Holding

The Supreme Court held that the delay could not be condoned, the High Court’s dismissal of the condonation application was correct, and the transfer of land violated Section 118, so the appeals were dismissed.

Summary

Ajay Dabra filed suits for specific performance of two agreements for the sale of agricultural land in Himachal Pradesh, where the original seller had contracted with Himalayan Ski Village Pvt. Ltd., a non‑agriculturist. The sale was conditional on obtaining permission under Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972, which was never secured, and the company later assigned its rights to the plaintiff. The trial court dismissed the suits, and the plaintiff’s first appeal was rejected by the High Court for a 254‑day delay; his condonation application under Section 5 of the Limitation Act was denied on the ground that lack of funds to pay court fees was not a sufficient cause. The Supreme Court affirmed that the delay could not be condoned because the appellant failed to provide a reasonable explanation and could have filed a defective appeal under Section 149 of the CPC. The Court also held that the transfer violated Section 118, which bars conveyance of land to non‑agriculturists without State permission, rendering the assignment invalid. Consequently, both appeals were dismissed.

Issues considered

The applicability of Section 5 of the Limitation Act, 1963 to condone a 254‑day delay in filing the appeal.
Whether inability to pay court fees constitutes a sufficient cause for condonation of delay.
Whether filing a defective appeal under Section 149 of the CPC could have saved the appeal.
Whether the transfer of agricultural land to a non‑agriculturist without permission under Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 is valid.
Whether specific performance can be granted when the underlying sale agreement is void for contravention of Section 118.

Legislation cited

Code of Civil Procedure, 1908s. 149
Court Fees Act, 1870s. 4
Himachal Pradesh Tenancy and Land Reforms Act, 1972s. 118
Limitation Act, 1963s. 5

Subjects

Limitation Actcondonation of delaySection 5Court Fees ActSection 149 CPCdefective appealHimachal Pradesh Tenancy and Land Reforms ActSection 118agriculturistnon‑agriculturistspecific performanceappeal dismissed

Judgment

[2023] 1 S.C.R. 449 449

AJAY DABRA A
v.
PYARE RAM & ORS.
(Civil Appeal No. 716 of 2023)
JANUARY 31, 2023 B
[PAMIDIGHANTAM SRI NARASIMHA AND
SUDHANSHU DHULIA, JJ.]
Limitation Act, 1963: s.5 – Delay in filing appeal –
Condonation of – Held: An appeal has to be filed within the C
stipulated period, prescribed under the law – Belated appeals can
only be condoned when sufficient reason is shown before the court
for delay – In the present case, the delay has not been explained to
the satisfaction of the court – The only reason assigned by the
appellant for the delay of 254 days in filing the first appeal was D
that he was not having sufficient funds to pay the court fee – This
was not found to be a sufficient reason for the condonation of delay
as the appellant was an affluent businessman and a hotelier – Even
it is presumed that the appellant was short of funds and was not
able to pay court fee, nothing barred him from filing the appeal as E
there is provision for filing a defective appeal, i.e., an appeal which
is deficient as far as court fee is concerned, provided the court fee
is paid within the time given by the Court – Though s.4 of Court
Fees Act states that an appeal cannot be filed before a High Court
without court fee, s.149 CPC, which gives power to court to allow F
the person to pay the court fees at later stage, acts as an exception
or even a proviso to s.4 of Court Fees Act – 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 – Hence, G
High Court was right in dismissing s.5 application of the appellant
– No case for interference made out – Court Fees Act, 1870.

Himachal Pradesh Tenancy and Land Reforms Act, 1972:
s.118 – Transfer of land to non-agriculturist – U/s.118 of 1972 Act,
H
449
450 SUPREME COURT REPORTS [2023] 1 S.C.R.

A only an agriculturist, 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, prior permission of state government is required – The whole
purpose of s.118 of the 1972 Act is to protect agriculturists with
B small holdings – Land in Himachal Pradesh cannot be transferred
to a non-agriculturist – 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.

Dismissing the appeals, the Court
C
HELD: 1. An appeal has to be filed within the stipulated
period, prescribed under the law. Belated appeals can only be
condoned, when sufficient reason is shown before the court for
the delay. The appellant who seeks condonation of delay therefore
D must explain the delay of each day. It is true that the courts should
not be pedantic in their approach while condoning the delay, and
explanation of each day’s delay should not be taken literally, but
the fact remains that there must be a reasonable explanation for
the delay. In the present case, this delay has not been explained
E to the satisfaction of the court. The only reason assigned by the
appellant for the delay of 254 days in filing the First Appeal was
that he was not having sufficient funds to pay the court fee! This
was not found to be a sufficient reason for the condonation of
delay as the appellant was an affluent businessman and a hotelier.
F In any case, even it is presumed for the sake of argument that
the appellant was short of funds, at the relevant point of time and
was not able to pay court fee, nothing barred him from filing the
appeal as there is provision under the law for filing a defective
appeal, i.e., an appeal which is deficient as far as court fee is
G concerned, provided the court fee is paid within the time given
by the Court. 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.
[Para 5][453-F-H; 454-A-E]
H
AJAY DABRA v. PYARE RAM & ORS. 451

