Ravinder Chauhan and Others vs State of Himachal Pradesh and Others

D. Raju, C.J.—The above writ petition has been filed by six persons joining together claiming to be the owner and permanent residents of the locality situated at Khalini, Shimla seeking for the following reliefs :

"(i) That the land bearing Khata Khatauni No. 152/190, Khasra Nos. 862/188/10 (New Khasra No. 943) measuring 435.5 square yards situated in Mauza Khalini, Chhotta Shimla Ward, may be declared to have vested in Government under the provision of Section 118 of H. P. Tenancy and Land Reforms Act, 1972.

(ii) That the respondents No. 1 to 4 may be directed to use the above piece of land as a Children Park or Green Park by raising appropriate trees/flowers over the said piece of land and the same may be permitted to be used by the General Public.

(iii) That the respondents No. 1 to 4 and 6 and 7 may be directed to remove the constructions, if any, raised on the said piece of land after the illegal sanction given by respondents No. 2 and 3 for the construction of residential house.

(iv) That in case this Hon''ble Court deems it necessary that some finding of fact is required to be recorded by the respondent No. 5 till the time of vesting of the land in question in favour of the Government, in such a situation the respondent No. 5 may be directed to enquire into the facts up to stage when in view of Section 118 the land automatically vests in the Government.

(v) That the ex post facto sanction granted by respondent No. 1 in favour of respondent No. 6 vide letter dated 8-2-1995 (Annexure P-12) may be quashed and set aside.

(vi) That the sanction dated 27-4-1994 (Annexure P-3) granted by respondent No. 3 and sanction dated 26-10-1993 (Annexure P-2) granted by respondent No. 2 may be quashed and set aside.

(vii) That order dated 7-3-1995 (Annexure P-13) may be quashed."

The land comprising in Khasra No. 862/ 188/10 was said to have been earlier owned and possessed by one Smt. Santa Prasad wife of Shri Ajay Parsad and that respondent No. 6 Dr. R.S. Santoshi applied for permission to purchase the aforesaid land comprised in Khata Khatauni No. 152/190 Khasra No. 862/188/10 measuring 435.5 sq. yards corresponding to new Khasra No 943 as per Missal Haquiat Bandobast Jadid. By its proceeding dated 28-11-1989, the Government of Himachal Pradesh, Revenue Department, accorded sanction in exercise of the powers under Clause (i) of Sub-section (2) of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 (hereinafter referred to as ''the Act'') and Clause (d) of Sub-rule (3) of Rule 38-A of the Himachal Pradesh Tenancy and Land Reforms Rules, 1975 (hereinafter referred to as ''the Rules'') to purchase the land measuring 435.5 Sq. yards in Khasra No. 862/188/10 situated in Station Ward, Shimla 2 by M/s. Himachal Sewa Printing Press from Smt. Sarita Parshad wife of Shri Ajay Parshad for setting up printing industry. The sanction was said to he valid for 180 days from the date of issue and subject to the following conditions :

"(i) The land shall be utilised for the purposes for which it has been sanctioned.

(ii) In the jamahandi it shall be noted, in red ink, in the remarks column that the above vendor shall not in future be entitled to any allotment/ grant/lease of land from the Government.

(iii) This sanction or the purchase of land thereunder shall not vest a right of an agriculturist on the purchaser who shall continue to be a non-agriculturist."

