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2009 DIGILAW 522 (HP)

Roshan Lal v. State of H. P.

2009-06-02

P.MITRA

body2009
ORDER (P. Mitra, F.C.) - This revision petition has been filed against the order dated 6.9.2008 passed by the Commissioner, Shimla Division, in Revenue appeal No. 301/2005. 2. The facts of the case, in brief, are that the Revenue field staff of Solan tehsil had reported through prescribed channel that as per the records, S/Shri Roshan Lal and Sat Raj Singh (first petitioner and proforma respondent respectively) were owners of a piece of land comprised in Khasra No. 744/238 measuring 1-15 bighas in mauza Barog, Tehsil and District Solan but on the spot, a part of this land described as khasra No. 744/238/2 measuring 0-3 Bighas had been purchased by one Shri Prit Pal Singh Bindra who was a non-agriculturist without the permission of the Himachal Pradesh Government in violation of Section 118 of the H.P. Tenancy and Land Reforms Act, 1972. Shri Prit Pal Singh was also reported to have constructed a two-storeyed building thereon. The Collector, Solan district then issued a show cause notice to the abovesaid persons asking them to show cause why the said 3 biswas alongwith building should not be confiscated by the State of H.P. After carrying out proceedings, the Collector ordered the confiscated of the land alongwith building to the respondent-State of H.P. free from all encumbrances. The present petitioners thereafter appealed to the Commissioner, Shimla Division, who vide order dated 6.9.2008 has dismissed the appeal. Hence this revision. 3. The petitioners have challenged the order of the Commissioner on the ground that the same is illegal and against the facts and the law, is based on surmises and conjectures and not sustainable and is liable to be set aside. They have alleged that neither the legal position nor the facts had been properly ‘construed’ by the Commissioner and on the other hand, the Revenue staff have not been able to show where the building is standing. They have further alleged that there is overwhelming evidence on record that the petitioner No. 1 is still in possession of the property as owner as shown by the latest jamabandi to which presumption of truth is attached. They have further alleged that the Revenue staff did not associate any independent person from the locality while reporting the matter to the Collector. They have also pointed out contradictions in the statements of the patwari and the Kanungo. 4. They have further alleged that the Revenue staff did not associate any independent person from the locality while reporting the matter to the Collector. They have also pointed out contradictions in the statements of the patwari and the Kanungo. 4. The petitioners have further alleged that the Commissioner has not properly appreciated the judgments/decrees of civil courts and in particular that of the Senior Sub Judge, Solan dated 24.8.1999 and of the District Judge, Solan dated 5.9.2000 which are biding on Revenue Courts. They have also cited a decision of the Hon’ble High Court of H.P. and also of my predecessors. The petitioners have alleged that the Commissioner has held that the provisions of Section 54 of the Transfer of Property Act were applicable to the constructed area whereas the Hon’ble High Court has clearly and categorically held that a constructed portion even in a rural area will not fall within the definition of ‘land’ if it is not subservient to agriculture. The petitioners have mentioned of certain cases decided by Collector, Solan District where no violation of Section 118 of the Tenancy and Land Reforms Act was found, based on the view that the section does not apply to a constructed area which is not subservient to agriculture. They have prayed that the order of the Commissioner be set aside and quashed by accepting this revision with costs and proceedings against the petitioners may be ordered to be dropped in the interest of justice and equity. 5. Counsel for both sides were heard. Learned Counsel for the petitioners began by stating that this is a revision against the decision of the Commissioner, Shimla Division in case No. 301/2005 wherein the Commissioner had upheld the decision of the Collector, Solan District in case No. 31/13 of 2000. Learned Counsel said that the Collector had initiated proceedings under Section 118 of the Tenancy and Land Reforms Act against the petitioners; and to the extent of only 3 biswas was involved. He further stated that the notice of the Collector dated 27.4.2000 was defective as the name of one of the petitioners have been indicated by the term “Bindra” which is not a name but only a caste name; the real name of the second petitioner had not been given. Learned Counsel stated that a reply was duly