period. The possibility cannot be ruled out that in a given case despite sincere efforts the land could not be put to use for the purpose for which it was purchased by the non-agriculturist within stipulated period and extended period. There can be a situation that due to intervening events beyond the control of the purchaser after the permission granted by the Government, it was not possible for the purchaser to put the land to use for the purpose for which the permission was granted by the Government within the prescribed period but even such land would vest in the Government free from all encumbrances in view of time cap provided in third proviso. The restriction to put the land to use, failing which vestment of the land in the State Government free from all encumbrances is arbitrary.

77. The Act is of agrarian reforms and purpose of the Act is to check accumulation of property in the hands of a few moneyed people. The provision has been made in the Act for transfer of land in favour of genuine non-agriculturists with the permission of the State Government who want to use the land for specific purpose. One of the test of genuineness of transfer in favour of non-agriculturist with the permission of the State Government is that the land is used by the non-agriculturist/purchaser immediately after its purchase for the purpose it has been purchased by him. Such purchaser before purchase of land with the permission of Government is expected to plan his project knowing fully time within which land is to be put to use for which it has been purchased. The initial period fixed for using the land is extendable as provided in the Act. In these circumstances, the stipulation of two years initially with extension of one year to use the land after purchase by the non-agriculturist for the purpose for which it has been purchased cannot be said to be arbitrary. Similarly, the non-agriculturist after purchase cannot be allowed to divert the purpose for which he has purchased the land without the permission of the State Government. These conditions are necessary to achieve the object of the Act. On the basis of individual difficulty in a given case it cannot be said that third proviso to sub section 2 of Section 118 is arbitrary.

78. It has been contended by learned counsel for the petitioners that in sub section 7 of Section 2 of the Act, the land has been defined but in contradiction to said definition in Explanation-I to Section 118, the land includes site of a building in a town or village and is occupied or let out not for agricultural purposes or purposes subservient to agriculture etc. The inclusion of certain land in Explanation-I to Section 118 contrary to land defined in sub section 7 of Section 2 is illegal. He has submitted that what has been excluded in the definition of land under the Act has been included in Explanation-I to Section 118. The Section 2(7) of the Act is as follows:

(7) "land" means land which is not occupied as the site of any building in a town or village and is occupied or has been let for agricultural purposes or for purposes subservient to agriculture, or for pasture and includes,

(a) the sites of buildings and other structures on such land,

(b) orchards,

(c) ghasnies,

(d) banjar land, and

(e) private forests.

The Explanation-I to Section 118 of the Act is as follows:

Explanation-I-For the purpose of this section, the expression "land" shall include-

(i) land recorded as "Gair-mumkin", "Gair-mumkin Makan" or any other Gair-mumkin land, by whatever name called in the revenue records; and

(ii) land which is a site of a building in a town or a village and is occupied or let out not for agricultural purposes or purposes subservient to agriculture but shall not include a built up area in the municipal area.

The question is what interpretation is to be given to land in Section 118 in presence of definition of land in Section 2(7) and expression land explained in Section 118. In The Vanguard Fire and General Insurance Co. Ltd., Madras Vs. Fraser and Ross and Another, it has been held as under:

....It is well settled that all statutory definitions or abbreviations must be read subject to the qualification variously expressed in the definition clauses which created them and it may be that even where the definition is exhaustive inasmuch as the word defined is said to mean a certain thing, it is possible for the word to have a somewhat different meaning in different sections of the Act depending upon the subject or the context. That is why all definitions in statutes generally begin with the qualifying words similar to the words used in the present case, namely, unless there is anything repugnant in the subject or context. Therefore, in finding out the meaning of the word "insurer" in various sections of the Act, the meaning to be ordinarily given to it is that given in the definition clause. But this is not inflexible and there may be sections in the Act where the meaning may have to be departed from on account of the subject or context in which the word has been used and that will be giving effect to the opening sentence in the definition section, namely, unless there is anything repugnant in the subject or context....

In Commissioner of Expenditure Tax, Gujarat, Ahmedabad Vs. Darshan Surendra Parekh, it has been held as follows:

...It is a settled rule of interpretation that in arriving at the true meaning of any particular phrase in a statute, the phrase is not to be viewed isolated from its context; it must be viewed in its whole context, the title, the preamble and all the other enacting parts of the statute. It follows therefrom that all statutory definitions must be read subject to the qualifications expressed in the definition clauses which create them, such as "unless the context otherwise requires"; or "unless a contrary intention appears",; or if not inconsistent with the context or subject-matter....

79. The legislature with a purpose has used the expression land in Explanation-I to Section 118. The Section 2 of the Act opens with; "in this Act, unless there is anything repugnant in the subject or context". The expression land used in Section 118 is to be understood and interpreted in the manner expression land has been explained in Explanation-I to Section 118 where it has been used for specific purpose as against the definition of land given in the definition clause to be applied for other purposes in the Act if not specifically explained or used otherwise. The specific purpose for which expression land has been used in Explanation-I will over-ride the general purpose for which expression land has been defined in Section 2(7) of the Act. Therefore, there is no force in the contention of the petitioners that the term land used in Explanation-I to Section 118 is illegal in presence of definition of land in sub section 7 of Section 2 of the Act. There is no absolute bar for purchasing land by non-agriculturist u/s 118. A non-agriculturist still can purchase land with the permission of State Government u/s 118. The Section 118 of the Act as enacted is within the legislative competence of State Legislature referable to entry 18, List-II of Seventh Schedule.

80. The petitioners have assailed Rule 38A. The Himachal Pradesh Tenancy and Land Reforms Rules, 1975 came into force in the year 1975. In the year 1976, the Rule 38A was added in 1975 Rules and at that time Rule 38A was as follows:

38-A. Purpose for which land is transferable u/s 118(2)(h).-(1) In case a non-agriculturist intends to acquire land in his name by way of sale, gift, exchange, lease or mortgage with possession, he shall apply in Form LR-XIV to the Collector in whose jurisdiction the land is situated, duly supported with copies of Jamabandis and the Tatima Shajra of the land which he intends to acquire.