2. In present case, appellant is capable of purchasing the A
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 B
of law. Therefore, 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 C
Section 149 CPC and thereafter removed the defects by paying
deficit court fees. This has evidently not been done. [Para 9][457-
D-G]

3. The whole purpose of Section 118 of the 1972 Act is to
D
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
E
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
F
the transfer remains the same, which is a non-agricultural activity.
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. [Para 17][461-F-H; 462-A]

Mannan Lal v. Mst. Chhotaka Bibi & Ors. (1970) 1 G
SCC 769 : [1971] 1 SCR 253; P.K. Palanisamy v. N.
Arumugham & Anr. (2009) 9 SCC 173 : [2009] 11
SCR 342; Ganapathy Hegde v. Krishnakudva & Anr.
(2005) 13 SCC 539; K.C. Skaria v. Govt. of State of
Kerala & Anr. (2006) 2 SCC 285 : [2006] 1 SCR 274; H
452 SUPREME COURT REPORTS [2023] 1 S.C.R.

A Mahant Bikram Dass Chela v. Financial Commissioner,
Revenue, Punjab,Chandigarh And Others (1977) 4 SCC
69 : [1978] 1 SCR 262; Basawaraj and Another v.
Special Land Acquisition Officer (2013) 14 SCC 81 :
[2013] 8 SCR 227; Ashok Madan and Another versus
B State of H.P. and Other 2011 SCC OnLine HP 3885 –
relied on.

S. Wajid Ali v. Mt. Isar Bano Urf Isar Fatima & Ors.
AIR 1951 All 64 – referred to.
C
Case Law Reference

[1971] 1 SCR 253 relied on Para 7

[2009] 11 SCR 342 relied on Para 8
D
(2005) 13 SCC 539 relied on Para 8

[2006] 1 SCR 274 relied on Para 8

[1978] 1 SCR 262 relied on Para 10
E [2013] 8 SCR 227 relied on Para 10

CIVIL APPELLATE JURISDICTION : Civil Appeal No.716 Of
2023.

From the Judgment and Order dated 17.12.2018 of the High Court
F
of Himachal Pradesh at Shimla in CMPM No.76 of 2018.

With

SLP (C) No.15848 Of 2019.
G
Bhagabati Prasad Padhy, Rahul Sharma, Advs. for the Appellant.

Ajay Marwah, Adhitya Srinivasan, Karan Thakur, Tapan Masta,
Ayush Gupta, Ms. Achintya Dvivedi, Rameshwar Prasad Goyal, Advs.
for the Respondents.
H
AJAY DABRA v. PYARE RAM & ORS. 453

The Judgment of the Court was delivered by A
SUDHANSHU DHULIA, J.
Leave granted.
2. Both these Appeals before this Court are by the plaintiff who
had filed a suit for specific performance, which was dismissed and later B
his First Appeal before the High Court was dismissed on the grounds of
delay. We may state here that the Plaintiff/Appellant was not a party to
the contract of which a specific performance was sought. The contract
was executed between the defendant and a company called M/s
Himalayan Ski Village Pvt. Ltd. which was for sale of an ‘agricultural
land’ in Himachal Pradesh. There were two plots of land for which two C
different “agreements of sale” were executed, and hence two civil suits
were filed.
3. In both the above appeals, there is a common challenge against
order dated 17.12.2018 passed by the Single Judge of the High Court of
Himachal Pradesh in CMP (M) No.75 of 2018 & CMP (M) No.76 of D
2018. The impugned order dismisses the delay condonation applications
filed under Section 5 of the Limitation Act, 1963, declining to condone a
delay of 254 days, because the reasons assigned for the condonation
were not sufficient reasons for condonation of the delay. The Appellant
herein had earlier filed two suits (bearing nos. 28/2012 & 29/2012), for E
specific performance which were dismissed by the District Judge, Kullu
vide order dated 30.12.2016.
4. According to the Appellant the delay ought to have been
condoned and his appeal should have been heard on its merits.
5. What we have here is a pure civil matter. An appeal has to be F
filed within the stipulated period, prescribed under the law. Belated
appeals can only be condoned, when sufficient reason is shown before
the court for the delay. The appellant who seeks condonation of delay
therefore must explain the delay of each day. It is true that the courts
should not be pedantic in their approach while condoning the delay, and
explanation of each day’s delay should not be taken literally, but the fact G
remains that there must be a reasonable explanation for the delay. In the
present case, this delay has not been explained to the satisfaction of the
court. The only reason assigned by the appellant for the delay of 254
days in filing the First Appeal was that he was not having sufficient
funds to pay the court fee! This was not found to be a sufficient reason H
454 SUPREME COURT REPORTS [2023] 1 S.C.R.

