Applicability of the provisions of Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 on transfer of Land through open auction under SARFAESI Act.
What is SARFAESI Act
The SARFAESI Act full form is – “Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act”. The SARFAESI Act allows banks and other financial institutions for auctioning commercial or residential properties to recover a loan when a borrower fails to repay the loan amount. Thus, the SARFAESI Act, 2002 enables banks to reduce their Non-Performing Assets (NPAs) through recovery methods and reconstruction.
Defination of Agriculturist in Section 118 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972
Section 2(2) of the H.P. Tenancy and Land Reforms Act, 1972 defines that expression the Agriculturist means a person who cultivate land personally in an estate situated in H.P. to Cultivate personally has further been defined in section 4 means:-
(i) by one’s own account;
(ii) by one’s own labour;
(iii) by the labour of any member of one’s family; or
(iv) under the personal supervision of one-self or any member of one’s family by hired labour or by servant on wages payable in case.
Direct purchase of land /property through SARFAESI Act 2002 ( Auction ) in Himachal Pradesh.
In the present case SARFAESI Act, 2002 is an Act which regulates the ‘Banking’ and other things incidental
thereto. When there is a conflict between this Act which is Central Act, and State Legislation, and pertains to matter, which is exclusively within the domain of the Parliament the State legislation will have to give way to the Central Legislation because the subject in issue is specifically covered under list 1 of Schedule 7. The effect of judgment on Section 118 of the H.P. Tenancy and Land Reforms Act is that section 118 of the Act will remain as it is in the status Book and it will be eclipsed when it comes into conflict with the SARFAESI Act, 2002 and for that matter, any Act passed by the Union Parliament with regard to the subject, which is specifically covered by entry in list 1 of Schedule 7 of the Constitution of India and as such rigors of Section 118 of the H.P. Tenancy and Land Reform Act, 1972 will not apply to the extent of seeking permission of the State Government for transfer of title in case of auction conducted by Banking Institution under the SARFAESI Act, 2002. Apart from it, the transfer of title does not affect the State as the auction purchaser steps into the shoes of earlier owner, so far as the state is concerned.
However, it is made clear that the auction purchaser(s) of such land will remain non-agriculturist of H.P. for the purpose of this Act and a note be given in all remarks column of jamabandi with red ink to this effect. It is further clarified that the provisions of the Section 118 of the H.P. Tenancy and Land Reform Act, 1972 will be applicable in all other cases.
Disclaimer
The material and information contained on this article is for general information and educational purpose only .
