IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA C.W.P. No.1127 of 1993. Date of decision: 28.2.2008 Som Nath …..Petitioner -Versus- State of H.P. and others ….Respondents Coram: The Hon’ble Mr.Justice Jagdish Bhalla, Chief Justice. The Hon’ble Mr.Justice Deepak Gupta, Judge. Whether approved for reporting? For the Petitioner: Mr.G.D.Verma, Senior Advocate with Mr.B.C.Verma, Advocate. For Respondents: Mr.R.K. Bawa, Advocate General with Mr.J.K. Verma, Dy.A.G. for the respondents 1&2. None for respondent No.3. Jagdish Bhalla, C.J. This writ petition is directed against the order passed by learned Deputy Commissioner, Kinnaur, affirmed by the Divisional Commissioner, Shimla containing in Annexures P- 2 & P-3 respectively to this writ petition. There are certain admitted facts between the parties i.e. the petitioner has purchased some land from a tribal person in District Kinnaur. Permission from the Deputy Commission is a condition precedent if a land from a tribal is to be purchased by a non-tribal. The petitioner is a non-tribal and though now 2 permanent resident of Kinnaur but belongs to Punjab. The petitioner had entered into a sale deed with respondent No.3 who is a tribal on 4th August, 1987. The learned counsel for the petitioner contended that the respondent No.3 was in need of money and therefore the petitioner who had already agricultural land offered to purchase his (tribal) land in District Kinnaur. Counsel for the petitioner submits that the vires of H.P. Transfer of Land (Regulation) Act, 1968 (hereinafter referred to as the Act) is under challenge. In this regard it has been submitted that the provisions of the Act are hit by Article 300(a) of the Constitution of India. Further as there is no provision of return of the money of the sale consideration to the petitioner if the land is vested back to the opposite party No.3. Article 300-A of the Constitution of India reads as follows: “300A.Persons not to be deprived of property save by authority of law.—No person shall be deprived of his property save by authority of law.” To appreciate the submissions of the learned counsel for the petitioner, it is pertinent to refer that the Himachal Pradesh Transfer of Land (Regulation) Act, 1986 regulates the transfer of land of the Scheduled Tribes belonging to the State 3 of Himachal Pradesh and in this background the provisions of the Act were enacted. Section 3 deals with the Regulation of transfer of land, which is as follows: “3.Regulation of transfer of land.-(1)No person belonging to an Scheduled Tribe transfer his interest in any land by way of sale, mortgage, lease, gift or otherwise to any person not belonging to such tribe except with the previous permission in writing of the Deputy Commissioner; Provided that nothing in this sub-section shall apply to any transfer— (a)by way of lease of a building on rent; (b)by way of mortgage, for securing loan, to any Co- operative Land Mortgage Bank or to any Co-operative Society, all or a majority of the members of which are persons belonging to any Scheduled Tribe; (c)by acquisition by the State Government under the Land Acquisition Act, 1894. (2)Every transfer of interest in land made in contravention of the provisions of sub-section(1) shall be void.” Section 4 of the Act deals with application for permission for transfer of land, which reads as follows: “4. Application for permission for transfer of land.-(1) Any person belonging to any Scheduled Tribe who desires to make a transfer of his interest of any land to a person not belonging to such tribe, may make an application to the Deputy Commissioner for the grant of permission for such transfer. (2) Every application under sub-section (1) shall be made in the prescribed form and shall contain the prescribed particulars and shall be accompanied by such fees as may be prescribed. (3) On receipt of any such application for the grant of permission, Deputy Commissioner may, after making such inquiry as he 4 thinks fit, order, either grant or refuse permission to transfer the land: Provided that where permission is refused, the Deputy Commissioner shall record in writing the reasons for such refusal. (4) Before granting or refusing permission under this section, the Deputy Commissioner shall have regard to the following matters, namely:- (a) the financial position of the applicant; (b) the age and physical condition of the applicant; (c) the purpose for which the transfer is proposed to be made; and (d) such other relevant matters as the Deputy Commissioner may think fit in the circumstances of the case.” The next provision relevant is Section 8, which reads as follows: “8.(1) Right, title or interest held by persons belonging to Scheduled Tribes in land not to be attached.- No right, title or interest held by a person belonging to a Scheduled Tribe in any land shall be liable to be attached or sold in execution of any decree or order in favour of any person not belonging to a Scheduled Tribe of any court except when the amount due under such decree or order is due to the State government or to any Co-operative Land Mortgage Bank or Co-operative Society. (2) Notwithstanding anything to the contrary contained in the Code of Civil Procedure or any other law for the time being in force, any court, vested with the appellate or revisional jurisdiction, may, either on its own motion or on an application moved to it by any person belonging to a Scheduled Tribe, set aside any sale of his property in execution of a decree in favour of a person not belonging to a Scheduled Tribe.” 5 In this backdrop the proper process for purchase of a land by non tribal from the tribal is as follows:- The seller had to make an application for permission to sell the land to the non-tribal from the Deputy Commissioner who would consider the following:- (a) The financial position of the applicant, i.e. tribal. (b) The age and physical condition of the applicant. (c) Such other relevant matters as the Deputy Commissioner may think fit in the circumstances of the case. To purchase the land from the tribal, it was obligatory upon the petitioner to verify whether respondent No.3 has made any attempt to take any loan for his need in the light of Rule 4 of H.P. Transfer of Land (Regulation) Rules, 1969. We find that the learned counsel for the petitioner did not indicate any such effort were made by respondent No.3 with respect to taking loan by mortgaging the land for securing loan to any Cooperative Land Mortgage Bank or to any other Cooperative Society as referred in Clause 3(b) of the Act. Even such a stand is missing from the pleadings of the petitioner in this Petition. We further find that there is no whisper why the opposite party No.3 was in need of money. The learned counsel for the petitioner contended that the permission could be granted ipso facto. Learned counsel for the petitioner could not substantiate whether without permission as provided under the law non tribal can enter into 6 an agreement with a tribal. Accordingly, we find that the petitioner had no right to enter into sale agreement without the condition precedent referred hereinabove and in such circumstances the petitioner cannot seek any protection of Article 300-A of the Constitution of India. We are of the considered opinion that in fact it is the duty of the petitioner- non tribal to ensure before purchasing any land of the tribal that the provisions of law are followed and only thereafter the land be purchased but the petitioner miserably failed to do so. In such circumstances, the law will take its own recourse in the light of the provisions of the Act wherein it is provided that such properties must return back to the owner of the land within 30 days. Though the learned counsel for the petitioner- applicant argued before this Court that the application for permission is still pending, however, the learned Advocate General has drawn our attention to the order passed by the Deputy Commissioner dated 21.8.1989, Annexure P-5, wherein it has been referred that Shayam Singh, respondent No.3 filed an application on 21st December, 1988 asking for permission to sell the land to a non-tribal under the provisions of the H.P. Transfer of Land (Holdings Regulation), Act. The said application was rejected. Aggrieved by the same the petitioner has approached the appellate Court and thereafter this Court. In these circumstances, we find that the petitioner has failed to 7 make out any case as far vires of the Act is concerned and the same is liable to be dismissed. We further do not find any ground to show our interference under our extraordinary writ jurisdiction under Article 226 of the Constitution of India and accordingly the Writ Petition is liable to be dismissed. The petitioner would be liable to hand over the land in question within the time prescribed in the Act. Costs easy. ( Jagdish Bhalla ) Chief Justice February 28, 2008. ( Deepak Gupta ), PV/K(rks) Judge