Land In Himachal Pradesh Cannot Be Transferred To A Non -Agriculturist Without State Govt Permission : Supreme Court

Land in Himachal Pradesh cannot be transferred to a nonagriculturist, and this is with a purpose, the Supreme Court observed in a judgment delivered yesterday.

The bench of Justices P S Narasimha and Sudhanshu Dhulia noted that the purpose is to save the small agricultural holding of poor persons and also to check the rampant conversion of agricultural land for non-agricultural purposes.

In this case, a contract was executed between the defendant and a company called M/s Himalayan Ski Village Pvt. Ltd.  for sale of an ‘agricultural land’ in Himachal Pradesh. It was a condition of the agreement to sale that the defendant would secure the necessary approval from the government within a stipulated period of time. This approval was not given to the defendant by the State Government and then the defendant assigned his right to the plaintiff who thereafter filed the suit for specific performance. This suit was dismissed. The first appeal filed by the plaintiff was also dismissed on the ground of delay. (The Apex Court bench upheld this High Court order, but considered the case on merits as well)

In appeal, the bench noted that, under Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, only an agriculturist, which is defined under Section 2(2) of the 1972 Act, can purchase land in Himachal Pradesh, which would mean a landowner who personally cultivates his land in Himachal Pradesh. If a non-agriculturist has to purchase a land, it can only be done with the prior permission of the State Government under Section 118. In this regard, the court noted:

"The whole purpose of Section 118 of the 1972 Act is to protect agriculturists with small holdings. Land in Himachal Pradesh cannot be transferred to a nonagriculturist, and this is with a purpose. The purpose is to save the small agricultural holding of poor persons and also to check the rampant conversion of agricultural land for non-agricultural purposes. A person who is not an agriculturist can only purchase land in Himachal Pradesh with the permission of the State Government. The Government is expected to examine from a case to case basis whether such permission can be given or not. In the present case, it thought it best, not to grant such a permission. However, the purpose of the transfer remains the same, which is a non-agricultural activity. By merely assigning rights to an agriculturist, who will be using the land for a purpose other than agriculture, would defeat the purpose of this Act."

The court therefore dismissed the appeal on merits as well.

Know the Law

Section 118 of the Act reads as follows: Notwithstanding anything to the contrary contained in any law, contract, agreement, custom or usage for the time being inforce but save as otherwise provided in this Chapter, no transfer of land (including transfer by a decree of a civil court or for recovery of arrears of land revenue) by way of sale deed, gift, will, exchange, lease, mortgage with possession, creation of a tenancy or in any other manner shall be valid in favour of a person, who is not an agriculturist.

But Sub- Section (2) provides that 'nothing in sub-section (1) shall be deemed to prohibit the transfer of land by any person in favour of a non agriculturist with the permission of the State Government for the purposes that may be prescribed.

The Constitutional Validity of this provision was upheld by the High Court of Himachal Pradesh in Sudarshana Devi v. Union of India, ILR 1978 HP 355. In Ashok Madan and Another versus State of H.P , the High Court observed that Section 118 was introduced with a view to restrict the transfer of land in favour of nonagriculturist except to specified persons as contained in the Section itself and the purpose behind it was that the economically advantageous class does not take undue advantage of the small agriculturists by purchasing their small holdings.

Case details

Ajay Dabra vs Pyare Ram | 2023 LiveLaw (SC) 69| SLP (C) No.15793 OF 2019 | 31 Jan 2023 | Justices P S Narasimha and Sudhanshu Dhulia

For Petitioner(s) Mr. Bhagabati Prasad Padhy, AOR

For Respondent(s) Mr. Ajay Marwah, AOR Mr. Adhitya Srinivsan,, Adv. Mr. Adhitya Srinivsan, Adv., Mr. Tapan Masta, Adv. Mr. Parantap Singh, Adv. Mr. Parantap Singh, Adv. Mr. Karan Thakur, Adv., Mr. Rameshwar Prasad Goyal, AOR

Headnotes

Limitation Act , 1963 ; Section 3,5 - Code of Civil Procedure, 1908 ; Section 96, 149 -  Being short of sufficient funds to pay court fee is not a reason to condone delay in filing appeal - In such a scenario, an appeal can be filed in terms of Section 149 CPC and thereafter the defects can be removed by paying deficit court fees. (Para 5-10)

Code of Civil Procedure, 1908 ; Section 149 CPC - Court Fees Act 1870 ; Section 4 - Section 149 CPC acts as an exception, or even a proviso to Section 4 of Court Fees Act - In terms of Section 4, an appeal cannot be filed before a High Court without court fee, if the same is prescribed - But an appeal can be filed in terms of Section 149 CPC and thereafter the defects can be removed by paying deficit court fees. 

Limitation Act , 1963 ; Section 3,5 - Code of Civil Procedure, 1908 ; Section 96 - An appeal has to be filed within the stipulated period, prescribed under the law. Belated appeals can only be condoned, when sufficient reason is shown before the court for the delay. The appellant who seeks condonation of delay therefore must explain the delay of each day. It is true that the courts should not be pedantic in their approach while condoning the delay, and explanation of each day’s delay should not be taken literally, but the fact remains that there must be a reasonable explanation for the delay. (Para 5)

Himachal Pradesh Tenancy and Land Reforms Act, 1972 ; Section 118 - The whole purpose of Section 118 of the 1972 Act is to protect agriculturists with small holdings. Land in Himachal Pradesh cannot be transferred to a nonagriculturist, and this is with a purpose. The purpose is to save the small agricultural holding of poor persons and also to check the rampant conversion of agricultural land for non-agricultural purposes. A person who is not an agriculturist can only purchase land in Himachal Pradesh with the permission of the State Government. The Government is expected to examine from a case to case basis whether such permission can be given or not - By merely assigning rights to an agriculturist, who will be using the land for a purpose other than agriculture, would defeat the purpose of this Act. (Para 17)

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