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2025 DIGILAW 865 (HP)

Shashi Gupta v. State of H. P

2025-05-01

G.S. SANDHAWALIA, RANJAN SHARMA

body2025
JUDGMENT : G.S. Sandhawalia, Chief Justice The present appellant is aggrieved against non-grant of the third relief by the learned Single Judge, who allowed CWP No.7090 of 2023 in her favour on 04.12.2023. The non-grant of said relief, which is sought to be assailed, reads as under:- “(iii) That directing the respondents to exempt the petitioner from applicability of Section 118 for thepurpose of directly selling the residential property with land in question, in favour of third parties/Himachalis OR in the alternative to above.” 2. The learned Single Judge while allowing the writ petition noticed that the present appellant was a successful auction purchaser of 260 sq. metres of residential property situated in Mauza Thoddo, Tehsil and District Solan, H.P. in a public auction conducted by the Assistant Collector, First Grade-cum-Tehsildar, Solan, District Solan, H.P. under Section 421 of the Code of Criminal Procedure and had duly deposited the sale amount on 11.07.2023. However, the sale certificate has not been issued to her in view of the applicability of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (for short “the Act”) due to which the writ petition has been filed, praying that the sale certificate be issued without insisting for affixation of stamp duty and also without the necessary permission under Section 118 of the Act. 3. While placing reliance upon the judgment of the Division Bench in CWP No.1689 of 2016 titled as Valley Iron & Steel Company Ltd. Vs. State of H.P. and Ors . decided on 20.10.2016 reported in Latest HLJ 2016 (HP) 1528, the learned Single Judge came to the conclusion that an auction purchaser is not required to go through the rigorous of Section 118 of the Act. The matter as such being covered and keeping in view the fact that there is no rider mentioned in the auction notice regarding the necessary permission under Section 118 of the Act and the denial of the sale certificate, on this account was held to be not sustainable. The matter as such being covered and keeping in view the fact that there is no rider mentioned in the auction notice regarding the necessary permission under Section 118 of the Act and the denial of the sale certificate, on this account was held to be not sustainable. Resultantly, the writ petition was allowed by giving the following relief:- “As this Court is of the considered view that in the absence of there being any condition in the auction notice that a non-agriculturist or a non-Himachali could not bid for the property in issue and further as the petitioner admittedly was a successful bidder in the auction who has thereafter deposited the entire bid amount in the Court itself, denial of Sale Certificate in favour of the petitioner is per se bad. Therefore, this writ petition is allowed by holding the act of the respondents of denying the Sale Certificate to the petitioner to be bad in law and direction is issued to respondent No.2 to issue a Sale Certificate of the property in issue in favour of the petitioner, forthwith and in any event, within a period of 30 days from today. Petition stands disposed of, so also pending miscellaneous applications, if any.” 4. As noticed above, the contention of the appellant is that the third prayer as such was never considered, therefore, the present appeal has been filed. Inspite of the fact that the said judgment was in favour of the appellant, the State has chosen not to assail it. 5. Since, the necessary sale certificate was not being issued and show cause notice was thus issued by this Court on 19.06.2024 to the District Collector, Solan, H.P., as in the sale certificate the statement had been recorded that permission would be required under provisions of Section 118 of the Act. 6. Vide order dated 23.07.2024, directions were issued that the sale certificate should be handed over to the appellant by the Additional Deputy Commissioner, Solan, District Solan, H.P. The matter was then kept for hearing on the limited issue of Relief (iii). Vide order dated 10.03.2025, we also requested Mr. G.D. Verma, Senior Counsel to assist the Court on the said issue. Vide order dated 10.03.2025, we also requested Mr. G.D. Verma, Senior Counsel to assist the Court on the said issue. The counsel for the State was also insisting that necessary permission would be required inspite of the sale certificate having been issued since the auction purchaser as such does not belong to the State of Himachal Pradesh and therefore is non-agriculturist. The provision of Section 118 (1) of the Act reads as under:- “[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 inforce, 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 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 authorisation 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.]” 7. The above clause would go on to show that 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 etc., or in any other manner shall be valid in favour of a person who is not an agriculturist. The above clause would go on to show that 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 etc., or in any other manner shall be valid in favour of a person who is not an agriculturist. There is nothing in the said provision of Section 118 of the Act which would go on to show that there is a condition that permission would be required if the land is to be sold as prayed for in favour of third party/Himachalis/Agriculturist. 8. In such circumstances, reliance upon various instructions by the State, as such, have also been placed on record starting from 29.10.2003 (Annexure R/1), 22.09.2011 (Annexure R/2) and 07.06.2021 (Annexure R/3) are without any basis. The consideration before the Coordinate Bench in Valley Iron (supra) as such was of a matter where property is sold in auction was in pursuance of sale proceedings conducted by the official liquidator and resultantly the Coordinate Bench as such had come to the conclusion that it was a sale/purchase by a bonafide auction purchaser and when the order of sale was confirmed, the said person became an absolute owner. 