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2004 Supreme(J&K) 104
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
S.N. Jha,Y.P. Nargotra, JJ.
Kewal Krishan - Appellant
Versus
State Of J&K & Ors. - Respondent
LPA(OW) No. 8/2000
Decided On : 15 April, 2004
Advocate For Appellant: S.D. Sharma
Advocate For Respondent: A.H. Qazi
The right to be recorded as 'tenant-at-will' under Govt.order No. LB-6 is independent of the attestation of mutation, and the imposition of arbitrary bans on attestation of mutations is unlawful.
Headnote:
Land Rights - State Land - Govt.order No. LB-6, Govt.order No. 432-C of 1966, Govt.order No. 254 of 1965, Govt.order No. 1458 of 1989 - The court discussed the rights conferred by Govt.order No. LB-6 and Govt.order No. 432-C, the imposition of ban on attestation of mutations by Govt.order No. 1458 of 1989, and the arbitrary exercise of power in imposing the ban.
Fact of the Case:
The appellant's father claimed tenant-at-will status and ownership rights over state land. The order attesting mutation in his favor was challenged, leading to a series of appeals and orders. The writ petition filed by the appellant was dismissed by the Single Judge, leading to this appeal.
Finding of the Court:
The court found that the right to be recorded as 'tenant-at-will' under Govt.order No. LB-6 is independent of the attestation of mutation. The imposition of a ban on attestation of mutations by Govt.order No. 1458 of 1989 was deemed arbitrary and quashed by the court.
Issues: The issues revolved around the conferment of ownership rights under Govt.order No. 432-C, the imposition of ban on attestation of mutations, and the legality of such ban.
Ratio Decidendi: The court held that the right to be recorded as 'tenant-at-will' under Govt.order No. LB-6 is substantive and independent, not dependent on the attestation of mutation. The imposition of ban on attestation of mutations was deemed arbitrary and quashed by the court.
Final Decision: The court set aside the order of the Director Land Records and allowed the writ petition, directing a fresh order to be passed in accordance with the law.
This Letters Patent Appeal arises from the judgment dated 9.11.1999 passed by the learned Single Judge whereby OWP No. 285/95 has been dismissed.
2. The case of the appellant/writ petitioner in the writ petition was that petitioners father being in continous and cultivating possession over the State land measuring 6 kanal and 6 marlas comprising in khasra No. 62/min.situated in village Murlian Tehsil R.S.Pura since 1956 became entitled to be regarded as tenant-at-will in view of Govt.order No. LB-6 and also became entitled for conferment of ownership rights under Govt.order No. 432-C of 1966. The father of the petitioner claimed benefit of Govt.order No. 254 of 1965. Tehsildar R.S.Pura attested mutation No. 394 by his order dated 19.11.1982 in his favour giving him the benefit of the said Govt.order.
3. The order of Tehsildar was challenged by the respondent No. 6 before the Financial Commissioner in a revision petition filed against the petitioner who was continuing in possession after the death of his father. Learned Financial Commissioner accepted the revision and set aside the order of Tehsildar and while remitting the case back directed that the "plea of the non-applicant that he is in physical possession of the land since 2013 Bk and acquired the rights of "tenant-at-will" (i.e. by LB-6 of 1958) may also be kept in view."
4. Tehsildar Settlement accordingly attested mutation No. 354 in favour of the appellant in acceptance of the claim of the appellant under LB-6. The order of the Tehsildar Settlement was challenged in appeal by the respondent No. 6 before Director Land Records. Learned Director Land Records by his order dated 21.8.1993 set aside the mutation principally on the ground that same could not have been attested in view of the ban imposed on attestation of mutations by Govt.order No. 1458 of 1989 dated 22.6.1989. The order of Director Land Records was challenged by the petitioner in the above said writ petition which has been dismissed by the learned Single Judge, hence the appeal.
5. We have heard the learned counsel for the parties and perused the record.
Govt.order No. LB-6 of 1958 provides:-
"Revenue and Rehabilitation Department - Order No. LB-6/C of 1958 dated 5th June 1958 - It is ordered that the occupants of State land including that vested in the State under the provisions of the Big Landed Estates Abolition Act, 2007 and that from which ejectment was ordered under Council Order No. 40-C of 1944 but ejectment has not taken place till Khariff 1957-58 be recorded as tenants-at-will (under the State) in respect of the area in their cultivating possession or occupation in khariff 1957-58."
6. From the bare reading of the above quoted order it is manifest that this Govt.order confers a right upon an occupant of State land on the relevant time to be recorded as `tenant-at-will" subject to his satisfying the conditions prescribed in Govt.Order itself. As a necessary consequence of such status conferred upon such occupant he had to pay the arrears of revenue and rent therefore mutations were being attested under the provisions of Land Revenue Act. Then the Government of Jammu & Kashmir issued Govt.order No. 432 of 1966 dated 3.6.1966 providing for conferment of proprietary rights on the cultivators of the State lands who were permanent residents of the State and stood declared as `tenants-at-will in terms of Govt.order No. LB-6.
7. Perhaps being of the view that all such cases stood settled, the Government imposed ban on attestation of mutations by its order dated 29.9.1973.This order then was rescinded by order No. 163 of 1986 dated 8.7.1986. The Government however again imposed such ban by its order No. 1158 of 1989 dated 22.6.1989 on the basis of this order the claim of the petitioner for attestation of the mutation under LB-6 has been rejected.
8. The question arising for our consideration is whether the right conferrable under Government order Lb/6 is dependent on attestation of a mutation in thi
