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2013 Supreme(HP) 734
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
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
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.
Headnote:
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.
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 199