filed to the notice. Learned Counsel stated that a reply was duly filed to the notice. Learned Counsel clarified that the present petitioner had entered into an agreement which involved selling the land measuring 3 biswas alongwith house to be construed thereon by the first petitioner Shri Roshan Lal to the second petitioner Shri Bindra only after the second petitioner obtained the permission of the State Government in accordance with the provisions of the H.P. Tenancy and Land Reforms Act. The entering into such an agreement is not forbidden under any provision of the laws and further the agreement itself envisages obtaining the permission of the Government of H.P. under Section 118 of the H.P. Tenancy and Land Reforms Act. Learned Counsel further stated that Shri Roshan Lal, the first of the present petitioners, had even preferred a civil suit in 1999 against the present respondent; the suit was decreed by the Senior Sub Judge, Solan and Shri Roshan Lal was declared to be the owner of land which included the land in question. In the said suit, the issue No. 6(A) was whether the purchase of the land was a benami transaction and the said issue was found against the respondent i.e. the State of H.P. The Division Bench had even gone in appeal against this decision but the District Judge, Solan who decided the appeal on 5.9.2000, upheld the decision of the lower court. 6. Learned Counsel for the petitioners further drew attention to para 24 of the decision of the District Judge, Solan wherein it has been held that even though one Mr. Sahi (with whom the present petitioners had entered into an agreement for construction of building/flats) was not a resident of the State and also not an agriculturist, this would be disentitle the present petitioners to develop and to get flats construed by him. 7. Learned Counsel further stated that the proceedings under Section 118 of the H.P. Tenancy and Land Reforms Act initiated against the present petitioners resulted from a complaint by a person named Dhanveer. The complaint itself could not be traced; the said Dhanveer was served with notice by the Collector but service could not be effected as the notice was received back unserved with a report that there was no person by the name of Dhanveer at Barog. The complaint itself could not be traced; the said Dhanveer was served with notice by the Collector but service could not be effected as the notice was received back unserved with a report that there was no person by the name of Dhanveer at Barog. Learned Counsel stated that the notice served upon the present petitioners was based on the report of the patwari/Kanungo of the area. The patwari had testified that Shri Bindra was staying in the house, which was not the case. While the patwari testified that the Kanungo and the Naib Tehsildar had come to the patwarkhana, the Kanungo and the Naib Tehsildar said that they met at Barog. Learned counsel then stated that these officials had committed a ‘blunder’ by preparing a tatima without demarcation of the land. He further pointed out that in his recorded statement, the patwari has stated that he did not know the number of rooms in the house. The patwari even said that he had never met Shri Bindra; all the officials have denied that they were aware of the judgments of the civil courts. 8. Learned Counsel emphasized that the provisions of Section 118 are attracted only if there is a transfer of property and change in possession; this had not happened in the instant case. There are various other contradictions in the statements of the patwari, the Kanungo and the Naib Tehsildar. While the patwari had in his report stated that he did not know the son of Shri Bindra, yet in his cross-examination, the patwari has stated that he met Shri Bindra’s son when he went to the spot. Similarly the statement of the complainant Dhanveer was not recorded. Learned Counsel said that the last three lines of the statement of the patwari are relevant; therein the patwari says that the property is still in the possession of Shri Roshan Lal. That being the case, no case under Section 118 is made out. 9. Learned Counsel thereafter stated that both the Collector, Solan District and the Commissioner have reached wrong conclusions. There were 15 or 20 cases against Shri Roshan Lal, most of which have not been proved. Further the land involved is not subservient to agriculture as per Section 7 of the Tenancy and Land Reforms Act and therefore Section 118 of the Act is not applicable. There were 15 or 20 cases against Shri Roshan Lal, most of which have not been proved. Further the land involved is not subservient to agriculture as per Section 7 of the Tenancy and Land Reforms Act and therefore Section 118 of the Act is not applicable. Secondly, the Collector had recommended three similar cases to the Government but not this case; this, learned Counsel said, was illegal discrimination. 