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2004 DIGILAW 147 (JK)

Amar Nath v. State Of J. &K.

2004-05-14

PERMOD KOHLI

body2004
Petitioner and respondent No. 5 migrated during the partition of 1947 alongwith Ram Saran their uncle. They approached the Rehabilitation Department for allotment of land being refugees. Ram Saran being the eldest member was made Head of the Family comprising of petitioner, respondent No. 5 and his family. Land measuring 32 Kanals comprising Kh No. 86, 122/ 37, 34 & 37-Min situated at Kotli Galabana, Tehsil R.S. Pura was allotted to them under Cabinet order No. 578-C of 1954. The possession of the same was also delivered and the same was being cultivated by the petitioner, respondent No. 5 and Ram Saran. Ram Saran died in the year 1977. Respondent No. 5 approached the authorities after the death of Ram Saran and got himself declared as head of the family comprising of members of his family excluding the petitioner as member of the family. Consequently a mutation under section 3-A of the Jammu and Kashmir Agrarian Reforms Act being mutation No. 304 came to be attested in favour of respondent No. 5. Petitioner on acquiring the knowledge of the same challenged the said mutation before the Agrarian Reforms Commissioner in appeal which was accepted and vide order dated 22-11-1983 the mutation was set aside. Respondent No. 5 challenged the order of the Agrarian Reforms Commissioner by way of revision before the Government (the then Honble Minister) and later on with the constitution of the Special Tribunal, the same was decided by the J&K Special Tribunal, who dismissed the same vide judgment dated 16-1-1987 up-holding order dated 22-11-1983 passed by the Agrarian Reforms Commissioner. Respondent No. 5 filed writ petition No. 272/ 1987 challenging the order passed by the Tribunal. However, the writ petition was withdrawn on 2-4-1987 with liberty to file a fresh petition. After some time respondent No. 5 filed another writ petition challenging the afore-said order under the liberty granted by the writ Court and the writ Court vide its order dated 22-2-1992 allowed the writ petition and remanded the case back to the Special Tribunal for re-hearing after giving the reasonable opportunity to the parties. On remand the case was again heard by the Special Tribunal and the Tribunal passed the order dated 31-10-2000 impugned in this petition. On remand the case was again heard by the Special Tribunal and the Tribunal passed the order dated 31-10-2000 impugned in this petition. Vide the impugned order Tribunal set aside the order passed by the Agrarian reforms Commissioner dated 22-11-1983 and restored the mutation No. 304 attested in favour of respondent No. 5. 2. Petitioner has challenged this order on the ground that the petitioner being a Member of the family of Ram Saran could not have been deprived of his right in the land allotted to the family. It is also stated that the petitioner was in possession of 8 Kanals of land and was in exclusive possession thereof after separation during the life time of Ram saran. He is cultivating the said land since 1965. He approached the Revenue Minister in the year 1967 for allotment of more land for livelihood of his family. The Revenue Minister accordingly allotted 18 Kanals of more land in 1967 to the petitioner having the family of six members and the total land held by the petitioner comes to 24 Kanals which is less than the scale permissible under rules. According to the petitioner he cannot be deprived of his right over the land allotted to the family of Ram saran under law. 3. From the impugned order it appears that the Tribunal was persuaded to accept the revision petition primarily on the ground that the petitioner separated from the family of Ram saran and secured 18 Kanals of land as a separate family and thus lost his right in the land allotted to the original family of Ram saran some where in 1965 but continued to cultivate and occupy 8 Kanals of land out of total 32 Kanals. The possession of the petitioner over the said land is also admitted by respondent No. 5 who made an application to Tehsildar R.S. Pura in Nov 2000 for seeking possession of 8 Kanals of land under Kh No. 5 of village Kothi Gulaba from the petitioner. This application was on the basis of the impugned judgment. There is another admitted fact that respondent No. 5 got himself declared as Head of the Family after the death of Ram saran and excluded the petitioner and his family from the list of the members of the family while seeking such declaration. 4. This application was on the basis of the impugned judgment. There is another admitted fact that respondent No. 5 got himself declared as Head of the Family after the death of Ram saran and excluded the petitioner and his family from the list of the members of the family while seeking such declaration. 