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2005 DIGILAW 299 (HP)

NAGESHWAR PANDEY v. STATE OF H. P.

2005-08-18

A.R.BASU

body2005
ORDER Dr. A.R. Basu, F.C. (A) :- This revision petition has been filed by the petitioner against an order dated 5.4.1997 passed by the Commissioner Mandi Division in appeal No. 272/95 whereby an order dated 21.10.1995 passed by the Collector, District Kullu has been upheld. 2. Brief facts of the case are that the Collector, District Kullu initiated proceedings under Section 118 of the H.P. Tenancy and Land Reforms Act, 1972, against the present petitioner and accordingly issued notices to him as well as the present performs respondent. Subsequently, the learned, Collector held the petitioner as having violated the provisions of Section 118 of the Act and consequently ordered vesiment of the land in dispute comprised in Khasra No.s 2165, 2166 and 2167 measuring 0-7 biswas, situated in Phati Nasogi, Kothi Manali, Tehsil Manali, District Kullu, in the State Government vide an order dated 21.10.1995. Feeling aggrieved, the petitioner filed an appeal before the Commissioner Mandi Division who dismissed the same vide order dated 5.4.1997. It is against this order of the Commissioner that the petitioner has assailed in the present revision petition before this Court. 3. The record of the courts below was summoned and the arguments advanced by the learned Counsel for the parties were heard. 4. Shri R.L. Sood, the learned Counsel for the petitioner argued that the learned Collector never issued a notice to the petitioner. According to him, notice was issued to M/s. Nageshwar Resorts, a firm which does not exist. However, as the petitioner had entered into an agreement to purchase the property in question, he appeared before the Collector. He argued that the petitioner has even filed a writ petition in the Honble High Court of Himachal Pradesh against the provisions of the Act which is still pending. The learned Counsel contended that the property in dispute is a built up structure which is not covered under the definition of land and hence the provisions of the Act are not applicable upon the same. He asserted that the Collector had admitted in para No. 3 of the affidavit filed before the Honble High Court that the structures were existing upon the land consisting of a built of property, which was a single storeyed structure in the form of a residential house having five rooms, two bath rooms, two kitchen and an open verandah. He asserted that the Collector had admitted in para No. 3 of the affidavit filed before the Honble High Court that the structures were existing upon the land consisting of a built of property, which was a single storeyed structure in the form of a residential house having five rooms, two bath rooms, two kitchen and an open verandah. He stated that it is an admitted case that the petitioner has entered into an agreement to purchase a residential house built upon the land which measures 315 sq. yards or 7 biswas which is not subservient to agriculture. According to him, an agreement to sell and the power of attorney which were executed on 13.8.1993 and 1.11.1993 respectively, do not fall within the meaning of transfer as the Act did not include these kinds of documents in Section 118 at that point of time and were later included by way of an amendment in the year 1995. As such, no transfer of land is involved in the present case. He has further stated that Smt. Rukmani has not executed a sale deed with the petitioner as yet and she is still the owner of the land. Hence, the vesiment of the property in the state under the provisions of Section 118 of the Act is not sustainable. He also argued that the Collector and the learned Divisional Commissioner below have erred in law in applying the amended provisions of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972, with retrospective effect in the present case. Both the Collector and Divisional Commissioner below have applied the amended provisions were carried out in 1995. Both the courts below have failed to appreciate that the agreement to sell and the power of attorney which were executed and registered in the office of the Sub-Registrar, Kullu in favour of the present petitioner on 13.8.1993 and 1.11.1993, respectively and on the same date a Will was also executed by Smt. Rukmani in favour of the petitioner. Therefore, the provisions of the Act as amended in March, 1995 did not apply to the case. That prior to 1995, then Act had been amended in 1987. It is the provision of the Act as they stood amended in 1987 (prior to 1995) that apply to the case of the petitioner. After the amendment in 1987, Section 118(1) of the Act read as under:- "118. That prior to 1995, then Act had been amended in 1987. It is the provision of the Act as they stood amended in 1987 (prior to 1995) that apply to the case of the petitioner. After the amendment in 1987, Section 118(1) of the Act read as under:- "118. (i) Notwithstanding any thing to the contrary contained in any taw, 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 a 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." 