10. Learned Counsel cited the following rulings in support of his pleas :- (i) 1994(2) SLC 255 (Nirmal Singh v. Randhir Sharma, decided by Hon’ble High Court of H.P. (ii) 2006(1) Cur.L.J. (H.P.) 484 (Negeshwar Pandey v. State of H.P. and others, decided by F.C.(A) H.P. (iii) 2006(II) Cur.L.J. (H.P.) 203 (Krishan Singh and another v. Smt. Krishna and others) decided by F.C. (A.) H.P. (iv) 2005 Latest HLJ (HP) 810 (State of H.P. v. The Shiwalik Co-Op. Society barotiwala) decided by F.C. (A.) H.P. (v) 2008(2) Cur.L.J. (H.P.) 356 (Durga Singh v. Munshi Ram and another) decided by F.C. (A) H.P. 11. The learned Counsel stated that the Collector had brushed aside/ignored the civil court decrees in favour of the petitioners, in this respect, the Collector’s orders were wrong/illegal. He pleaded that both the lower Court’s orders be set aside and the revision be allowed. 12. Learned Counsel for the respondent, the District Attorney (Revenue) stated that at present Shri Bindra is in possession of the property and therefore the transaction regarding which an agreement had been reached 11 years back in 1998 can be said to be have been completed. The Government of H.P. had never given permission to Shri Bindra to purchase the land; as such the provisions of Section 118 of the Tenancy and Land Reforms Act are definitely attracted. The decisions of the civil Courts are not relevant in this case. The purchase of the land by Shri Roshan Lal, the first petitioner, was only a benami transaction on behalf of the second petitioner as the first petitioner did not have funds to purchase the land and get the building constructed. The impugned orders are clear and need not interference. 13. In rebuttal, learned Counsel for the petitioner stated that an agreement shows intention and the agreement reached between the petitioners was not barred by any law. There has to be an agreement even to obtain Government permission. The impugned orders are clear and need not interference. 13. In rebuttal, learned Counsel for the petitioner stated that an agreement shows intention and the agreement reached between the petitioners was not barred by any law. There has to be an agreement even to obtain Government permission. Regarding construction by contractor Shri D.S. Sahi, there is no bar under Section 118 to get construction carried out by a contractor. 14. Learned Counsel further stated that carving out of fresh khasra Nos. cannot be done without a demarcation which had not been done by the concerned Revenue officials. The judgment of the Senior Sub Judge, Solan, which is a detailed judgment, is very relevant. Regarding the income of Shri Roshan Lal, the notice from the Collector does not make any mention/reference in this respect. 15. Regarding possession, learned Counsel stated that it has come in evidence that this house does not have any water connection. Further PW3 before the trial Court Shri Ruldu Ram, Kanungo has stated in cross-examination that the disputed property is in the ownership and possession of Shri Roshan Lal. He emphasized that Shri Roshan Lal has not transferred the possession of the land/property and thus the provisions of Section 118 are not attracted. Learned counsel pleaded that the revision be allowed. 16. As stated in para 3 and 4 above, the petitioners have challenged the procedure/findings of the lower courts on various grounds. They have in particular drawn attention to the judgment of the Senior Sub Judge Solan dated 24.8.1999 in which the petitioner Shri Roshan Lal has been found to be owner in possession of certain lands near Barog in Solan district. In this regard, while there is no dispute regarding ownership in the present case, possession is an altogether another matter. This can change at any time and the possession obtaining at the time of the decision of the Senior Sub Judge can change subsequent. The decision of the Senior Sub Judge is of 24.8.1999 whereas the show cause notice of the Collector, Solan District is dated 27.4.2000. If the present petitioners, wished that possession be accepted as per the decision of the Senior Sub Judge, it was necessary for them to show that this had not changed subsequent to the decision, which has not been done. 17. If the present petitioners, wished that possession be accepted as per the decision of the Senior Sub Judge, it was necessary for them to show that this had not changed subsequent to the decision, which has not been done. 17. The petitioners have also drawn attention to court rulings in support of their pleas as enumerated at para 10 above. As regards the applicability of the judgment of the Hon’ble High Court of H.P. in the case of Nirmal Singh