STATE OF H.P. Vs. CHANDER DEV

JUDGEMENT

(1.) BECAUSE of the conflict of views in respect of the retrospective application of the amendment made to the H.P. Tenancy and Land Reforms Act between two learned single Judges of this Court, a third Judge has referred the following substantial question of law for decision by the Division Bench: What is the effect of proviso added towards the end of Sub section (9) of Section 104 of the H.P. Tenancy and Land Reforms Act, 1972 by the Amendment Act No. 6 of 1988 whether it takes away the vested rights of persons which had vested in them automatically under the provisions of the Principal Act which was in force till the Amendment Act came to be legislated?

(2.) THE H.P. Tenancy and Land Reforms Act (hereinafter referred to as the Act) was passed by the Himachal Pradesh Legislature on 22nd December, 1972. This Act received the assent of the President of India on 2nd February, 1974 and was published in the Himachal Pradesh Rajpatra (Extraordinary) on 21st February, 1974. It came into force at once. Section 104(3) of the Act reads as follows: (3) All rights, title and interest (including a contingent interest, if any) of a landowner other than a land owner entitled to resume land under Sub section (1) shall be extinguished and all such rights, title and interest shall with effect from the date to be notified by the State Government in the Official Gazette vest in the tenant free from all encumbrances: Provided that if a tenancy is created after the commencement of this Act, the provision of this sub section shall apply immediately after the creation of such tenancy.

(3.) THERE is no manner of doubt that under the provisions of Sub section (3) of Section 104 and Rule 27 as originally enacted, the tenants under the Government were entitled to and automatically acquired proprietary rights from the date of commencement of the rules.