Thereafter under sale deed dated 3-1-1990, the 6th respondent purchased the property. According to the petitioners, the second proviso to Sub-section (2) of Section 118 of the Act contemplates that the non-agriculturist, who has been given permission by the Government shall put the land to such use for which the permission has been granted within a period of two years or further such period not exceeding one year, as may be granted by the State Government, to be counted from the day on which the deed covering the sale of the land was registered and on failure to do so, the tand so purchased shall vest in the State Government free from all encumbrances. While the matter stood thus, the first petitioner and others appear to have sent a representation to the Hon''ble Chief Justice of this Court, which was treated as C.W.P. No. 73 of 1990 against any construction for setting up of a printing press by the 6th respondent. The said writ petition was dismissed as having become infructuous with liberty to the petitioners to approach this Court, if occasion arises therefore in future, on the ground that permission for putting up a printing press sought for by respondent No. 6 was refused on 3-5-1990, and the same is being challenged under the provisions of the Himachal Pradesh Town and Country Planning Act, 1977 by means of a statutory appeal and, therefore, there is no subsisting grievance for the petitioners. The reason for such refusal seems to be that me proposed printing press was with a capacity of 60 horse power whereas not more than 3 horse power machinery can be allowed in residential use and the land use of the area is residential, whereas the proposal was to put it to industrial use, which cannot be permitted. The appeal said to have been filed by the 6th respondent also did not meet with success and came to be rejected by the Appellate Authority on 21-7-1992. In view of the above, the 6th respondent appear to have taken steps to have a residential building put up on the plot and got the plan for the construction sanctioned from the Municipal Corporation, Shimla. At that stage, writ petition No. 962/94 appears to have been filed by one Amin Chand Chauhan, the father of Ravinder Chauhan, one of the petitioners in the present petition, as a public interest litigation for putting the land to public use. On 7-11-1994, a statute quo order was said to have been passed and in view of the reply filed by the Stale that appropriate action has been taken u/s 118 of the Act, on 28-11-1994 and show cause notice was issued to show cause on 5-12-1994 and the said writ petition, namely, CWP No. 962/94 came to be disposed of on 21-2-1995 observing that no further action in the writ petition has been called for and that with a direction to the Collector, who has initiated proceedings to deal with further in expeditious manner and finalisation action. It may be stated at this stage that the Collector, Shimla issued a notice dated 28-11-1994, stating therein that the sale deed on obtaining permission was executed on 3-1-1990, that two years period expired and no extension was also granted to the 6th respondent and that since the 6th respondent allegedly obtained permission for construction of residential accommodation thereby contravening the orders of the Government dated 28-11-1989 and as to why the land should not be ordered to be vested in the Stale Government free from all encumbrances. It was at this stage that 6th respondent appears to have filed a representation dated 19-12-1994 for altering and changing the purpose of utilising the land from commercial to residential one and the Government of Himachal Pradesh, in the Revenue Department accorded the sanction amending the use of the land in question for residential purpose in view of the fact that the land is situated in residential area and no Industrial Unit can be established therein. As a consequence of the above, the Collector, Shimla by his proceeding dated 7-3-1995 dropped the proceedings instituted u/s 118(1) of the Act, as noticed earlier. It is at this stage, that the petitioners have come with the present writ petition seeking for the various reliefs, referred to supra.

The sum and substance of the arguments on behalf of the petitioners by Mr. Shrawan Dogra, learned counsel for the petitioners is that inasmuch as two years period within which the person obtaining sanction u/s 118(2) should use the land for the purpose permitted expired on 2-1-1992 and there was no further extension obtained by the 6th respondent from the Government and even such period of one year up to which alone the further extension could have been granted also expired on 3-1-1993, the land purchased by the 6th respondent shall vest automatically in the State Government free from all encumbrances and that for all purposes the land should be taken to be the land of the State Government and, thereafter it was not permissible for the State Government to accord any ex post facto sanction, in favour of the 6th respondent for change of the user of the land and consequently the impugned order dated 8-2-1995 and the consequential order passed on 7-3-1995 are illegal and liable to be set aside.

The learned counsel for the petitioners also contended that the attempt of the 6th respondent is neither bona fide nor sincere inasmuch as the real intention is to construct 16 independent residential units in the land through respondent No. 7 and sell it to different persons and by no logic a non-agriculturist who purchased the land for the construction of a house can be allowed to put up multi-storeyed building with several independent residential units and that such thing if allowed would go against the very spirit of Section 118 of the Act.

