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JAMMU AND KASHMIR HIGH COURT
Muzaffar Hussain Attar, J.
Mohammad Akbar Shah & Ors. - Petitioners
Versus
State & Ors. - Respondents
OWP No. 982 of 2015
Decided On : 31-05-2016
Land Alienation - Ownership Rights - Jammu and Kashmir Land Revenue Act, Samvat 1996, Jammu & Kashmir Agrarian Reforms Act, 1976 - [LB-6/C of 1958, S-432 of 1966] - The court discussed the provisions of the orders of 1958 and 1966, which imposed conditions on land occupants, and the implications of the Jammu and Kashmir Land Revenue Act, Samvat 1996 and the Jammu & Kashmir Agrarian Reforms Act, 1976 on the alienation of land. The court held that the condition of seeking permission for alienation of land, in respect of which ownership rights were conferred, had ceased to be in operation and was against the concept of exercising complete dominion over the land. The court also considered the historical context of the land use and economic activities in the State, and concluded that the condition of seeking previous permission for alienation of land, given for agriculture purposes, was rendered otiose and would not affect the right of the owner of the land to alienate the same, provided other statutory requirements are fulfilled for such alienation.
Fact of the Case:
The petitioner No.1 executed a Sale Deed in favor of petitioners 2 to 5 for land, for which proprietary rights were conferred upon him in terms of orders of 1958 & 1966. The Sub Registrar refused to register the document on the ground that petitioner No.1 had not obtained permission for alienating the land as prescribed in the order of 1966. The Appeal against this decision was rejected by the Registrar (Principal District Judge, Badgam), leading to the writ petition.
Finding of the Court:
The court held that the condition of seeking permission for alienation of land, in respect of which ownership rights were conferred, had ceased to be in operation and was against the concept of exercising complete dominion over the land. The court also concluded that the condition of seeking previous permission for alienation of land, given for agriculture purposes, was rendered otiose and would not affect the right of the owner of the land to alienate the same, provided other statutory requirements are fulfilled for such alienation.
Issues: The main issue was whether the petitioner No.1 was required to seek permission from the Government for alienation of land, and the interpretation of the relevant legal provisions in this regard.
Ratio Decidendi: The court's decision was based on the interpretation of the orders of 1958 and 1966, the Jammu and Kashmir Land Revenue Act, Samvat 1996, and the Jammu & Kashmir Agrarian Reforms Act, 1976, and the historical context of land use and economic activities in the State.
Final Decision: The court set aside the orders of the Sub Registrar and Registrar (Principal District Judge, Badgam), directing them to admit the documents for registration and register the same without asking for obtaining previous permission from the Government for such alienation.
Key Points: - The court held that the condition of seeking permission for alienation of land, in respect of which ownership rights were conferred, had ceased to be in operation and was against the concept of exercising complete dominion over the land. (!) (!) - Proprietary rights were conferred on the land cultivator (petitioner No.1) under orders of 1958 and 1966, with conditions including that the land shall be used for agriculture and that alienation requires previous government permission. (!) (!) (!) - After the 1976 Act, and the omission of section 31 (and change in section 42(1) and related provisions), the requirement to seek prior permission for alienation was deemed to have ceased or become otiose, and the owner may alienate the land provided other statutory requirements are fulfilled. (!) (!) (!) - The petition was disposed of by directing registration of the sale deed without requiring prior government permission for alienation. (!) (!) - The Sub Registrar and Registrar’s earlier orders denying registration for lack of permission were set aside. (!) (!) - The land in question is located in Charar-i-Sharief, Badgam, with specifics of survey and tenancy status as provided in the record. (!) (!) (!) - The argument that ownership rights conferred by 1966 outlived their life and that the Transfer of Property Act and other acts govern alienation thereafter was considered in the judgment. (!) (!) - The petition highlighted that the Acts and rules exist to govern alienation, but the court concluded the permission requirement was no longer operative for owners with proprietary rights conferred. (!) (!) - The judgment sets aside two prior orders and mandates admission and registration of the Sale Deed for petitioners 2 to 5. (!) (!) (!)
Muzaffar Hussain Attar, J.
The petitioner No.1 executed Sale Deed in favour of petitioners 2 to 5 in respect of land measuring 02 kanals, covered by Survey No. 950 min, Khevat No. 845, situated at Mauza Charar-i-Sharief, Tehsil Charar-i-Sharief, District Badgam. Petitioner No.1 was recorded as Tenant-at-Will (under the State) in respect of land, which was in his occupation, in accordance with the mandate contained in order No. LD-6/C of 1958 dated 05th June, 1958 (for short order of 1958). In terms of this order of 1958, petitioner No.1, as occupant, was not authorised to transfer the land or any interest therein. The said order of 1958 imposed some other conditions on petitioner-occupant of the land.
2. In terms of Government order No. S-432 of 1966 dated 03rd June, 1966 (for short order of 1966), it was provided that proprietory rights be conferred on the cultivators of State land, who are permanent residents of State and have already been declared as Tenant-at-Will in accordance with order of 1958 subject to certain conditions, which include that the land shall be used for agriculture purposes only and the grantee shall not be entitled to alienate it without previous permission of the Government. Relevant part of orders of 1958 & 1966 are taken note of :
"Revenue and Rehabilitation Department Order No. LB-6/C of 1958 dated 5th June, 1958.
It is ordered that the occupants of Stand land including that vested in the State under 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 Kharif 1957-58 be recorded as tenants-at-will (under the State) in respect of the area in their cultivating possession or occupation in Kharif 1957-58, subject to the following conditions, namely:-
1. (a) ……………………..
(i) ………………………
(ii) ………………………
(iii) ………………………
(iv) ………………………
(b) ………………………
(c) The occupants shall not-
(i) transfer the land or any interest therein; or
(ii) sub-let the land for more than two successive harvest or, with the permission in writing of a revenue officer not below the rank of Tehsildar, for more than three years; or
(iii) where the land is used for growing paddy, maize or wheat crop, convert it into an orchard or plantation or otherwise render it unfit for the cultivation of such crops; or
(iv) fail to cultivate the land for more than one year or neglect to conform to standards of cultivation prevalent in the village."
"Revenue Department Notification, Government Order. No. S-432 of 66 dated 3rd June, 1966.
It is ordered that proprietory rights be conferred on the cultivators of State lands who are permanent residents of the State and have already been declared as tenants-at-will in terms of Government order No. LB/6-C of 1958 subject to the conditions that:-
(1) land is held by them in self cultivation continuously from Kharif 1957-58;
(2) the areas of the land given on proprietary rights should not exceed two acres of Abi and four acres of Khushki in Kashmir Province including the District of Ladakh and four acres of Abi or 6 acres of Khushki in the Jammu Province, in both cases including the land already held in ownership rights;
(3) no right should be conferred in respect of land entered in records or used as Kahcharai or for any common purpose or orchard, tree plantations, shop sites, land under structures used for commercial purposes and residential buildings.
(4) the grantee shall use it for agricultural purposes only and shall not be entitled to alienate it without the previous permission of the Government;
(5) the grantee shall be liable to pay the land revenue including cesses and other dues as provided for in the orders by which they are declared as tenants-at-will.
II. Any violation of the condition of the grant as detailed above shall make the grant liable to forfeiture.
The recommendations made by the Land Commission in their second interim report in respect of grant of extension in the time limit for filing
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