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2013 DIGILAW 705 (JK)

Sewa Ram v. State

2013-12-03

DHIRAJ SINGH THAKUR

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1. The predecessors-in-interest of the petitioners and proforma respondents No. 6 to 8, namely Munshi and Mangoo, sons of Niku Ram, were stated to be in possession of the State land measuring 6 kanals comprised under Khasra No. 660/418 situated at village Sangwali, tehsil Hira Nagar, District Kathua from 1947. Their possession is reflected in the revenue record in the shape of khasra girdwaries for the year 1957 to 1958 forming annexure-B, 1959-60 forming annexure-C and 1971 forming annexure-D with the present writ petition. Annexure-E, however, is an extract of the revenue record for the year 1999-2000 wherein a correction was made by the Naib Tehsildar purportedly after having visited the spot, showing not only the ownership, but also the possession of the State over the said land. A copy of the Jamabandi for the year 1958-59 also shows the aforementioned land a State land with Munshi and Mangoo as tillers. 2. The contention of the learned counsel for the petitioners is that `Fard Badr' was effected without adopting the principles of natural justice and without hearing them and the proforma respondents No. 6 to 8 and was contrary to the procedure prescribed understanding order 22-A, which determines the procedure for effecting such a correction in the khasra Girdwari. 3. Further the case of the petitioners is that in accordance with Govt. Order No. LB-6 of 1958, if a person was in occupation of the State land in the year 1957-58, he became a tenant at will under the State and under Govt. Order No. S-432-C of 1966, all the tenants at will had a right to be conferred with proprietary right. 4. The case of the petitioners, thus, is that they had an indefeasible right to hold the aforementioned 6 kanals of land and the same could not be allotted to anybody else without in the least giving an opportunity of being heard to the petitioners. 5. The infringement of the petitioners' right to hold and possess the aforementioned land is stated to be invaded by virtue of order dated 4th of March, 2003 issued by Provincial Rehabilitation Officer, Jammu on an application filed by One Mohan Lal S/o Hari Chand, a displaced person of 1947, requesting for allotment of land measuring 17 kanals and 14 marlas, which included State land under khasra No. 660/418 situated at village Sangwali, tehsil Hiranagar. 6. 6. The Tehsildar, Hiranagar is stated to have filed his detailed report dated 2nd of February, 2003, representing therein that land inter alia measuring 6 kanals falling under khasra No. 660/418 was State land and further recommended the case of the said Mohan Lal for allotment. 7. The Provincial Rehabilitation Officer, Jammu finally passed an order of allotment in favour of Mohan Lal-respondent No. 5 herein. The aforementioned order came to be challenged in a Revision before the Divisional Commissioner, Jammu, which was rejected by its order dated 23rd of March,2004. 8. Subsequently, another revision petition was filed before the J&K, Special Tribunal, Jammu, which was dismissed by virtue of order dated 22nd of August, 2007 by holding that it had no jurisdiction to entertain the same as the impugned order had been passed by the Divisional Commissioner, Jammu with powers of Deputy Custodian General and Financial Commissioner. 9. It is subsequent to the aforementioned order that the present writ petition has been filed before this court, challenging the orders dated 4th of March, 2003 passed by Provincial Rehabilitation Officer, Jammu, order dated 23rd of March, 2004 passed by Divisional Commissioner, Jammu and order dated 22nd of August, 2007 passed by J&K, Special Tribunal, Jammu. 10. The learned counsel for the petitioners, however, at the time of arguments, chose not to question the order dated 22nd of August, 2007 passed by J&K Special Tribunal, Jammu and restricted his challenge to the order passed by the Divisional Commissioner, Jammu dated 23rd of March, 2004, upholding the order dated 4th of March, 2003 passed by Provincial Rehabilitation Officer. The grounds on which the orders impugned have been challenged are that the Provincial Rehabilitation Officer did not afford any opportunity of being heard to the petitioners as they were in possession over the said State land over which the rights had accrued in their favour under Govt. Order No. LB-6 of 1958 [Refer JKS Soft JKS/5961] and Govt. Order No. S-432-C of 1966 [Refer JKS Soft JKS/5963]. 11. It is stated that the right of ownership of the petitioners had matured and that the provincial Rehabilitation Officer had no right or competence to deal with the said land. It is further stated that Govt. Order No. 158 of 1989, banning attestation of mutations under Govt. Order No. S-432-C of 1966 [Refer JKS Soft JKS/5963]. 11. It is stated that the right of ownership of the petitioners had matured and that the provincial Rehabilitation Officer had no right or competence to deal with the said land. It is further stated that Govt. Order No. 158 of 1989, banning attestation of mutations under Govt. Order No. LB-6 stood quashed by a Division Bench of this court in Kewal Krishan v. State of J&K & ors, 2004(3) JKJ 198 [HC]. 12. Reliance has also been placed on 2005(1) JKJ 520 [HC], Shanker v. Dy. Commissioner & ors. It has further been argued that the right of respondent No. 5 to get the land allotted in his favour had not been determined properly by the Provincial Rehabilitation Officer and that the order of allotment has been passed casually in his favour without holding any enquiry as regards his entitlement. It is also urged by the learned counsel for the petitioners that the Naib Tehsildar Circle Ghagwal changed the Girdawari by Fard Badr pertaining to the year 2000 without hearing the petitioners. 