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2017 DIGILAW 274 (HP)

Yoginder Ji Khanna v. Tarlochan Singh

2017-03-30

NARINDER CHAUHAN

body2017
ORDER Shri Narinder Chauhan, I.A.S., Financial Commissioner (Appeals). —The revision petition has been preferred under Section 118(3-C) of the H.P. Tenancy & and Reforms Act, 1972(hereinafter referred to as ''the Act''), against the order dated 23.11.2007, passed by the Commissioner, Kangra Division in Case No. 213/2005, confirming thereby the order dated 14.6.2005, passed by the Ld. District Collector, Chamba in Case No. 7-3-XIII/A-03, wherein it was held that no violation of section 118 of the Act, has taken place. 2. Briefly stated, the facts of the case are that Shri Yoginder Ji Khanna (herein petitioner (now deceased)), through his Special Power of Attorney Shri Tek Chand Khanna, executed a sale deed in favour of Shri Tarlochan Singh Virk and Shri Om Parkash Sharma for sale of land measuring 1470 Sq. Yards out of Khasra No. 434/234/2/2 on 17.9.1974 and certain amendments to the Registration deed were made on 1.11.1974. The Sub-Registrar, Dalhousie, refused registration on grounds that holder of Special Power of Attorney was not present and did not produce the deed of special power. The parties contested this issue in Civil Courts and vide order dated 20.12.1978 of the Sub-Judge 1st Class, it was directed that such registration be done within 30 days if registered deed is produced, before the Sub-Registrar. Accordingly the Sub-Registrar, Dalhousie registered the sale deed on 29.12.1978. Thereafter, matter remained sub-judice in Civil Courts till 1985 and in the Court of Distt. Judge, Kangra a compromise was arrived at and more consideration was agreed to be paid and the appeal was dismissed on 1.5.1985 and land mutated in the name of Shri Tarlochan Singh Virk and Sh. Om Prakash, vide mutation No. 19 attested by the AC 2nd Grade, Dalhousie, vide order dated 30.7.1994 observing that the condition of ban on transfer of land to non-agriculturists imposed under section 118 of the Act, did not apply as the sale deed was executed on 17.9.1974 whereas the Rules under the Act were notified on 3.10.1975. Appeal against the order dated 30.7.1994 was dismissed by the Sub-Divisional Collector, Dalhousie. The State filed an appeal before the Ld. Divisional Commissioner, Kangra who vide his orders dated 27.12.97 recommended revision in the matter and referred the matter to this court. Appeal against the order dated 30.7.1994 was dismissed by the Sub-Divisional Collector, Dalhousie. The State filed an appeal before the Ld. Divisional Commissioner, Kangra who vide his orders dated 27.12.97 recommended revision in the matter and referred the matter to this court. This Court vide order dated 30.7.1994/9.1.1995, partly accepted the recommendations and remitted the matter to the District Collector, Chamba, with the directions to go into the validity of the transaction vis-a-vis the amended provisions of Section 118 and its applicability to the transaction. 3. On remand, the District Collector, got the matter inquired into through the Tehsildar, Dalhousie and on receipt of the report of the Tehsildar, through the SDO (C), Dalhousie and after hearing both the parties, the District Collector, dismissed the case, vide his order dated 14.6.2005, passed in Case No. 7-3-XIII/A/03, observing as follows :- "I have gone through the record brought on file and arguments of the parties and have came to the conclusion that suit land has been transferred vide sal; deed executed on 17/9/1974, 1/11/1974 in favour of Shri O.P. Sharma and Shri Tarlochan Singh Virk and Shri Tarlochan Singh Virk was non-agriculturist whereas HP Tenancy and Land Reforms Act, 1972 became operative w.e.f. 23/10/1975, 4/10/1975 (date on which HP tenancy and Land reforms Rules, came into force). As such, the provisions of Section 118 of Act ibid do not apply in this case as the land was transferred prior to the date the Act became operative. Therefore, no case for violation of the provisions of Section 118 of HP Tenancy and Land Reforms Act, 1972 is made out against the respondents Shri O.P. Sharma and Shri Tarlochan Singh Virik." 4. Feeling aggrieved with the orders dated 14.6.2005, of the District collector, Chamba, the present petitioner filed an appeal No. 213/2005, before the Ld. Commissioner, Kangra Division, on the grounds that the Collector has ignored the facts that the sale deed was actually registered on 29.12.1978, and therefore Section 118 was applicable in this case; that the Collector has ignored the facts that the land falls within the definition of land as per section 2 (7) of the Act and the Collector has wrongly held that the respondents were entitled to seek saving under the saving clause in the Amendment Act, 1987. After hearing the parties and having gone through the record of the court below, the Ld. After hearing the parties and having gone through the record of the court below, the Ld. Commissioner, Kangra Division, dismissed the appeal, vide impugned order dated 23.11.2007. Hence, the present revision petition. 