A for the condonation of delay as the appellant was an affluent businessman
and a hotelier. In any case, even it is presumed for the sake of argument
that the appellant was short of funds, at the relevant point of time and
was not able to pay court fee, nothing barred him from filing the appeal
as there is provision under the law for filing a defective appeal, i.e., an
appeal which is deficient as far as court fee is concerned, provided the
B
court fee is paid within the time given by the Court. We would refer to
Section 149 of Civil Procedure Code, 1908 which reads as under :-
“Section 149: Power to make up deficiency of Court Fees.-
Where the whole or any part of any fee prescribed for any
document by the law for the time being in force relating to court
C fees has not been paid, the Court may, in its discretion, at any
stage, allow the person, by whom such fee is payable, to pay the
whole or part, as the case may be, of such court-fee; and upon
such payment the document, in respect of which such fee is
payable, shall have the same force and effect as if such fee had
D been paid in the first instance.”
It also needs to be emphasized that this Court as well as various
High Courts, have held that Section 149 CPC acts as an exception, or
even a proviso to Section 4 of Court Fees Act 18701. 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
E 149 of CPC which we have referred above. A short background to the
incorporation of Section 149 in CPC would explain this aspect.
1
Section 4.- Fees on documents filed, etc., in High Courts in their Extraordinary
Jurisdiction.—No document of any of the kinds specified in the First or Second
Schedule to this Act annexed, as chargeable with fees, shall be filed, exhibited
or recorded in, or shall be received or furnished by, any of the said High Courts
F in any case coming before such Court in the exercise of its extraordinary original
civil jurisdiction; or in the exercise of its extraordinary original criminal
jurisdiction; In their appellate jurisdiction.—or in the exercise of its jurisdiction
as regards appeals from the 1[judgments (other than judgments passed in the
exercise of the ordinary original civil jurisdiction of the Court) or one] or more
Judges of the said Court, or of a Division Court;—or in the exercise of its
jurisdiction as regards appeals from the 2[judgments (other than judgments
G passed in the exercise of the ordinary original civil jurisdiction of the Court) or
one] or more Judges of the said Court, or of a Division Court;” or in the exercise
of its jurisdiction as regards appeals from the Courts subject to its
superintendence; as Courts of reference and revision.—or in the exercise of its
jurisdiction as a Court of reference or revision; unless in respect of such
document there be paid a fee of an amount not less than that indicated by either
H of the said Schedules as the proper fee for such document.
AJAY DABRA v. PYARE RAM & ORS. 455
[SUDHANSHU DHULIA, J.]

6. The provision as given under Section 4 of the Court Fees Act A
was felt to be extremely rigorous at times and for this reason in the old
Code of Civil Procedure i.e. of 1882, an amendment was inserted in the
year 1892 which was Section 522-A which reads as under:-
“If a memorandum of appeal or application for a review of
judgment has been presented within the proper period of limitation, B
but is written upon paper insufficiently stamped, and the
insufficiency of the stamp was caused by a mistake on the part of
the appellant or applicant as to the amount of the requisite stamps,
the memorandum of appeal or application shall have the same
effect, and be as valid as if it had been properly stamped:
C
Provided that such appeal or application shall be rejected unless
the appellant or applicant supplies the requisite stamp within a
reasonable time after the discovery of the mistake to be fixed by
the court.”
7. The above provision was later enacted, albeit in a differently D
worded form in the Code of Civil Procedure of 1908, which is present
Section 149. In Mannan Lal v. Mst. Chhotaka Bibi & Ors.2 this
Court while dealing with Section 149 of CPC and Section 4 of the Court
Fees Act, referred to the history of amendment, as we have stated above,
and had this to say in its para 12 and 13 of the judgment:-
E
“12. The above section therefore mitigates the rigour of Section
4 of the Court Fees Act and it is for the court in its discretion to
allow a person who has filed a memorandum of appeal with
deficient court fee to make good the deficiency and the making
good of such deficiency cures the defect in the memorandum not
from the time when it is made but from the time when it was first F
presented in court.
13. In our view in considering the question as to the maintainability
of an appeal when the court fee paid was insufficient to start with
but the deficiency is made good later on, the provisions of the
Court Fees Act and the Code of Civil Procedure have to be read G
together to form a harmonious whole and no effort should be
made to give precedence to provisions in one over those of the
other unless the express words of a statute clearly override those
of the other.”
2
(1970) 1 SCC 769 H
456 SUPREME COURT REPORTS [2023] 1 S.C.R.