The Collector shall verify the claim of the applicant and thereafter submit the application with his remarks to the State Government for permission under clause (h) of sub-section (2) of section 118, through the Divisional Commissioner who shall also record his opinion about the transfer of land in favour of the applicant.

(2) The State Government, on receipt of the recommendations of the Divisional Commissioner, shall consider the same and may grant or refuse the permission.

(3) The permission under sub-rule (2) of this Rule shall be for any one or more of the following purposes in the following scale:-

Now Rule 38-A is as follows:

Rule 38A. Purpose for which land is transferable u/s 118(2)(h).-

(1) Where a non-agriculturist intends to acquire land in his name by way of sale, gift, Will, exchange, lease or mortgage with possession, he shall apply for permission under clause (h) of sub-section (2) of section 118 of the Act, in Form LRXIV duly supported with the documents specified, to the Collector in whose jurisdiction the land is situated.

(2) (a) On receipt of the application, complete in all respects under sub-rule (1), the Collector shall, after calling for the information from the revenue staff in form LRXV and holding such enquiry as he may deem fit, verify the title of the land in question and if he is of the opinion that the application should be accepted, he shall recommend application within a period of 30 days from the date of receipt by him to the State Government for its consideration:

Provided that if there is any objection or shortcoming in the application Form LR-XIV, the Collector shall convey such objection(s) or shortcoming(s) at one time only, to avoid unnecessary delay:

Provided further that in case of transfer of land to Industrial/Tourism units or Hydro electric projects, the documents shown in items II, VI and VII of Part II of Form LRXIV and spot inspection report of the revenue officers/officials in form LR-XV shall not be required.

(b) On receipt of the recommendations made by the Collector under clause (a) of this sub-rule, the State Government shall consider the application and allow or reject the application within 30 days shall be substituted and the existing proviso below the clause shall be omitted.

(c) The applicant shall be informed of every order passed by the State Government under clause (b) of this sub-rule; and

(d) Any applicant, whose application has been rejected, may, within 60 days of the date of order of rejection, apply to the State Government to review the order and the Government may, after making such further inquiry as it may think fit, pass such order as it considers necessary:

[Provided that the State Government may entertain the review application after the expiry of the said period of 60 days, if it is satisfied that the applicant was prevented by sufficient cause from filing the review application in time.]

(3) The permission under sub-rule 2 may be granted for any of the following purposes and subject to the following scales, eligibility and other conditions-

81. It has been argued that Rule 38-A is violative of Articles 14, 15, 19 and (g) of the Constitution as well as against the basic structure of the Constitution. The Rule has imposed complete ban for acquisition of land for purpose of building a residential house or for construction of a shop by a bonafide non-agriculturist Himachali, who resides and works for gain outside the State of Himachal Pradesh. The Rule discriminates against non-agriculturist Himachalis, who are not residents of Himachal Pradesh and other ordinary citizens of India. In the Rule highly unreasonable and arbitrary conditions have been imposed for seeking permission for purchasing the land, house, shop, built up area etc. Only a few chosen selected persons have been given preference in granting permission in arbitrary and discriminatory manner. The Rule is in contradiction to Section 118 of the Act. The original un-amended Rule 38-A was noticed in Smt. Sudarshna Devi (supra) and the Court has held as follows:-

47. In this connection, it was contended that Section 118 read with Rule 38-A gives unfettered and unguided power to the State Government to determine whether a particular piece of land should be allowed to be transferred or not. In other words, the argument was that exercise of power without proper guidelines in the statute is likely to be arbitrary and in the result the exercise of such power would destroy the principle of equality enshrined in Articles 14 and 15 of the Constitution. This contention is not acceptable because, if again a reference is made to clauses (g) and (h) of the amended section read with rule 38-A, it becomes quite evident that these provisions contain sufficient guidelines for the exercise of discretion vested in the State Government. Clause (g) points out the guidelines for allowing the transfer to a non-agriculturist within municipal limits. It is evident from clause (g) that these transfers can be allowed only for the construction of a dwelling house, shop, commercial establishment, office or industrial unit. The extent to which the transfer can be allowed is also given in the Section. So far as clause (h) is concerned, it generally provides for a transfer with the permission of the State Government for the purposes to be prescribed and these purposes are prescribed by the above quoted rule 38-A, reference to which shows that the transfer can be only for the specified purposes and to the specified extent. Therefore, when the State Government allows a transfer in favour of a non-agriculturist it is bound to keep in mind that these transfers cannot be allowed at the sweet will of the authority concerned. The said authority is bound to be guided by the provisions contained in clauses (g) and (h) of sub-section (2) of Section 118 and rule 38-A.

The new Rule 38-A is fundamentally same as it was when added in the year 1976 in the Rules. The amendments have been carried out in Rule 38-A from time to time to make the rule more workable. There are sufficient guidelines in Rule 38-A for granting permission. The purpose of the Act is to check accumulation of property in the hands of a few moneyed people irrespective whether they are ordinarily residents of Himachal Pradesh or not. The time limit provided for acquiring the eligibility of residence by a non-agriculturist in Himachal Pradesh before seeking permission for purchasing the land or built up structure is not arbitrary. The period of 30 years is not such a period which ordinarily cannot be achieved within the life span of an ordinary human being. The Limitation Act provides 30 years period for acquiring title by way of adverse possession by an individual against State, similarly for redemption of certain mortgages, limitation period is 30 years. Therefore, 30 years period of working in the State who is not an agriculturist for acquiring the eligibility by a person for purchasing building for residential purpose or for shop cannot be said to be arbitrary. It is for the rule making authority to fix the reasonable period. It has not been argued that Rule 38-A is beyond the rule making power of the State under the Act. A vague plea has been taken that Rule 38-A is in contravention to Section 118, it supplants Section 118 and it is against the basic structure of the Constitution. But the petitioners have failed to make out a case to this effect. Thus, the challenge of the petitioners to Rule 38-A fails and is rejected.