The 2nd respondent has filed a reply contending that the claim of the 6th respondent for putting up a residential building in the land in question through his General Power of Attorney, the 7th respondent was processed under the pro-visions of interim development plan of Shimla planning area and sanction was accorded therefore on 21-10-1993 and that the 2nd respondent was not aware of the special permission obtained for a particular use of the property u/s 118 of the Act and the land use in the area in question being residential as per the interim development plan for Shimla, the permission for construction of residential flats is in conformity with the Development Plan and there was nothing wrong or irregular in the sanction accorded for the 16 residential flats in the land. Respondents No. 1 and 4 have also filed a separate reply. It was stated among other things that the permission originally granted for setting up a printing press could not fructify since the land in question was earmarked in the Interim Development Plan for Shimla planning area for residential purposes. The condition No. 2 contained in the sanction letter, therefore, was not applicable to the vendee, the 6th respondent, that inasmuch as the 6th respondent represented to the Government for change of land use of the ground that the area in question was earmarked for residential purpose and that he may be permitted to use the same for residential purposes, the land use was changed from Industry to residential purpose and, therefore, no exception could be taken to the orders permitting change of land use as per the plea that the land stood vested with the State. It is contended for the State that the land in question could have vested in the Government only after and in accordance with due process of law and after giving due opportunities to the parties, particularly, for the reasons that due opportunity was required to be afforded, in the interest of principle of natural justice to the 6th respondent before any vesting could be ordered to have taken effect and the sanction accorded for the change of the land use justify the dropping of the proceedings taken for enforcing the vesting of land and that the procedure adopted by the Government as also the Collector was quite in accordance with law. It has been reiterated by the respondents that the land in question had not vested in accordance with law and the vestment has to be made only after providing an opportunity to the parties concerned in accordance with the Rules framed thereunder. Justification is also sought to be made for the grant of ex post facto sanction in view of the peculiar circumstances of the case on account of the fact that the earlier permitted purpose was not approved by the Town and Country Planning Department in view of the provision of the interim Development Plan for Shimla and consequently there is no illegality or infirmity in the orders passed by the authorities of the State Government. The sanction for change of land use was said to have been given by the Government on finding the request to be bona fide and genuine, invoking the inherent powers of the State Government.

The 6th respondent has also filed a reply statement traversing in detail the various allegations and claims made by the writ petitioners. The learned counsel for the 6th respondent while reiterating the stand taken in the reply-statement also contended at the time of hearing that the area in question was already a commercial centre having certain commercial establishments and that it is only because of the influence of the family of the petitioners, permission to set up the printing press was not granted to the 6th respondent and that the family members of the petitioners have been vindictively harassing the 6th respondent by various proceedings before the Department as well as before the Court purely out of personal vendetta on account of personal misunderstanding between them making it semblance of common cause though it is really not so and that the permission granted by according change of user of land was well in accordance with land and the proceedings for vesting was rightly dropped by the Collector of Shimla and no exception whatsoever could be taken to the same by the petitioners, who have ho legal grievance and none of whose legally protected rights could be said to have been violated by such orders. Learned counsel for the 6th respondent also contended that the period of limitation prescribed in the second proviso will have no application for according a change of the purpose or user of the land and the 6th respondent could not be penalised for the initial sanction accorded for the purpose, which was incapable and impossible for performance and compliance by virtue of the Interim Development Plan, Shimla. While contending that the second proviso dealt with only depend upon the setting up of the industry at the maximum period of putting into use the land for the permitted purpose had no relevance or application for the change of user and that at any rate when the purpose for which it was initially sanctioned, was incapable of performance by operation of law, the 6th respondent cannot be said to have faulted and failed to comply, with the terms of the permission so as to attract the penal consequences of a default clause when the default cannot be held to have been for the reasons due to the 6th respondent and when it is patently and obviously visible that such non compliance was also for the reasons beyond his control. It is also contended that the vesting cannot be said to be automatic, but subject to the rules enacted and till an opportunity is given and the same has been considered, order passed a person concerned cannot be said to have failed to comply with the terms of the permission, so as to attract the penal clause of vesting. The locus standi of the petitioners to agitate the cause by means of the present writ petition has also been seriously questioned.

