Himachal Pradesh High Court
Roshan Lal (Deceased) Through His Lr vs State Of Hp And Others on 24 February, 2025
( 2025:HHC:5504 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
LPA No. 60 of 2018
Decided on: 24.02.2025
Roshan Lal (deceased) through his LR …..Appellant
Vs.
State of HP and others
……Respondents
Coram:
The Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice.
The Hon’ble Mr. Justice Ranjan Sharma, Judge.
Whether approved for reporting? Yes.
For the Appellant : Mr. Atul Jhingan and Mr. Gunjan
Sharma, Advocates.
For the respondents: Mr. Gobind Korla, Additional Advocate
General for respondents No. 1-State.
None for respondents No. 2, 3 (a) and 4
to 8.
G.S. Sandhawalia, Chief Justice.
The present Letters Patent Appeal seeks
consideration of the order passed by the learned
Single Judge in CWP No. 2335 of 2009, decided on
23.08.2018 whereby the said writ petition was
2dismissed. In effect, dismissal of the writ petition led
to the orders passed by the Statutory Authorities while
exercising their powers under Section 118 of the HP
Tenancy and Land Reforms Act, 1972 (hereinafter
referred to as ‘the Act’) as amended from time time,
being upheld whereby the Collector, Solan District
Solan, vide order dated 07.05.2006 (Annexure P-6)
held that the land measuring 03 bighas on khasra No.
744/238/2 in Mauja Barog Tehsil and District Solan,
H.P. had been confiscated to the State of HP along
with building constructed thereon free from all
encumbrances.
2. The said order had also been upheld in
appeal by the Divisional Commissioner, Shimla on
06.09.2008 (Annexure P-8) and the appeal was also
unsuccessful before the Financial Commissioner
(Appeals) on 02.06.2009 (Annexure P-10) which had
led to the filing of the writ petition.
3. The reasoning given by the learned Single
Judge to uphold the said order was that there was an
3
agreement as such on record dated 17.09.1998 (Ext.
RW1/A), on the basis of which possession had been
transferred without valid permission being granted,
though there was evidence to show that the
possession was still being retained by the writ
petitioner in favour of non-agriculturist-respondent
No.3. It was accordingly held that water and electricity
connection did not show the same in favour of
respondent No. 3. However, son of the said
respondent was monitoring the construction work and
therefore, it was deemed fit to conclude that
presumption of truth was assignable to the entries
borne in the relevant revenue record and that Roshan
Lal was owner in possession of the property. As such
there was violation of statutory provisions under
Section 118 of the Act and therefore, it could not be
said not to be justified for quashing the action of the
said authorities.
4. Learned Counsel for the appellant has
argued that the findings as such recorded by the
4
learned Single Judge are not justified and are against
the record. The learned Single Judge exceeded the
jurisdiction as such to come to the said conclusion
even though the authorities had not held so. It was
further argued that on an earlier occasion there was a
civil suit decreed in favour of the present appellant on
24.08.1999 (Annexure P-1) wherein it had been held
that the notice issued to the land owner as such under
the said provision was not justified and decree had
been passed in favour of the plaintiff restraining the
defendants from causing any interference and further
from ejecting or dispossessing the plaintiff in
pursuance of the notices issued. The State had been
unsuccessful in appeal on 05.09.2000 (Annexure P-2)
and therefore, during the pendency of the appeal,
further notice dated 19.05.2000 (Annexure P-4) was
not justified. It was further argued that the
construction even if raised was on the smaller portion
of the land and therefore, confiscation and vesting of
5
three bighas of the land was not justified in the facts
and circumstances of the case.
5. Learned State counsel, on the other hand,
submits that the orders passed by the authorities are
justified and liable to be upheld and it would be loathe
to interfere in appeal the well reasoned order passed
by the learned Single Judge.
6. A perusal of the writ paper book would
indicate that apparently an agreement was made on
17.07.1998 (Annexure P-3) between writ petitioner
Roshan Lal and Pritpal Singh whereby respondent No.
3 now deceased had agreed that the said respondent
would purchase three biswas of land situated in
village Barog falling in khasra No. 238 for a
consideration of rupees four lacs. The necessary sale
consideration was rupees four lacs, out of which only
two lacs had been paid as earnest money and
agreement was subject to grant of permission in
favour of the purchaser by the Government of
Himachal Pradesh under Section 118 of the Act. A
6
specific clause was in the said covenant that the
possession of vacant built up portion was to be
delivered to the purchaser by the seller at the time of
execution and registration of the sale deed. Similarly,
it was mentioned that the land to be sold was to be
free from all encumbrances. Clause-7 of the
agreement provides that all amenities like water and
electricity, including the price has to be provided by
the seller. It is mentioned that in case, the permission
was not granted by the State, the seller would refund
the earnest money. Apparently, notice dated
19.05.2000 (Annexure P-4) was served regarding the
factum of the respondent No. 3 having purchased the
land mentioned in khasra No. 744/238 measuring 3
bighas without permission of the State and to have
constructed one storyed building leading to the
alleged violation of the provisions of Section 118 of
the Act. Resultantly, the land along with structure was
liable to be vested under Section 118 (b) of the Act to
the State Government.
7
7. In the reply dated 01.10.2000 (Annexure P-
5) to the Notice, filed by the writ petitioner a
reference was made to the earlier litigation and also
that the matter was pending before the Civil Court
until it was decided by the Civil Court, proceedings
had to be adjourned sine die and rather it had already
been decided in favour of the petitioner by the trial
Court. It was mentioned that the agreement was
regarding purchase of only 150 yards of land and
there was no concern regarding other 250 yards of
land.