82. The petitioners have also challenged Rule 38-B which provides as under:

38-B. Execution of orders for vestment of land.- The District Collector within his jurisdiction shall pass an order regarding vestment of land/buildings together with structures or other attachments, if any, under sub-section (2) or sub-section (3D) of section 118 of the Act, as the case may be, in the State Government, and-

(i) the order of such vestment and delivery of possession of immovable property shall be executed in the same manner as provided in the CPC for the time being in force in respect of the execution of a decree whereby a Civil Court has adjudged ejectment from or delivery of possession of such property; and

(ii) in execution of these orders the Revenue Officer shall have all the powers in regard to contempts, resistance and the like which a Civil Court may exercise in the execution of a decree of the description mentioned in (i) supra.

83. On behalf of the petitioners no specific challenge to Rule 38-B has been highlighted. It has been contended that Rule 38-B is violative of Articles 14, 15, 19(e) and (g) of the Constitution without further elaboration. The perusal of Section 118 would show that the procedure has been provided which is to be followed by the Collector of the District for deciding whether the land has been transferred in contravention of the Act. The provision of appeal and revision has also been provided against the decision of the Collector holding vesting of land in State Government free from all encumbrances. The Rule 38-B provides execution of order passed by the Collector for vestment of land. The order is to be executed in the same manner as provided in the CPC in a decree of ejectment or delivery of possession with further provision that executing authority shall have all powers of Civil Court including powers of contempts and to meet the situation of resistance. Once the order of vestment is to be executed like a decree of a Civil Court, it cannot be said that Rule 38-B is wrong, illegal, and arbitrary. The challenge of petitioners to Rule 38-B has no force, hence rejected.

84. The petitioners have also challenged Section 121-A of the Act which provides as under:

121A. Bar of jurisdiction.- Save as otherwise, expressly provided in this Chapter, the validity of any proceedings or orders taken of made under this Chapter shall not be called in question in any civil court or before any other authority.

The Section 121A is in Chapter-XI of the Act and Sections 118 to 122 are included in that Chapter. Any order passed by the authority affecting the right of transferee in the land u/s 118 is subject to appeal, review/revision as provided in the Act and the Rules. An aggrieved person cannot have choice of forum. In Section 118 read with Rules complete machinery has been provided to hear the grievance of an aggrieved person. It is not the case of the petitioners that no remedy has been provided to an aggrieved person to challenge an order passed u/s 118 read with Rules. The Section 9 of the Code of Civil Procedure, 1908 also provides that Civil Court has jurisdiction to try the suit unless the jurisdiction of the Civil Court is expressly or implicitly barred. It is clear from Section 9 of the CPC that jurisdiction of the Civil Court can be excluded. The forum provided to adjudicate the grievance of aggrieved person u/s 118 and Rules is effective forum. It is not the requirement of law that every grievance of aggrieved person is to be decided by the Civil Court only. The petitioners have completely failed to make out a case how Section 121A which excludes the jurisdiction of the Civil Court is illegal. There is no force in the contention, hence rejected.

85. It has been submitted that utilization of vested land in State Government under sub-section (4) of Section 118 is unguided and arbitrary and, therefore, the vestment of land in the State Government u/s 118 is wrong and illegal. The transfer of the land in violation of statute is void and results into vestment of land free from all encumbrances in the State Government. As held in Manchegowda etc. (supra) the transferee is left with no right or property in such land. After the vestment of land in the State Government, the transferee has no locus standi to question how the State Government shall make use of such vested land. It is preposterous to assume that the State Government would use such land in arbitrary manner. There should be no doubt that the State shall dispose of the land vested in the State Government u/s 118 as per sub section (4) of Section 118 of the Act and land disposal norms of the State. This contention of the petitioners is merit-less, hence rejected.

86. It has been contended that amendments carried out in the Act after the year 1976 are not retrospective and, therefore, such amendments cannot be applied retrospectively. The Act after the year 1976 has been amended by HP. Act No. 6 of 1988, Act No. 6 of 1995, Act No. 9 of 1997 and Act No. 10 of 2007. The sub-section (3) of Section 1 of Act No. 6 of 1988 is as follows:

(3) It shall be deemed to have come into force from the date of commencement of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, but section 3 and section 4, in so far as it amends clause (g) and the second proviso to clause (i) of sub-section (2), sub-section (3) and sub-section (4) of Section 118 of the said Act, shall come into force at once.

The Section 3 of Act No. 6 of 1988 is as follows:

Provided that nothing contained in sub-section (1) shall apply to the transfer of land made for a productive purpose with the prior permission of the State Government in a prescribed manner.

The Section 4 of Act No. 6 of 1988 is as follows:

118. (1) Notwithstanding anything to the contrary contained in any law, contract, agreement, custom or usage for the time being in force, but save as otherwise provided in this Chapter, no transfer of land (including sales in execution of decree of a civil court or for recovery of arrears of land revenue) by way of sale, gift, exchange, lease, mortgage with possession or creation of a tenancy shall be valid in favour of a person who is not an agriculturist.

