D. Raju, C.J.@mdashThe above writ petition has been filed seeking to strike down the proviso to Rule 3(1) of the Himachal Pradesh Ceiling on Land Holdings Act, 1972 (hereinafter referred to as the ''Ceiling Act''), as amended by the notification No. 10-5/73-II-Rev.B. and consequently to quash the directions dated 21.8.1990 issued by the Registrar of District Kangra and the notice dated 25.10.1990 filed as Annexure P-4 calling upon the Petitioners to file a return and also for a direction to the Respondents to attest the mutation of sales effected by the Petitioners, which were stated to have been rejected under documents filed as Annexures P-7 and P-8.
2. The Petitioners, claimed to be owners of tea estates in Tehsil Palampur in Kangra District have chosen to file the above writ petition felt aggrieved by the restrictions imposed under the impugned rule made under the Act in the matter of transfer of tea estates and land treated as subservient to the tea plantation, by not allowing for mutation being effected in respect of transfers of such land. The Himachal Pradesh Legislature enacted the Ceiling Act, which was passed on 21.12.1972 and after obtaining the assent of the President of India on 10.7.1973 the same came to be published in the Government Gazette on 28.10.1973 on which date, it came into force. The said Act provided for vesting of land in excess of the ceiling limit in the State while at the same time stipulating the permissible area, which can be retained by the land owners or a tenant or mortgagee in possession in one or more than one capacity while fixing also the ceiling limit for the family or an individual concerned. The Act also had an exemption clause, which provided for exemption of certain persons as well as certain categories of land from the application of the provisions of the Act. The Petitioners further claimed that themselves, their father and husband of Petitioner No. 3 filed returns and the Collector exercising powers under the Act by his order dated 22.1.1975 held as follows:
I have perused the records on file and have also heard the land owners through their Counsels. I have also inspected the areas in question. Out of the total area of 6365 Kanals and 7 Marias held by these land-owners, the actual area under Tea Plantation is 3077 Kanals and 17 Marias, which is exempt from the provisions of Act ibid. The area termed as Ghair Mumkin measuring 119 Kanals and 15 Marlas is not included in the definition of land in the Act ibid. The Banjar Qadim area measures 2307 Kanals and 17 Marlas and the Kharehtar measures 493 Kanals and 16 Marlas and my on-the-spot inspection reveals that this area is forest and grown with forest growth. Accordingly, this is exempted from the purview of the Act ibid. The remaining area of different categories measuring 367 Kanals and 2 Marlas is within the permissible limits of two units of this family. There is, therefore, no area with this family to be declared as surplus.
The Collector has chosen to exclude from computation for the purpose of ceiling an extent measuring 497 Kanals and 16 Marlas and found that the same is subservient to tea plantation and on that account being exempted.
3. While the matter stood thus, by a notification No. 10-5/73-II-Rev.B dated 4.4.1986 published in the Himachal Pradesh Rajpatra (Extra-ordinary) dated 26.4.1986, a proviso to Rule 3 of the Himachal Pradesh Ceiling on Land Holdings Rules, 1973 (hereinafter referred to as the ''Rules'') came to be added stipullating that no land treated as subservient to tea plantation under the Rules and exempted from operation of the Act u/s 5(g) thereof, shall be transferred by the land owner in any manner, without the permission of the State Government. The Petitioners challenged the validity of the said proviso on the ground that it is without the authority of law, beyond legislative competence, arbitrary, discriminatory and void and consequently not enforceable. It is claimed for the Petitioners that when the Act does not apply to tea estates and other lands exempted u/s 5 of the Act and no restrictions as such are placed in the Act itself in respect of the permissible area of the land held by the land owners concerned, no such restriction could be placed on the right of the land owners to deal with the areas treated as tea estates or the land site subservient to tea plantation. It is also pointed out that there is no such restriction imposed on sale of orchard and other lands held within the ceiling area and that the provision under challenge is beyond the scope of the rule making power and, therefore, also is liable to be struck down. The further plea on behalf of the Petitioners is that the amendment introduced does not serve the object of exemption and on the other hand defeats the provision of the Act, which according to the Petitioners is not permissible in law. A reference is also made to the fact that after the inception of the rules, the Registrar, District Kangra has issued instructions not to register sale deeds of land falling under the exempted provisions (Annexure P-3) and the further fact about the issue of notice in Annexure P-4 calling upon the Petitioners to submit Form-C in the office of the Deputy Commissioner-cum-Registrar within 15 days of the receipt of the notice for taking further action for the vestment of the land in the Government. It is also stated that though the communication dated 22.8.1991 provided for permission to register sale deeds, attestation of mutation was refused and that when the Petitioner Kunj Bihari Lal transferred the lands by a registered sale deed dated 5.5.1989 to one Shri Bhishan Singh and Shri Balwant Singh by two separate deeds and mutations 226 and 227 were entered, they have been rejected in pursuance of the instructions issued by the Respondents. A reference is also made to the fact that , M/s. Patel Private Ltd., wanted to set up a hospital at Palampur and construct a hospital and residential quarters for Doctors, which will bring medical facilities in the area, but unless the transfer could not take place without the permission of the Government, they are greatly prejudiced and inconvenienced and it is after repeated representation only permission was granted but by then the prospective buyer set up the hospital at Jallandhar and the Petitioners could not sell property at all, as a consequence of which the permission granted became virtually redundant. Even the so-called permission granted is stated to have placed severe restrictions and due to such restrictions there would be no buyers with competitive offer of price to purchase the property. Thus, the Petitioners seek for striking down the proviso to Rule 3 as also the instructions dated 21.8.1990 and desire that the sales effected by them should be mutated.
