Hi bhrigu You are using a Free Trial - Expire on 26 Aug 25, Click Here

to Subscribe to Upgrade your Plan!

2013 Supreme(HP) 734

2013 LatestHLJ 1223

HIGH COURT OF HIMACHAL PRADESH

A.M.KHANWILKAR, KULDIP SINGH, JJ.
Som Kirti Alias Som K. Nath - Appellant
VERSUS
STATE OF H.P. - Respondents
CWP No. 443 of 1995 with CWP Nos. 1068 of 1995, 1088 of 2003, 484 of 2006, 844 and
1500 of 2010.
Decided On : October 01, 2013

The Himachal Pradesh Tenancy and Land Reforms Act,

1972 (Act) and its amendments, particularly Section 118,
which restricts the transfer of land to non-agriculturists, are
constitutionally valid. The amendments carried out in the
Act after 1976 are retrospective.

Act Referred :
ANDHRA PRADESH RULES FRAMED UNDER REGISTRATION
ACT : .
BENAMI TRANSACTIONS PROHIBITION ACT : .
COMPANIES ACT : S.617
CONSTITUTION OF INDIA : Art.14, Art.31(b), Art.15, Art.19(1)(f),
Art.31(a), Art.31(c), Art.39(b), Art.39(c), Art.300(a)
HIMACHAL PRADESH TENANCY AND LAND REFORMS ACT :
S.118, S.121(a)
MAHARASHTRA RESTORATION OF LANDS TO SCHEDULED
TRIBES ACT : S.4, S.3
POWERS OF ATTORNEY ACT : .
PUNJAB REORGANISATION ACT : S.5
SPECIFIC RELIEF ACT : .
STAMP ACT : .
SUCCESSION ACT : S.59, S.15, S.15(1)(d)
TRANSFER OF PROPERTY ACT : .
TRUSTS ACT : S.34
URBAN LAND CEILING AND REGULATION REPEAL ACT : .
URBAN LAND CEILING AND REGULATIONS ACT : .

The Court examined the constitutional validity of the Himachal

Pradesh Tenancy and Land Reforms Act, 1972 (Act) and its various
amendments, particularly Section 118, which restricts the transfer of
land to non-agriculturists. The Court also considered the validity of
Rules 38A and 38B framed under the Act.

Fact of the Case:

Several petitions were filed challenging the constitutional validity of

Section 118 and 121A of the Act, as well as Rules 38A and 38B framed
under the Act. The petitioners argued that these provisions violated the
basic structure of the Constitution, particularly Articles 14, 15, 19(e)
and (g). They also contended that the amendments carried out in the
Act after 1976 were not retrospective and, therefore, could not be
applied to them.

Finding of the Court:

The Court upheld the constitutional validity of the Act and its
amendments. It held that the Act was a valid agrarian reform
legislation designed to protect the interests of agriculturists and to
prevent the concentration of land in the hands of a few moneyed
people. The Court also held that Rules 38A and 38B were validly
framed under the Act and did not violate any constitutional provisions.

Issues: 1. Whether Section 118 and 121A of the Himachal Pradesh

Tenancy and Land Reforms Act, 1972 (Act) and Rules 38A and 38B
framed under the Act are constitutionally valid? 2. Whether the
amendments carried out in the Act after 1976 are retrospective?

Ratio Decidendi: 1. The Court held that Section 118 and 121A of the
Act and Rules 38A and 38B framed under the Act are constitutionally
valid. The Court reasoned that the Act is a valid agrarian reform
legislation designed to protect the interests of agriculturists and to
prevent the concentration of land in the hands of a few moneyed
people. The Court also held that Rules 38A and 38B are validly framed
under the Act and do not violate any constitutional provisions. 2. The
Court held that the amendments carried out in the Act after 1976 are
retrospective. The Court reasoned that the amendments were made to
clarify and strengthen the provisions of the Act and to prevent its
misuse. The Court also held that the amendments do not affect any
vested rights and, therefore, are not violative of Article 31A of the
Constitution.

Final Decision: The Court dismissed all the petitions challenging the
constitutional validity of Section 118 and 121A of the Act and Rules
38A and 38B framed under the Act.

Cases Referred:
LALA DEVI DASS VS. PANNA LAL, , AIR 1959 J&K 62 - Referred
D (A MINOR) V. BERSHIRE COUNTY COUNCIL, , 1987 1 ALLER 20 -
Referred
SUDARSHNA DEVI VS. UNION OF INDIA AND ANOTHER, , 1978 0
ILR(HP) 355 - Referred
RAJA SURENDRA VIKRAM SINGH VS. RANI MUNIA KUNWAR AND
ANOTHER, , AIR 1944 OUDH 65 - Referred
MAHABOOB SIRFRAZ VANTH SRI RAJAH PARTHASARATHY APPA
RAO ZAMINDAR OF BHADRACHALAM VS. SRI RAJA VENKATADRI
APPA RAO AND OTHERS, , AIR 1922 MAD 457 - Referred
VANGUARD FIRE AND GENERAL INSURANCE CO. LTD. MADRAS VS.
M/S FRASER AND ROSS AND ANOTHER, , AIR 1960 SC 971 - Referred
GAMINI KRISHNAYYA V. GURAZA SESHACHALAM, , AIR 1965 SC 639 -
Referred
COMMISSIONER OF EXPENDITURE TAX, GUJARAT VS. DARSHAN
SURENDRA PAREKH, , AIR 1968 SC 1125 - Referred
UNION OF INDIA VS. VALLURI B. CHAUDHARY, , AIR 1979 SC 1415 -
Referred
MANCHEGOWDA ETC. VS. STATE OF KARNATAKA ETC, , 1984 3 SCR
502 - Referred
LINGAPPA POCHANNA APPELWAR V. STATE OF MAHARASHTRA, ,
1985 2 SCR 224 - Referred
ACCOUNTANT AND SECRETARIAL SERVICES PVT. LTD. AND
ANOTHER VS. UNION OF INDIA AND OTHERS, , AIR 1988 SC 1708 -
Referred
PANDEY ORAON VS. RAM CHANDER SAHU AND OTHERS, , 1992
SUPP2 SCC 77 - Referred
KAISER I HIND PVT. LTD. AND ANOTHER VS. NATIONAL TEXTILE
CORPN. (MAHARASHTRA NORTH) LTD. AND OTHERS, , 2002 8 SCC
182 - Referred
SURAJ LAMP AND INDUSTRIES PRIVATE LIMITED (2) THROUGH
DIRECTOR VS. STATE OF HARYANA AND ANOTHER, , 2012 1 SCC 656
- Referred
S.MOHAMMAD ANWARUDDIN VS. DR. SABINA SULTANA AND
OTHERS, , 1989 179 ITR 442 - Referred

Advocates: Advocate Appeared:

R.L.SOOD , ARJUN K.LALL , K.D.SOOD , SANJEEV SUD ,
SHRAWAN DOGRA , ROMESH VERMA , ANUP RATTAN , PARUL
NEGI , SANDEEP SHARMA , B.C.NEGI

JUDGEMENT

KULDIP SINGH, J. -

1. THIS judgment shall dispose of CWP No. 443 of 1995, CWP Nos. 1068
of 1995, 1088 of 2003, 484 of 2006, 844 and 1500 of 2010 as common and
over lapping questions of law are involved in the petitions.

2. THE petitioners have prayed mainly the following declarations and

directions:

"(i) That the provisions of Section 118 and 121A of the H. P. Tenancy and
Land Reforms Act, void as being violative of the basis structure of the
Constitution of India and the rule of law; (ii) That the provisions of Rule 38
A (as notified by the impugned Annexure PX i.e. notification in the H.P.
Rajpatra bearing No. BA(3) 5/2000 1 dated the 23rd December, 2011 and
Rule 38 B as being void and violative of the basic structure of the
Constitution of India and the Rule of law; (iii) Be further pleased to issue an
appropriate writ, order or directions in the nature of: (a) a writ of mandamus
directing the respondents not to give effect to Section 118 and 121A of the
Himachal Pradesh Tenancy and Land Reforms Act and the rules framed
under the said Act as well as rules 38A and 38B framed under the Act. (b)
writ of certiorari to quash the provisions of Section 118 and 121A of the
Act."

The petitioners have given brief history of the Himachal Pradesh Tenancy
and Land Reforms Act, 1972 (for short 'Act' unless context is otherwise) as
amended from time to time. It has been alleged that impugned Act was
originally enacted under entry No. 18, List II, Schedule VII of the
Constitution. The original unamended Act was put in Ninth Schedule of the
Constitution at entry No. 138 by the Constitution 40th Amendment Act,
1976 on 27.5.1976. The Rules under the Act were framed in the year 1975
and were amended from time to time.

3. THE original purpose of the Act was to control the transfer of

agricultural land to non agriculturist. But the Himachal Pradesh Tenancy
and Land Reforms (Amendment) Act, 1994 (for short Rs.1994 Act') has
distorted the definition of 'land' by defining all properties including urban,
residential as well as commercial built up property as agricultural land. The
High Court had adjudicated upon the question of built up immoveable
property and other land not falling within the definition of 'agricultural land'
in RFA No. 83 of 1991 decided on 6.7.1993 and CWP No. 1717 of 1993
decided on 11.1.1994. The State had completely lost site of the original
aims and objects of the Act and 1994 Act and rushed through to set at
naught the aforesaid judgments of the High Court by bringing all the
properties under the definition of agricultural 'land' whether such properties
are built up, residential or commercial and whether such properties are
situate in urban areas and were never linked to or subservient to agriculture.

4. THE Act was earlier challenged in CWP No. 298 of 1975 which was
dismissed. It has been pleaded that challenge to the vires of the Act after
various amendments carried out in the Act is again available to the
petitioners even after the dismissal of CWP No. 298 of 1975. It has been
alleged that 'agriculturist' has been defined in sub section (2) of Section 2,
'to cultivate personally' has been defined in sub section (4) of Section 2 and
'land' has been defined in sub section (7) of Section 2 of the Act. In the un
amended Act, under Section 118 a total bar was imposed on transfer of land
by way of sale, gift, exchange, lease, mortgage with possession to one who
was not an agriculturist, but sub section (2) of the original un amended Act
made an exception in favour of landless labourers, landless persons
belonging to Scheduled Castes and Scheduled Tribes, village artisans,
landless persons carrying on an allied pursuit, State Government, Co
operative Societies and the Nationalized Banks. The Act was amended by
the Himachal Pradesh Tenancy and Land Reforms (Amendment) Act, 1976
(for short Rs.1976 Act') and then by the Himachal Pradesh Tenancy and
Land Reforms (Amendment) Act, 1987 (for short Rs.1987 Act') thereafter
by 1994 Act and then by the Himachal Pradesh Tenancy and Land Reforms
(Amendment) Act, 1997 (for short Rs.1997 Act').

