Supreme Court also say NO to Ski Village project buying land of non-agriculturist without 118 approval is illegal
The Supreme Court has given a decision in the Ski Village case that no non-agriculturist could be buy land in the state without approval from the government under section 118 of HP Land Reform and Tenancy Act nor could anyone transfer the land. The Supreme Court has upheld the decisions of the State High Court and lower courts in this matter by dismissing the petitions of M/s Himalayan Ski Village Private Limited and Pyare Ram and Surendra Singh and others.
A division bench of Supreme Court judges Justice Sudhashu Dhulia and PS Narasimha dismissed these petitions recently.
Summary of case is that M/s Himalaya Ski Village Pvt Ltd had entered into a sale agreement with the land owner and farmer of the state to buy his land. But under Section 118 of the Himachal Pradesh Mujara and Land Reforms Act, there is a provision that if a non-agriculturist wants to buy land, he will have to take prior approval from the government.
But Himalayan Ski Village is a company and non-agriculturist. In such a situation, he will have to take approval in due time before buying the land. But the government did not give approval in this regard. On this, the company from whom it bought the land, gave the rights to do activities on the land and the said farmer filed a petition for permission to set up a ski village on his land.
But under 118 the land could not be transferred like this.
The Supreme Court found that when the ski village company did not get permission under 118, the owner of the land , Surendra Singh gave his rights to carry out specific activities on this land. Later Surendra Singh also made M/s Himalayan Ski Village a party in the suit. The bench observed that there was nothing in the sale agreement that if the buyer failed to obtain clearance under section 118, he could give away his rights to the Himachali cultivator and that the seller would then have no objection to making a sale deed in favor of the company. .
The division bench noted that the lower court had dismissed the case because the company had not obtained permission under section 118. The rest of the terms of the agreement to sell were dependent on this one condition.
The Supreme Court held that 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 favor of the
plaintiff. Consequently, this is not a case which calls for our
interference.
The Supreme Court bench said that 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 nonagriculturist, 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 would be using the land for a purpose other than agriculture, would defeat the purpose of this Act.
Thus the Supreme Court dismissed these petitions. The matter was taken up in the Supreme Court on 31 January.