4. Mr. K.D. Sood, the learned Counsel appearing for the Petitioners contends that the notification amending Rule 3 by introducing a proviso and placing restrictions and fetters in the matter of transfer of the land, which is otherwise exempted from the provisions of the Act, without the permission of the State Government, is without the authority of law in excess of the rule-making power of the State and also arbitrary, discriminatory and void in law. According to the learned Counsel when the Act does not apply to tea estates and other lands exempted by virtue of Section 5(g) of the Act and when there are no restrictions as such placed under the statute itself, there is no power in the rule-making authority to subject such lands any restriction in the hands of the Petitioners. It is also contended that the impugned amendment does not serve the object of exemption and as a matter of fact defeats the provisions of the Act and consequently the same is liable to be set aside. In support of his claims, as noticed above, the learned Counsel placed reliance upon the decisions reported in 1979 KLT 469
5. Per contra, learned Assistant Advocate-General appearing for the State contended that the Ceiling Act is a piece of social legislation enacted by the State with a view to abolish big estates and to allot the surplus area to the weaker sections of the society having no land or other eligible persons holding less than 5 bighas of land and tea estates have been exempted from the operation of the Act to encourage the tea industry in the State and the restriction imposed by virtue of an amendment to the rule in question is to ensure that the land under tea estates are not sold by the owners and thereby reduce the area under tea plantation in which case the very purpose of the exemption provided in the Act would be defeated. The learned Counsel for the State also contended that the impugned amendment to Rule 3 of the rules is well within the rule making powers of the Government u/s 26 of the Act and inasmuch as the main purpose of exemption of tea estates was to encourage tea industry the amendment was felt necessary to effectively give effect to the provisions of the Act. Allowing the persons, like the Petitioners who had the benefit of exemption to deal with and sell the property could amount to misuse of the exemption provisions and the rule under challenge cannot be construed to mean and constitute any restriction and it obliges merely the person concerned to obtain the prior permission before any such alienation. While contending that the object of the instructions issued was to deal with the persons who had not retained land in excess of the permissible area and that the Petitioner and his wife had made number of sale transactions of tea estates for non-tea plantation purposes and details of such as furnished in the reply will go to belie the claim of the Petitioners it is also claimed that since the sale transactions in question were found to be in violation of Rule 3, the refusal to effect mutations cannot be said to be illegal, and the impugned rule is therefore, said to be reasonable and necessary to implement the provisions and carry out the purpose of the main Act.
6. The Himachal Pradesh Ceiling on Land Holdings Act, 1972 has been enacted to consolidate and amend the laws relating to ceiling on land holdings in the State of Himachal Pradesh. The statute also contain the necessary declaration for the purposes of Clauses (b) and (c) of Article 39 of the Constitution of India to the extent that the Act is to give effect to the policy of the State towards achieving and securing the constitutional goal enunciated in the said provision. Section 5(g) reads as follows:
5. Exemptions.-The provisions of this Act shall not apply to- ... (g) tea estates.
Clause (s) of Section 3 which defines the ''tea estate'' is as follows:
3. Definitions.-In this Act, unless there is anything repugnant in the subject or context.-
... (s) ''tea estate'' means an area under tea plantation and includes such other area necessary for purposes subservient to a tea plantation as may be prescribed.
Section 26(1) enacts that the State Government may, by notification, make rules "for carrying out the purposes of this Act". Section 27 confers the power to remove difficulties by stating that if any difficulty arises in giving effect to the provisions of the Act, the State Government, may by order published in the official Gazette, make such provisions or give such directions not inconsistent with the provisions of the Act, as appear to be necessary or expedient for the removal of the difficulty.