The 7th respondent and the learned counsel appearing for the same contended that the plan sanctioned for putting up the residential blocks is quite in accordance with law and the 7th respondent cannot be taken to task for either applying and getting the plan sanctioned or proceeding with the construction in accordance with the plan and if only there is any violation, there is scope and room for making any complaint whatsoever and that is not the case with the present respondents No. 6 and 7.

Mr. M.L. Chauhan, learned Deputy Advocate General while pursuing the contentions raised in the counter-affidavit of respondents No. 1 and 4, as also the 2nd respondent contended that the vesting envisaged u/s 118(2) second proviso is not automatic and it depended upon a prior opportunity in terms of the Rules as also in accordance with the principle of natural justice and decision and determination as to whether the person concerned has failed to do so or complied with the obligation or conditions imposed under the order granting permission to purchase the land and the vesting depended very much on such a decision being recorded about the failure of the person concerned after giving due opportunity and that there are no merits whatsoever in the stand taken for the petitioners and the impugned orders are quite in accordance with law.

The learned counsel for the petitioners has relied upon certain decisions to some of which, a reference can be made by us.

In S.B. Patwardhan and Another Vs. State of Maharashtra and Others, the apex Court held that administrative instruments, which cannot be deemed to have been made under An. 309, but are under Article 166 of the Constitution of India, such instructions cannot have any retrospective effect. In Uday Pratap Singh and Others Vs. State of Bihar and Others, the apex Court once again observed that an executive order cannot by operating retrospectively destroy any right which had crystallised in favour of a citizen. In Govind Prasad Vs. R.G. Parsad and Others, the very same principle that an administrative order cannot be given retrospective operation has been reiterated. In Indian Nut Products and Others Vs. Union of India (UOI) and Others, it has been observed that when a statutory power is exercised by the authority concerned, the satisfaction of the authority about the existence of condition for the exercise of such power must be recorded and must be based on relevant grounds and materials and judicial review is open to examine the relevancy of such grounds also and any order based on irrelevant grounds can be struck down as ultra vires and illegal. In G. Viswanathan Vs. The Hon''ble Speaker, Tamil Nadu Legislative Assembly, Madras and another, it has been held that a legal fiction enacted for deeming a particular thing to exist must be given full effect and the authority should imagine as real the consequences and incidents which inevitably flow therefrom and give effect to the same. In this case the direction cannot be said to be an absolute one for the reason that the direction in respect of vesting can come into operation only on the existence of the condition precedent, namely, the person concerned has failed to do so what he was otherwise obliged to do. In Harish Tandon Vs. Addl. District Magistrate, Allahabad, U.P. and others, the Apex Court emphasised the need for giving full effect to the legal fiction created by the statute. In Union of India (UOI) and Others Vs. Somasundaram Viswanath and Others, the Apex Court observed that the provision in the Act has to prevail over the statutory rules made in the Act. In this case there is no scope for applying the principle in this decision since the Rules inserted by means of amendment introducing Rule 38B cannot be said to be repugnant to the provisions in the Act, but more explanatory, supplementary and vitally necessary to make the provisions in the Act reasonable. In Satish Chandra Tyagi v. State of H.P. ILR (1985) HP 913 and Mohinder Singh Gill and Another Vs. The Chief Election Commissioner, New Delhi and Others, it has been held that the validity of an order passed by a statutory authority has to be adjudged on the reasons mentioned in the order and the same cannot be supplementary by fresh reasons in the shape of affidavit or otherwise. We see no relevance of the principle laid down there in the case on hand, where the question is about the powers of the State Government, which can be traced and referred to any provision.