8. In the proceedings before the Collector, the
Patwari PW-1 stated that the construction was going
on at the instance of respondent No. 3 and he also
prepared the tatima but he admitted that no
demarcation was conducted on the spot and the land
had not been partitioned and that there was no
independent witness called for. He has also admitted
that he had not issued any notice to the petitioner or
respondent No. 3. Similar was statement of PW3 Surat
8
Ram Premi Naib Tehsildar that petitioner was
recorded owner but respondent No. 3 had constructed
two storeyed building and construction was going on.
In cross examination it came forth that he had not
conducted any demarcation and the same had been
done after the case was prepared. The son of
respondent No. 3 had allegedly run away when he saw
the inspection party and no statement was recorded
and complainant Dhanbir Singh’s statement was not
attached on the file.
9. The categorical case as such of respondent
No. 3 was that the house was locked and the owner of
the house and land was Roshan Lal (the present
petitioner) as the electricity connection was in his
name. There was no water connection and possession
was not taken. Similar was the statement as such of
the petitioner that the electricity meter was in his
name and water connection was not installed. The
factum of selling other portion’s of the land, after
necessary permission from the State and the sale
9
deeds as such being executed was admitted, which
apparently led to the adverse findings by the
authorities below. Earlier civil litigation as such was
stated to be not connected with respondent No. 3 and
therefore, it was rightly distinguished by the
Collector.
10. In appeal, the Divisional Commissioner
apparently held that there was no sale deed and
agreement to sell is not a complete transaction of sale
of the property.
11. Section 118 of the Act talks about the
transfer of land and the validity in favour of the non-
agricultrist as such and as per Section 118 (1) (b) of
the Act, the agreement has to be with the intention to
put a non-agricultrist in possession of the land and
allow him to deal with the land in the like manner as if
he is a real owner of that land. Section 118 (1) (b)
reads as under:-
“118.Transfer of land to non-agricultrists
barred(1) Notwithstanding anything to the contrary
contained in any law, contract, agreement, custom or
usage for the time being in force, but save as
10otherwise provided in this chapter, no transfer of land
(including transfer by a decree of a civil court or for
recovery of arrears of land revenue) by way of sale,
gift, will, exchange, lease, mortgage with possession,
creation of a tenancy or in any other manner shall be
valid in favour of a person who is not an agriculturist.]
[Explanation. – For the purpose of this sub-section, the
expression “transfer of land” shall not include
(I) transfer by way of inheritance;
(ii) transfer by way of gift made or will executed, in
favour of any or all legal heirs of the donor or the
testator, as the case may be;
(iii) transfer by way of lease of land or building in a
municipal area;
but shall include
(a) a benami transaction in which land is transferred to
an agriculturist for a consideration paid or provided by
a non-agriculturist; and
(b) An authorization made by the owner by way of special or
general power of attorney or by an agreement with the
intention to put a non-agricultrist in possession of the land
and allow him to deal with the land in the like manner as if he
is a real owner of that land.”
12. It is not disputed that the permission can be
sought from the State Government by the non-
agricultrist who intends to purchase the land and it is
thus the case of the petitioner that necessary
permission had been applied for and without the
11
possession being transferred, the findings recorded by
the authorities as such were not justified.
13. In such circumstances, we have examined
the order passed by the learned Single Judge
wherein, on the basis of the presumption, surmises
and conjectures, findings have been recorded that
there was an entry in the revenue record showing that
the possession had been transferred and the learned
Single Judge, who went on to hold that the
presumption of truth was assignable to the entries
borne in the revenue records and that the transfer of
possession did not stand firmly rebutted.
14. On the other hand, it has also been held
that Roshan Lal was owner in possession of the land
and he had acquiesced for the electricity connection
being installed inside the property. It it is also noticed
that no demarcation as such had been carried out as
to whether property was part of khasra No. 744/238
and the principles of natural justice had been violated.
12
15. Another aspect which is to be noticed is that
the petitioner had objected to the vestment of the
land to the extent of 3 bighas whereas in his reply he
has submitted that only 3 biswas of land measuring
150 yards was the subject matter of the agreement
and there is no concern with another 250 yards of
land. The agreement as such talks about purchase of
3 biswas of land where as notice served was for a
larger chunk of land and even the vesting of the land
as such is of 3 bighas which aspect also had to be
examined which was not touched upon by the learned
Single Judge.
16. In such circumstances, we are of the
considered opinion that the findings which have been
recorded are not based on the evidence on record
before the authorities whereby the learned Single
Judge had gone on to hold that the possession was
parted with which was sine qua non to come to the
said conclusion which even the authorities had not
done so. The learned Single Judge as such could not
13
make out a better case as such for the State by the
impugned order and therefore, we are of the
considered opinion that the findings recorded by the
learned Single Judge are not justified in peculiar facts
and circumstances of the case and cannot be
maintained. Resultantly, we partly allow the appeal to
the extent that the judgment passed by the learned
Single Judge is set aside and the matter is remanded
for fresh decision on the basis of the evidence which
has already been led by both the sides.
17. Appeal is partly allowed to the above
limited extent. Parties to put in appearance before the
learned Single Judge on 7th April, 2025.
(G.S. Sandhawallia)
Chief Justice
(Ranjan Sharma)
Judge
February 24, 2025.
(cm Thakur)