Rule 3(1) reads as follows:
3. Areas to be treated as subservient to tea plantation.-(1) The following areas shall be treated as subservient to tea plantation:
(a) areas on which there is programme for expansion of tea plantation during next ten years which will be determined by the State Government;
(b) areas covered by forests and forest growth of which the fuel wood, timber is required for the manufacture of the tea and maintenance of tea estate;
(c) low-lying lands which generally serve as water reserviors for the use of tea plantation; and
(d) land on which tea factories, labour quarters, playgrounds and other ancillary buildings are situation:
Provided that no land, treated as subservient to tea plantation under this sub-rule and exempted from the operation of the Act u/s 5(g) thereof, shall be transferred by the landowner in any manner, without the permission of the State Govt.
7. We have carefully considered the submissions of the learned Counsel appearing on either side in the light of the provisions, noticed above, as also the decisions brought to our notice. Section 5(g) provides for exemption of tea estates from the provisions of the Act. Section 6 of the Act while imposing a ceiling specifically mandates that notwithstanding anything to the contrary contained in any law, custom, usage or agreement, no person shall be entitled to hold whether as a landowner or a tenant or mortgagee with possession or partly in one capacity or Anr. , the land within the State of Himachal Pradesh exceeding the permissible area on or after the appointed day. The words, ''tea estate'' have been defined to mean an area under tea plantation and include such other area necessary for purposes subservient to a tea plantation as may be prescribed, and it is by virtue of a prescription in the rules the area not otherwise directly under tea plantation is by expansive approach brought within the definition of tea estate in order to facilitate future programme of expansion of tea plantation during next ten years. Thus, it could be seen that though a particular track or extent of land is not per se tea plantation and otherwise would have been subject to the provisions of the Act and ceiling fixed with reference to therein, by virtue of concession shown in Rule 3(1) of the Rules alone, such lands which are not really tea plantation lands were accorded exemption by appropriate orders of the Competent Authority determining the extent. If the exemption in respect of the lands which are not actually tea plantation and thereby would not ipso facto be exempt under the main provisions of the Act but yet allowed to be retained, though not factually and really tea plantation as on date, for purposes of tea plantation as lands subservient and which may be required for future programme of expansion of tea plantation, it is equally well within the rule-making power of the State to impose regulatory measures to ensure that the laudable object of according exemption under the rules by having a peculiar and particular method of prescription permitting retention of such non-tea plantation lands is not defeated by providing for obtaining of a prior permission of the State before alienating such land allowed to be retained as subservient to a tea plantation. Had the proviso prescribed such a regulation or stipulated such a condition in respect of the lands comprised in tea plantation as such to some extent there could be some justification as to the grievance expressed but that is not what the proviso to Rule 3(1) purports to do and on the other hand the regulatory measure of imposing a condition in the form of necessity to obtain a prior permission before alienation is insisted upon only in respect of land treated as subservient to tea plantation which become eligible for exemption only by virtue of Rule 3(1) read with Section 5(g) and not by operation of Section 5(g) alone. If the move is found to be sinister nothing precludes the authorities to withdraw the exemption. Keeping in view the constitutional objects and the policy proclaimed to be implemented under the Act the necessity for imposing a ceiling on holdings as also the social object of the legislation as well as the comprehensive rule-making power conferred upon the State to make rules for carrying out the purposes of the Act, we are of the view that the proviso to Rule 3(1) de hors being said to be opposed to the provisions of the Act or the aim, purpose and object of the exemption only help to perpetuate, protect and properly enforce and implement not only the Act but also the very purpose of according exemption to subservient lands for purposes of tea plantation though they do not really constitute part and parcel of the tea plantation as on date of such exemption. Hence, we are of the view that rather than the proviso to Rule 3 being said to suffer the vice of being in conflict with any provision of the Act, in our view is in consonance with as also made in furtherance of the object of the Act as also the purpose and object with which the exemption was extended and consequently the challenge to the proviso to Rule 3(1) cannot be sustained. For the same reason, we are of the view that a proviso aimed at effectively curbing the abuse and misuse of a concession shown by the rules to keep lands though not falling within tea plantation as lands subservient to tea plantation and may be required for future expansion programmes, is absolutely found to be necessary and essential to perpetuate the objects of the Act. As indicated earlier, the impugned rule merely obliges the persons concerned to seek for a prior permission and does not import any blanket bar or restriction as such. Having regard to the nature of legislation under consideration and the social object and public interest underlying the same and the fact that such lands are identified and ordered to be exempt, it is just and necessary the Government should have the power to scrutinize and also check any abuse and misuse of concession shown in favour of the tea plantation to retain lands which are really non-tea plantation lands for the time being. Hence, such provisions cannot be dubbed as being either arbitrary or unreasonable or for that matter be said to suffer any infirmity. We are, therefore, unable to accept the challenge made to the proviso to Rule 3(1) of the Himachal Pradesh Ceiling on Land Holdings Rules, 1973. Once the validity of the rule is sustained, the instructions issued in furtherance of and for implementation of the said rule cannot also be said to be either illegal or unwarranted or unjustified.
The writ petition, therefore, fails and shall stand dismissed. No costs.