(2) Nothing in sub section (1) shall be deemed to prohibit the transfer of any land by any person in favour of:-

(a) a landless labourers; or

(b) a landless person belonging to scheduled caste or a scheduled tribe; or

(c) a village artisans; or

(d) a landless person carrying on an allied pursuit; or

(e) the State Government; or

(f) a co-operative Society or a bank; or

(g) a person who has become non-agriculturist on account of the acquisition of his land for any public purpose under the Land Acquisition Act, 1894; or

(h) a non-agriculturist who purchases or intends to purchase land for the construction of a house or shop, or purchases a built up house or shop, from the Himachal Pradesh State Housing Board, established under the Himachal Pradesh Housing Board Act, 1972, or from the Development Authority constituted under the Himachal Pradesh Town and Country Planning Act, 1977, or from any other statutory corporation set up under any State or Central enactment; or

(i) a non agriculturist with the permission of State Government for the purpose that may be prescribed: Provided that a person who is a non-agriculturist but purchases land with the permission of the State Government under clause (i) of this sub-section shall, irrespective of such permission, continue to be a non-agriculturist for the purpose of this Act:

Provided further that a non-agriculturist in whose case permission to purchase land is granted by the State Government, shall put the land to such use for which the permission has been granted, within a period of two years or a further such period, not exceeding one year, as may be granted by the State Government, to be counted from the day on which the deed covering the sale of the land is registered and if he fails to do so, the land so purchased by him shall vest in the State Government free from all encumbrances.

(3) No Registrar or Sub-Registrar appointed under the Indian Registration Act, 1908 shall register any document pertaining to a transfer of land, which is in contravention to subsection (1) and such transfer shall be void ab-initio and the land involved in such transfer, if made in contravention of sub-section (1), shall, together with structures, buildings or other attachments, if any, vest in the State Government free from all encumbrances:

Provided that the Registrar or the Sub-Registrar may register any transfer:-

(i) where the lease is made in relation to a part or whole of a building; or

(ii) where the mortgage is made for procuring the loans for construction or improvements over the land either from the Government or from any other financial institution constituted or established under any law for the time being in force or recognized by the State Government.

(4) It shall be lawful for the State Government to make use of the land which is vested or may be vested in it under subsection (2) or sub-section (3) for such purposes as it may deem fit to do so.

Explanation:- For the purpose of this section, the expression "land" shall include-

(i) land, the classification of which has changed or has been caused to be changed to "Gair mumkin", "Gair-Mumkin Makan" or any other Gair Mumkin land by whatever name called, during the past five years countable from the date of entry in the revenue records to this effect;

(ii) land recorded as "Gair-mumkin", "Gair-mumkin Makan" or any other Gair mumkin land, by whatever name called in the revenue records, except constructed area which is not subservient to agriculture; and

(iii) land which is a site of a building in a town or a village and is occupied or let out not for agricultural purposes or purposes subservient to agriculture.

The Act No. 6 of 1988 was enforced on 14.4.1988, Act No. 6 of 1995 was enforced on 4.4.1995.

The sub-section (2) of Section 1 of Act No. 9 of 1997 provides that it shall be deemed to have come into force on 28.12.1996.

The sub-section (1) of Act No. 10 of 2007 provides as under:

This Act may be called the Himachal Pradesh Tenancy and Land Reforms (Amendment) Act, 2006.

The Section 2(a) of Section 118 of Act No. 10 of 2007 is as follows:

In section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972:-

(a) In sub-section (2), in clause (g), for the words, signs and figures, "Himachal Pradesh State Housing Board, established under the Himachal Pradesh Housing Board Act, 1972", the words, signs and figures, "Himachal Pradesh Housing and Urban Development Authority, established under the Himachal Pradesh Housing and Urban Development Authority Act, 2004" shall be substituted.

87. Thus, as noticed above, the amendments carried out in the Act after 1976 have been made applicable from different dates. The petitioners in the petitions have not made specific prayers with respect to amending Act No. 6 of 1988, Act No. 6 of 1995, Act No. 9 of 1997 and Act No. 10 of 2007. It is held that Act No. 6 of 1988, Act No. 6 of 1995, Act No. 9 of 1997 and Act No. 10 of 2007 have come into force as provided in the said amending Acts.

88. The writ petitions are now taken up separately for purposes of relief(s) prayed therein.

CWP No. 443 of 1995:

In view of above discussion, the petition fails and is accordingly dismissed.

CWP No. 1068 of 1995:

89. In CWP No. 1068 of 1995 one of the prayer is for quashing show cause dated 16.5.1995 issued by the Collector, Kullu to M/s. Nageshwar Resorts. We place on record the statement of learned counsel for the petitioner that on the basis of show cause, the Collector subsequently had passed order dated 21.10.1995 and Commissioner order dated 5.4.1997. The Financial Commissioner (Appeals) in Revenue Revision No. 71 of 1997 on 18.8.2005 has quashed order dated 5.4.1997 of the Commissioner and order dated 21.10.1995 of the Collector and order dated 18.8.2005 of the Financial Commissioner (Appeals) has attained finality. The orders dated 5.4.1997 and 18.8.2005 have not been placed on record. In case the Financial Commissioner (Appeals) has accepted the revision of the petitioner vide order dated 18.8.2005 and has set-aside the order dated 5.4.1997 of the Commissioner and order dated 21.10.1995 of the Collector and the order dated 18.8.2005 has not been assailed further, then the order dated 18.8.2005 shall be binding on the parties. In view of above discussion, the petition fails and is dismissed.

90. CWP No. 1088 of 2003:

The petitioners have filed amended petition dated 30.11.2012. The petitioners in the amended petition have made the prayers noticed above. The reliefs No. (iv), (v) and (vi) in the amended petition are not in consonance with the pleaded case of the petitioners, therefore, prayer Nos. (iv), (v) and (vi) of the amended petition is rejected. In the unamended petition, the petitioners have prayed mainly the following reliefs:-

(a) Issue a writ of certiorari to quash the provisions of Section 118 and 121-A of the Act and the Rules framed thereunder, as amended upto date as being violative of the basic structure of the Constitution of India and being highly arbitrary and violative of Article 14 of the Constitution of India.

(b) Declare the provisions of Rule 38A framed under the Act, as also being void and being violative of the basic structure of the Constitution.