4. Two questions that fall for consideration and on which the parties have made their submissions are- (1) Is the petitioner entitled to any share in the land allotted to the family under Cabinet Order 578-C of 1954? (2) Whether Separation of the petitioner from the family of Ram saran and allotment of 18 Kanals of land in his favour under LB 7-C dis-qualify him from seeking any share in the land allotted to the family of which he was the member at the time of allotment. Question No. 1. Admittedly, allotment of 32 Kanals of land was to the family comprised of Ram Saran, petitioner and respondent No. 5 and their families. This allotment was made to them as displaced person and in terms of Cabinet order No. 578-C of 1954 which regulate not only the allotment but its continuation etc also. Rule 15-B deals with the question of survivorship and the procedure to be adopted. The relevant extract of the said rule is quoted below: "15-B: Procedure regarding survivorship (1) An entry of the allotment of land made under these rules or under orders made previous to them shall be made in the Girdawari register in the column for `changes in rights, cultivations and rent and brought upto-date at every harvest inspection. (2) After an allottee has died or otherwise ceased to be in possession of the allotted land, his interest in the allotted land shall be devolved on the other members of his family in whose favour allotment of land had been originally made or regularized under the said rules) under the rule of survivorship and not on those who were not included in such family at the time of first valid allotment. (3) Where an allottee family has disintegrated, partition may, after such enquiry as may by necessary and upon an application submitted to him, be confirmed by the Tehsildar, all the members of the family (as composed at the time of first valid allotment made or regularized under rules) being treated to have equal shares. (3) Where an allottee family has disintegrated, partition may, after such enquiry as may by necessary and upon an application submitted to him, be confirmed by the Tehsildar, all the members of the family (as composed at the time of first valid allotment made or regularized under rules) being treated to have equal shares. Upon such confirmation, the Tehsildar may cause the allotted land apportioned amongst the families so divided. Such partition shall not entitle the families to any further allotment of land. (4) - (5) x x x x x x" Sub Rules 2 & 3 of the afore-said Rule 15-B were subsequently amended vide SRO 739 dated 17-11-1976, which are also re-produced here-under: "(2) If an allottee dies, his interest in the allotted land shall devolve on other members of his family in whose favour allotment of land has been originally made or regularized under these rules and on those who may have become members of the family by way of marriage, birth or adoption after such allotment excluding these who may died earlier or may have left the family on account of marriage or adoption." (ii) In sub-rule (3) the brackets and the words, "as composed at the time of first valid allotment made or regularized under rules", shall be omitted." 5. Under sub-rule (1) of Rule 15-B an entry of allotment of land is required to be made in the Girdawari Register in the column meant for cultivation. Under sub-rule (2) after the death of the allottee his interest in the allotted land devolves upon other members of the family (in whose favour allotment of land had been originally made or regularized under the said rule). This devolution is on the basis of the rule of survivorship and confined only to such member of the family who was included in such family at the time of first valid allotment. The rules thus in clear terms provide that in the case of death of the original allottee only such members of the family who are included in his family strength at the time of allotment are entitled to hold the land being the surviving members. The rules thus in clear terms provide that in the case of death of the original allottee only such members of the family who are included in his family strength at the time of allotment are entitled to hold the land being the surviving members. Sub-rule (3) of Rule 15 specifically deals with the separation of the members of the family and provide that on disintegration or partition of the family of allottee every member of the family, who was included in the family strength of the allottee at the time of first valid allotment shall be entitled to equal share with other members of the family. 6. After the allotment introduced in 1976 the devolution of the interest of the deceased allottee shall be not only on the members of the family who were included in original family strength at the time of allotment but also on such members, who may become the members of the family by marriage, birth or adoption after the allotment and such of the members of the family, who ceased to be the member of the family on account of marriage or adoption are to be excluded and no devolution shall take place in their case. To the amendment made in sub-rule (3) the brackets and the words "(as composed at the time of first valid allotment made or regularized under rules" are omitted. Whether under the original Rule 15-B or under the amended rule, a person who was a member of the family at the time of allotment is entitled to equal share alongwith other members of the family, who have survived the deceased, except those who ceased to be the members on marriage or adoption. No such case has been brought to the notice. Though there may be some addition to the family after allotment and in view of the amendment they also acquire the interest in the allotted land. A conjoint reading of sub-rule (2) & (3) amended/un-amended makes it clear that a member of the family, who was included in the family strength of the original allottee definitively acquires a right in the allotted property after the death of the original allottee irrespective of separation or partition. Petitioner being one of such member had have a share on the death of Ram Saran. Petitioner being one of such member had have a share on the death of Ram Saran. Since the allotment was originally in favour of three components of the family, petitioner was entitled to 1/3rd share in the land when he separated from the family in the year 1965 during Ram Sarans life. It is no-bodys case that Ram Saran made any