It has been pleaded that drastic changes have been made in the original
Section 118 of the Act by carrying out several amendments. The original
purpose of the Act was to protect the farmers and also to amend and
consolidate the laws relating to tenancy and agricultural land and to provide
for certain measures of land reforms in Himachal Pradesh. The entire
purpose as well as the aims and objects have been lost when Section 118 of
the original Act has been drastically amended from time to time. The
Section 118 now does not aid to achieve the objects of the Act. The
definition of 'land' was narrow before 1987 Act. After 1994 Act, the
expression 'land' includes even built up structure and land not subservient to
agriculture also. In this way, non agriculturists in Himachal Pradesh have
been absolutely debarred from buying any land. The aims and objects of the
Act were not to create the bar which has been introduced in the Act by
carrying out several amendments which cannot be termed as an act of an
agrarian reform or to protect the interest of an agriculturist or to conserve or
preserve the nature of agricultural land. The explanation added to sub
section (4) of Section 118 includes land recorded as Gair Mumkin, Gair
Mumkin Makan by whatever name in the revenue record including the land
which is a site of a building in a town or village and is occupied or let out
not for agricultural purposes or purposes subservient to agriculture.

5. IT has been pleaded that by adding the explanation to sub section (1) of
Section 118 of the Act, the expression 'transfer of land' has been enlarged to
include a Benami transaction to an agriculturist for a consideration paid or
provided by a non agriculturist. It also includes transfer by way of special or
general power of attorney or by an agreement with the intention to put a non
agriculturist in possession of land and allow him to deal with the land in the
like manner as if he is the real owner of the land. Any contravention of
Section 118 entails the forfeiture of the land in favour of the Government if
transferred contrary to the Act.
6. THE procedure for acquiring land by a non agriculturist is prescribed
under Rule 38A. A monopoly has been created in favour of agriculturist
alone to acquire land in Himachal Pradesh whether the land is agricultural
land or subservient to agriculture or not. It has become virtually impossible
for the non agriculturists even though they may belong to the poorest
section of the Society to buy any land whether in a town and village and
even where no agriculture operation is carried out in or upon the land
concerned and even though the land is occupied or not let out for
agricultural purposes. There is no rationale qualification between
agriculturists and non agriculturists. This has created discrimination and is
violative of basic structure of the Constitution, more particularly Articles
14, 15, 19 (e) and (g) of the Constitution.

The amendments carried out in the Act after decision in CWP No. 298 of
1975 have taken away the purpose of agrarian or land reforms from the Act.
Article 31A only protects laws which are designed to protect land and
agrarian reforms. The Act as it stands now, has only one purpose relating to
alienation or transfer of the land used or not used for agriculture and to
prevent the non agriculturist from acquiring land in Himachal Pradesh.

7. THE amendments carried out in the Act, after the Act was put in 9th
Schedule, have not been put in the 9th Schedule. The amendments do not
enjoy the protection under Article 31(B). In any event, Article 14 is a basic
feature of the Constitution and the protection of equality and discrimination
constitutes basic feature of the Constitution.

8. THE Section 118 of the Act is violative of Article 14 of the Constitution

of India inasmuch as while any Indian or a non resident Indian can buy
flats/plots/shops from Government Development Agencies, yet the same
persons would have to be either agriculturist or seek permission from the
Government if he is not an agriculturist to purchase similar properties from
private Developers or Builders.

The Section 118 (4) of the Act has been enacted to provide a handle to State
Government to usurp the property of non agriculturist. But there is no
provision for restoration of the vested property to its original form or to
make it available for poor farmers or landless persons, agriculturists,
labourers etc. nor time period has been fixed within which the Government
is to take action for vesting of the land under Section 118 of the Act.
9. THE explanation added to sub section (1) of Section 118 of the Act has
given recognition to a Benami transaction against the express provision of
Benami Transactions (Prohibition) Act, 1988. A conflicting stand has been
created by Section 118 as against Sections 3 and 4 of the Benami
Transactions (Prohibition) Act, 1988. After the bar provided in Section 4 of
the Benami Transactions (Prohibition) Act, 1988, the person in whose
favour the land or property actually stands registered or bought is the actual
or legal owner.

10. THE Section 118 (1) of the Act alongwith its explanation is repugnant
to the provisions of the Transfer of Property Act, 1982, Indian Registration
Act, 1908, Power of Attorneys Act, 1882. The Section 118 of the Act puts a
bar on a person to Will his property in favour of a person other than an
agriculturist. The Section 59 of the Indian Succession Act, 1925 provides a
right to a person to make a Will of his property. The Section 118 has put
fetters to such right of a person under Section 59 of the Indian Succession
Act, 1925. The Section 118 destroys the basic federal character of the
Constitution. The Section 118 (3A) (b) violates the principle of natural
justice and equity. The first proviso and second proviso to Section 118 (2)
(h) of the Act are liable to be struck down on the grounds of discrimination
under Articles 14, 15 and 19 of the Constitution. The Section 121 A has no
nexus with the preamble, aims and objects of the Act nor it can be said to
further agrarian or land reforms. As a matter of fact, unbridled and
unfettered and arbitrary powers have been given to the Collector to act
under Section 118 of the Act without framing proper guidelines. The Rules
38 A and 38 B are violative of principles of natural justice. The notification
No. BA(3) 5/2000 1 dated 23.12.2011 is violative of Articles 14, 15 and 19
of the Constitution. The Rule 38A being a delegated legislation is in
contradiction to Section 118 of the Act.

The respondent No.1 has contested the petition by filing reply and by way
of preliminary objections, it has been pleaded that to establish an egalitarian
social order through the enactment of land reforms laws, State is duty
bound under Article 39 (b) and (c) of the Constitution not to allow the
control/concentration of material resources in the hands of a few. In order to
fulfill this obligation, the State has made provision by way of Section 118
of the Act to avoid the concentration of scares landed resources in the hands
of moneyed class. This is the main object behind the scheme for agrarian
reforms sought to be attained under the Act. The Section 118 is in
accordance with the Constitution. The constitutionality of Section 118 has
been upheld in CWP No. 298 of 1975 decided on 22.6.1978. The Act has
been included in 9th Schedule of the Constitution vide entry No. 138. The
petitioners cannot challenge the Act.

11. THERE is no bar on the purchase of land by non agriculturists and they
can purchase land in the State with the prior permission of the State
Government under Section 118. The amendments have been carried out in
the Act which have been assented to by the President of India. In CWP No.
971 of 1993 decided on 5.7.1994, the Court had suggested to the State
Government to amend Section 118 (2) of the Act for compulsory prior
permission in all cases where non agriculturists intend to purchase land in
Himachal Pradesh. The non agriculturist can purchase the land for
construction of house, shop or built up house or shop from the Himachal
Pradesh Housing and Urban Development Authority, Development
Authority constituted under the Himachal Pradesh Town and Country
Planning Act, 1977 or from any other statutory Corporation set up for
framing and execution of house accommodation schemes in the State under
the State or Central enactment.

12. IN CWP No. 700 of 2011 certain observations were made by the Court
in the order dated 24.4.2011. In view of said observations, the Government
has amended the Himachal Pradesh Tenancy and Land Reforms Rules,
1975 vide notification dated 23.12.2011 fixing eligibility criteria to
purchase land in the State which shall be the guidelines to consider the
permission under Section 118 of the Act. On merits, the respondent No.1
has defended the Act and all amendments carried out in the Act.

The petitioners after the last reply filed by respondent No.1 have not filed
rejoinder. However, the petitioners earlier filed rejoinder dated 23.6.2008
reiterating the stand taken in the petition till that stage. CWP No. 1068 of
1995

13. THE petitioner has prayed for following reliefs:

"(a) That the provisions of Section 118 and 121 A of the H.P.Tenancy and
Land Reforms Act void as being violative of the basic structure of the
Constitution of India and the Rule of law; (b) That the provisions of Rule
38 A (as notified by the impugned Annexure P 5 i.e. notification in the
H.P.Rajpatra bearing No. BA(3) 5/2000 1 dated the 23rd December, 2011
and Rule 38 B as being void and violative of the basic structure of the
Constitution of India and the Rule of law; (c) Be further pleased to issue an
appropriate writ, order or directions: (i) To quash Annexure P 4 and to
declare the proceedings initiated by the Collector, Kullu under Section 118
of the H.P.Tenancy and Land Reforms Act, as being bad in law and void;
(ii) Issue a writ of mandamus directing the respondents not to give effect to
Section 118 and 121A of the H.P.Tenancy and Land Reforms Act, as well as
Rules 38A and 38B; . (iii) To issue a writ of certiorari to quash the
provisions of Section 118 and 121A of the Act etc.etc."

14. THE pleaded case of the petitioner is more or less on the lines as in
CWP No. 443 of 1995. The petitioner has additionally pleaded that
petitioner belongs to Bihar and family of the petitioner is agriculturists from
generations and had been tilling land in the State of Bihar as owners in
possession. The petitioner on account of animosity harboured by a large
section of the Society in Bihar against traditional agriculturists and on
account of health grounds elected to settle down in peaceful State of
Himachal Pradesh. He took steps to buy land in Manali in order to make a
hotel cum residence. The petitioner approached one Smt. Rukmani Devi
Sharma, who agreed to sell to petitioner built up property and land
measuring 7 biswas comprised in Khasra Nos. 2165, 2166 and 2167 Phati
Nasggi, Kothi Manali as per jamabandi 1987 88. The petitioner entered into
an agreement to sell with Smt. Rukmani Devi Sharma on 30.8.1993. Smt.
Rukmani Devi Sharma also executed a General Power of Attorney in favour
of the petitioner which was registered on 1.11.1993 before Sub Registrar,
Kullu. In order to strengthen the hands of the petitioner, Smt. Rukmani Devi
Sharma executed a Will dated 1.11.1993 which was also registered. The
petitioner after acquiring the possession of the property, developed the same
for raising construction thereupon for the purpose of making a hotel.

It has been pleaded that built up property was not covered under the Act.
The petitioner was encouraged to enter into the transaction to purchase the
property in question. He paid Rs.12,00,000/ to Smt. Rukmani Devi Sharma
by way of sale consideration for built up structure alongwith land
appurtenant thereto. The petitioner received notice dated 16.5.1995 under
Section 118 of the Act which was issued without application of mind. The
notice is bad in law and is not covered by the amended provisions of the
Act. The transaction entered into by the petitioner with Smt. Rukmani Devi
Sharma is not covered by the Act. Therefore, in these circumstances, the
petitioner has made prayer, noticed above.

15. THE respondents have contested the petition and filed the reply more or
less on the same lines as reply in CWP No. 445 of 1995. The respondents
have additionally pleaded that Will, General Power of Attorney of Smt.
Rukmani Devi Sharma in favour of the petitioner were got registered on
1.11.1993 and the agreement to sell the land by Smt. Rukmani Devi Sharma
to petitioner was got attested as per Notary Register on 1.11.1993. The
agreement for sale is illegal. The matter came to the light of Deputy
Commissioner about illegal transaction and thereafter on direction, show
cause notice was served to the petitioner. The petitioner got three
documents executed from Smt. Rukmani Devi Sharma after paying full
consideration. The respondents have prayed for dismissal of the petition.
CWP No. 1088 of 2003:

16. THE petitioners have prayed mainly the following reliefs:

"(i) Issue a writ of certiorari to quash the provisions of Section 118 and 121
A of the H.P.Tenancy and Land Reforms Act void as being ultra vires and
violative of the basic structure of the Constitution of India and the rule of
law; (ii) Declaring the provisions of Rule 38 A (as notified by the impugned
Annexure P 14 i.e. notification in the H.P.Rajpatra bearing No. BA (3)
5/2000 1 dated the 23rd December, 2011 and Rule 38 B as being void and
violative of the basic structure of the Constitution of India and the Rule of
law; (iii) Issue a writ of mandamus directing the respondents not to give
effect to Section 118 and 121A of the Himachal Pradesh Tenancy and Land
Reforms Act and the rules framed there under the said Act as well as Rules
38A and 38B framed under the Act; (iv) Quash the impugned Show Cause
Noices Annexure PAA (colly.) dated 7th March, 2001 and 10th April, 2001,
issued by the Collector (Solan) to the petitioner Company; . (v) Quash the
impugned order dated 19.3.2010 i.e. Annexure PAK, issued by the Financial
Commissioner, Himachal Pradesh with all consequential reliefs in favour of
the petitioner Company and against the respondents. (vi) Direct the
respondents to complete the ministerial act of issuing a formal permission
in favour of the petitioner to divert the use of the land in question from
establishing a mushroom unit thereupon to a resort/hotel unit instead."