(c) Quash Annexures P-2 and P-3 i.e. the Show Cause Notices, issued by respondent No. 2, to the petitioner No. 1 and respondent No. 4 and also quash the order Annexure P-8, passed by the Financial Commissioner (Appeals), Himachal Pradesh in Revenue Petition No. 156/97, preferred by the petitioner No. 1, against the State of Himachal Pradesh and also to consequently quash the orders dated 13th May, 1996, passed by the Commissioner, Shimla Division in Revenue Appeal No. 181 of 1995 i.e. Annexure P-7. Further to quash Annexure P-6 i.e. order dated 4th December, 1996 passed by the Collector, District Solan in Case No. 15/13 of 1991. This Honble Court may please to direct the respondents to restore the use occupation possession and ownership as well as enjoyment of land and building comprising seven bighas of land, out of 14 bighas of land which earlier belonged to respondent No. 2 and was purchased by petitioner No. 1 and which is identified as Khasra No. 228 and 229 measuring in total 36-13 bighas of land in Mauja Shilora Kurdh, Tehsil Kasauli, District Solan, Himachal Pradesh. The respondents No. 1 and 2, further need to be directed not to interfere in the peaceful possession, use and occupation and also enjoyment thereof by the petitioner No. 1, in any manner whatsoever.

The reliefs (i) to (iii) in the amended petition in substance are similar to reliefs No. (a) and (b) prayed by the petitioners in the unamended petition. The Annexure P-2 dated 25.11.1991 is the show cause notice issued by the Collector, District Solan to petitioners etc. why the land alongwith structures built thereon be not vested in the State Government for violating Section 118 of the Act. The Annexure P-3 dated 23.8.1995 is another notice issued by Collector, District Solan to petitioners etc. for violation of Section 118 of the Act. The Collector, Solan vide order dated 20.9.1995 held that land measuring 7 bighas comprised in Khasra Nos. 228 and 229 Mauja Shilora Khurd, Village Manoon, has been transferred by Sarabjot Singh in favour of G.S. Chopra, a non-agriculturist in violation of Section 118 of the Act where flats have been constructed. The Collector held vesting of aforesaid 7 bighas land alongwith structures in State Government free from all encumbrances and Tehsildar, Kasauli was directed to take over possession. The Commissioner, Shimla Division vide order dated 13.5.1996 upheld the order dated 20.9.1995 in appeal. The Financial Commissioner (Appeals), H.P. in Revenue Revision No. 156 of 1997 vide order dated 12.7.1999 dismissed the revision against the order dated 13.5.1996. The Financial Commissioner in Revision Petition No. 157/1997 vide order dated 12.7.1999 declined to go into the question of restoration of possession of the land and structure in favour of the petitioners on the ground that the land in question has been acquired in contravention of Section 118 and the land and structures have vested in the State Government.

91. It has been contended on behalf of the petitioners that Section 118 of the Act at the relevant time did not prohibit execution of an agreement by an agriculturist in favour of non-agriculturist for purpose of construction. It also did not prohibit execution of power of attorney when the notice was issued in the year 1991. The transfer of land, at that time, did not include benami transaction or an authorization made by owner of the land by way of special or general power of attorney or by an agreement with the intention to put a non-agriculturist in possession of the land. The transaction between petitioner No. 1 and respondent No. 4 was wrongly taken to be benami transaction. The respondent No. 4 is a bonafide agriculturist in Himachal Pradesh. The respondent No. 4 is married to Smt. Tara Chopra D/o Brig. Gurbax Singh S/o Sobha Singh, who owned and possessed land situate in Mauza Dhalli as per jamabandi 1977-78. Smt. Tara Chopra is an agriculturist in State of Himachal Pradesh and consequently her husband respondent No. 4 is also an agriculturist in Himachal Pradesh. In fact all the three Directors of M/s. Astra Estates Pvt. Ltd. are agriculturist of Himachal Pradesh and therefore, there is no violation of Section 118 of the Act.

92. The Financial Commissioner (Appeals) in the order dated 12.7.1999 has held that G.S. Chopra, being a non-agriculturist could not have acquired lands in his own name in the State of H.P., therefore, setup Sarvjot Singh Bedi, the brother of his sisters husband a relative, as his benami and acquired land comprised in khasra Nos. 228 and 229 in village Shilora Khurd, measuring 7 bighas in his name, who happens to be an agriculturist in H.P. owning lands in District Una. It has also been held that the entire transaction is tainted being a benami, firstly in the name of Prem Singh, an agriculturist, whose financial status did not permit such large scale purchases of land by him and secondly in the name of Sarvjot Singh Bedi, a relation of G.S. Chopra.

93. In the writ petition, the petitioners have placed on record the copies of jamabandis 1977-78, 1996-97 showing Sobha Singh as pattadar under State Government on land comprised in Khasra Nos. 122, 174/123, 124, 125, 126, 127, 176/128 kitas 7 total measuring 16-10 bighas, Mauja Dhalli on payment of ` 60/- Chakota. The petitioners have also placed on record the certificate dated 3.6.2004 issued by Patwari, Settlement, countersigned by Tehsildar, Settlement on 4.6.2004 certifying Gurbax Singh as pattadar on land measuring 16-10 bighas out of which having orchard on 10-16 bighas under self cultivation. In jamabandi 1996-97, it has been indicated that mutation of succession to the estate of Sobha Singh has been decided in favour of Gurbax Singh on 21.11.1999. The petitioners have also placed on record a copy of passport dated 19.11.1993 of Tara Chopra in which Gurbax Singh, Premila Singh and Gobinder Singh Chopra have been shown as father, mother and spouse, respectively of Tara Chopra. The petitioners have contended that Tara Chopra W/o G.S. Chopra D/o Gurbax Singh is an agriculturist in State of Himachal Pradesh. G.S. Chopra is the husband of Tara Chopra, therefore, he is also an agriculturist in Himachal Pradesh.

