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1994 Supreme(J&K) 25
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
S.M. Rizvi,T.S. Thakur, JJ.
Noor Hussain & Anr. - Appellant
Versus
Financial Commissioner & 3 Ors. - Respondent
LPA (OWP) No. 81/1993
Decided On : 17 March, 1994
Advocate For Appellant: S.A. Salaria
Advocate For Respondent: R.C. Gandhi
Advocate For Respondent: S.K. Anand
The requirement of depositing nazrana within three years for acquiring proprietary rights under the Government orders was a mandatory condition, and the appellants' failure to deposit the nazrana within the prescribed period and their delay in claiming ownership rights for nearly four decades disentitled them from the benefit of the Government orders.
Headnote:
LAND REFORMS - TENANCY RIGHTS - GOVERNMENT ORDERS - INTERPRETATION - CONDITIONS FOR GRANT OF PROPRIETARY RIGHTS - TIME LIMIT FOR DEPOSIT OF NAZRANA - HARMONIOUS CONSTRUCTION OF MULTIPLE ORDERS - DIRECTORY OR MANDATORY PROVISIONS - POSSESSION OF LAND - CONTINUOUS POSSESSION REQUIREMENT.
Fact of the Case:
The appellants' grandfather was reportedly in possession of land in village Maheen Sarkar, Tehsil Samba. In 1939, the Government issued an order allowing tenants at will to register as possessing proprietary rights on payment of a sum equivalent to 20 times the land revenue. In 1940, another order allowed cultivators three years to produce a State Subject Certificate or pay the nazrana. In 1940, yet another order reiterated the requirement of paying nazrana within three years. The appellants or their predecessors did not avail of these benefits, and a mutation was attested in their favor in 1978 based on the 1939 Government Order. The mutation was challenged, and the Financial Commissioner set it aside, holding that the benefit of the Government orders could only be availed subject to fulfilling the conditions, including the deposit of nazrana within three years. The appellants filed a writ petition, which was dismissed by the Single Judge.
Finding of the Court:
The Court held that the three Government orders were not inconsistent and should be harmoniously construed. The requirement of depositing nazrana within three years was not a directory provision but a mandatory condition for acquiring proprietary rights. The appellants' failure to deposit the nazrana within the prescribed period and their delay in claiming ownership rights for nearly four decades showed that they were not prepared to pay the nazrana, and thus they could only continue as tenants-at-will. The Court also held that the benefit of ownership rights was available only to tenants who were in continuous possession of the land and were actually in possession on the date the rights were claimed. There was no finding that the appellants or their predecessors were in continuous possession of the land in 1978 when the mutation was attested.
Issues: 1. Whether the requirement of depositing nazrana within three years was a directory or mandatory provision? 2. Whether the appellants were entitled to the benefit of the Government orders despite their failure to deposit the nazrana within the prescribed period? 3. Whether the appellants were in continuous possession of the land and were actually in possession on the date the ownership rights were claimed?
Ratio Decidendi: 1. The Court held that the requirement of depositing nazrana within three years was a mandatory condition for acquiring proprietary rights. The Government orders clearly stated that tenants who were not prepared to pay the nazrana would continue as tenants-at-will. The Court rejected the argument that the provision was directory, as the conferment of ownership rights was not automatic but subject to fulfilling the conditions prescribed in the Government orders. 2. The Court held that the appellants were not entitled to the benefit of the Government orders despite their failure to deposit the nazrana within the prescribed period. The appellants' non-deposit of the nazrana was deliberate, and they had not even claimed ownership rights for nearly four decades. This showed that they were not prepared to pay the nazrana, and thus they could only continue as tenants-at-will. 3. The Court held that there was no finding that the appellants or their predecessors were in continuous possession of the land in 1978 when the mutation was attested. The benefit of ownership rights was available only to tenants who were in continuous possession of the land and were actually in possession on the date the rights were claimed.
Final Decision: The Court dismissed the appeal and directed that the parties bear their own costs.
2. The brief facts in the background may be stated thus:
3. One Noor Din S/o Nabi Baksh Qujjar, the grand-father of the appellants before us, was reportedly in possession of land measuring 32 Kanals and 15 Marlas underlying Survey Nos. 659 and 661 situated in village Maheen Sarkar, Tehsil Samba.
4. In the year 1939 the Government issued an order being Council order no. 1234-C of 1939 dated 1st of December, 1939 by virtue of which, inter alia, it was provided that all tenants at will holding land under the State may be registered as possessing proprietary rights on payment of a sum equivalent to 20 times the land revenue fixed for such land. Tenants who were not prepared to pay the aforesaid amount as Nazrana were in terms of the said order to continue as tenants at will. This concession was, however, restricted only such tenants as were state subjects.
5. In the year 1940 another Council order being order no: 290-C of 1940 on the same subject-matter was issued by the Maharajas Government, by which it was directed that cultivators of Government land in Jammu District shall be allowed three years for the production of a State Subject Certificate for payment of Nazrana equivalent to 20 times the land revenue, fixed for the land in their respective possession. It was also provided that the concession granted under Council Order No: 1234-C of 1939 shall be open to State subjects of all classes.
6. Sometimes later yet another Council Order bearing No. 872-C of 1940 was issued, by which in amplification and modification of Council Order No.: 1234-C of 1939, it was inter alia reiterated, that a tenant at will may secure proprietary rights on payment of the nazrana equivalent to 20 years land revenue. The appellants or their predecessors-in-interest did not avail of the benefit offered by the aforesaid Government Orders, with the result that neither was the nazrana paid nor were the ownership rights transferred from the state till as late as, 1978 when a mutation appears to have been attested by Additional Tehsildar, Saqiba in favour of the appellants herein on the basis of the aforesaid Government. Order- of the year 1939. This mutation came under- challenge before; the Director Land Records (with powers of Divisional -Commissioner Appeals, Jammu) who dismissed the revision petition filed before him by the allottees of the land and upheld the mutation attested in favour of the appellants.
7. Against the aforesaid order of the Divisional Commissioner, a further revision was taken by the allottees to the Financial Commissioner, who by his order dated 5th of September, 1983 allowed the same and set. aside the mutation attested in favour of the appellants holding that the benefit offered under the Government orders mentioned earlier could be availed of only subject, to the fulfillment of the conditions prescribed in the same one of them being the deposit, of nasrana equivalent. To twenty years land revenue, within a period of three years from the date Of the said orders-. The Financial Commissioner observed thus:
4) it will be seen that the order refers to two classes of tenants :- (i) those who had occupancy rights or had a continuous possession of 15 years, (ii) all other tenants-at-will. In the case of the first category, the effect of grant of proprietary rights was automatic, whereas for the second category the conferment of rights was conditional to the tenants being a state subject and His paying a "Nazrana" equal to 20 years land revenue. The order states in a very clear language that those tenants, who were not to prepare to pay the "Nazrana" he will be registered only as tenants-at-will. This requirement was relaxed under Council Order No. 290-C of 1940 in so far as such tenants were allowed a period of three years to pay the Naarana and produce t