The learned counsel for the 6th respondent relied upon the decision reported in Paradise Printers and Others Vs. Union Territory of Chandigarh and Others, to contend that the word ''shall'' used in the second proviso in question is not mandatory and the meaning to be ascribed to such a word should be in the context of the statutory provision itself and the scheme underlying the same and wherever the imperative meaning if given to the word "shall" would defeat the purpose of the provision itself, such meaning should not be ascribed. Relying upon the decision reported in Sri Nasiruddin Vs. State Transport Appellate Tribunal, the learned counsel for the 7th respondent also contended that if there are two different interpretations of the words in the Act, the Court will adopt that which isjust, reasonable and sensible rather than that which is none of those things.

We have carefully considered the submissions of the learned counsel appearing on either side, as noticed above, and also the principles laid down in the decisions relied upon for the same. In our view, the case on hand does not call for applying the principles laid down in the various decisions relied upon for the petitioners by the learned counsel.

The facts noticed on record would go to show that while according permission in the order dated 28-11-1989 itself, the purchase was specifically for the purpose of setting up printing industry. The purpose for which the permission was granted in favour of the 6th respondent to purchase the land has become incapable and impossible of performance on account of the existing provisions of the Town and Country Planning Act and the Interim Development Plan for Shimla in force and, therefore, not only the 6th respondent could not be found faulted with for non compliance with the schedule of time stipulated in the second proviso, but such non compliance is found to be for the reasons beyond his control and by the supervening circumstance of operation of law, which is binding not only upon the 6th respondent, but also on the State Government the purpose of user has become impossible of performance for all times and the State Government also cannot absolve of its liability in imposing the condition, which is impossible of performance and consequently the petitioners cannot take any, advantage of the same to challenge the orders filed as Annexures P-12 and P-13. As a matter of fact, as contended for the 6th respondent by his learned counsel, it is the petitioner and the members of his family also, who are responsible for filing litigation after litigation to prevent the authorities from according permission to set up printing press for the establishment of which, the land was permitted to be purchased and it is not, therefore, given to any of the petitioners to challenge the impugned orders. We cannot also refrain from observing, without casting any aspersions on the petitioners, that they are to some extent really vindictive and all along seem to be operating with personal vendetta and the so called pretended public interest is a mere pretence to ventilate their personal grievances.

The submissions of the learned counsel for the 6th respondent that the period of time stipulated within which only the initial permission granted could be operative, with further extension for one more year, will not apply, to a case of permitting change of purpose, as the one countenanced by the State Government in this case by passing the order dated 8-2-1995 filed as Annexure P-12 cannot be rejected as of no merit altogether. The time stipulated in the second proviso to Clause (i) of Sub-section (2) of Section 118 is for putting the land to such use for which the permission has been granted and this provision in our view cannot be construed so to deny the undisputed power of the Government to alter the purpose on coming to know that the earlier purpose for which the land was permitted to be used has been found to be impossible of performance. The said time bound limitation will be for the purpose of allowing the person in whose favour the permission has been granted to put the land to the same purpose for which the initial permission was granted and the said limitation of time will not apply in our view also to cases and instances involving the grant of permission to change the nature of use to which the land has to be put, different from the one already permitted to be put to. The inherent powers of the State, otherwise available in the absence of any specific provision disentitling the State Government from according such change in the user of the land for which the permission has been earlier accorded as also the powers available under the General Clauses Act will enure to the State Government to accord such permission. In the light of the said permission granted by the Government in the order dated 8-2-1995, the Collector, Shimla cannot be found fault with or be said to have committed any error of law, warranting interference of this Court in dropping further proceedings initiated u/s 118(1) of the Act.