5. A perusal of the above reproduced section shows: (a) That there was no prohibition whatsoever to enter into an agreement to sell a particular land along with delivery of possession thereof in respect of intending purchaser; (b) There was no prohibition to execute and register a general power of attorney in favour of any person; (c) There was no prohibition to execute a will in favour of any person regarding the property in question i.e. a house. As a matter of fact, there was no prohibition to enter into an agreement to sell, execute a power of attorney or enter into an agreement to sell possession any agriculturist and also under the provisions of the Act as it applied to the case of the petitioner in 1993; (d) The only prohibition was that no sale deed could be registered by a Registrar in respect of agriculturist land until and unless prior permission had been obtained from the State Government; (e) In so far as the petitioner is concerned, no sale deed was executed and only an agreement to sell, a power of attorney and will was executed; (f) Moreover in the case of the petitioner this permission was not required as the transaction did not involve any agriculture property. On the contrary, it involved the proposed future transfer of 315 sq. yards of built up property i.e. (0-7 biswas) which comprised a residential house which in turn had been constructed since long; (g) Moreover, the provisions of Explanation (ii) to Section 118(4) categorically excludes a constructed area, which is not subservient to agriculture from the definition of land. On the contrary, it involved the proposed future transfer of 315 sq. yards of built up property i.e. (0-7 biswas) which comprised a residential house which in turn had been constructed since long; (g) Moreover, the provisions of Explanation (ii) to Section 118(4) categorically excludes a constructed area, which is not subservient to agriculture from the definition of land. This explanation covers the case of the petitioner and therefore also the impugned order of the appellate authority is against law and not sustainable and therefore liable to be quashed; (h) That the learned Divisional Commissioner has applied amended provisions of Section 118 of the Act as amended in April, 1995 to the present case. It is only in April, 1995 (and positively not in 1993 when the transaction took place) that by amendment to the Act, the State of HP. prohibited the transfer of land in favour of a non-agriculturist by prohibiting any transfer by way of will. Furthermore, if it only by virtue of amendment of the Act carried out in March, 1995, which received the assent of the President on 22.3.1995, that State of H.P. also included the following prohibition in the matter of transfer of land by incorporating the following : "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 owner of that land." 6. It is only if the amended provisions (which came into force in 1995) apply that the transaction entered into between the petitioner and Smt. Rukmani Devi could be said to be prohibited under law and that too only if the property in question which is a constructed property was subservient to agriculture. In the absence of the retrospective operation of the amended provisions of the Act the transaction is absolutely valid as it was entered into between the parties in August, 1993/November, 1993 (which fact cannot be denied because of the registration of the agreement to sell as also the power of attorney with Sub Registrar, Kullu) since, the amended provisions do not apply retrospectively. 7. Regarding retrospective application etc. 7. Regarding retrospective application etc. in this context it was argued that the learned Divisional Commissioner had erred in law in applying the provision of the Act as amended in 1995, to the present transaction as there could not be any retrospective application of this amended provision. The learned Counsel for petitioner referred to the general principles regarding the retrospective operation of statutes. He argued that every statute which takes away or impairs vested rights acquired under existing laws, or creates. A new obligation, or impose a new duty, or attaches a new disability in respect of transaction already past, must be presumed to be intended not to have a retrospective effect. He cited the following cases in support of his contentions: "Rattan Lal v. Maharashtra State, AIR 1996 SC 722; United . provinces v. Atiqua Begum, AIR 1941 Fedral Court Page 16; Sajjan Singh v. State of Punjab, AIR 1964 SC 464; Delhi Cloth and General Mills v. Income Tax Commissioner, AIR 1927 PC 242; Daya Vati v. Inderjit, AIR 1966 SC 1423 and Sree Bank Ltd v. S.D. Roy and Comp, AIR 1966 SC Page 1953 (Head note) paras 4, 45 and 59 and pages 1967, 1968 and 1977." 