Will in favour of respondent No. 5 or any other person bequeathing his interest/share in the property. He having died instate his 1/3rd share is also to devolve upon the families of petitioner and respondent No. 5 equally, meaning thereby that after the death of Ram saran, petitioner and respondent No. 5s families were/are entitled to + share each in 32 Kanals of land. 7. Mr. K.S. Puri, appearing for respondent No. 5 has vehemently argued that after the death of Ram Saran, respondent No. 5 has been declared as head of the family and a mutation under-section 3-A having been attested in his favour as the head of the family and as the petitioner separated himself and constituted a separate family during the life time of Ram Saran, he is not entitled to any share. He has further argued that order dated 5-8-1991 whereby respondent No. 5 has been made head of the family after the death of Ram saran having not been challenged, the petitioner cannot claim any interest/ right in the land allotted to Ram Saran. I am unable to accept this contention. Making a person head of the family does not dis-entitle the other members of the family from their right or share in the allotted land as the land was allotted for the benefit of the members of the family alone. In the present case when respondent No. 5 approached the authorities for declaring him as the head of the family no notice was given to the petitioner. It is not denied that the order dated 5-8-1991 has not been challenged. Petitioner was not required to challenge this order. In the present case when respondent No. 5 approached the authorities for declaring him as the head of the family no notice was given to the petitioner. It is not denied that the order dated 5-8-1991 has not been challenged. Petitioner was not required to challenge this order. He having separated himself from the family could not have claimed head-ship of the family, but that does not deprive him of his right in the allotted land in view of clear provision of rule 15-B. Though the petitioner is entitled to half of the land but he has confined his claim only to 8 Kanals of land which were in his possession right from 1965 when he separated from the family of Ram Saran. Under Rule 3-A of the Agrarian Reforms Act any person who is in actual cultivating possession of the land is entitled to occupancy rights. Petitioner was also one of the person in actual cultivating possession of 8 Kanals of land and thus he was entitled to occupancy rights in respect to 8 Kanals. As a matter of fact respondent No. 5 was in possession of only 24 Kanals of land and the mutating authority while attesting mutation No. 304 was not competent to mutate entire 32 Kanals of land in his favour under-section 3-A of the Agrarian Reforms Act. Question No. 2 It is admitted case of both the parties that after separation from the family of Ram Saran, petitioner applied for allotment of land and has been allotted 18 Kanals of land under LB-7 C. Respondent No. 5 has placed on record a copy of the allotment order in favour of the petitioner as Annexure R-1 with the reply. This allotment order is under LB/7-C of 1958. Respondent No. 5 has also referred to mutation No. 810 attested in favour of the petitioner in respect to 18 Kanals of land and also Annexure R-5 which indicate that respondent No. 5 has been declared as head of his separate family. The land allotted in favour of the petitioner under LB/7-C is an evacuees land and he has also been conferred occupancy rights under section 3-A of the J&K Agrarian reforms Act. 8. The land allotted in favour of the petitioner under LB/7-C is an evacuees land and he has also been conferred occupancy rights under section 3-A of the J&K Agrarian reforms Act. 8. From the perusal of LB-7C it appears that a landless agricultural labourer and petty land holder is entitled to allotment of land under LB/7-C, notwithstanding the fact whether he is a local or a displaced person. The scale of the land to be allotted under this Government order is prescribed therein. Petitioner has not secured any benefit as a displaced person, but fact remains that the total land in his possession cannot exceed the prescribed scale. Any allotment of land to a person under LB/7-C cannot dis-qualify him from retaining his share in the land allotted to the displaced family under Cabinet Order 578-C. If the petitioner has been allotted any excess land under LB/7-C the same is liable to be cancelled to the extent, it is in excess of the scale. As a matter of fact the counsel for the petitioner also made a statement before the Tribunal that he is willing to fore-go the allotment made under LB/7-C. This should have been sufficient to up-hold the order dated 22-11-1983 passed by the Commissioner, Agrarian Reforms. 9. In view of the above position, it appears that the Tribunal has mis-directed itself in allowing the revision petition and setting aside the order of the appellate authority (Commissioner, Agrarian Reforms). 10. For what has been stated hereinabove, this petition is allowed, the order of the J&K Special Tribunal is set aside and that of the appellate Authority (Commissioner, Agrarian Reforms) dated 22-11-1983 is restored. However, the right of the petitioner in the allotted land shall remain confined only to 8 Kanals out of 32 Kanals. Respondents No. 1 to 4 are further directed to examine if the petitioner is holding land in excess of the prescribed scale taking into account 8 Kanals of land held by him as his share out of 32 Kanals and 18 Kanals allotted to him under LB/7-C, the land allotted to him under LB/7-C be cancelled to the extent it is in excess of the prescribed scale.