v. Randhir Sharma, 1994(2) SLC 255, the same is obviously not applicable here. The cited judgment involved a constructed property whereas in the present case, a house was to be constructed and was constructed pursuant to clause 3 of the agreement between the two petitioners. For similar reasons, the ratio of the decision in Nageshwar Pandey v. State of H.P. and others, is not applicable.The case State of H.P. v. The Shivalik Co-op. Society, Barotiwala involved utilization of the land for purposes other than that for which permission for purchase had been granted; this again is clearly not applicable in the present case, where no permission had been granted. The case Durga Singh v. Munshi Ram and another involved the question whether the findings on a particular issue by civil courts are binding; the decision was that only decrees are findings on a particular issue by civil courts are binding; the decision was that only decrees are binding. In any case, it is well established that decrees of civil courts are binding upon Revenue Courts; however as indicated at para 16 above, possession can change at any time subsequent to the decision on a civil court. 18. We can at this state consider some of the other points raised by the petitioners in their plaint or by their counsel during arguments. Apart from the general points like the decision of the Commissioner being based on surmises/conjectures and not being sustainable and being liable to be set aside, they have said that the Revenue staff has not been able to show where the building is standing. This point is not correct as the Revenue staff have reported that the building was on a patch of land measuring 3 biswas to which khasra No. 744/238/2 was assigned. They have also raised issue of the Revenue field staff not associating any independent person from the locality while reporting the matter to the Collector. This point is not correct as the Revenue staff have reported that the building was on a patch of land measuring 3 biswas to which khasra No. 744/238/2 was assigned. They have also raised issue of the Revenue field staff not associating any independent person from the locality while reporting the matter to the Collector. In this regard it needs to be made clear that associating independent/prominent persons from the locality is the practice when there is dispute about boundaries. In the instant case the entire piece of land belonged to the first petitioner and the report of the Revenue field staff was regarding construction of a house, on a part of that land. Further the petitioner’s point regarding the judgments/decrees of Senior Sub Judge, Solan and of the District Judge not being properly appreciated is incorrect as stated above at para 16, the decision reached by the Senior Sub Judge is of 24.8.1999 whereas the notice of the of the Collector is dated 27.4.2000. The applicability of the Hon’ble High Court’s decision and other decisions have been dismissed in the above paragraph. As regards the land not being subservient to agriculture, a land does not cease to be agricultural land or land subservient to agriculture just because a building is constructed thereon. If the logic that any land ceases to be agricultural land or ceases to be subservient to agriculture with the construction of a house or building thereon were to be accepted, then any landowner could get a building constructed on his land and after keeping it vacant and thereby delinked from agriculture for a few years, claim that since now it has a building, it has ceased to be agricultural land or land subservient to agriculture. We would then have thousands of houses all over the State being sold to non-agriculturists, violating the restrictive provisions contained in Section 118 of the H.P. Tenancy and Land Reforms Act. In fact all lands of all classifications other than forests, etc., will continue to be agricultural land or land subservient to agriculture until the land becomes a part of a municipal area or its land use is specifically changed by the Government. 19. In fact all lands of all classifications other than forests, etc., will continue to be agricultural land or land subservient to agriculture until the land becomes a part of a municipal area or its land use is specifically changed by the Government. 