Even that apart, Section 118 of the Act in so far as it imposes control on transfer of land to non agriculturists enacts that notwithstanding anything to the contrary contained in any law, contract, agreement, custom or usage for the time being in force, but save as otherwise provided in this chapter, no transfer of land (including sales in execution of a decree of a civil court or for recovery of arrears of land revenue), by way of sale, gift, exchange, lease, mortgage with possession or creation of a tenancy shall be valid in favour of a person who is not an agriculturist. Sub-section (2) of Section 118 provides that nothing in Sub-section (1) shall be deemed to prohibit the transfer of land by any person in favour of among other categories of persons, in Clause fi) in favour of ''a non-agriculturist'' with the permission of the State Government for the purpose that may be prescribed. The two proviso to the same are as follows :

"Provided that a person who is a non-agriculturist but purchase land with the permission of the State Government under Clause (i) of this sub-section shall, irrespective of such permission, continue to be a non-agriculturist for the purposes of this Act ;

Provided further that a non-agriculturist in whose case permission to purchase land is granted by the State Government, shall put the land to such use for which permission has been granted, within a period of two years or a further such period not exceeding one year, as may be granted by the State Government to be counted from the day on which the deed covering the sale of the land is registered and if he fails to-do so, the land so purchased by him shall vest in the State Government free from all encumbrances."

Rule 38-A prescribes the purpose envisaged under Clause (i) noticed above, and there is no controversy that the purpose for which permission has been accorded in this case in favour of the 6th respondent by the proceedings dated 28-11-1989 is one such purpose. The Government has framed Rule 38-B under its notification dated 24-3-1993 prescribing the procedure of vestment of land/building in the State Government. There had been a previous publication of these Rules in the Gazette even on 14-12-1992. Sub-Rule (2) of Rule 38-B reads as follows :

"If a non-agriculturist in whose case permission to purchase land has been granted by the State Government contravenes the provisions of second proviso to Clause (i) of Sub-section (2) of Section 118 of the Act, Collector of the District in which the land or any part thereof is situated, on receipt of a reference or information from any source or suo motu shall hold an enquiry and after affording a reasonable opportunity of being heard to the affected parties, he shall, within 90 days from the date of reference made, to him of otherwise, pass an order as he may deem fit and he shall communicate his order to the Revenue Officer concerned."

The aggrieved person is entitled under Sub-rule (3) to file an appeal to the Divisional Commissioner within 30 days from the order of the Collector and a further remedy of revision to the Financial Commissioner also is provided, for. Sub Rule (5) stipulates that where the Collector of the District has passed an order under Sub-rule (1) or Sub-rule (2) in which no appeal has been made within the permissible period or the Divisional Commissioner passed an order in appeal under Sub-rule (3) or the Financial Commissioner passed an order under Sub-rule (4) deciding that the transfer of land is in contravention with the provisions of the second proviso to Clause (i) of Sub-section (2) of Section 118 of the Act, as the case may be, such land together with the structures, buildings or other attachments, if any, shall vest in the State Government free from all encumbrances and the possession of the land so vested shall be taken over by the concerned Revenue Officer of the Tehsil within a period of one month from the date of such order.

