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1997 DIGILAW 191 (HP)

PRADEEP KUMAR SHARMA v. STATE OF HIMACHAL PRADESH

1997-05-20

A.L.VAIDYA, M.SRINIVASAN

body1997
JUDGMENT M. Srinivasan, C.J. (Oral) :- The petitioner is aggrieved by the rejection of his application for permission to purchase land of 5 Biswas. The contention of the petitioner is that no reason has been given for rejecting his application inspite of the fact that the concerned Authorities under the Town and Country Planning Act had made recommendations for permission being granted. In reply, it is stated that the Government has taken a decision in the matter taking into consideration certain reasons, that is, the petitioner is a permanent resident of the State of Uttar Pradesh and is employed in a private firm at Paonta Sahib and has been residing in the Himachal Pradesh for a short while. It is also stated that the land was irrigated and after taking note of the relevant circumstances, the Government has rejected the application. On our direction, a supplementary affidavit has been filed today and it is stated in the supplementary affidavit that as per the entry in the Jamabandi of the year 1992.-93, which is produced as Annexure R-l, the land measuring 13-02 Bighas is classified as Chahi, that is, irrigated one and the rest of 10 Biswas is classified as Gairmumkin Abadi, under Khasra No. 1367 /208 min area 13-12 Bighas. The land proposed to be purchsed by the petitioner is out of Khasra No. 1367/208 and therefore, irrigated one.-The supplementary affidavit also refers to the cropwisc position of the land consisting of Khasra No. 1367/208 measuring 13-12 Bighas for the years 1994-95, 1995-96 and-1996-97 as given in Khasra Girdwari. a copy of which is attached as Annexure R-II. 2. Learned counsel for the petitioner has drawn our attention to the judgment of a Division Bench of this Court, to which one of us was party, in Waheed Ahmad v. State of Himachal Pradesh & anr, C. W.P. No. 1463 of 1993, dated 21.3.1994. In that case the application was rejected on the only ground that the land sought to be purchased was Nehri (irrigated). The Bench held that even irrigated land was held and within the definition of the land-contained in the Act and there is no provision in the Act to exclude such land from consideration The Bench, therefore, quashed the order of rejection and directed the respondent to grant the necessary permission to the petitioner subject to the Rules. 3. The Bench held that even irrigated land was held and within the definition of the land-contained in the Act and there is no provision in the Act to exclude such land from consideration The Bench, therefore, quashed the order of rejection and directed the respondent to grant the necessary permission to the petitioner subject to the Rules. 3. Learned Advocate General has rightly pointed out that in the present case it is not only the reason for which the application has been rejected. He has submitted that the fact that the land is irrigated is also one of the reasons taken into consideration by the Government and other reasons have also, been considered by the Government before rejecting the application of the petitioner. 4. Under Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. the transfer of land to non-agriculturists is barred excepting under the conditions set out therein. Sub-section (2) provides that nothing in sub-section (I) shall be deemed to prohibit the transfer of land by any person in favour of certain categories of persons mentioned therein. In clause (g) a persons 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 or from the Development Authority constituted under the Himachal Pradesh Town and Country Planning Act or(from any other statutory corporation set up under any State or central enactment is mentioned Under clause (h), a non - agriculturist can purchase with the permission of the State Government for the purpose that may be prescribed. The proviso reads that a person who is a non- agriculturist but purchases land with the permission of the State Government under clause (h) of this sub-section shall irrespective of such permission continue to be a non-agriculturist for the our poses of the Act. RuIe-38-A is the relevant Rule under the Himachal Pradesh Tenancy and Land Reforms Rules, 1975. Under that rule, the State Government on receipt of the recommendations of the Divisional Commissioner shall consider the application and may grant or refuse the permission. The rule also provides that if the purpose is for building a residential house the maximum land that can be permitted to be purchased is an extent of 500 square meters. Under that rule, the State Government on receipt of the recommendations of the Divisional Commissioner shall consider the application and may grant or refuse the permission. The rule also provides that if the purpose is for building a residential house the maximum land that can be permitted to be purchased is an extent of 500 square meters. Apart from that, there is no other guidelines in the Rule as to what exactly arc the matters to be taken into consideration by the State Government for granting or rejecting the |application for permission 5. In so far as this case is concerned, the Government has given more than one reason for rejecting the application, and, therefore, the judgment of this Court in C.W.P. No. 1463 of 1993 dated 21.3.1994 will not apply. We are unable to interfere with the order of rejection passed by the Government as some reasons have been given by the State Government for rejecting the application. Hence, the writ petition has to fail. However, the fact that the Government has not framed any guidelines is apparent from the reading of the present Rule. For a purpose, like this it is always better and in the interests of justice that the Government frames appropriate guidelines so that rejection or granting of permission is not arbitrary. It is the high time that the guidelines were framed by the Government. Though the Act was passed in 1974 and the Rules were also framed in 1975. It is unfortunate that the necessary guidelines have not been framed either under Section 118 or under Rule 38 A. 6. It is represented by the learned Advocate General that he has already requested the Government to frame appropriate guidelines in this matter. We request the Government to frame such guidelines within a period of three months from this date, if such guidelines are so framed and the petitioner falls within the scope of such guidelines for making an application, it is open to the petitioner to file a fresh application before the State Government and the same shall be considered in accordance with the guidelines framed by the Government. 7. With the above observations, this writ petition is disposed of.