94. It appears the copies of jamabandis 1977-78, 1996-97, agriculturist certificate in favour of Sobha Singh and passport of Tara Chopra which are now placed on record by petitioners in the writ petition were not before the Financial Commissioner (Appeals), atleast there is no reference of such documents in the order dated 12.7.1999 of the Financial Commissioner (Appeals), H.P. The petitioners have also contended that all the three Directors of M/s. Astra Estates Pvt. Ltd. are agriculturists in State of Himachal Pradesh, therefore, they have not violated Section 118 of the Act, more particularly, in view of the then Section 118 at the time of transaction. We have not examined the correctness of these contentions in view of order which we intend to pass in respect of order dated 12.7.1999.

95. In the light of above discussion, the petitioners are not entitled to any relief save and except that orders dated 12.7.1999 passed by the Financial Commissioner (Appeals) H.P. in Revenue Revision No. 156/1997 and Revision Petition No. 157/1997 are set-aside. The Financial Commissioner (Appeals), H.P. is directed to decide Revenue Revision No. 156/1997 and Revision Petition No. 157/1997 after giving opportunity to all concerned. It will be open to the parties to place on record in Revenue Revision No. 156/1997 and Revision Petition No. 157/1997 fresh material and raise all legal pleas available to them in law. The parties through their counsel are directed to appear before the Financial Commissioner (Appeals), H.P. on 21.10.2013 and the Financial Commissioner (Appeals), H.P. shall decide the Revenue Revision and Revision Petition in further three months. The petitioners are not entitled to remaining reliefs prayed in the unamended and amended petition which are rejected.

CWP No. 484 of 2006

96. In CWP No. 484 of 2006 one prayer is to the effect that the term legal heir in the Explanation to Section 118 of the Act shall mean and include all categories of legal heirs of an agriculturist in particular including brothers and sisters. This prayer has been made by the petitioner in the context that she is the owner of some land in village Dunti, Pargna Chail. She wants to transfer a part of the said land by way of gift or will in favour of her younger sister Mrs. Raj Rani Chopra. She had made a representation to the Government of Himachal Pradesh for clarification whether she could do so u/s 118 without permission of the State Government through application dated 5.10.2005. She was informed vide communication dated 23.1.2006 that no transfer can be made without the permission of the State Government u/s 118 as sister of petitioner was not an agriculturist within the meaning of the Act.

97. The expression legal heirs used in sub clause (ii) of Explanation to Section 1 of Section 118 has not been explained nor legal heirs has been defined in the Act. In these circumstances, legal heirs u/s 118 are none-else but legal heirs of donor or testator of gift or will as the case may be as per law applicable to the transferor or testator. The petitioner is admittedly a Hindu and is governed by the Hindu Succession Act, 1956. The Section 15 of the said Act provides as under:

15. General rules of succession in the case of female Hindus.-(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,-

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub-section (1),-

(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.

The Section 16 of ibid Act is as follows:

16. Order of succession and manner of distribution among heirs of a female Hindu.-The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestates property among those heirs shall take place according to the following rules, namely:-

Rule 1.- Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously.

Rule 2.- If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestates death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestates death.

Rule 3.- The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in subsection (2) to section 15 shall be in the same order and according to the same rules as would have applied if the property had been the fathers or the mothers or the husbands as the case may be, and such person had died intestate in respect thereof immediately after the intestates death.

The combined reading of the aforesaid Section 15 and Section 16 is clear that the persons mentioned in clauses (a) to (e) of sub section (1) of Section 15 do not inherit female Hindu simultaneously. The rule of succession of female Hindu is provided in Section 16. The petitioner has not pleaded how she has acquired the property which she intends to give to her sister Mrs. Raj Rani Chopra by way of gift or will. It is not the case of the petitioner that she has no son or daughter or grand children from son and daughter. In view of limited pleadings on the point prima-facie Mrs. Raj Rani Chopra sister of the petitioner is not a legal heir of petitioner and would exclude others for inheriting the estate of petitioner u/s 15 read with Section 16 of the Hindu Succession Act, 1956. It is not the case of the petitioner that Mrs. Raj Rani Chopra, independently in her own right is an agriculturist in State of Himachal Pradesh. Thus, Mrs. Raj Rani Chopra, sister of petitioner is not entitled to land from petitioner by way of gift or will under sub clause (ii) to Explanation to Section 1 of Section 118 of the Act. The cumulative effect of entire discussion above, the petitioner is not entitled to any relief, hence CWP No. 484 of 2006 is dismissed.

CWP No. 844 of 2010

98. In CWP No. 844 of 2010 one relief is to quash the impugned notice dated 30.1.2008, Annexure PE issued by respondent No. 3, the English version of Annexure PE is as follows:-

IN THE COURT OF COLLECTOR, DISTRICT SOLAN, HIMACHAL PRADESH

Case No. 2/13 of 2008

State versus Bhagwanti Oberoi

Notice u/s 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972.

Notice to-Bhagwanti Oberoi Charitable Trust C/o Manager, Hotel Oberoi Clarkes, The Mall, Shimla.

That it has come to our notice that land identified by Khasra No. 806 measuring 1955 sq. meters and Khasra No. 807 total 3762 sq. meters Mauza Salogra, Solan, you have without the permission of the State Government have bought/sold the land against the provisions of Himachal Pradesh Tenancy and Land Reforms Act, 1972.

That since you have done the aforementioned act which in violation of the provisions of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 as amended by the amending Act, 1987, which has come into force on the 14th April, 1988. As a result the land in question alongwith the aforementioned building etc. is liable to be vested in the State Government as per Section 118(3) of the Himachal Pradesh Tenancy and Land Reforms Act, 1972.