The petitioners have given brief history of the Act alongwith the various
amendments carried out in the Act. It has been pleaded that vires of the Act
were challenged in CWP No. 298 of 1975 but the petition was dismissed.
The scope of the agriculture land has been considered by this Court in RFA
No. 88 of 1991 decided on 6.7.1993 and in CWP No. 1717 of 1993 decided
on 11.1.1994. The original purpose of the Act was designed to protect the
farmers and to consolidate the laws relating to tenancy and agriculture land
and to provide for certain measures of land reforms in Himachal Pradesh.
The entire purpose as well as the aims and objects of the Act have been lost
by amending Section 118 repeatedly. The challenge to the Act after
dismissal of CWP No. 298 of 1975 is again available to petitioners in view
of amendments to Section 118 subsequent to the decision in CWP No. 298
of 1975. The amending acts of 1995 and 1997 are not retrospective and do
not apply to the transactions prior to enforcement of amending Acts of 1995
and 1997. The State Legislature has no legislative competence to make laws
relating to transfer and alienation of non agricultural land. The Section 118
provides transfer made in violation of Section 118 to be void.
Simultaneously, the Section further provides that such land would vest in
the State free from all encumbrances, such provision in the Section is wrong
and illegal. The State cannot be permitted to usurp the property of the
citizen.

17. THE respondents are estopped from taking action against the petitioners
under Section 118 of the Act inasmuch as the State authorities including the
Collector of District Solan by their acts of omissions and commissions
directed the petitioners to expand and invest huge amounts in the property
in question. The petitioners were under bonafide belief that transaction
entered into by them were lawful, legal and binding. The right to sell the
property is part of the citizen's liberty granted to him under Article 21 of the
Constitution of India. Section 118 is violative of such constitutional
protection. The vesting of the property in the State without compensation is
arbitrary, unreasonable and in contravention of Article 21. The petitioner
and any citizen of India is entitle to buy, sell and deal with agricultural
property and also other property of any other nature in the State of
Himachal Pradesh.

18. THE petitioner No.1 is an agriculturist in Himachal Pradesh. One Prem

Singh was owner of 14 bighas of land comprised in Khasra Nos. 228 and
229 in village Manoon, Tehsil Kasauli. Out of the aforesaid 14 bighas of
land, the petitioner No.1 purchased 7 bighas of land by two sale deeds dated
12.7.1990 and 15.6.1990. The petitioner No.1 had purchased the aforesaid
land in order to establish a tourist resort. The respondent No.4 is a Director
of the Company. The petitioner No.1 is also Director of the Company. The
petitioner No.1 and respondent No.4 are related to each other. The petitioner
No.1 on account of his busy engagements could not devote his personal
time for construction of tourist resort, he approached M/s Astra Estates Pvt.
Ltd. through respondent No.4 for constructing the resort. The investment
was to be made by M/s Astra Estates Pvt. Ltd.. The profits were to be
shared in the ratio of 85: 15 between M/s Astra Estates Pvt. Ltd. and
petitioner No.1. In order to facilitate the process of construction,
management and supervision of the same, the petitioner No.1 executed
General Power of Attorney in favour of respondent No.4 since he was also
a Director of the Company.

The respondent No.2 issued show cause notice to petitioner No.1 and
respondents No. 3 and 4 under Section 118 calling upon them to show cause
as to why the aforesaid land alongwith structures standing thereupon should
not vest in State. In the show cause notice the area of the land was wrongly
given, therefore, respondent No.4 issued corrigendum dated 23.8.1995. The
petitioner No.1 and respondent No.4 filed their replies to the show cause.
The respondent No.2 passed an order dated 20.9.1995 against petitioner
No.1 ordering vesting of aforesaid 7 bighas alongwith structures standing
thereupon in the State free from all encumbrances. The petitioner filed
Revenue Appeal No. 181 of 1995 which was dismissed by the
Commissioner on 13.5.1996. The petitioner No.1 filed revision before
Financial Commissioner, which was dismissed on 12.7.1999. The Collector,
Solan issued warrant of possession on 30.10.1996 which was executed by
the Tehsildar, Kasauli on 1.11.1996 and the possession of the property was
taken over by him and it vested in the State. This action of respondents No.
1 and 2 is highly improper, unethical besides being illegal. The petitioner
No.1 met with an accident on 1.5.1999 and was treated at several places
and, therefore, he could not file the petition earlier.

19. THE show cause would show that respondent No.1 decided to proceed
against petitioner and respondent No.4 on the ground that petitioner No.1
had transferred land in favour of respondent No.4 by way of General Power
of Attorney and petitioner No.1 had purchased the property Benami. The
show cause notice and the orders of Collector, Commissioner and Financial
Commissioner are wrong, illegal and possession of the property in question
is liable to be restored to petitioner No.1. The Section 118 at the relevant
time did not prohibit the execution of any agreement by an agriculturist in
favour of a non agriculturist for purpose of construction at the expense of
former. It also did not prohibit the execution of a power of attorney by the
former in favour of the later. Therefore, there is no violation of Section 118.

20. THE Section 118 at the time of issuance of show cause notice and
initiation of proceedings in October, 1991 did not provide that transfer of
'land' shall include a Benami transaction or an authorization made by the
owner of the land 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 real
owner of that land. The Section 118 as it existed at the relevant time was
not appreciated properly. The transaction between petitioner No.1 and
respondent No.4 was wrongly taken to be Benami transaction.

The petitioner No.1 has now learnt that respondent No.4 is a bonafide
agriculturist of Himachal Pradesh. The respondent No.4 is married to Smt.
Tara Chopra D/o Brig. Gurbax Singh S/o Sobha Singh, who owned and
possessed land situate in Mauza Dhalli as per jamabandi 1977 78. Smt. Tara
Chopra is an agriculturist and consequently her husband respondent No.4 is
also an agriculturist in Himachal Pradesh. Thus, all the three Directors of
M/s Astra Estates Pvt. Ltd. are agriculturists of Himachal Pradesh and
therefore, there is no violation of Section 118 of the Act. The remaining
challenge of the petitioners in the petition is more or less on the same lines
as pleaded in CWP No. 443 of 1995. The amended petition dated
30.11.2012 has been filed, prayers made in the amended petition include
quashing of Annexure PAA dated 7.3.2001 and 10.4.2001 and Annexure
PAK order dated 19.3.2010 passed by Financial Commissioner, Himachal
Pradesh including the direction to respondents to grant permission for
diverting the land use from mushroom unit to Resort/Hotel. These prayers
are not in consonance with the pleaded case of the petitioners.

21. THE respondents No. 1 and 2 have contested the petition by filing reply.
It has been pleaded that in pursuance of the directions given in CWP No.
971 of 1993 dated 5.7.1994 the Government had appointed a commission
headed by Justice Roop Singh Thakur, who held enquiries of the Benami
transactions and the case of petitioner No.1 was detected and found Benami
under Section 118 of the Act. The petitioners have no locus standi to file the
petition. Prem Singh had bought 14 bighas of land in village Manoon and
sold 7 bighas land to G.S.Chopra through petitioner No.1 a non agriculturist
in Himachal Pradesh under the Act. The land has been rightly vested in the
State free from all encumbrances vide order dated 20.9.1995 of Collector
which order was affirmed by Commissioner and Financial Commissioner.
The respondent No.1 has denied the claim of the petitioners. G.S.Chopra a
non agriculturist could not have acquired the land in his own name in State
of Himachal Pradesh, therefore, he set up petitioner No.1 Sarvjot Singh as
his Benami and acquired the land in question in contravention of the Act.
The respondent No.1 has denied the claim of the petitioners and has taken
more or less the same stand as has been taken in the reply filed in CWP No.
443 of 1995. CWP No. 484 of 2006:

22. THE petitioner has prayed mainly the following reliefs:

"(a) Strike down Section 118 (1) of the H.P. Tenancy and Land Reforms Act
as amended from time to time which prohibits the transfer of land
(including transfer by decree of civil court or by recovery of arrears of land
revenue) by way of sale, gift, will, exchange, lease, mortgage with
possession, creation of tenancy or in any other manner, in favour of a
person who is not an agriculturist of Himachal Pradesh; (b) Strike down
provisions which prohibits the registration of transfer deeds prohibited by
Section 118 (1) of H.P. Tenancy and Land Reforms Act or treat the transfers
as void; (c) Strike down the Section 121 A of H.P. Tenancy and Land
Reforms Act which excluded the jurisdiction of Civil Court or other
authorities from questioning the validity of the orders passed challenging
the striking down the transfer in favour of non agriculturists ; (d) Direct that
the term 'legal heir' in the explanation to Section 118 of the Act shall mean
and include all categories of legal heirs of an agriculturist in particular
including brothers and sisters."

The pleaded case of the petitioner is that she is owner of half share of the
land measuring 16 8 bighas in village Dunti, Pargana Chail, Tehsil
Kandaghat, District Solan, which was purchased by her long before the
commencement of the Act. She wanted to transfer a part of the said land by
way of gift or Will in favour of her younger sister Mrs. Rajrani Chopra. She
had made a representation to Principal Secretary (Revenue) to the
Government of Himachal Pradesh for clarification whether she could do so
under Section 118 and without permission of the State Government through
the application dated 5.10.2005. The respondent through communication
dated 23.1.2006 clarified that no transfer could be made without the
permission of the State Government under Section 118 as the sister of the
petitioner was not an agriculturist within the meaning of the Act. The
petitioner has thus challenged the vires of the Act.

23. THE petitioner gave the history of the Act and various amendments
carried out in the Act. In substance, the pleaded case of the petitioner is
similar to the pleaded case in CWP No. 443 of 1995.

24. IT has been pleaded that term 'legal heir' has not been defined in the
Act. The petitioner is a Hindu and governed by Hindu law and the
definition of 'legal heir' as far as the petitioner is concerned will have to be
found under the Hindu Succession Act. The Section 15 of the Hindu
Succession Act provides for determining as to who is 'legal heir' in the case
of a female Hindu. Clause (d) of Section 15 of the Hindu Succession Act
would include brothers and sisters as they are heirs of the father. Thus the
sisters would be legal heir in terms of Section 15 (1) (d) of the Hindu
Succession Act, in so far petitioner is concerned. The expression 'any or
legal heirs' in law means all categories of legal heirs specified in Section 15.
Thus, the transfer by way of gift by petitioner to her sister would not
constitute transfer for the purpose of Section 118 of the Act. The contention
of the respondent that said transfer would constitute transfer and would
require the permission of the State Government is contrary to law.

The amendments carried out in the Act in the year 1987, 1995 and 1997 are
not put in the 9th Schedule, therefore, these amendments do not enjoy the
protection under Article 31 (B). The Article 14 is a basic feature of the
Constitution. The amendment under Section 118 of the Act violates the
protection of equality under Article 14 of the Constitution.