5. During the pendency of litigation petitioner Sh. Yoginder Ji Knanna expired and his LRs have been brought on record as per M.A.No. 139/2010 allowed on 28.12.2010. 6. I have heard the learned counsel for the petitioner and the respondent No. 1 and the Id. District Attorney (Rev) for the State/proforma respondent. The respondent No. 2, Shri Om Prakash Sharma, has been proceeded against ex-parte vide order dated 28.4.2009. 7. While reiterating the grounds of revision petition, the Ld. Counsel for the petitioner argued that the orders passed by the Ld. Commissioner, Kangra Division are against the fact and law as the Ld. Commissioner has erred in holding that the sale deed was scribed on 17.9.1974 and 1.11.1974 and it does not attract the provisions of Section 118 of the Act, because rules under the Act came into force w.e.f. 03.10.1975, whereas, I in fact the sale deed was got registered on 29.12.1978 and the sale became effective only on the date of its registration i.e. 29.12.1978, and such a sale perforce attracts the provisions of Section 118 of the Act. Ld. Counsel further argued that the H.P. Tenancy & Land Reforms Act, 1972 came into force on 21.2.1974, however, rules pertaining to Chapter 10 relating to acquisition of proprietary rights by non-occupancy tenant came into force on 3.10.1975, whereas Chapter 11 which relates to control on transfer of land came into force w.e.f. 21.2.1974. Ld. counsel alleged that the present respondent Shri Tarlochan Singh, who is a non-agriculturist of the State of H.P., is not even a bona fide Himachali, and as such, he could not have purchased the land in the State. Lastly, the Id. counsel averred that the orders of both the courts below are against facts and law and are thus illegal and irregular and liable to be set aside. 8. In reply, the Id. counsel for respondent No. 1 argued that both the courts below have rightly appreciated the facts and law while passing the impugned orders. Ld. counsel further added that the transfer of land has taken place prior to the enforcement of the Act, as no Act can be implemented/enforced without framing procedure under the Rules, etc. 8. In reply, the Id. counsel for respondent No. 1 argued that both the courts below have rightly appreciated the facts and law while passing the impugned orders. Ld. counsel further added that the transfer of land has taken place prior to the enforcement of the Act, as no Act can be implemented/enforced without framing procedure under the Rules, etc. He argued that the H.P. Tenancy & Land Reforms Rules, 1975, came into force w.e.f. 3.10.1975, whereas the sale deed was executed on 17.9.1974 i.e. prior to enforcement of the Act/Rules. Ld. counsel contended that there is no illegality or irregularity in the orders of Courts below, and as such, the present revision petition deserves to be dismissed. 9. I have considered the arguments advanced by the leaned counsels for both the parties and have gone through records of the courts below. The only issue which requires adjudication, is whether the provisions of the Act were applicable in spite of non-framing of Rules, under the said Act. In the regard, it would be appropriate to mention here that Section 1 of the Act, which is regarding short title, extent and commencement reads as follows :- "1. Short title extent and commencement. -(1) This Act may be called the Himachal Pradesh Tenancy and Land Reforms Act, 1972. (2) It extends to the whole of the State of Himachal Pradesh. (3) It shall come into force at once." Further, the provision of section 3 of the H.P. General Clauses Act, 1968 provides as follows :- "3. Coming into operation of enactments.- Where any Himachal Pradesh Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which the assent thereto of the Governor or the President of India as the case may require, is first published in the Official Gazette." The H.P. Tenancy & Land Reforms Bill, 1972, was passed by the Himachal Pradesh Assembly on 22.12.1972. It was assented to by the President of India on 2.2.1974, and thereafter, the Act was published in Rajpatra Himachal Pradesh(Extra Ordinary), dated 21.2.1974, as Act No. 8 of 1974. From the bare perusal of section 1(3) of the Act read with section 3 of the General Clauses Act, 1897, it is clear that the Act n has come into force w.e.f. 21.2.1974. 10. From the bare perusal of section 1(3) of the Act read with section 3 of the General Clauses Act, 1897, it is clear that the Act n has come into force w.e.f. 21.2.1974. 