Paragraph numbers below are the court’s original numbering, recovered from the source text.
9. We do not have a case at hand where the appellant is not capable of purchasing the court fee. He did pay the court fee ultimately, though belatedly. But then, under the facts and circumstances of the case, the reasons assigned for the delay in filing the appeal cannot be a valid reason for condonation of the delay, since the appellant could have filed the appeal deficient in court fee under the provisions of law, referred above. Therefore, we find that the High Court was right in dismissing Section 5 application of the appellant as insufficient funds could not have been a sufficient ground for condonation of delay, under the facts and circumstance of the case. 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.
10. This Court, while emphasizing the scope of Section 5 of the Limitation Act, in the case of Mahant Bikram Dass Chela versus Financial Commissioner, Revenue, Punjab, Chandigarh And Others7 has held: 4 (2009) 9 SCC 173 5 (2005) 13 SCC 539 6 (2006) 2 SCC 285 7 (1977) 4 SCC 69 AJAY DABRA v. PYARE RAM & ORS. [SUDHANSHU DHULIA, J.] “21. Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every day’s delay. These and similar considerations which influence the decision of Section 5 applications are out of place in cases where the appeal itself is preferred within the period of limitation but there is an irregularity in presenting it. Thus, in the instant case, there was no occasion to invoke the provisions of Section 5, Limitation Act, or of Rule 4, Chapter I of the High Court Rules. If the Division Bench were aware that Rule 3 of Chapter 2-C is directory, it would have treated the appeal as having been filed within the period of limitation, rendering it inapposite to consider whether the delay caused in filing the appeal could be condoned.” This Court in the case of Basawaraj and Another versus Special Land Acquisition Officer8 while rejecting an application for condonation of delay for lack of sufficient cause has concluded in Paragraph 15 as follows: “15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to 8 (2013) 14 SCC 81 passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.” Therefore, we are of the considered opinion that the High Court did not commit any mistake in dismissing the delay condonation application of the present appellant.
11. This apart, even on merits, we do not find it a case which calls for our interference. The facts of the case are that one, M/s. Himalayan Ski Village Pvt. Ltd. had entered into an ‘Agreement for Sale’ with an agriculturist/landowner of Himachal Pradesh, for sale of his agricultural land. Now the admitted position in the State of Himachal Pradesh is that under Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (for short ‘1972 Act’), 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 of the Act. M/s. Himalayan Ski Village was a private company, which was admittedly not an ‘agriculturist’ and therefore was not capable under the law to purchase the land in Himachal Pradesh and therefore 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. The admitted position is that 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. Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 reads as under: “1[118. Transfer of Land to non-agriculturist barred: – (1) 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.] 2[Explanation. For the purpose of this sub-section the expression “Transfer of land” shall not include. AJAY DABRA v. PYARE RAM & ORS. [SUDHANSHU DHULIA, J.] 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-agriculturist 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.] (2) Nothing in sub-section (1) shall be deemed to prohibit the transfer of land by any person in favour or, (a)…. (b)…. (c)…. (d)…. (e)…. (f)…. (g)…. (h) a non agriculturist with the permission of the State Government for the purposes that may be prescribed.”
12. The admitted position is that M/s Himalayan Ski Village Pvt. Ltd. failed to get the permission from the State Government under Section 118 of the 1972 Act.
13. What was done instead was, that when the purchaser failed to get the requisite permission from the State Government under Section 118 of the 1972 Act, it assigned its rights to the Plaintiff (i.e., the present Appellant before this Court), and the Plaintiff in turn filed a suit for Specific Performance against the defendants i.e., Surender Singh- Defendant No. 1 who is Respondent No. 1 herein. It was only later that he also impleaded M/s Himalayan Ski Village Pvt. Ltd.- Defendant No. 2 who is Respondent No. 2 herein.
14. The Trial Court dismissed the suits of the plaintiff primarily on grounds that getting permission from the State Government was an essential condition, which had not been fulfilled by him as per Section 118 of the 1972 Act and under the facts and circumstances of the case, the assignment in terms of the Plaintiff was not proper and valid.
15. All other conditions which have been stipulated in the Agreement to Sell depended on this primary condition i.e., permission from the State Government, under Section 118 of the 1972 Act. 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.
16. In the present case the assignment is not valid as there was no prior consent or approval of the seller before the assignment. In the absence of such a condition and in lieu of the fact that before assignment of its rights to the plaintiff/Appellant herein no permission of the seller was obtained, there was no question of granting a decree of Specific Performance in favour of the plaintiff. Consequently, this is not a case which calls for our interference.
17. We may here add that 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 non-agriculturist, 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 AJAY DABRA v. PYARE RAM & ORS. [SUDHANSHU DHULIA, J.] the land for a purpose other than agriculture, would defeat the purpose of this Act. In the case of Ashok Madan and Another versus State of H.P. and Other9 the Himachal Pradesh High Court had laid down the following important observation with respect to Section 118 of the 1972 Act: “12. The law is, therefore, clear that merely the nomenclature or the title of the document sill not determine what are the rights created by the document. The intention of the parties must be gathered on a combined reading of all the documents and the behaviour of the parties in the manner in which they treated the document. Section 118 was introduced with a view to restrict the transfer of land in favour of non-agriculturist except to specified persons as contained in the Section itself. The purpose behind it was that the economically advantageous class does not take undue advantage of the small agriculturists by purchasing their small holdings. The provision was introduced as rich persons who were not agriculturists were purchasing agricultural land in Himachal Pradesh at high price exploiting the local Himachali people. However, the section itself provided that in special cases permission can be granted for transfer of land to non-agriculturist. The constitutional validity of this Section was upheld in Smt. Sudarshana Devi v. Union of India, ILR 1978 HP 355.” 19. Under the facts and circumstances of the case we do not find any scope for interference in the matter. Consequently, both the appeals stand dismissed. 9 2011 SCC OnLine HP 3885 Devika Gujral Appeals dismissed. (Assisted by : Shevali Monga, LCRA)