25. THE respondent has contested the petition by filing reply which is on
the same lines as reply in CWP No. 443 of 1995. It has been denied that the
petitioner can gift the land in favour of sister considering her as 'legal heir'
under Section 15 (1) (d) of the Hindu Succession Act. The provision of
clause (d) of sub section (1) of Section 15 of the Hindu Succession Act,
1956 shall come into play only when the other legal heirs defined in clauses
(a), (b) and (c) of sub section (1) of the said section are not available or not
in existence. The petitioner was intimated to obtain permission of the State
Government for the purpose but instead of applying to the State
Government for permission, the petitioner has filed the petition without any
reasonable grounds. CWP No. 844 of 2010:

26. THE petitioner has prayed mainly the following reliefs:

"(i) Issue a writ of certiorari to quash the provisions of Section 118 and 121
A of the H.P. Tenancy and Land Reforms Act void as being ultra vires and
violative of the basic structure of the Constitution of India and the rule of
law; (ii) Declaring the provisions of Rule 38 A (as notified by the impugned
Annexure PG i.e. notification in the HP Rajpatra bearing No. BA (3) 5/2000
1 dated the 23rd December, 2011 and Rule 38 B as being void and violative
of the basic structure of the Constitution of India and the Rule of law; (iii)
Issue a writ of mandamus directing the respondents not to give effect to
Section 118 and 121A of the Himachal Pradesh Tenancy and Land Reforms
Act and the rules framed there under the said Act as well as Rules 38A and
38B framed under the Act; Quash the impugned Notice dated 30th January,
2008 i.e. (iv) Annexure PE issued by respondent No.3 with all
consequential relief in favour of the Petitioner No.1 Trust and against the
Respondents."

It has been pleaded that the petitioner is a Charitable Trust

Duly registered with the Sub Registrar of Assurances, Calcutta. The

petitioner has given brief history of the Act and the amendments carried out
in Section 118 of the Act. In addition to the petitioner Charitable Trust,
there is another Charitable Trust known as Ishran Devi Oberoi Family
Trust. The petitioner was originally desirous of establishing an Old Peoples
Home and a charitable Dispensary in District Solan. Therefore, Ishran Devi
Oberoi Family Trust was approached by petitioner to transfer land in its
favour out of land which was owned by Family Trust in District Solan. The
permission of the State Government to acquire some land from Family
Trust was sought. The Government accorded the permission in favour of the
petitioner as per communication No. REV.2F(10) 12/88 addressed by the
Deputy Secretary (Revenue) to the Govt. of Himachal Pradesh to the
Divisional Commissioner, Shimla and copy addressed to the petitioner.
Therefore, the petitioner acquired the property comprised in Khasra Nos.
806 and 807 measuring 3762 sq.mtrs. in Mauza Deon, Village Salogra from
the Family Trust for setting up Old Peoples Home and a Dispensary. The
petitioner was not possessed of sufficient funds and, therefore, could not
undertake the construction of Old Peoples Home as well as Dispensary. The
land could not be put to use for which it was purchased. In the permission
no time limit was prescribed within which the purpose for which the land
was purchased had to be achieved. The petitioner applied to respondent
No.1 for sub division of

27. LAND into plots for purpose of sale. The State granted permission vide
communication dated 31.8.2004. The petitioner moved an application
before District Judge, Solan under Section 34 of the Indian Trust Act
seeking permission to sell the plot.

28. THE respondent No.3 issued show cause notice dated 30.1.2008 for
violating Section 118 why the land in question should not be ordered to vest
in the State. The show cause is vague without indicating the specific
violation. The land was purchased with the permission of the State. The
land was never subservient to agriculture at any time. The land was never
agriculture land. The show cause is liable to be quashed. The petitioner has
taken other contentions in the petition more or less on the same lines as
pleaded by petitioners in CWP No. 443 of 1995.

The respondents No. 1 and 3 have contested the petition by filing reply. It
has been pleaded that petitioner has violated Section 118 of the Act by not
putting the land comprised in Khasra Nos. 806 and 807 measuring 3762
sq.mtrs. Mauza Deon to use for the purpose for which it was allowed to be
purchased within the time limit prescribed under the Act. Therefore, the
Collector, Solan issued notice to petitioner for violating Section 118 of the
Act. The petitioner instead of contesting the matter before the Collector
filed the petition. It has been pleaded that show cause notice issued to the
petitioner is legal and valid. The petitioner failed to utilize the land for the
purpose for which permission was granted. The petitioner has violated
Section 118 of the Act. Rest of the reply of respondents No. 1 and 3 is like
the reply filed in CWP No. 443 of 1995. CWP No.1500 of 2010:

29. THE petitioner has prayed mainly the following reliefs:

"(i) Issue a writ of certiorari to quash the provisions of Section 118 and 121
A of the H.P. Tenancy and Land Reforms Act void as being ultra vires and
violative of the basic structure of the Constitution of India and the rule of
law; (ii) Declaring the provisions of Rule 38 A (as notified by the impugned
Annexure PAK i.e. notification in the H.P.Rajpatra bearing No. BA (3)
5/2000 1 dated the 23rd December, 2011 and Rule 38 B as being void and
violative of the basic structure of the Constitution of India and the Rule of
law; (iii) Issue a writ of mandamus directing the respondents not to give
effect to Section 118 and 121A of the Himachal Pradesh Tenancy and Land
Reforms Act and the rules framed there under the said Act as well as Rules
38A and 38B framed under the Act; (iv) Quash the impugned Show Cause
Noices Annexure PAA (Colly) dated 7th March, 2001 and 10th April, 2001,
issued by the Collector (Solan) to the petitioner Company; (v) Quash the
impugned order dated 19.3.2010 i.e. Annexure PAK (sic PAH), issued by
the Financial Commissioner, Himachal Pradesh with all consequential
reliefs in favour of the petitioner Company and against the Respondents.
(vi) Direct the respondents to complete the ministerial act of issuing a
formal permission in favour of the Petitioner to divert the use of the land in
question from establishing a mushroom unit thereupon to a Resort/Hotel
unit instead."

30. IT has been pleaded that the petitioner had applied for and was granted
permission under Section 118 by the State to purchase land comprised in
Khasra Nos. 52, 111/57, 58, 261/60, 229/169/166/109/57, 168/109/57,
165/109/57, 110/57, 59, 175/113/61 and 112/61 measuring 15 15 bighas
situated in Mauza Khali, Tehsil and District Solan vide letter dated
12.2.1996 for setting up a Mushroom Unit. The petitioner purchased the
land comprised in Khasra Nos. 52, 111/57, 58, 261/60, 229/166/109/57,
measuring 14 05 bighas out of the aforesaid land. The petitioner took
several steps for setting up a Mushroom Manufacturing Unit. The
Mushroom project was also got approved from the IPARA as is evidenced
by letter dated 21.5.1997 of Directorate of Industry. The petitioner
genuinely wanted to establish a Mushroom production unit primarily for
export purposes for which the land was purchased.

In the meantime, there was a recession in the demand for Mushrooms in the
International market. The petitioner submitted a proposal for grant of loan
from the State Bank of India, Solan. The bank declined to grant loan on
account of recession in the market. The petitioner approached alternate
financers like the Himachal Pradesh Financial Corporation and Himachal
Pradesh State Industrial Development Corporation etc. for grant of loan.
The petitioner vide letter dated 15.10.1997 addressed to the Chief Minister
of Himachal Pradesh requested him to lay foundation stone of the Unit. The
petitioner got itself registered with the Himachal Pradesh Sales Tax
Department. The petitioner addressed letters to various Companies abroad
to solicit their consent for purchase of Mushrooms to be produced by the
petitioner. However, due to recession in the market, the project of the
petitioner did not receive financial support in the form of loans from the
banks and other financial institutions.

31. THE petitioner was forced to change its plans and Mushroom project
had to be changed to a resort/hotel project. The authorities were informed
and their consent was sought. The petitioner applied for change of the
project from production of Mushroom to that of a resort/hotel. The
Collector, Solan after receiving the request of the petitioner for allowing the
change, addressed a communication dated 14.6.1999 to the Financial
Commissioner cum Secretary (Revenue) to the Government of Himachal
Pradesh undertaking no objection for setting up of G.P. Resorts by the
petitioner instead of Mushroom project.

32. THE petitioner obtained no objection certificate from the Directorate of

Industries Himachal Pradesh dated 9.7.1999 indicating that in case the land
in question was not utilized by the petitioner for an industrial purpose, then
the same would be liable to be resumed. The petitioner received letter dated
20.8.1999 from the Collector, Solan pointing out that in order to establish
resort, it should obtain no objection from the Tourism Department in order
to enable it to forward the case to the State. On 26.8.1999 a communication
was issued by the Director Tourism and Civil Aviation to the H.P. Financial
Corporation recommending the case of the petitioner for grant of a loan of
Rs.161 lacs in order to enable it to set up a resort instead of a Mushroom
unit. The petitioner vide communication dated 11.11.1999 forwarded no
objection to the Collector for further action in the matter. The petitioner
bonafide believed and had reasonable expectations that the codal formalities
have been completed and the approval had been granted in principle to the
change in the project. The petitioner did not receive anything to the contrary
nor the respondents rejected its proposal. The petitioner in any event was
entitled to receive such formal permission for diverting the change in the
use of the land from Mushroom unit to that of establishing a resort/hotel.

The petitioner was shocked and surprised when the Collector, Solan issued
show cause notices dated 7.3.2001 and 15.5.2001 for alleged violation of
Section 118 of the Act. The petitioner filed reply before the Collector. The
respondent No.3 himself filed the reply in the proceedings and became a
judge of his own cause. The respondent No.3 did not forward the case
further to the State Government. The respondent No.3 conducted the
proceedings in a highly biased and prejudiced manner.

33. THE Collector decided the matter against the petitioner on 21.9.2004.
The appeal filed by the petitioner was dismissed by the Commissioner on
25.5.2009. The revision filed by the petitioner has been dismissed by the
Financial Commissioner on 19.3.2010. The reasoning adopted by the
Collector, Commissioner and Financial Commissioner is wrong and illegal
and their orders are liable to be set aside. The petitioner in the petition has
raised other grievances which are similar to the case pleaded by the
petitioners in CWP No. 443 of 1995.

34. THE respondents No. 1 and 3 have contested the petition by filing reply.
It has been pleaded that permission was granted under Section 118 to the
petitioner for setting up a Mushroom Unit but instead of establishing
Mushroom unit, the petitioner constructed hotel in contravention of law.
The petitioner has violated the terms and conditions of permission granted.
The petitioner has concocted a story to derive undue benefit. The petitioner
failed at the Government level in getting the all codal formalities completed
to obtain the permission for change of land use. The proceedings under
Section 118 were legally and rightly initiated against the petitioner. The
petitioner in arbitrary and illegal manner has changed the use of the land for
a purpose other than the purpose for which the permission was granted. The
permission was granted for setting up a Mushroom unit. However, the
petitioner constructed a hotel over the same. The respondents have
defended the decisions of the Collector, Commissioner and Financial
Commissioner. The respondents with respect to other contentions of the
petitioner have taken more or less the same stand as taken by the
respondents in reply to CWP No. 443 of 1995.