Therefore by this notice you are hereby given an opportunity to Show Cause as to why under the aforementioned provisions of law the land alongwith the structures constructed thereupon should not be ordered to vest in the State Government. You are further directed to appear before this Court in person or through an authorized representative and to file your reply on 28th of February, 2008 failing which ex-parte proceedings shall be taken against you and further proceedings shall be taken in the case in accordance with law.

Issued on this the 30.01.08 under my seal and signatures.

Sd/- Collector, Distt. Solan, HP.

99. It has been contended that the Government has granted permission to petitioner vide No. Rev.-2F(10)12/88 addressed by the Deputy Secretary (Revenue) to the Government of Himachal Pradesh to the Divisional Commissioner, which is as follows:

No. Rev. 2F(10) 12/(illegible) Government of Himachal Pradesh, Department of Revenue

From

The Deputy Secretary (Revenue) to the Government of Himachal Pradesh, Shimla-171002.

To

The Divisional Commissioner, Shimla Division, Shimla-171002, HP.

Dated, Shimla-171002, the 6.12.88.

Subject:- Permission to purchase land by Bhagwanti Oberoi Charitable Trust.

Sir,

I am directed to refer to your letter No. (illegible) dated 10th March on the above subject and to convey the sanction of the State Government in exercise of the powers vested in it under clause (1) of sub-section (2) of the Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 read with clause (c) of sub-rule (3) of Rule 38-A of the Himachal Pradesh Tenancy and Land Reforms Rules, 1975 to the purchase of land measuring 3762 sq. meters comprised in Khasra No. 806 & 807 situated in Village (illegible) Tehsil Solan, Distt. Solan by Bhagwanti Oberoi Charitable Trust from Smt. Ishra Devi Family Trust resident of Shimla Tehsil Shimla Distt. Shimla for setting up old house for aged people and Charitable Dispensary.

2. This sanction is valid for 180 days from the date of issue hereof and it subject to the following conditions:-

i) The land shall be utilized for the purposes for which it has been sanctioned,

ii) In the jamabandi it shall be noted in red ink, in the remarks column that the above vender shall not in future be entitled to any allotment/grant/lease of land from the Govt.

iii) This sanction or the purchase of land thereunder shall not vest a right of an agriculturist on the purchaser who shall continue to be a non-agriculturists.

Yours faithfully, Sd/- Deputy Secretary (Revenue) to the Government of Himachal Pradesh.

"OFFICE OF THE COMMISSIONER" SHIMLA DIVISION, SHIMLA-2.

No. 10-2-3/82-CSD.(JR) 15-(illegible)-088 dated Shimla-2, the Copy forwarded to the Deputy Commissioner, Solan, Distt. Solan (HP.) with reference to his letter No. PSH-IX-84/87 dated 27th Jan., 1988. He is requested that Tehsildar, Solan and applicant may please be informed for the matter accordingly.

Sd/- for Commissioner, Shimla Division.

No. PSH/Ex. 84/87 dated 20/1224 (illegible) Copy forwarded (illegible) & n/a:-

(1) The Tehsildar, Solan.

(2) Bhagwanti Oberoi Charitable Trust, C/o Hotel Oberoi Clarks, The Mall, Shimla-1.

Sd/- for D.C. Solan.

The respondents No. 1 to 3 have taken the stand that the petitioner has violated Section 118 of the Act by not putting the land comprised in Khasra Nos. 806 and 807 measuring 3762 sq. meters to use for the purpose for which it was allowed to be purchased within the time limit prescribed under the Act. Therefore, the Collector, Solan had issued notice to petitioner for violating Section 118 of the Act.

100. In the notice dated 30.1.2008, Annexure PE, it has been alleged that the petitioner without permission of the State Government has bought/sold land comprised in Khasra No. 806 and Khasra No. 807 total measuring 3762 sq. meters mauza Salogra. There is no allegation that the petitioner has not put to use the land within prescribed time. It is clear from communication dated 6.12.1988 from the Deputy Secretary (Revenue) to the Divisional Commissioner that the Government in exercise of powers vested in it u/s 118 permitted the petitioner to purchase the land measuring 3762 sq. meters comprised in Khasra Nos. 806 and 807 for setting up old house for aged people and Charitable Dispensary. Thus, it cannot be said that the petitioner has purchased the land measuring 3762 sq. meters comprised in Khasra Nos. 806 and 807, Mauza Deon, Village Salogra without permission of the State Government u/s 118 of the Act. Hence, Annexure PE dated 30.1.2008 is not sustainable and quashed. However, in view of above discussion, the petitioner is not entitled to any other relief. The petition is allowed to the limited extent as indicated above.

CWP No. 1500 of 2010

101. In addition to other prayers, the petitioner has prayed for quashing of show cause notices dated 7.3.2001 and 10.4.2001 issued by Collector, Solan. The petitioner has also prayed for quashing of order dated 19.3.2010 passed by Financial Commissioner, Himachal Pradesh. The petitioner has also sought a direction to the respondents to complete the act of issuing formal permission in favour of the petitioner to divert the use of land from establishing Mushroom Unit to Resort/Hotel instead.

102. The Government of Himachal Pradesh vide communication dated 12.2.1998 of Financial Commissioner-cum-Secretary (Revenue) addressed to the Commissioner, Shimla Division, granted permission to petitioner to purchase 15-15 bighas land, mauza Khali for establishing mushroom unit with the stipulation that the permission is valid for 180 days and land should be put to use within two years for the purpose for which permission has been granted, failing which the land shall vest in the Government free from all encumbrances. The District Collector, Solan issued show cause notice dated 7.3.2001 to the petitioner alleging that petitioner had not established mushroom unit within two years prescribed period over land measuring 15-15 bighas, Mauza Khali and petitioner had been constructing a hotel over said land in violation of Section 118, therefore, why said land be not taken over alongwith built up structure u/s 118 of the Act. Similar notice dated 10.4.2001 was again issued by the District Collector to the petitioner. The District Collector vide order dated 21.9.2004 held that the petitioner had changed the use of land purchased by it without approval of the competent authority hence, District Collector ordered vesting of said land in the State of Himachal Pradesh alongwith structure standing thereon u/s 118 of the Act. The appeal filed by the petitioner was dismissed by the Commissioner, Shimla Division on 25.5.2009. The revision filed by the petitioner against the order date 25.5.2009 has been dismissed by the Financial Commissioner (Appeals), Himachal Pradesh on 19.3.2010 with the modification that only 270 shares purchased by the petitioner shall vest in the State and not the entire holding in Khewat No. 28.