9. It was also further held that the Court has to protect the interests of such bonafide purchaser otherwise nobody would come forward to participate in the auction proceedings and the interest as such has to be protected. Resultantly, while keeping in mind the provisions of the Act for the purpose, as such, it was held as under :- “64. Thus, the classification was made only to prevent the persons, who are moneyed-class and who, on the sheer strength of their money power, are in a position to purchase the land from poor land owners at the throw-away prices and that will have effect of doing away with the economy of the State. It was also noticed at that time that so many rich people had started purchasing land in order to raise orchards in the entire State of Himachal Pradesh. Thus, the only object is to prevent the outsiders to come in, to save the Himachali land owners/holders and it creates a right in their favour. 65. It was also noticed at that time that so many rich people had started purchasing land in order to raise orchards in the entire State of Himachal Pradesh. Thus, the only object is to prevent the outsiders to come in, to save the Himachali land owners/holders and it creates a right in their favour. 65. Viewed thus, it can be safely held that a bona fide auction purchaser, who has purchased the land in the auction proceedings pursuant to the Court directions,cannot be deprived of the said property. The rigour is not applicable to the case in hand. 66. It is also apt to record herein that the writ petitioner, in the alternative, has prayed that if, at all, the rigour of Section 118 of the Act is applicable, it may be permitted to sell the said property to a Bonafide Himachali. If only this prayer is granted, that will strictly be as per the mandate of Section 118 of the Act and will also achieve the purpose. But, how can it lie in the mouth of the respondents not to grant permission or not to allow the writ petitioner to sell the property, for the reason that the writ petitioner is a bona fide auction purchaser and had bonafidely made the payment of Rs.14.52 crore, is waiting for the day to come enabling it to reap the fruits, was not allowed to do so, is really a travesty of justice. 67. Having said so, the writ petitioner has made out a case for interference. 68. The question is – what direction is to be made in the given circumstances of the case in order to redress the grievance of the writ petitioner, who is suffering because of the auction conducted in terms of the Court orders and has been made to part with money, that too, a huge amount to the tune of Rs.14.52 crore? 69. Admittedly, it was not prescribed in the auction notice or it was not made known in the auction proceedings that the successful bidder has to follow the rigour and mandate of Section 118 of the Act in order to have the registration and no mutation can be effected without obtaining the permission. 70. 69. Admittedly, it was not prescribed in the auction notice or it was not made known in the auction proceedings that the successful bidder has to follow the rigour and mandate of Section 118 of the Act in order to have the registration and no mutation can be effected without obtaining the permission. 70. It is also not contained in the auction notice that the person/auction purchaser, who is an outsider, non Himachali or a non-agriculturist, cannot participate in the auction proceedings and cannot conduct resale of the property. 71. Much water has flown down and there is no chance that the bid amount can be paid back to the writ petitioner. Even otherwise, that will not redress the grievance of the writ petitioner for the reason that the inflation rate has gone very high and had the writ petitioner invested the said amount in business or somewhere else for the period of these five years, he would have earned a considerable amount, may be, in crores. 72. Keeping in view the facts and circumstances of the case read with the discussions made hereinabove, we make the following commands/directions in the interest of justice: (i) That in the given circumstances of the case, rigour of Section 118 of the Act is not applicable to the case in hand; (ii) That petitioner is the absolute owner of the property, subject matter of the lis; (iii) That the revenue record is not the proof of title, is just for collection of rent and will not change the status of the petitioner as owner of the said property in any way; (iv) That petitioner, being the absolute owner of the said property, is within its rights, power and competence to sell the property in favour of any Bonafide Himachali; (v) That the Registering Authority to register the said sale deed without asking for any permission or registration of sale deed executed in favour of the petitioner as auction purchaser; (vi) That the Revenue authorities to attest the mutation in favour of Bonafide Himachali in terms of direction (iv) supra (vii) That this order will not confer any rights upon the petitioner of being Bonafide Himachali.” 10. A perusal of the above would go on to show that by virtue of the auction proceedings, the sale certificate had been issued. A perusal of the above would go on to show that by virtue of the auction proceedings, the sale certificate had been issued. Such a land owner has been placed on different pedestal and being absolute owner of the property as such competent to sell the property in favour of any bonafide Himachali and resultantly we are of the view that non-grant of relief under Clause (iii) missed the notice of the learned Single Judge. Resultantly we are of the considered opinion that if the appellant as such wishes to sell the property, which has been purchased by her by way of an auction, she is entitled to sell it to a Himachali Agriculturist, as the sole purpose of the Act as such is also to ensure that the outsider as such should not purchase the land and therefore the bar as such under Section 118 of the Act to seek prior permission to sell from respondent No.2 would not be required in the facts and circumstances of the present case. The same would be clear from Section 2(2) of the Act which reads as under: “(2) “agriculturist” means a landowner who cultivates land personally in an estate situated in Himachal Pradesh ;” 11. Resultantly, we allow the present appeal and grant necessary relief that no prior permission is required if the subject matter of the sale certificate is to be sold to a Himachali Agriculturist. 12. Appeal is accordingly allowed in the abovesaid directions. 13. We record our appreciation to Mr. G.D. Verma, learned Senior Advocate, helping us decide on the said issue.