We have heard learned counsel for the parties. Mr. R.L. Sood, Senior
Advocate led arguments on behalf of the petitioners. Mr. Shrawan Dogra,
learned Advocate General made submissions on behalf of the respondents
in all the petitions. It has been submitted by Mr. Sood that the State
Legislature had no competence to legislate amendments carried out in the
Act vide Act No. 6 of 1988, Act No. 6 of 1995, Act No. 9 of 1997 and Act
No. 10 of 2007. The constitutional validity of the Act was upheld in
decision dated 22.6.1978 in Sudershna Devi vs. State of H.P., ILR
1978,H.P. 355, but thereafter Section 118 of the Act has been amended
several times by over stepping legislating mandate provided in Seventh
Schedule of the Constitution. The entry No. 18 List II confers legislative
competence on State on matters relating to transfer and alienation of
agriculture land alone. The State lacks legislative competence under entry
No.18 List II in relation to transfer and alienation of non agriculture land
and built up structure. There is no transfer of property by way of will,
agreement to sell, power of attorney whether possession is handed over to
intended purchaser or not. The transfer of property can take place by way of
sale, mortgage with possession, lease, exchange, gift or creation of a
tenancy only. The learned Senior Advocate has relied Suraj Lamp and
Industries Private Limited (2) through Director vs. State of Haryana and
another (2012) 1 SCC 656 while making submission that agreement to sell,
irrevocable General Power of Attorney, General Power of Attorney and
Will are not to be equated with normal transfer of property. The State
cannot legislate on transactions in respect of land, lands and buildings
which are not subservient to agriculture, which if allowed will render entry
6 List III otiose.

35. THERE is repugnancy in the Act and the Central Acts. The Act has
been amended by various amending Acts but specific repugnancy of the
Central Acts infra and the Act was not pointed out to draw the attention of
the President before assent was given by the President to the amending
Acts. The Act has repugnancy with Transfer of Property Act, 1882, Specific
Relief Act, 1963, Indian Registration Act, 1908, Indian Succession Act,
1925, Indian Stamps Act, 1899, Power of Attorneys Act, 1882, Benami
Transactions (Prohibition) Act, 1988 and Urban Land (Ceiling and
Regulation) Act, 1976 and, therefore the aforesaid Acts shall over ride the
Act. The learned counsel has relied Kaiser I Hind Pvt. Ltd. and another vs.
National Textile Corpn. (Maharashtra North) Ltd. and others (2002) 8 SCC
182.

36. AFTER amendments carried out in the Act in the year 1987 onwards,
the Act is now no more an agrarian reforms legislation. The 'land; has been
defined in section 2 (7) of the Act but in explanation I to sub section (4) of
Section 118, the land which is site of a building in a town or a village and is
occupied or let out not for agricultural purpose or purpose subservient to
agriculture has also been included. Thus, practically every type of land is
covered by the Act, and therefore, the Act cannot be termed an agrarian
reform legislation. The amendments carried out in the Act are not included
in 9th Schedule of the Constitution.

The Act has taken away jurisdiction of the Civil Court and is thus illegal.
The Act does not specify the public purpose for which the vested land
would be put to use. The amendments carried out in the Act are not
retrospective. The Act is not protected under Articles 31A, 31B and 31C of
the Constitution. The vestment of the land free from all encumbrances in
favour of the Government provided under the Act, is illegal and is in
conflict with Article 300A of the Constitution.

37. THE vestment of land in the Government for not utilizing the land
within the period provided for the purpose for which the permission was
granted is also wrong and illegal. Rule 38A has supplanted Section 118 and,
therefore, the same is wrong and illegal. The State should not be permitted
to take any action after expiry of period of three years of alleged violation.
It has been submitted that in CWP No. 1068 of 1995 the Financial
Commissioner (Appeals) in Revenue Revision No. 71 of 1997 on 18.8.2005
has quashed the order dated 5.4.1997 of the Commissioner and order dated
21.10.1995 of the Collector. The order dated 18.8.2005 of the Financial
Commissioner has attained finality.

38. THE learned Advocate General has defended the Act and various
amendments carried out in the Act. He has submitted that State Legislature
has competency to legislate on the subject covered by the Act and the
amendments under entry 18 List II of the 7th Schedule. The Act has been
put in the 9th Schedule and is, therefore, immune from challenge. The vires
of the Act were affirmed by the Division Bench in CWP No. 298 of 1975
on 22.6.1978. The Act and amendments have been assented to by the
President and they have over riding effect under Article 254 (2) over any
Central Legislation if found repugnant to the Act and the amendments. The
act and amendments are for agrarian reforms and protected under Articles
31A, 31B and 31C.

The statement of objects and reasons of the Himachal Pradesh Tenancy and
Land Reforms Bill, 1972 provides as under: STATEMENT OF OBJECTS
AND REASONS:

"As a result of the re organisation of the erstwhile State of Punjab in

November, 1966, some areas were integrated in Himachal Pradesh under
section 5 of the Punjab Re organisation Act, 1966. There are different
enactments regarding tenancy and agrarian reforms in force in new and old
areas of the Pradesh. In the areas as comprised in Himachal Pradesh
immediately before 1st November, 1966, the Himachal Pradesh Abolition
of Big Landed Estates and Land Reforms Act, 1953, is in force which is a
progressive legislation about the security of tenures of tenants and their
other rights. In the areas added to Himachal Pradesh under section 5 of the
Punjab Re organisation Act, 1966, however, occupancy tenants have been
vested with proprietary rights under two Acts on the subject namely, the
Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act, 1953 and
the Pepsu Occupancy Tenants (Vesting of Proprietary Rights) Act, 1954. In
the old areas the occupancy tenants have to apply for ownership under
section 11 of the Himachal Pradesh Abolition of Big Landed Estates and
Land Reforms Act. It has, therefore, been considered necessary to unify the
various laws relating to tenancies as in force in the Pradesh and to provide
for a measure of land reforms to remove disparities. Restrictions have been
imposed to purchase land by the non agriculturists to avoid concentration of
wealth in the hands of non agriculturists moneyed class. The Bill is to
achieve the above objects."

39. STATEMENT of Objects and Reasons of the Himachal Pradesh

Tenancy and Land Reforms (Amendment) Bill, 1987 provides as under:
STATEMENT OF OBJECTS AND REASONS:

"Under the existing provisions contained in the Himachal Pradesh Tenancy

and Land Reforms Act, 1971 the right, title and interest of the Government
in the lands owned by it and leased out to a person vest in tenants. It is
imperative that the proprietary rights in Government lands, by and large
regenerated through public funds, should not pass to private persons. It has,
therefore, become necessary to make suitable amendment in section 104 of
the said Act. Under the proviso to section 113 of the said Act, the land in
respect of which proprietary rights have been acquired by a non occupancy
tenant, can be transferred by way of sale, mortgage gift or otherwise only
for productive purposes with the permission of the Collector. In orders to
avoid misuse of this provision and to ensure that such permission should be
accorded rarely and only under genuine circumstances, it has been decided
that the said permission be given by the State Government alone. Section
118 of the principal Act, which restricts transfer of land to non
agriculturists, does not apply to the transfer of lands situated in urban areas,
nor does it apply to transfer of lands not used for purposes subservient to
agriculture. The lands classified as "Gair mumkin makan", "Gair mumkin
dhank" can be transferred in favour of non agriculturists and thus the
provisions as they exist leave a loophole in law which is designed to
prevent the transfer of land to non agriculturists. It has, therefore, become
necessary to make suitable amendments in the existing law. The Bill seeks
to achieve the aforesaid objectives."

55. IT has been argued that Rule 38 A is violative of Articles 14, 15, 19 (e)
and (g) of the Constitution as well as against the basic structure of the
Constitution. The Rule has imposed complete ban for acquisition of land for
purpose of building a residential house or for construction of a shop by a
bonafide non agriculturist Himachali, who resides and works for gain
outside the State of Himachal Pradesh. The Rule discriminates against non
agriculturist Himachalis, who are not residents of Himachal Pradesh and
other ordinary citizens of India. In the Rule highly unreasonable and
arbitrary conditions have been imposed for seeking permission for
purchasing the land, house, shop, built up area etc. Only a few chosen
selected persons have been given preference in granting permission in
arbitrary and discriminatory manner. The Rule is in contradiction to Section
118 of the Act. The original un amended Rule 38 A was noticed in Smt.
Sudarshna Devi (supra) and the Court has held as follows:

"47. In this connection, it was contended that Section 118 read with Rule 38
A gives unfettered and unguided power to the State Government to
determine whether a particular piece of land should be allowed to be
transferred or not. In other words, the argument was that exercise of power
without proper guidelines in the statute is likely to be arbitrary and in the
result the exercise of such power would destroy the principle of equality
enshrined in Articles 14 and 15 of the Constitution. This contention is not .
acceptable because, if again a reference is made to clauses (g) and (h) of the
amended section read with rule 38 A, it becomes quite evident that these
provisions contain sufficient guidelines for the exercise of discretion vested
in the State Government. Clause (g) points out the guidelines for allowing
the transfer to a non agriculturist within municipal limits. It is evident from
clause (g) that these transfers can be allowed only for the construction of a
dwelling house, shop, commercial establishment, office or industrial unit.
The extent to which the transfer can be allowed is also given in the Section.
So far as clause (h) is concerned, it generally provides for a transfer with
the permission of the State Government for the purposes to be prescribed
and these purposes are prescribed by the above quoted rule 38 A, reference
to which shows that the transfer can be only for the specified purposes and
to the specified extent. Therefore, when the State Government allows a
transfer in favour of a non agriculturist it is bound to keep in mind that
these transfers cannot be allowed at the sweet will of the authority
concerned. The said authority is bound to be guided by the provisions
contained in clauses (g) and (h) of sub section (2) of Section 118 and rule
38 A."

The new Rule 38 A is fundamentally same as it was when added in the year
1976 in the Rules. The amendments have been carried out in Rule 38 A
from time to time to make the rule more workable. There are sufficient
guidelines in Rule 38 A for granting permission. The purpose of the Act is
to check accumulation of property in the hands of a few moneyed people
irrespective whether they are ordinarily residents of Himachal Pradesh or
not. The time limit provided for acquiring the eligibility of residence by a
non agriculturist in Himachal Pradesh before seeking permission for
purchasing the land or built up structure is not arbitrary. The period of 30
years is not such a period which ordinarily cannot be achieved within the
life span of an ordinary human being. The Limitation Act provides 30 years
period for acquiring title by way of adverse possession by an individual
against State, similarly for redemption of certain mortgages, limitation
period is 30 years. Therefore, 30 years period of working in the State who is
not an agriculturist for acquiring the eligibility by a person for purchasing
building for residential purpose or for shop cannot be said to be arbitrary. It
is for the rule making authority to fix the reasonable period. It has not been
argued that Rule 38 A is beyond the rule making power of the State under
the Act. A vague plea has been taken that Rule 38 A is in contravention to
Section 118, it supplants Section 118 and it is against the basic structure of
the Constitution. But the petitioners have failed to make out a case to this
effect. Thus, the challenge of the petitioners to Rule 38 A fails and is
rejected.