19. Further as regards the point that the show cause notice issued by the Collector had referred one of the petitioners by only his caste name, we need not make much of this; the notice was duly served upon the second petitioner who had also replied to the same vide his reply dated 16.10.2000. As regard the point raised by learned Counsel that entering into an agreement is not forbidden under any provisions of the laws, this is indeed so. However, the entering into an agreement of the type descried at (iii) (b) of the Explanation below Section 118(1) can itself be violative of the laws. The point regarding the decision of the Senior Sub Judge, Solan in the civil suit preferred by the first petitioner has already been discussed above. As regards the transaction entered into by first petitioner with the second petitioner not being a benami transaction, the evidence on this point is meager but will be discussed later. Similarly it was not necessary that the alleged complainant named Dhanveer should be traced or his statement recorded or both; the proceedings could be conducted by the Collector on the report of the Revenue field staff alone. As regards the point that the Revenue officials had committed a ‘blunder’ by preparing the tatima without demarcation of the land, the present petitioners have not been able to show at any stage that actual measurements were not conducted by the Revenue field staff. The very fact that the Revenue field staff prepared a report including tatima indicates that they have measured the land to precisely indicate in which part of larger piece of land with khasra No. 744/238 the building had been constructed. For the preparation of such reports, actual demarcation in the presence of the owners/public is not necessary. Secondly, the construction of a house has been admitted by the petitioners themselves. Further minor contradictions in the statements of the patwari, the Kanungo and the Naib Tehsildar in no manner negate the major facts of the case admitted by the petitioners themselves. For the preparation of such reports, actual demarcation in the presence of the owners/public is not necessary. Secondly, the construction of a house has been admitted by the petitioners themselves. Further minor contradictions in the statements of the patwari, the Kanungo and the Naib Tehsildar in no manner negate the major facts of the case admitted by the petitioners themselves. Lastly as regard the allegation of the petitioners that the Collector had recommended 3 similar case to the Government but not their case, amounting to discrimination, this is not borne out from the record. 20. We can now have a look at the provisions of Section 118 of the H.P. Tenancy and Land Reforms Act, which are as under:- “118(1) Notwithstanding anything to the contrary contained in any law, contract, agreement, custom or usage for the time being enforce, 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 safe, 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 donar or the testator, as the case may be; (iii) transfer by way of lease of land or building in a municipal area; 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 the land. Further, the show cause notice issued to the present two petitioners and proforma respondent by the Collector, Solan district described the offence allegedly committed by them as under :- “Chunki Hamare Dhian mein aya hai ki Roshan Lal pritiwadi No. 1 Shri Sat Raj Singh pritiwadi No. 2 Bhumi Khasra No. 744/238 tadadi 1-15 Bigha, Mauj Badoh ka rajsav record mein malik darj hai, praintu mauka par uprokat bhumi mein se bhumi khasra No. 744/238/2 tadadi 0-3 bigha bhumi Par Shri Bindra, pratiwadi No. 3, jo Himachal Pradesh ka akarshak hai, ne Himachal Pradesh sarkar ki purvanumati ke bina khid karke us par ek do majla Bhawan bana rakha hai, jo Himachal Pradesh mujariat awam bhusudar adiniam ki dhara 118 ka ulangan hai.” In other words, the alleged offence was that the third respondent Shri Bindra being non-agriculturist had purchased the disputed 3 biswas of land and constructed a two-storyed building thereon without the permission of the Government and thus violated Section 118 of the H.P. Tenancy and Land Reforms Act. 21. As regards the alleged purchase of the disputed 3 biswas of land by the present second petitioner, the agreement dated 17.7.1998 between the first and the second petitioner states that the second petitioner was desirous of purchasing the land alongwith house to be constructed thereon for a total consideration of Rs. 4 lacs of which Rs. 2 lacs was paid by the second petitioner as earnest money and balance amount was to be paid at the time of execution/registration of the sale deed before the Sub Registrar, which was to take place after grant of permission under Section 118 of the H.P. Tenancy and Land Reforms Act by the Government. The agreement had the following other clauses :- “ ......... .............. 3. That the actual, vacant and physical possession of the land and the house to be built thereon, shall be delivered to the purchaser by the seller at the time of execution and registration of sale deed. 4. That the land and house agreed to be sold to the purchaser shall be free from all charges and encumbrances. 