A 8. In Mannan Lal (supra), this aspect was dealt in rather detail,
where the Court referred to several decisions of different High Courts
on interpretation of Section 149 CPC and Section 4 of Court Fees Act.
It particularly referred to the decision of the Allahabad High Court which
is S. Wajid Ali v. Mt. Isar Bano Urf Isar Fatima & Ors.3 wherein it
was held that a court has to exercise its discretion for allowing a deficiency
B
of court fees to be made good but once it was done, a document was to
be deemed to have been presented and received on the date when it
was originally filed, and not on the date when the defects were cured.
Therefore this Court in Mannan Lal (supra) further stated as under :-
“21. The words used in that judgment are no doubt of wide import.
C But however that may be in the case before us there can be no
difficulty in holding that an appeal was presented in terms of Order
41 Rule 1 of the Code inasmuch as all that this provision of law
requires for an appeal to be preferred is the presentation in the
form of a memorandum as therein prescribed. If the court fees
D paid thereon be insufficient it does not cease to be a memorandum
of appeal although the court may reject it. If the deficiency in the
fees is made good in terms of an order of the court, it must be
held that though the curing of the defect takes place on the date
of the making good of the deficiency, the defect must be treated
as remedied from the date of its original institution.
E
22. In view of the above reasons, we find ourselves unable to
concur in the judgment of the High Court. In the main judgment
under appeal, the reasoning appears to be that the memorandum
of appeal had no effect before the making good of the deficiency
and as the same took place after 12th November 1962 the appeal
F was not saved by Section 3(2) of the U.P. Act. The learned Chief
Justice of the Allahabad High Court expressed the opinion that a
memorandum of appeal barred by time stood on a footing different
from the one in which there was deficiency in the court fee paid.
According to him under Section 3 of the Limitation Act it is an
G appeal that is dismissed and not a memorandum of appeal. When
therefore Section 4 of the Court Fees Act deals with a
memorandum of appeal the consideration of the laws of limitation
bears no analogy to a deficiency in court-fees. With due respect
we are not impressed by the above reasoning. As already noted,
3
H AIR 1951 All 64
AJAY DABRA v. PYARE RAM & ORS. 457
[SUDHANSHU DHULIA, J.]

although there is no definition of the word “appeal” in the Code of A
Civil Procedure, it can only be instituted by filing a memorandum
of appeal. The filing of a memorandum of appeal therefore brings
an appeal into existence; if the memorandum is deficient in court-
fee, it may be rejected and if rejected, the appeal comes to an
end. But if it is not rejected and time is given to the appellant to
B
make up the deficiency and this opportunity is availed of, Section
149 of the Code expressly provides that the document is to have
validity with retrospective effect as if the deficiency had been
made good in the first instance. By reason of the deeming
provision in Section 149 the memorandum of appeal is to have full
force and effect and the appeal has to be treated as one pending C
from the date when it was before the Stamp Reporter and the
deficiency noted therein.”
This position has been reiterated by this Court in several of its
later decisions such as P.K. Palanisamy v. N. Arumugham & Anr.4,
Ganapathy Hegde v. Krishnakudva & Anr.5 and K.C. Skaria v. D
Govt. of State of Kerala & Anr.6
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 E
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 F
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
G
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 H
458 SUPREME COURT REPORTS [2023] 1 S.C.R.

A “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
B
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
C 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.”
D
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:
E “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
F 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
G 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
H (2013) 14 SCC 81
AJAY DABRA v. PYARE RAM & ORS. 459
[SUDHANSHU DHULIA, J.]

passing an order in violation of the statutory provisions and A
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 B
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 C
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 D
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 E
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) F
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 G
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.
H
460 SUPREME COURT REPORTS [2023] 1 S.C.R.

A 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
B 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-
C 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
D 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)….
E
(c)….
(d)….
(e)….

F (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.
G 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
H
AJAY DABRA v. PYARE RAM & ORS. 461
[SUDHANSHU DHULIA, J.]

Appellant before this Court), and the Plaintiff in turn filed a suit for A
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 B
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 C
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 D
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 E
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 F
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 G
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
H
462 SUPREME COURT REPORTS [2023] 1 S.C.R.

A 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:
B “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
C 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
D 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.
E 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.

F Devika Gujral Appeals dismissed.
(Assisted by : Shevali Monga, LCRA)

G

9
H 2011 SCC OnLine HP 3885