Can you assign the land to a non-agriculturist in Himachal Pradesh without prior approval of the state govt?

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Shubham Budhiraja[1]

 

Mr. A, resident of Himachal Pradesh entered into an agreement with B, company for non-agriculture purposes. Because B failed to obtain the permission from state govt as per Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972. So, B, the purchaser, assigned the rights to C, an agricultural person for the same purpose. C filed a suit against A for specific performance. Trial court dismissed the suit because C being an assignee cannot succeed because of the essential condition of state govt. approval was not taken by A. The assignment was unilateral. The High Court dismissed the appeal and refused to condone the delay of 250 days. The reason for condonation was shortage of funds to pay court fees. Hon’ble Supreme court held that this is not sufficient ground particularly when appeal was filed with no application u/s 149 CPC regarding court fees. It is on the contrary that the court fee was made good. Even on merits, the assignment was not valid in lieu of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972.[2]

 

(I)                   Section 149 CPC acts as an exception, or even a proviso to Section 4 of Court Fees Act 1870. In terms of Section 4, an appeal cannot be filed before a High Court without court fee, if the same is prescribed. But this provision has to be read along with Section 149 of CPC.

 

(II)                 It would have been entirely a different matter had the appellant filed an appeal in terms of Section 149 CPC and thereafter removed the defects by paying deficit court fees. This has evidently not been done.

 

(III)              There is no specific clause in the “Agreement to Sell”, which says that in case the purchaser fails to obtain required permission from the State Government, it could assign its rights to an agriculturist of Himachal Pradesh and the seller therefore would not have any objection in executing the Sale deed in favour of such an assignee.

 

(IV)               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.

 

 


[1] Advocate, Delhi High Court [LLB, ACS, BCOM(H)], +91-9654055315,

Budhirajalawchambers@gmail.com

[2] Ajay Dabra v. Pyare Ram, SLP (C) No.15793 OF 2019, 31/01/2023

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