56. THE petitioners have also challenged Rule 38 B which provides as

under:

"38 B. Execution of orders for vestment of land. The District Collector

within his jurisdiction shall pass an order regarding vestment of
land/buildings together with structures or other attachments, if any, under
sub section (2) or sub section (3D) of section 118 of the Act, as the case
may be, in the State Government, and (i) the order of such vestment and
delivery of possession of immovable property shall be executed in the same
manner as provided in the Code of Civil Procedure for the time being in
force in respect of the execution of a decree whereby a Civil Court has
adjudged ejectment from or delivery of possession of such property; and (ii)
in execution of these orders the Revenue Officer shall have all the powers
in regard to contempts, resistance and the like which a Civil Court may
exercise in the execution of a decree of the description mentioned in (i)
supra.

On behalf of the petitioners no specific challenge to Rule 38 B has been

highlighted. It has been contended that Rule 38 B is violative of Articles 14,
15, 19 (e) and (g) of the Constitution without further elaboration. The
perusal of Section 118 would show that the procedure has been provided
which is to be followed by the Collector of the District for deciding whether
the land has been transferred in contravention of the Act. The provision of
appeal and revision has also been provided against the decision of the
Collector holding vesting of land in State Government free from all
encumbrances. The Rule 38 B provides execution of order passed by the
Collector for vestment of land. The order is to be executed in the same
manner as provided in the Code of Civil Procedure in a decree of ejectment
or delivery of possession with further provision that executing authority
shall have all powers of Civil Court including powers of contempts and to
meet the situation of resistance. Once the order of vestment is to be
executed like a decree of a Civil Court, it cannot be said that Rule 38 B is
wrong, illegal, and arbitrary. The challenge of petitioners to Rule 38 B has
no force, hence rejected.

57. THE petitioners have also challenged Section 121 A of the Act which
provides as under:

"121A. Bar of jurisdiction. Save as otherwise, expressly provided in this

Chapter, the validity of any proceedings or orders taken of made under this
Chapter shall not be called in question in any civil court or before any other
authority."

The Section 121A is in Chapter XI of the Act and Sections 118 to 122 are
included in that Chapter. Any order passed by the authority affecting the
right of transferee in the land under Section 118 is subject to appeal,
review/revision as provided in the Act and the Rules. An aggrieved person
cannot have choice of forum. In Section 118 read with Rules complete
machinery has been provided to hear the grievance of an aggrieved person.
It is not the case of the petitioners that no remedy has been provided to an
aggrieved person to challenge an order passed under Section 118 read with
Rules. The Section 9 of the Code of Civil Procedure, 1908 also provides
that Civil Court has jurisdiction to try the suit unless the jurisdiction of the
Civil Court is expressly or implicitly barred. It is clear from Section 9 of the
Code of Civil Procedure that jurisdiction of the Civil Court can be
excluded. The forum provided to adjudicate the grievance of aggrieved
person under Section 118 and Rules is effective forum. It is not the
requirement of law that every grievance of aggrieved person is to be
decided by the Civil Court only. The petitioners have completely failed to
make out a case how Section 121A which excludes the jurisdiction of the
Civil Court is illegal. There is no force in the contention, hence rejected.

58. IT has been submitted that utilization of vested land in State

Government under sub section (4) of Section 118 is unguided and arbitrary
and, therefore, the vestment of land in the State Government under Section
118 is wrong and illegal. The transfer of the land in violation of statute is
void and results into vestment of land free from all encumbrances in the
State Government. As held in Manchegowda etc. (supra) the transferee is
left with no right or property in such land. After the vestment of land in the
State Government, the transferee has no locus standi to question how the
State Government shall make use of such vested land. It is preposterous to
assume that the State Government would use such land in arbitrary manner.
There should be no doubt that the State shall dispose of the land vested in
the State Government under Section 118 as per sub section (4) of Section
118 of the Act and land disposal norms of the State. This contention of the
petitioners is merit less, hence rejected.

It has been contended that amendments carried out in the Act after the year
1976 are not retrospective and, therefore, such amendments cannot be
applied retrospectively. The Act after the year 1976 has been amended by
H.P. Act No. 6 of 1988, Act No. 6 of 1995, Act No. 9 of 1997 and Act No.
10 of 2007. The sub section (3) of Section 1 of Act No.6 of 1988 is as
follows:
"(3) It shall be deemed to have come into force from the date of
commencement of the Himachal Pradesh Tenancy and Land Reforms Act,
1972, but section 3 and section 4, in so far as it amends clause (g) and the
second proviso to clause (i) of sub section (2), sub section (3) and sub
section (4) of Section 118 of the said Act, shall come into force at once."

The Section (3) of Act No. 6 of 1988 is as follows:

"Provided that nothing contained in sub section (1) shall apply to the
transfer of land made for a productive purpose with the prior permission of
the State Government in a prescribed manner."

The Section (4) of Act No. 6 of 1988 is as follows: "118.(1)

Notwithstanding anything to the contrary contained in any law, 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 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. (2) Nothing in sub section (1) shall be deemed to prohibit the
transfer of any land by any person in favour of: (a) a landless labourers ; or
(b) a landless person belonging to scheduled caste or a scheduled tribe; or
(c) a village artisans; or (d) a landless person carrying on an allied pursuit;
or (e) the State Government; or (f) a co operative Society or a bank; or (g) a
person who has become non agriculturist on account of the acquisition of
his land for any public purpose under the Land Acquisition Act, 1894; or
(h)a 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, 1972, or from the Development Authority
constituted under the Himachal Pradesh Town and Country Planning Act,
1977, or from any other statutory corporation set up under any State or
Central enactment; or (i) a non agriculturist with the permission of State
Government for the purpose that may be prescribed: Provided that a person
who is a non agriculturist but purchases land with the permission of the
State Government under clause (i) of this sub section shall, irrespective of
such permission, continue to be a non agriculturist for the purpose of this
Act: Provided further that a non agriculturist in whose case permission to
purchase land is granted by the State Government, shall put the land to such
use for which the permission has been granted, within a period of two years
or a further such period, not exceeding one year, as may be granted by the
State Government, to be counted from the day on which the deed covering
the sale of the land is registered and if he fails to do so, the land so
purchased by him shall vest in the State Government free from all
encumbrances. (3) No Registrar or Sub Registrar appointed under the
Indian Registration Act, 1908 shall register any document pertaining to a
transfer of land, which is in contravention to sub section (1) and such
transfer shall be void ab initio and the land involved in such transfer, if
made in contravention of sub section (1), shall, together with structures,
buildings or other attachments, if any, vest in the State Government free
from all encumbrances: Provided that the Registrar or the Sub Registrar
may register any transfer: (i) where the lease is made in relation to a part or
whole of a building; or (ii) where the mortgage is made for procuring the
loans for construction or improvements over the land either from the
Government or from any other financial institution constituted or
established under any law for the time being in force or recognized by the
State Government. (4) It shall be lawful for the State Government to make
use of the land which is vested or may be vested in it under sub section (2)
or sub section (3) for such purposes as it may deem fit to do so.
Explanation: For the purpose of this section, the expression "land" shall
include (i) land, the classification of which has changed or has been caused
to be changed to "Gair mumkin", "Gair Mumkin Makan" or any other Gair
Mumkin land by whatever name called, during the past five years countable
from the date of entry in the revenue records to this effect; (ii) land recorded
as "Gair mumkin", "Gair mumkin Makan" or any other Gair mumkin land,
by whatever name called in the revenue records, except constructed area
which is not subservient to agriculture; and (iii) land which is a site of a
building in a town or a village and is occupied or let out not for agricultural
purposes or purposes subservient to agriculture." The Act No. 6 of 1988
was enforced on 14.4.1988, Act No. 6 of 1995 was enforced on 4.4.1995.
The sub section (2) of Section 1 of Act No.9 of 1997 provides that it shall
be deemed to have come into force on 28.12.1996. The sub section (1) of
Act No.10 of 2007 provides as under: "This Act may be called the
Himachal Pradesh Tenancy and Land Reforms (Amendment) Act, 2006."
The Section (2) (a) of Section 118 of Act No. 10 of 2007 is as follows: "In
section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972:
(a) In sub section (2), in clause (g), for the words, signs and figures,
"Himachal Pradesh State Housing Board, established under the Himachal
Pradesh Housing Board Act, 1972", the words, signs and figures,
"Himachal Pradesh Housing and Urban Development Authority, established
under the Himachal Pradesh Housing and Urban Development Authority
Act, 2004" shall be substituted."

59. THUS, as noticed above, the amendments carried out in the Act after
1976 have been made applicable from different dates. The petitioners in the
petitions have not made specific prayers with respect to amending Act No.
6 of 1988, Act No. 6 of 1995, Act No. 9 of 1997 and Act No. 10 of 2007. It
is held that Act No. 6 of 1988, Act No. 6 of 1995, Act No. 9 of 1997 and
Act No. 10 of 2007 have come into force as provided in the said amending
Acts.

60. THE writ petitions are now taken up separately for purposes of relief(s)
prayed therein. CWP No. 443 of 1995: In view of above discussion, the
petition fails and is accordingly dismissed. CWP No. 1068 of 1995:

In CWP No. 1068 of 1995 one of the prayer is for quashing show cause
dated 16.5.1995 issued by the Collector, Kullu to M/s Nageshwar Resorts.
We place on record the statement of learned counsel for the petitioner that
on the basis of show cause, the Collector subsequently had passed order
dated 21.10.1995 and Commissioner order dated 5.4.1997. The Financial
Commissioner (Appeals) in Revenue Revision No. 71 of 1997 on 18.8.2005
has quashed order dated 5.4.1997 of the Commissioner and order dated
21.10.1995 of the Collector and order dated 18.8.2005 of the Financial
Commissioner (Appeals) has attained finality. The orders dated 5.4.1997
and 18.8.2005 have not been placed on record. In case the Financial
Commissioner (Appeals) has accepted the revision of the petitioner vide
order dated 18.8.2005 and has set aside the order dated 5.4.1997 of the
Commissioner and order dated 21.10.1995 of the Collector and the order
dated 18.8.2005 has not been assailed further, then the order dated
18.8.2005 shall be binding on the parties. In view of above discussion, the
petition fails and is dismissed.