5. That the expenses for the execution and registration of sale deed shall be borne and paid by the purchaser. 6. 4. That the land and house agreed to be sold to the purchaser shall be free from all charges and encumbrances. 5. That the expenses for the execution and registration of sale deed shall be borne and paid by the purchaser. 6. That the house will consist three rooms alongwith one bath room, one kitchen on the ground floor and on the first floor it would consist of three rooms, two toilets and one kitchen. 7. That the seller will provide all amenities like power approach, water, electricity etc., to the house when it is made and cost of these amenities would be included in the price as above mentioned. 8. That the transaction under this agreement will be carried out strictly in accordance with the provisions of H.P. Tenancy and Land Reforms Act and other laws prevailing in the State of Himachal Pradesh. 9. That the purchaser who is non-agriculturist in the State of Himachal Pradesh would apply for and seek the permission from the Government of Himachal Pradesh under Section 118 of the H.P. Tenancy and Land Reforms Act to get the above said property transferred in his favor and the seller will execute and sign all the necessary documents required for that purpose from time to time. 10. That the sale deed shall be executed and registered in favour of the purchaser by the seller only after the grant of requisite permission in favour of the purchaser by the Govt. of Himachal Pradesh. 11. That in case the permission is not granted in favour of the purchaser by the Government of Himachal Pradesh, in that event the seller would refund the earnest money of Rs. 2,00,000/- to the purchaser without any interest. 22. In the background of the above we can check whether the Collector has properly appreciated the evidence on record and applied the laws correctly in reaching his conclusion. In this regard, it is noted that the Collector has reached the conclusion that proviso (a) and (b) of the Explanation below section 118(1) of the Act had been violated. The proviso (a) is in respect of benami transactions. In the instant case, to show that the transaction was benami, it would have to be shown that the first petitioner Shri Roshan Lal purchased the land in question with money paid or provided by a non-agriculturist. There is not sufficient evidence on record to show this. The proviso (a) is in respect of benami transactions. In the instant case, to show that the transaction was benami, it would have to be shown that the first petitioner Shri Roshan Lal purchased the land in question with money paid or provided by a non-agriculturist. There is not sufficient evidence on record to show this. 23. As regards (b), we can refresh our memories by recollecting this provision, which is as under : (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 the land. No evidence of special or general power of attorney has come on the record. However, the agreement signed between the present two petitioners was very much an agreement with the intention of putting the non-agriculturist second petitioner in possession of the land; this is so because the agreement envisaged ultimate purchase by the second petitioner. The agreement provided for the construction of a house, it can safely be presumed that the house to be constructed was to be as per the requirements of the second petitioner because he was to take over the same and had even paid for the same. In other words, the agreement signed between the parties from the very beginning provided for a situation as if the purchaser was the real owner. It has even come in the evidence that the second petitioner got an electricity meter installed in his name at one time. This is precisely the situation envisaged by the proviso (b) quoted above, in which the purchaser also started dealing as if he was the real owner. 24. Shri Roshan Lal, the first petitioner had testified before the Collector as under :- “Mere pass Badog me iss makan ke ilawa koi makan nahi hai. Mai Badog me na rahata hun. Palampur me rahta hun. Badog me jin logon ne makan laya baha rahte hai. Jinke sale deed na hui, unka kabza mere pas hai. Jinki sale deed ho gay hai unke kabza de daya hai. sale deed jinke na huy hai aise teen-chaar admi hai. Jinki sale deed ho gay hai, bah teen admi hai. Palampur me rahta hun. Badog me jin logon ne makan laya baha rahte hai. Jinke sale deed na hui, unka kabza mere pas hai. Jinki sale deed ho gay hai unke kabza de daya hai. sale deed jinke na huy hai aise teen-chaar admi hai. Jinki sale deed ho gay hai, bah teen admi hai. Maine jo zamin wechi hai, uska bhi ikranmama kaya hai, laikin unka kabza mere pas hai. Jinke sath ikrarname hua hai, bah makan bane hai. Sarkar ijajat de degi to kabza de doonga. Jin logon Ne bah makan banaya hai, unhone company