10. So far as the contention of the counsel for the respondent that the provisions of the Act cannot be enforced without laying down the procedure in the Rules is concerned, from the perusal of the provisions of section 118, as were enacted initially, no such procedure/rules were required to be formulated for the purpose of enforcement of the said section. No doubt, the provisions of Act cannot be made operational without formulation of rules, but this cannot be construed to mean that the Act is not in force. Moreover, case no rules were in force for certain period after the enactment of the Act the case which require some procedure for its disposal, could have been kept in abeyance formulation of procedure/rules and it cannot be said that the provisions of the Act are in force. Hence, the contention of the respondent is not acceptable in the eyes of law. 11. However, in order to examine/test the present case on merits, it would be appropriate to reproduce the provisions of section 118 of the Act enacted initially an amendment carried out therein In the year 1976 which has been made applicable retrospectively, as follows :- "118. Transfer of land to non-agriculturists barred. -(1) Save as provided in this Chapter, no transfer (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 or mortgage with possession shall be valid in favour of person who is not an agriculturist. Transfer of land to non-agriculturists barred. -(1) Save as provided in this Chapter, no transfer (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 or mortgage with possession shall be valid in favour of person who is not an agriculturist. (2) Nothing in sub-section (i) shall be deemed to prohibit the transfer of any land by an agriculturist in favour of :- (a) landless laborers; or (b) landless persons belonging to scheduled castes and scheduled tribes; or (c) a village artisans; or (d) landless persons carrying on an allied pursuit; or (e) State Government; or (f) Co-operative Societies and (a bank) (g) a non agriculturist within the limits of municipal corporations, municipal committees, notified area committees for any one of the purposes i.e., for construction of a dwelling house, a shop or commercial establishment or office or industrial unit subject to the condition that transfer of land for such purposes shall not exceed,- (i) in case of dwelling house-500 square meters; (ii) in case of a shop, commercial establishment or office-300 square mete: s; (iii) in case of an industrial unit-such area as may be certified by the Department of Industries of the State Government; (h) a non-agriculturists with the permission of State Government for the purposes to be prescribed." The provisions of aforesaid section have further been amended in the year 1988, and as such, the aforesaid provisions are relevant for the adjudication of the case in hand. From the perusal of the contents of copy of sale deed available at pages 40 to 49 of the case file of trial court, it is clear that the land in question falls within the Municipal limit, and as such, as per the above provisions of section 118, a non-agriculturist was entitled to purchase an area up to 500 Sq.meters. In the instant case, the respondent No. 1 and 2 have collectively purchased land measuring 1470 Sq. yards (approximately 1229 Sq.meters 1: in equal shares. From the record, it is apparent that respondent No.2 is an agriculturist of the State and as such the share transferred in his favour, is not in dispute The share of the respondent No. 1 (non-agriculturist) translates into 614.5 Sq. meters, out of which he could have purchased 500 Sq.meters. 12. yards (approximately 1229 Sq.meters 1: in equal shares. From the record, it is apparent that respondent No.2 is an agriculturist of the State and as such the share transferred in his favour, is not in dispute The share of the respondent No. 1 (non-agriculturist) translates into 614.5 Sq. meters, out of which he could have purchased 500 Sq.meters. 12. The plea of the petitioner that the sale deed was registered in the 1978 and not in the year 1974, does not affect the outcome of the transaction as the respondent No. 1, though admittedly a non-agriculturist, was entitled to purchase an area upto 500 Square meters within the Municipal Limit in the State as per provisions of Section 118 of the Act, (as existing in 1974 and 1978). Hence, the present respondent no. 1 has purchased 114.5 sq. meters land in excess to the limit permissible under the Act ibid. Since, the transaction has taken place prior to the amendment carried out in the Act in the year 1988, when the provision regarding vestment of land transferred in contravention with the provisions of section 118 in favour of the State Government, was introduced prospectively, the aforesaid excess area measuring 114.5sq meters, cannot be ordered to be vested in the State. The only remedy is to declare the transaction invalid upto that extent. 13. Hence, in view of the observations made herein above, the impugned orders dated 11.7.2007, passed by the Ld. Commissioner, Kangra Division in appeal No. 213/05, and the orders dated 14.6.2005, passed by the Collector, Chamba in case No. 7-3XIII-A/03, are amended/revised to the extent that the transaction of land beyond the eligible 500 Square meters, measuring 114.5.sq.meters in favour of respondent No.1 (a non-agriculturist), is declared as invalid/void. The revision petition is accordingly disposed off. 14. Order be communicated to the parties. The record of the courts below be returned and the file of this court be consigned to the record room after due completion.