In the light of the above provisions of the Statute and the Rules in force, it becomes necessary for us to consider as to whether the plea raised on behalf of the petitioners that the vesting envisaged under the second proviso to Clause (i) of Sub-section (2) of Section 118 of the Act is automatic and instant on the expiry of the period or it will depend upon on further adjudication by any competent authority before such vesting could be said to have taken place in a particular case. Rule 38-B inserted as noticed above, with detailed provisions in this regard, which were found finally notified on 24-3-1993 was also earlier notified on 14-12-1992 vide notification No. 10-5/75-Rev-B-Vol. III dated 3-11-1992. The subsequent rules provide a guideline and assistance of the manner in which a penal provision of the nature engrafted under the second proviso to Clause (i) of Sub-section (2) of Section 118 of the Act has to be construed. That becomes obvious and necessary even de hors the Rule 38-B and in our view the said rule has been really inserted to make the provision in the Act more reasonable, to protect the main provision in the Act itself from being rendered vulnerable for a challenge under Article 14 of the Constitution of India. The conditions stipulated for being satisfied in the second proviso to bring into operation the vesting clause or the provisions of the rule itself provide ample basis and guidance as to how the said provision has to be construed. In our view, it is not that on the mere expiry of a period of two years, as may be granted by the Slate Government or a further period not exceeding one year that the vesting will automatically take place. The legislative intention apparently keeping in view of the drastic and penal nature and far reaching consequences of such vesting clause has been thoughtfully, carefully and meticulously expressed in engrafting a condition stipulating ''if he fails to do so'', which in our view will operate as a condition precedent for actual vesting. The failure on the part of the person favoured with a permission under the provision, therefore, is the vital and pivotal fact which brings into operation the vesting clause and consequently it is but necessary and essential that some authority must place on record the failure on the part of the persons, who have been favoured with the permission after an objective consideration of the matter and such finding can be recorded only after complying with the principles of natural justice by giving an opportunity to the persons concerned before condemning them. What Rule 38-B has proposed to do is nothing but giving statutory recognition by means of prescription of a rule to the otherwise essential, vital and necessary procedure as a measure of safeguard to be observed in terms of the principles of natural justice, too, before visiting a citizen with such penal and far reaching consequences involving substantial property rights. In our view when the statute contemplated the failure on the part of the person, who has been granted with permission to purchase, as a condition precedent for bringing into the force of the operation of the vesting clause, the failure should be on account of the conscious default, negligence or refusal on the part of the person concerned and where the non-compliance was for reasons beyond his control or due to the fact that it was incapable or impossible of performance due to the operation of other provisions of law in force and that the authorities, who accorded the permission with such conditions, which are not capable of being complied with and performed and were equally at fault, it is not permissible for the respondents or for that matter any body from public including the petitioners to insist or assert that despite the obvious and for no fault of the 6th respondent, he should be condemned as having failed to comply with the conditions, that which otherwise he could have complied with, and thereby take over his property by enforcing the vesting clause engrafted in the second proviso.

In Tolaram Relumal and Another Vs. The State of Bombay, a Constitutional Bench of the apex Court while dealing with the stipulation contained in Section 18 (1) of the Bombay Rents Act observed that in case of interpretation of the provisions, which are penal in nature, it is a well settled rule of construction of penal statutes that if two possible and reasonable constructions can be put up upon a penal provision, the Court must lean towards that construction which exempts the subject from penalty rather than the one which imposes penalty, and that it is not competent to the Court to stretch the meaning of the expression used by the Legislature in order to carry out the intention of the Legislature. So far as this case is concerned, as we indicated, it could not be said to be the intention of the Legislature also to visit a citizen with such as serious penalty inspite of the use of the words if he fails to do so''.

In State of Andhra Pradesh and Another Vs. Andhra Provincial Potteries Ltd. and Others, the apex Court reiterated this principle by observing that where the words of the Section are very clear it is unnecessary to consider whether it embodies any principle and whether that principle is consistent with the principle as embodied in certain other sections which are differently worded and in interpreting a penal provision it is not permissible to give an extended meaning to the plain words of the Section on the ground that a principle recognised in respect of certain other provisions of law requires that this section should be interpreted in the same way.

In Bijaya Kumar Agarwala Vs. State of Orissa, the apex Court once again reiterated the said principles to be applied in construing a penal statute by observing that when a law visits a person with serious penal consequences extra care must be taken to ensure that those whom the Legislature did not intend to be covered by the express language of the statute are not roped in by stretching the language of the law.

For all the reasons stated above, we are of the view that the submissions of the learned counsel for the petitioners that on and with the expiry of the three years period, in total, from the date on which the land was purchased in this case the land automatically stood vested with the State free from all encumbrances, cannot merit our acceptance and shall stand rejected. We are also of the view that the concept of automatic vesting is an anathema to reasonableness and the basic principle of rule of law and unless the statute is specific and clear in providing for such vesting at least, there is hardly any scope for introducing such theories by inferences in construing the second proviso to Clause (i) of Sub-section (2) of Section 118 of the Act, which in our view, the Legislature has carefully thought to introduce a rider and a condition precedent by inserting the words ''if he fails to do so''.

For all the reasons stated above, the writ petition fails and shall stand dismissed. No costs.

In view of the dismissal of the writ petition, the interim order shall stand vacated.