STATE OF HIMACHAL PRADESH Vs. CHANDER DEV

JUDGEMENT

(1.) The State of Himachal Pradesh is in appeal, assailing the validity and correctness of the judgment passed by the High Court in the second appeal.

(2.) The plaintiff filed a suit for declaration and mandatory injunction against the State of Himachal Pradesh pleading that his father, late Shri Chaudhary, was a tenant in respect of the suit land. After the death of Chaudhary, the plaintiff succeeded to the tenancy rights of the said land. After the commencement of the Himachal Pradesh Tenancy Land Reforms Act, 1972 (for short, 'the Act') , he acquired proprietary rights over the suit land. In spite of his request, mutation in respect of the said land was not effected to by the authorities to indicate that the plaintiff was the owner. Under the circumstances, he had to file the suit, which was resisted by the State of Himachal pradesh on various grounds. The trial Court dismissed the suit after considering the respective contentions in the light of the evidence that was placed before it. The learned District Judge, in the appeal filed by the plaintiff, accepted the contentions urged on his behalf and set aside the judgment and decree passed by the trial Court. The State of Himachal Pradesh filed second appeal before the High Court, aggrieved by the judgment and decree passed by the first appellate Court. The second appeal was dismissed by the High court negativing the contentions urged on behalf of the State and holding that substantive rights of proprietorship acquired by the plaintiff on the date of the commencement of the Act by virtue of Section 104 (3) of the Act could not be taken away by resorting to the provisions of the Amendment act of 1987 wherein a proviso was added to sub-section (9) of Section 104 of the Act to the effect that nothing contained in the said section shall apply to such land, which is either owned by or is vested in the Government under any law, whether before or after the commencement of the Act, and is leased out to any person. The High Court also took the view that the amendment could not have retrospective effect in the absence of any express provision made in the amending Act that the amendment would be retrospective in its operation.

(3.) The learned counsel for the appellant urged that the High Court committed a serious error in disposing of the second appeal without formulating any substantial question or questions of law that arose for consideration between the parties as mandatorily required under Section 100 of the Code of civil Procedure, 1908; looking to the very proviso added by the Amendment act to sub-section (9) of Section 104 of the Act, it is quite clear that the said amendment was retrospective in its operation; the intention of the Legislature is clearly expressed in the said amendment.