ke through bah makan banaya hai. Maine in makanon ke paise na daya hai. Makan banane ke laya bahan par partion ne apne app paisa daya hai. Maine makan banane ka paisa na daya ha, balki zamin wachane ka paisa liya hai. Bah galat hai ki is makan ka kabza Bindra ke pas hai. Bah bhi galat hai ki ab mera Badog main koi zamin na hai aur main bahan na rahta hun.” It indicates that the first petitioner was selling a number of plots for which agreements were signed and in case Government’s permission came through, sale deed were got registered and possession was handed over. In the above testimony, the following sentence is significant :- “Maine jo zamin wachi hai, uska bhi ikrarnama kaya hai, lekin kabza mere pas hai. The English translation of the word ‘Wachi’ is sold meaning thereby that though various plots had been sold, the possession had been kept by Shri Roshan Lal. It is not believable that purchasers would part with their money without anything substantial. Apart from this, Shri Roshan Lal is said to have spent Rs. 1.8 lacs on the construction of the house in respect of the present case; if permission was not received, he would have to refund Rs. 2 lacs. Taking into consideration the number of other cases, how could the first petitioner refund the so-called earnest money running into many lacs of rupees in the cases where permission was refused when Shri Roshan Lal was not even a tax-payer? The only confusion that can be reached is that the refund could not take place, showing thereby the intention of the parties. The only confusion that can be reached is that the refund could not take place, showing thereby the intention of the parties. Indeed the agreement itself has various weakness of its own, but with the repeated claim that the land with constructed houses was not subservient to agriculture, the agreement was very much with the intention to put the non-agriculturist second petitioner in possession of the land/property and allow him to deal with the property as if he was the real owner. 25. In the usual transactions where non-agriculturists buy land in Himachal Pradesh, a price is fixed and an advance is given by the non-agriculturist to the owner of the land, which is non-refundable. In return, the prospective buyer is given an agreed period of time in which he has to obtain Government’s permission. In case Government permission is not forthcoming, the advance is forfeited. The instant case which has come to light is quite different; here the advance/earnest money is fully refundable and there is no time limit in which prospective buyer has to obtain Government permission. In fact the agreement mentions about obtaining the permission of the Government under Section 118 of the H.P. Tenancy and Land Reforms Act as many as 5 times to make it appears that this was relevant. Clause No. 11 states that in case permission is not granted by the Government, in that even the seller would refund earnest money without any interest. In this regard, there is no provisions as to till what time Government’s permission would be awaited. Secondly there is also no provision as to whether the refund of the earnest money would be made on demand or in installments, within how much time, etc. The situation is such that the earnest money paid by the purchaser would remain unrefunded or alternatively till both sides reach the conclusion that Government permission is not to come, then the purchaser would again wait for an unknown period for its refund. These aspects of the agreement lead to only one conclusion and that is that the agreement was such as would create a situation where a non-agriculturist would be put in possession of the land (including house). Coupled with the repeated insistence that the land was not subservient to agriculture, the non-agriculturists would become the owner. The situation is not capable any alternative explanation. Coupled with the repeated insistence that the land was not subservient to agriculture, the non-agriculturists would become the owner. The situation is not capable any alternative explanation. The whole arrangement was devised in such a manner that would defeat the purpose of the H.P. Tenancy and Land Reforms Act. It was a violation of proviso (b) in the Explanation in Section 118(1) of the Act and to this extent, the findings of the Collector are indeed correct. 26. The court below has not gone into the details but since it has upheld the Collector’s order, there is no reason to interfere with the same. Accordingly the orders of the two lower courts are upheld and the present petition is dismissed. 27. Announced in the open court day on 2nd June, 2009. Record of the courts below be returned and the case file of this Court be consigned to the record room after due completion. M.R.B. ———————