103. The petitioner has projected the case that for reasons beyond its control the mushroom unit for which land was purchased with the permission of the Government became impracticable and not viable due to intervening events. Therefore, petitioner took steps for establishing resort/hotel on the said land. The petitioner obtained various clearances, no objection certificates from the concerned Departments and even an application with all documents was submitted to the Deputy Commissioner/District Collector, Solan seeking permission to change the land use from establishing mushroom unit to resort/hotel on the said land. The request of the petitioner for land use change remained with Deputy Commissioner and its case was not processed further for permission of the Government to change the land use. The District Collector instead of processing the case of the petitioner for land use change issued notices to the petitioner for vestment of land and ultimately passed the vestment order of the land which has been upheld by the Commissioner and Financial Commissioner with slight modification.

104. The Financial Commissioner in the order dated 19.3.2010 has observed that the petitioner-Company did not set up the mushroom unit within the period of two years but later on after expiry of stipulation of two years applied through Deputy Commissioner, District Solan for permission to set up a hotel instead. The respondents 1, 3 thus have admitted that the petitioner had applied for change of land use through Deputy Commissioner, District Solan. It is not the case of the respondents that petitioner had applied for change of land use after the vestment order passed by the Collector. In other words, the application of the petitioner for permission to land use change was before Deputy Commissioner, Solan prior to vestment order passed by the Collector, Solan. The vestment of the land free from all encumbrances in the State under the Act and the Rules is not automatic, it requires determination u/s 118. The respondents No. 1, 3 in all fairness should have considered the application of petitioner for land use change. However, respondents No. 1 and 3 without considering the application of petitioner for land use change ordered the vestment of the said land in State free from all encumbrances u/s 118. The petitioner by moving application for land use change has virtually admitted that the petitioner has diverted the original land use for which permission was taken from the State Government u/s 118 for establishing mushroom unit. In the interest of justice it will be appropriate that respondents No. 1 and 3 should proceed to decide the application of petitioner for land use change of aforesaid 15-15 bighas land and pass appropriate order till then order dated 21.9.1994 of the District Collector, order dated 25.5.2009 of Divisional Commissioner, Shimla and order dated 19.3.2010 of Financial Commissioner (Appeals), H.P. ordering vesting of aforesaid land shall remain in abeyance. In case the petitioner is permitted to change land use of aforesaid 15-15 bighas then the aforesaid orders dated 21.9.1994, 25.5.2009 and 19.3.2010 shall not be given effect and shall also not be executed. We have not examined the legality of aforesaid orders dated 21.9.1994, 25.5.2009 and 19.3.2010 on merits. In case land use change application of the petitioner is rejected by respondent No. 1, consequently reviving the aforesaid orders dated 21.9.1994, 25.5.2009 and 19.3.2010, it will be open to the petitioner to assail orders dated 21.9.1994, 25.5.2009 and 19.3.2010 in accordance with law. The Deputy Commissioner/Collector, Solan, respondent No. 3 is directed to inform the petitioner deficiency, if any, in the application of petitioner for land use change already submitted to Deputy Commissioner, Solan within a period of two weeks. Thereupon the petitioner shall remove the deficiency, if any, as pointed out by the Deputy Commissioner, Solan in further two weeks and respondent No. 1 shall decide the land use change application of petitioner u/s 118 within further three months and shall inform the decision to petitioner. However, in view of above discussion, the other reliefs prayed by petitioner are rejected. The petition is allowed to the limited extent as indicated above.

All the petitions being CWP Nos. 443, 1068 of 1995, 1088 of 2003, 484 of 2006, 844 and 1500 of 2010 are disposed of accordingly, so also the pending applications, if any.

Advocate List

For Petitioner : R.L. Sood
Mr. Arjun K. Lall in CWP Nos. 443, 1068 of 1995, 1088 of 2003, 844
1500 of 2010
Mr. K.D. Sood
Mr. Sanjeev Sood, in CWP No. 484 of 2006, for the Appellant; Shrawan Dogra, Advocate General, Mr. Romesh Verma
Mr. Anup Rattan, Addl. A.Gs.
Ms. Parul Negi, Dy. A.G. for respondent No. 1 in CWP No. 443 of 1995, respondents No. 1
3 in CWP Nos. 844
1500 of 2010
respondents No. 1
2 in CWP No. 1088 of 2003, Mr. Sandeep Sharma, ASGI, in CWP No. 443 of 1995, CWP Nos. 844
1500 of 2010
Mr. B.C. Negi, Advocate, in CWP No. 1088 of 2003, for the Respondent

Bench

A.M. Khanwilkar, C.J
Kuldip Singh, J

Eq Citations

LQ/HimHC/2013/771

Head Note

Transfer of Property Act — Applicability — Property owner granting power of attorney to manage the property — Held, Act not applicable — A power of attorney is a personal authorization not transferring the title of property to the agent — Act applicable only to transfers of property by the property owner.\n Issue: Whether the Transfer of Property Act is applicable when the property owner has granted a power of attorney to someone to manage the property?\n Judgment: No.\nTransfer of Property Act applicable only to transfers of property made by the property owner — Power of attorney is a personal authorization not transferring the title of the property to the agent.\nConclusion: Transfer of Property Act not applicable when the property owner has granted a power of attorney to someone to manage the property.