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

-

 



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

Comments

Post a Comment

Popular posts from this blog

REPUGANCY UNDER ARTICLE 254 & TEST OF VALIDATING LAW

-
Image
  Shubham Budhiraja [1] [1] Company Secretary, LLB Final Year,DU & Bcom (H) The land acquisition falls in concurrent list and parliament in year 2013 has introduced a new act which provides for rehabilitation, compensation and procedure on land acquisition of property. The State of T.N has made 3 different state laws w.r.t. land acquisition which was struck off by the High Court. Thereafter, state of TN in year 2019 enacted the same law but with president assent under Article 254 to avoid the repugnancy with 2013 act under Article 254. The appeal filed before apex court w.r.t. repugnancy of 2019 state law with 2013 central law & test of validating the struck off law. The Supreme Court observed as: VALIDATING A LAW WITH RETROSPECTIVE EFFECT Case Law Relevant Remarks National  Agricultural  Cooperative  Marketing  Federation  of India Ltd. & Anr. vs. Union o...
Read more

Whether a person can be appointed as an arbitrator if his daughter is married to the son of the eldest brother of one of the parties in the arbitration proceedings?

-
Image
    Shubham Budhiraja [1] Two brothers running a family business in the form of a company and dispute arise between them and both decide to resolve through arbitration. During course of arbitration proceedings, one of party filed Section 14(2) r/w Section 15 Petition filed challenging mandate of arbitrator as being terminated because son of arbitrator is married to daughter of eldest brother of one of party and thus should be disqualified under Section 12(5) being ‘close family relationship’. The Hon’ble Delhi High Court declined the relief and held that neither the Seventh Schedule of the A&C Act nor the IBA Guidelines define the expression ‘close family relationship’. The plain language of Entry no. 9 indicates that it is not the legislative intent to render a distant relative of the parties to be ineligible for being appointed as an arbitrator, if both the parties so agree. It is not sufficient that the arbitrator is related to any one of the parties; the relation...
Read more

Whether unstamped agreement to sell executed in the year 1988 can be relied upon in suit for possession?

-
Image
  Whether unstamped agreement to sell executed in the year 1988 can be relied upon in suit for possession?   Under what circumstances, photocopy of agreement to sell can be relied upon as secondary evidence?   Shubham Budhiraja [1]   A filed a suit for possession against B on basis of agreement to sell executed in the year 1989. During the hearing, A filed IA for reading photocopy of agreement to sell as secondary evidence because he is not able to find the original agreement to sell. The Trial Court allowed the IA but in review rejected that because agreement to sell was insufficiently stamped therefore bar of section 35 of stamp act applies. The High Court confirmed the order. The Hon’ble Supreme Court held that bar of Section 35 will not apply because amendment of 1990 wherein explanation was added to the stamp act was substantive in nature and therefore new obligation of stamping cannot be imposed on agreement of sell executed between A and B. [2] ...
Read more