61. CWP No. 1088 of 2003: The petitioners have filed amended petition
dated 30.11.2012. The petitioners in the amended petition have made the
prayers noticed above. The reliefs No. (iv), (v) and (vi) in the amended
petition are not in consonance with the pleaded case of the petitioners,
therefore, prayer Nos. (iv), (v) and (vi) of the amended petition is rejected.
In the unamended petition, the petitioners have prayed mainly the following
reliefs: (a) Issue a writ of certiorari to quash the provisions of Section 118
and 121 A of the Act and the Rules framed thereunder, as amended upto
date as being violative of the basic structure of the Constitution of India and
being highly arbitrary and violative of Article 14 of the Constitution of
India. (b) Declare the provisions of Rule 38A framed under the Act, as also
being void and being violative of the basic structure of the Constitution. (c)
Quash Annexures P 2 and P 3 i.e. the Show Cause Notices, issued by
respondent No.2, to the petitioner No.1 and respondent No.4 and also quash
the order Annexure P 8, passed by the Financial Commissioner (Appeals),
Himachal Pradesh in Revenue Petition No. 156/97, preferred by the
petitioner No.1, against the State of Himachal Pradesh and also to
consequently quash the orders dated 13th May, 1996, passed by the
Commissioner, Shimla Division in Revenue Appeal No. 181 of 1995 i.e.
Annexure P 7. Further to quash Annexure P 6 i.e. order dated 4th
December, 1996 passed by the Collector, District Solan in Case No. 15/13
of 1991. This Hon'ble Court may please to direct the respondents to restore
the use occupation possession and ownership as well as enjoyment of land
and building comprising seven bighas of land, out of 14 bighas of land
which earlier belonged to respondent No.2 and was purchased by petitioner
No.1 and which is identified as Khasra No. 228 and 229 measuring in total
36 13 bighas of land in Mauja Shilora Kurdh, Tehsil Kasauli, District Solan,
Himachal Pradesh. The respondents No. 1 and 2, further need to be directed
not to interfere in the peaceful possession, use and occupation and also
enjoyment thereof by the petitioner No.1, in any manner whatsoever." The
reliefs (i) to (iii) in the amended petition in substance are similar to reliefs
No. (a) and (b) prayed by the petitioners in the unamended petition. The
Annexure P 2 dated 25.11.1991 is the show cause notice issued by the
Collector, District Solan to petitioners etc. why the land alongwith
structures built thereon be not vested in the State Government for violating
Section 118 of the Act. The Annexure P 3 dated 23.8.1995 is another notice
issued by Collector, District Solan to petitioners etc. for violation of Section
118 of the Act. The Collector, Solan vide order dated 20.9.1995 held that
land measuring 7 bighas comprised in Khasra Nos. 228 and 229 Mauja
Shilora Khurd, Village Manoon, has been transferred by Sarabjot Singh in
favour of G.S.Chopra, a non agriculturist in violation of Section 118 of the
Act where flats have been constructed. The Collector held vesting of
aforesaid 7 bighas land alongwith structures in State Government free from
all encumbrances and Tehsildar, Kasauli was directed to take over
possession. The Commissioner, Shimla Division vide order dated 13.5.1996
upheld the order dated 20.9.1995 in appeal. The Financial Commissioner
(Appeals), H.P. in Revenue Revision No. 156 of 1997 vide order dated
12.7.1999 dismissed the revision against the order dated 13.5.1996. The
Financial Commissioner in Revision Petition No. 157/1997 vide order dated
12.7.1999 declined to go into the question of restoration of possession of
the land and structure in favour of the petitioners on the ground that the land
in question has been acquired in contravention of Section 118 and the land
and structures have vested in the State Government.

62. IT has been contended on behalf of the petitioners that Section 118 of
the Act at the relevant time did not prohibit execution of an agreement by
an agriculturist in favour of non agriculturist for purpose of construction. It
also did not prohibit execution of power of attorney when the notice was
issued in the year 1991. The transfer of land, at that time, did not include
benami transaction or an authorization made by owner of the land 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. The transaction
between petitioner No.1 and respondent No.4 was wrongly taken to be
benami transaction. The respondent No.4 is a bonafide agriculturist in
Himachal Pradesh. The respondent No.4 is married to Smt. Tara Chopra
D/o Brig. Gurbax Singh S/o Sobha Singh, who owned and possessed land
situate in Mauza Dhalli as per jamabandi 1977 78. Smt. Tara Chopra is an
agriculturist in State of Himachal Pradesh and consequently her husband
respondent No.4 is also an agriculturist in Himachal Pradesh. In fact all the
three Directors of M/s Astra Estates Pvt. Ltd. are agriculturist of Himachal
Pradesh and therefore, there is no violation of Section 118 of the Act.

The Financial Commissioner (Appeals) in the order dated 12.7.1999 has

held that G.S.Chopra, being a non agriculturist could not have acquired
lands in his own name in the State of H.P., therefore, set up Sarvjot Singh
Bedi, the brother of his sister's husband a relative, as his benami and
acquired land comprised in khasra Nos. 228 and 229 in village Shilora
Khurd, measuring 7 bighas in his name, who happens to be an agriculturist
in H.P. owning lands in District Una. It has also been held that the entire
transaction is tainted being a benami, firstly in the name of PremSingh, an
agriculturist, whose financial status did not permit such large scale
purchases of land by him and secondly in the name of Sarvjot Singh Bedi, a
relation of G.S.Chopra.

63. IN the writ petition, the petitioners have placed on record the copies of
jamabandis 1977 78, 1996 97 showing Sobha Singh as 'pattadar' under State
Government on land comprised in Khasra Nos. 122, 174/123, 124, 125,
126, 127, 176/128 kitas 7 total measuring 16 10 bighas, Mauja Dhalli on
payment of Rs. 60/ Chakota. The petitioners have also placed on record the
certificate dated 3.6.2004 issued by Patwari, Settlement, countersigned by
Tehsildar, Settlement on 4.6.2004 certifying Gurbax Singh as pattadar on
land measuring 16 10 bighas out of which having orchard on 10 16 bighas
under self cultivation. In jamabandi 1996 97, it has been indicated that
mutation of succession to the estate of Sobha Singh has been decided in
favour of Gurbax Singh on 21.11.1999. The petitioners have also placed on
record a copy of passport dated 19.11.1993 of Tara Chopra in which Gurbax
Singh, Premila Singh and Gobinder Singh Chopra have been shown as
father, mother and spouse, respectively of Tara Chopra. The petitioners
have contended that Tara Chopra W/o G.S.Chopra D/o Gurbax Singh is an
agriculturist in State of Himachal Pradesh. G.S.Chopra is the husband of
Tara Chopra, therefore, he is also an agriculturist in Himachal Pradesh.

64. IT appears the copies of jamabandis 1977 78, 1996 97, agriculturist
certificate in favour of Sobha Singh and passport of Tara Chopra which are
now placed on record by petitioners in the writ petition were not before the
Financial Commissioner (Appeals), atleast there is no reference of such
documents in the order dated 12.7.1999 of the Financial Commissioner
(Appeals), H.P. The petitioners have also contended that all the three
Directors of M/s Astra Estates Pvt. Ltd. are agriculturists in State of
Himachal Pradesh, therefore, they have not violated Section 118 of the Act,
more particularly, in view of the then Section 118 at the time of transaction.
We have not examined the correctness of these contentions in view of order
which we intend to pass in respect of order dated 12.7.1999.

In the light of above discussion, the petitioners are not entitled to any relief
save and except that orders dated 12.7.1999 passed by the Financial
Commissioner (Appeals) H.P. in Revenue Revision No. 156/1997 and
Revision Petition No. 157/1997 are set aside. The Financial Commissioner
(Appeals), H.P. is directed to decide Revenue Revision No. 156/1997 and
Revision Petition No. 157/1997 after giving opportunity to all concerned. It
will be open to the parties to place on record in Revenue Revision No.
156/1997 and Revision Petition No. 157/1997 fresh material and raise all
legal pleas available to them in law. The parties through their counsel are
directed to appear before the Financial Commissioner (Appeals), H.P. on
21.10.2013 and the Financial Commissioner (Appeals), H.P. shall decide
the Revenue Revision and Revision Petition in further three months. The
petitioners are not entitled to remaining reliefs prayed in the unamended
and amended petition which are rejected. CWP No. 484 of 2006.

65. IN CWP No. 484 of 2006 one prayer is to the effect that the term 'legal
heir' in the Explanation to Section 118 of the Act shall mean and include all
categories of legal heirs of an agriculturist in particular including brothers
and sisters. This prayer has been made by the petitioner in the context that
she is the owner of some land in village Dunti, Pargna Chail. She wants to
transfer a part of the said land by way of gift or will in favour of her
younger sister Mrs. Raj Rani Chopra. She had made a representation to the
Government of Himachal Pradesh for clarification whether she could do so
under Section 118 without permission of the State Government through
application dated 5.10.2005. She was informed vide communication dated
23.1.2006 that no transfer can be made without the permission of the State
Government under Section 118 as sister of petitioner was not an
agriculturist within the meaning of the Act.

66. THE expression 'legal heirs' used in sub clause (ii) of Explanation to
Section (1) of Section 118 has not been explained nor 'legal heirs' has been
defined in the Act. In these circumstances, 'legal heirs' under Section 118
are none else but 'legal heirs' of donor or testator of gift or will as the case
may be as per law applicable to the transferor or testator. The petitioner is
admittedly a Hindu and is governed by the Hindu Succession Act, 1956.
The Section 15 of the said Act provides as under:

"15.General rules of succession in the case of female Hindus. (1) The

property of a female Hindu dying intestate shall devolve according to the
rules set out in section 16, (a) firstly, upon the sons and daughters
(including the children of any pre deceased son or daughter) and the
husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the
mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly,
upon the heirs of the mother. (2) Notwithstanding anything contained in sub
section (1), (a) any property inherited by a female Hindu from her father or
mother shall devolve, in the absence of any son or daughter of the deceased
(including the children of any pre deceased son or daughter) not upon the
other heirs referred to in sub section (1) in the order specified therein, but
upon the heirs of the father; and (b) any property inherited by a female
Hindu from her husband or from her father in law shall devolve, in the
absence of any son or daughter of the deceased (including the children of
any pre deceased son or daughter) not upon the other heirs referred to in sub
section (1) in the order specified therein, but upon the heirs of the husband."

The Section 16 of ibid Act is as follows:

"16. Order of succession and manner of distribution among heirs of a

female Hindu. The order of succession among the heirs referred to in
section 15 shall be, and the distribution of the intestates property among
those heirs shall take place according to the following rules, namely: Rule
1. Among the heirs specified in sub section (1) of section 15, those in one
entry shall be preferred to those in any succeeding entry and those included
in the same entry shall take simultaneously. Rule 2. If any son or daughter
of the intestate had pre deceased the intestate leaving his or her own
children alive at the time of the intestate's death, the children of such son or
daughter shall take between them the share which such son or daughter
would have taken if living at the intestate's death. Rule 3. The devolution of
the property of the intestate on the heirs referred to in clauses (b), (d) and
(e) of sub section (1) and in sub section (2) to section 15 shall be in the
same order and according to the same rules as would have applied if the
property had been the father's or the mother's or the husband's as the case
may be, and such person had died intestate in respect thereof immediately
after the intestate's death."

The combined reading of the aforesaid Section 15 and Section 16 is clear

that the persons mentioned in clauses (a) to (e) of sub section (1) of Section
15 do not inherit female Hindu simultaneously. The rule of succession of
female Hindu is provided in Section 16. The petitioner has not pleaded how
she has acquired the property which she intends to give to her sister Mrs.
Raj Rani Chopra by way of gift or will. It is not the case of the petitioner
that she has no son or daughter or grand children from son and daughter. In
view of limited pleadings on the point prima facie Mrs. Raj Rani Chopra
sister of the petitioner is not a legal heir of petitioner and would exclude
others for inheriting the estate of petitioner under Section 15 read with
Section 16 of the Hindu Succession Act, 1956. It is not the case of the
petitioner that Mrs. Raj Rani Chopra, independently in her own right is an
agriculturist in State of Himachal Pradesh. Thus, Mrs. Raj Rani Chopra,
sister of petitioner is not entitled to land from petitioner by way of gift or
will under sub clause (ii) to Explanation to Section (1) of Section 118 of the
Act. The cumulative effect of entire discussion above, the petitioner is not
entitled to any relief, hence CWP No. 484 of 2006 is dismissed. CWP No.
844 of 2010

In CWP No. 844 of 2010 one relief is to quash the impugned notice dated
30.1.2008, Annexure PE issued by respondent No.3, the English version of
Annexure PE is as follows:

"IN THE COURT OF COLLECTOR, DISTRICT SOLAN, HIMACHAL

PRADESH Case No. 2/13 of 2008 State versus Bhagwanti Oberoi Notice
under section 118 of the Himachal Pradesh Tenancy and Land Reforms Act,
1972. Notice to Bhagwanti Oberoi Charitable Trust C/o Manager, Hotel
Oberoi Clarkes, The Mall, Shimla. That it has come to our notice that land
identified by Khasra No. 806 measuring 1955 sq.meters and Khasra No.807
total 3762 sq.meters Mauza Salogra, Solan, you have without the
permission of the State Government have bought/sold the land against the
provisions of Himachal Pradesh Tenancy and Land Reforms Act, 1972.
That since you have done the aforementioned act which in violation of the
provisions of the Himachal Pradesh Tenancy and Land Reforms Act, 1972
as amended by the amending Act, 1987, which has come into force on the
14th April, 1988. As a result the land in question alongwith the
aforementioned building etc. is liable to be vested in the State Government
as per Section 118 (3) of the Himachal Pradesh Tenancy and Land Reforms
Act, 1972. Therefore by this notice you are hereby given an opportunity to
Show Cause as to why under the aforementioned provisions of law the land
alongwith the structures constructed thereupon should not be ordered to
vest in the State Government. You are further directed to appear before this
Court in person or through an authorized representative and to file your
reply on 28th of February, 2008 failing which ex parte proceedings shall be
taken against you and further proceedings shall be taken in the case in
accordance with law. Issued on this the 30.01.08 under my seal and
signatures. Sd/ Collector, Distt. Solan, H.P."