13. The petition is resisted by learned counsel for the respondents. 14. Heard learned counsel for the parties. 15. The order that has been challenged before this court is an order dated. 23rd of March, 2004 passed by the Divisional Commissioner, Jammu in the present petition, which was filed in September, 2007. A reference to the order passed by the Divisional Commissioner, Jammu would make it clear that admittedly, the land in question measuring 6 kanals is State land situated at Village Sangwali, tehsil Hiranagar. Although, the khasra girdwari for the previous years did show the possession of the petitioners over the land in question, yet admittedly in the khasra girdwari for the year 2000, the Naib Tehsildar had changed the girdwari by Fard Badr showing not only the ownership but also the possession of the Revenue Department of the State of Jammu and Kashmir. The said land admittedly had not been cultivated for more than five years. Not only this, Sh. Mani Ram, Amar Nath and Romesh Chander Ss/o Late Munshi Ram filed affidavits duly attested by the Naib Tehsildar, Executive Magistrate Ist class, Hiranagar wherein they deposed that their father had died ten years ago and that khasra No. 660/418 had never been cultivated by anybody after the death of their father. 16. Not only this, Sh. Mani Ram, Amar Nath and Romesh Chander Ss/o Late Munshi Ram filed affidavits duly attested by the Naib Tehsildar, Executive Magistrate Ist class, Hiranagar wherein they deposed that their father had died ten years ago and that khasra No. 660/418 had never been cultivated by anybody after the death of their father. 16. The Divisional Commissioner, therefore, in the order impugned returned a finding that the plea of cultivating possession by the petitioner No. 2 could not be accepted inasmuch as the earlier khasra girdwaries showed the father of the petitioner No. 2 to be in cultivating possession, who had since expired and that the name of petitioner No. 2 did not exist anywhere. The girdwari entry of 2000 incorporated by the Naib Tehsildar through Fard Badr also reflects that the possession was not with the petitioner No. 2. 17. Attention has been drawn to Section 32 of the Land Revenue Act by Mr. B.S. Manhas and Mr. H.A. Siddiqui, learned counsel appearing for respondent Nos. 1 to 4 and 5 to the effect that if the petitioners were aggrieved of the girdwari entry of 2000, then they ought to have challenged the same in terms of Section 32 of the Land Revenue Act before the appropriate authority. Section 32 of the Jammu and Kashmir Land Revenue Act, 1996 is reproduced as under for facility of reference: "32. Suit for declaratory decree by person aggrieved by an entry in a record. (1) If any person considers himself aggrieved by an entry in a record-of-rights [he may institute a suit before the Collector (Deputy Commissioner)] for the correction of the record, and for possession of the right claimed if he is not in possession thereof, within one year (two years in the case of Frontier Districts of Gilgit and Ladakh) from the date of publication of the record of the distribution of the assessment under section 49, sub-section(1). (2) If any person consider himself aggrieved by an entry in an annual record, [he may institute suit before the Collector (Deputy Commissioner)] within the period prescribed by the Limitation Act No. IX of 1995 for correction of the record and for possession of the right claimed if he is not in possession thereof, or for declaration of his right if he is in possession thereof: Provided that, nothing in this sub-section shall entitle any person to bring a suit for the correction of the records-of rights of a prescribed for such suit in sub-section (1) has expired. (3) Nothing in this section shall be a bar to a suit by a tenant, to contest his liability to ejectment on the ground that he is an occupancy tenant under sections [7-A (1) and 50(7)] of the Jammu and Kashmir Tenancy Act, 1980" 18. The assertion of learned counsel for the petitioners that they were in possession of the land in question, thus, comes under a cloud by the girdwari entry of 2000. There was every justification for the Divisional Commissioner, Jammu while deciding the Revision Petition in question to rely upon the revenue entries in existence to decide that the petitioner No. 2 did not have possession over the land in question and, therefore, it was not necessary to afford an opportunity of being heard to him. 19. Since admittedly, the land in question is State land and the petitioners had no possession over the same, it was open for the official respondents to allot the same in favour of any eligible person under Cabinet order No. 578-C of 1954 dated 7th of May, 1954. Another issue highlighted by learned counsel for the respondents was that it was not just on the basis of the revenue entries of 2000 and thereafter that the officials respondents had come to a conclusion that the possession was that of the State but the said conclusion had been arrived at after inspection on spot as can be seen from the order of the Provincial Rehabilitation Officer. The petition even otherwise suffers from delay and latches inasmuch as the order dated 23rd of March, 2004 is sought to be challenged before this court in September, 2007. 20. For the reasons mentioned hereinabove, the petition is found to be without merit and is accordingly dismissed along with CMA No. 1194/2007.