8. Thus the main contention of the learned Counsel is regarding retrospective application of law, definition of land, improper notice to the petitioner etc. and agreement to sell which cannot be considered as transfer. 9. Shri Sunil Vasudeva, learned A.D.A. (Rev.), appearing for the respondents argued that notice was issued to the petitioner who associated himself with the proceedings before the Collector. He asserted that the petitioner has violated the provisions of Section 118 of the Act and hence the property in dispute has been rightly vested in the State. He further asserted that as per the jamabandi, the land in dispute in classified as Ropa Awal and Ropa Doem which falls well within the definition of land under the Act. He also argued that the petitioner has taken over the possession of the land and it was he who had started construction upon the same. Thus, according to him, the transfer was against the intent of the legislation as envisaged in Section 118 of the Act. 10. He also argued that the petitioner has taken over the possession of the land and it was he who had started construction upon the same. Thus, according to him, the transfer was against the intent of the legislation as envisaged in Section 118 of the Act. 10. Having heard the learned Counsel for the parties and perusing the record, it has been observed that Smt. Rukmani Devi, who is the recorded owner of the land in dispute was not served upon by the Collector. A perusal of the record shows that the owner, who was a necessary party to adjudicate upon the entire issue was issued a notice dated 16.5.1995 which was returned with the observation by the postal personnel that no such address is available. On the very next date of hearing i.e. the 2.6.1995, the Collector proceeded ex parte against her by recording that she is not present "inspite of service". This observation is not supported by the record as Smt. Rukmani was not sent the notice at her correct address subsequently. The learned Collector, thereafter, made no efforts to serve upon her. Besides, it has not been denied by the Collector that a structure is existing upon the land in dispute which is the subject matter of the agreement between the petitioner and the performa respondent. The Collector has relied merely on the entries of the revenue record while arriving at his findings while the objection of the petitioner that the property in dispute is not covered under the definition of "land under the Act has not been rationally examined and adjudicated upon. The learned Commissioner has, on his part, also failed to appreciate the irregularities committed by the learned Collector. However, the Collector and the learned Divisional Commissioner below have erred in law in applying the amended provisions of Section 118 of the HP. Tenancy and Land Reforms Act, 1972, with retrospective effect in the present case. Unless there are words in the statue sufficient to show the intention of the legislature to affect existing rights, it is deemed to be "prospective" only "Nova constitution futuris formum imponere debet non practcrius" 11. Tenancy and Land Reforms Act, 1972, with retrospective effect in the present case. Unless there are words in the statue sufficient to show the intention of the legislature to affect existing rights, it is deemed to be "prospective" only "Nova constitution futuris formum imponere debet non practcrius" 11. Further, the contention of the para 3 of the reply filed the Collector to the Writ Petition reveals that the Collector has not denied that the 0-7 Biswas of land comprises a built up property, which was a single storyed structure in the for a residential house having five rooms, two bath rooms, two kitchen and an open verandah. This aspect has not been contradicted by the learned ADA (Rev.) 12. Hence, in view of the facts as borne out from the record and discussed hereinbefore, it appears that there are number of irregularities in the orders dated 21.10.1995 passed by the Collector, District Kullu and those dated 21.10.195 passed by the Id. Commissioner, Mandi Division and hence these are set aside. The revision petition is consequently accepted. 13. The Collector, Kullu, however, is at liberty to enquire into the violation of the provisions of Section 118, if any, by the petitioner and take action, if he so deems fit after completing all legal and codal formalities as discussed above. 14. Order be communicated to the parties as well as their advocates. 15. The record of the courts below be returned and case file of this court be consigned to the record room after due completion.