67. IT has been contended that the Government has granted permission to
petitioner vide No.Rev. 2F(10)12/88 addressed by the Deputy Secretary
(Revenue) to the Government of Himachal Pradesh to the Divisional
Commissioner, which is as follows:

"No. Rev.2F(10) 12/(illegible) Government of Himachal Pradesh,

Department of Revenue From The Deputy Secretary (Revenue) to the
Government of Himachal Pradesh, Shimla 171002. To The Divisional
Commissioner, Shimla Division, Shimla 171002, H.P. Dated, Shimla
171002, the 6.12.88. Subject: Permission to purchase land by Bhagwanti
Oberoi Charitable Trust. Sir, I am directed to refer to your letter No.
(illegible) dated 10th March on the above subject and to convey the
sanction of the State Government in exercise of the powers vested in it
under clause (1) of sub section (2) of the Section 118 of the Himachal
Pradesh Tenancy and Land Reforms Act, 1972 read with clause (c) of sub
rule (3) of Rule 38 A of the Himachal Pradesh Tenancy and Land Reforms
Rules, 1975 to the purchase of land measuring 3762 sq.meters comprised in
Khasra No. 806 and 807 situated in Village (illegible) Tehsil Solan, Distt.
Solan by Bhagwanti Oberoi Charitable Trust from Smt. Ishra Devi Family
Trust resident of Shimla Tehsil . Shimla Distt. Shimla for setting up old
house for aged people and Charitable Dispensary. 2. This sanction is valid
for 180 days from the date of issue hereof and it subject to the following
conditions: i) The land shall be utilized for the purposes for which it has
been sanctioned. ii) In the jamabandi it shall be noted in red ink, in the
remarks column that the above vender shall not in future be entitled to any
allotment/grant/lease of land from the Govt. iii) This sanction or the
purchase of land thereunder shall not vest a right of an agriculturist on the
purchaser who shall continue to be a non agriculturists. Yours faithfully, Sd/
Deputy Secretary (Revenue) to the Government of Himachal Pradesh.

"OFFICE OF THE COMMISSIONER" SHIMLA DIVISION, SHIMLA 2.

No. 10 2 3/82 CSD.(JR)15 (illegible) 088 dated Shimla 2, the Copy
forwarded to the Deputy Commissioner, Solan, Distt. Solan (H.P.) with
reference to his letter No. PSH IX 84/87 dated 27th Jan.,1988. He is
requested that Tehsildar, Solan and applicant may please be informed for
the matter accordingly. Sd/ for Commissioner, Shimla Division. No.
PSH/Ex.84/87 dated 20/1224 (illegible) Copy forwarded (illegible) and n/a:
(1) The Tehsildar, Solan. (2) Bhagwanti Oberoi Charitable Trust, C/o Hotel
Oberoi Clarks, The Mall, Shimla 1. Sd/ for D.C., Solan."
The respondents No. 1 to 3 have taken the stand that the petitioner has
violated Section 118 of the Act by not putting the land comprised in Khasra
Nos. 806 and 807 measuring 3762 sq.meters to use for the purpose for
which it was allowed to be purchased within the time limit prescribed under
the Act. Therefore, the Collector, Solan had issued notice to petitioner for
violating Section 118 of the Act.

68. IN the notice dated 30.1.2008, Annexure PE, it has been alleged that the
petitioner without permission of the State Government has bought/sold land
comprised in Khasra No.806 and Khasra No. 807 total measuring 3762 sq.
meters mauza Salogra. There is no allegation that the petitioner has not put
to use the land within prescribed time. It is clear from communication dated
6.12.1988 from the Deputy Secretary (Revenue) to the Divisional
Commissioner that the Government in exercise of powers vested in it under
Section 118 permitted the petitioner to purchase the land measuring 3762
sq. meters comprised in Khasra Nos. 806 and 807 for setting up old house
for aged people and Charitable Dispensary. Thus, it cannot be said that the
petitioner has purchased the land measuring 3762 sq.meters comprised in
Khasra Nos. 806 and 807, Mauza Deon, Village Salogra without permission
of the State Government under Section 118 of the Act. Hence, Annexure PE
dated 30.1.2008 is not sustainable and quashed. However, in view of above
discussion, the petitioner is not entitled to any other relief. The petition is
allowed to the limited extent as indicated above. CWP No. 1500 of 2010

In addition to other prayers, the petitioner has prayed for quashing of show
cause notices dated 7.3.2001 and 10.4.2001 issued by Collector, Solan. The
petitioner has also prayed for quashing of order dated 19.3.2010 passed by
Financial Commissioner, Himachal Pradesh. The petitioner has also sought
a direction to the respondents to complete the act of issuing formal
permission in favour of the petitioner to divert the use of land from
establishing Mushroom Unit to Resort/Hotel instead.

69. THE Government of Himachal Pradesh vide communication dated

12.2.1998 of Financial Commissioner cum Secretary (Revenue) addressed
to the Commissioner, Shimla Division, granted permission to petitioner to
purchase 15 15 bighas land, mauza Khali for establishing mushroom unit
with the stipulation that the permission is valid for 180 days and land
should be put to use within two years for the purpose for which permission
has been granted, failing which the land shall vest in the Government free
from all encumbrances. The District Collector, Solan issued show cause
notice dated 7.3.2001 to the petitioner alleging that petitioner had not
established mushroom unit within two years prescribed period over land
measuring 15 15 bighas, Mauza Khali and petitioner had been constructing
a hotel over said land in violation of Section 118, therefore, why said land
be not taken over alongwith built up structure under Section 118 of the Act.
Similar notice dated 10.4.2001 was again issued by the District Collector to
the petitioner. The District Collector vide order dated 21.9.2004 held that
the petitioner had changed the use of land purchased by it without approval
of the competent authority hence, District Collector ordered vesting of said
land in the State of Himachal Pradesh alongwith structure standing thereon
under Section 118 of the Act. The appeal filed by the petitioner was
dismissed by the Commissioner, Shimla Division on 25.5.2009. The
revision filed by the petitioner against the order date 25.5.2009 has been
dismissed by the Financial Commissioner (Appeals), Himachal Pradesh on
19.3.2010 with the modification that only 270 shares purchased by the
petitioner shall vest in the State and not the entire holding in Khewat No.
28.

70. THE petitioner has projected the case that for reasons beyond its control
the mushroom unit for which land was purchased with the permission of the
Government became impracticable and not viable due to intervening events.
Therefore, petitioner took steps for establishing resort/hotel on the said
land. The petitioner obtained various clearances, no objection certificates
from the concerned Departments and even an application with all
documents was submitted to the Deputy Commissioner/District Collector,
Solan seeking permission to change the land use from establishing
mushroom unit to resort/hotel on the said land. The request of the petitioner
for land use change remained with Deputy Commissioner and its case was
not processed further for permission of the Government to change the land
use. The District Collector instead of processing the case of the petitioner
for land use change issued notices to the petitioner for vestment of land and
ultimately passed the vestment order of the land which has been upheld by
the Commissioner and Financial Commissioner with slight modification.

The Financial Commissioner in the order dated 19.3.2010 has observed that
the petitioner Company did not set up the mushroom unit within the period
of two years but lateron after expiry of stipulation of two years applied
through Deputy Commissioner, District Solan for permission to set up a
hotel instead. The respondents 1, 3 thus have admitted that the petitioner
had applied for change of land use through Deputy Commissioner, District
Solan. It is not the case of the respondents that petitioner had applied for
change of land use after the vestment order passed by the Collector. In other
words, the application of the petitioner for permission to land use change
was before Deputy Commissioner, Solan prior to vestment order passed by
the Collector, Solan. The vestment of the land free from all encumbrances
in the State under the Act and the Rules is not automatic, it requires
determination under Section 118. The respondents No. 1, 3 in all fairness
should have considered the application of petitioner for land use change.
However, respondents No. 1 and 3 without considering the application of
petitioner for land use change ordered the vestment of the said land in State
free from all encumbrances under Section 118.

71. THE petitioner by moving application for land use change has virtually
admitted that the petitioner has diverted the original land use for which
permission was taken from the State Government under Section 118 for
establishing mushroom unit. In the interest of justice it will be appropriate
that respondents No. 1 and 3 should proceed to decide the application of
petitioner for land use change of aforesaid 15 15 bighas land and pass
appropriate order till then order dated 21.9.1994 of the District Collector,
order dated 25.5.2009 of Divisional Commissioner, Shimla and order dated
19.3.2010 of Financial Commissioner (Appeals), H.P. ordering vesting of
aforesaid land shall remain in abeyance. In case the petitioner is permitted
to change land use of aforesaid 15 15 bighas then the aforesaid orders dated
21.9.1994, 25.5.2009 and 19.3.2010 shall not be given effect and shall also
not be executed. We have not examined the legality of aforesaid orders
dated 21.9.1994, 25.5.2009 and 19.3.2010 on merits. In case land use
change application of the petitioner is rejected by respondent No.1,
consequently reviving the aforesaid orders dated 21.9.1994, 25.5.2009 and
19.3.2010, it will be open to the petitioner to assail orders dated 21.9.1994,
25.5.2009 and 19.3.2010 in accordance with law. The Deputy
Commissioner/Collector, Solan, respondent No. 3 is directed to inform the
petitioner deficiency, if any, in the application of petitioner for land use
change already submitted to Deputy Commissioner, Solan within a period
of two weeks. Thereupon the petitioner shall remove the deficiency, if any,
as pointed out by the Deputy Commissioner, Solan in further two weeks and
respondent No.1 shall decide the land use change application of petitioner
under Section 118 within further three months and shall inform the decision
to petitioner. However, in view of above discussion, the other reliefs prayed
by petitioner are rejected. The petition is allowed to the limited extent as
indicated above.

72. ALL the petitions being CWP Nos. 443, 1068 of 1995, 1088 of 2003,
484 of 2006, 844 and 1500 of 2010 are disposed of accordingly, so also the
pending applications, if any.