HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. LPAOW No. 2 OF 2009 Majid Ahmad Khan. Petitioners Satpal & ors. Respondent !Mr. R. S. Thakur, Advocate Mr. H. A. Siddiqui, Advocate. ^Mr. S. S. Lehar, Sr. Advocate Mr. A. H. Qazi, AAG. Hon'ble Mr. Justice Barin Ghosh, Chief Justice Hon'ble Mr. Justice J. P. Singh, Judge Date: 04.04.2009 :J U D G M E N T :
Per Barin Ghosh, CJ:
In this appeal, we are concerned with a land
measuring 2 Kanals 1 marla under Khasra no.99 situate at
Golod, Tehsil Mendhar. On September 26, 1987, by an
order, on the recommendation of the Assistant Custodian
(Tehsildar) Mendhar, the said land was leased out by the
Custodian, Evacuee Property, Jammu, in favour of the
2
appellant at a premium of Rs.100 and ground rent of Rs.26
per month for a period of one year in the first instance. No
formal lease was executed. By an order dated February 22,
1989, lease of the said land in favour of the appellant was
extended for a further period of 20 years by the Custodian
General, when the premium was increased to Rs.5,000 per
Kanal and the ground rent was increased to Rs.50 per
kanal per annum, and certain conditions were imposed.
Even thereafter, no lease was executed. Petitioner-
respondent approached the Special Tribunal and expressed
his grievance in regard to the said grant. Before the Special
Tribunal, it was contended by the petitioner-respondent that
he has some interest in the land in question and that before
grant or extension of the lease, he was entitled to be heard.
The Special Tribunal accepted such contention of
petitioner-respondent and set aside the order of extension,
and directed the Custodian General, Jammu to pass fresh
orders after hearing the parties. As a result extension of the
lease came to an end. The original lease was then not
subsisting.
3
Custodian General, Jammu heard the parties and
recorded that admittedly petitioner-respondent is a
displaced person and he had been allotted the said land
along with other land under Khasra nos.99 and 96. The
Custodian General, at the same time, held that petitioner-
respondent, as per records, never took possession of the
said land. He thereupon noted paragraph 5 of Cabinet
Order no.578-C and held that, in terms of the provisions
contained therein, petitioner-respondent has forfeited his
right to occupy the said land.
In order to arrive at the said conclusion, apart from
noting paragraph 5 of the said Cabinet Order, the
Custodian General, Jammu, took into consideration
mutation order no.151 dated July 4, 1981 issued under
section 3A of the Agrarian Reforms Act, 1976 and the
report of the Custodian, Jammu, dated February 9, 1989,
which was allegedly called for by the then Custodian
General before extending the lease. After looking at the
mutation order referred to above, the Custodian General
held that, as recorded therein, petitioner-respondent himself
4
admitted before the Tehsildar, Mendhar that he had never
taken or remained in possession of the land in question. By
looking at the alleged report of Custodian, Jammu, referred
to above, the Custodian General, Jammu, observed that in
the said report it has been reported that petitioner-
respondent is holding surplus land than permissible under
the said Cabinet Order and that petitioner-respondent was
never in possession of the land in question since 1962. On
the basis of the findings derived from the said mutation
order and the said report, and applying those findings to the
provisions contained in the said Cabinet Order, the
Custodian General, Jammu held in his order dated
February 18, 2002 that petitioner-respondent had no
subsisting right in the land in question as on the date of
grant of the initial lease as well as extension thereof and,
accordingly, non-suited the petitioner-respondent. At the
same time, the Custodian General, Jammu, in his said
order dated February 18, 2002 held that grant of lease of
the said land in favour of appellant and extension thereof
were inappropriate and contrary to rules but, despite that,
did not interfere with such grant and extension and, on the
5
contrary, by the said order altered the terms of the
extended lease.
Petitioner-respondent then approached this Court by
filing a writ petition. By that, he challenged the order of the
Custodian General, Jammu dated February 18, 2002.
There cannot be any dispute that the writ petition was not
appropriately drafted, but the fact remains that a reading of
the writ petition would make it amply clear that petitioner-
respondent was seeking quashing of the order passed by
the Custodian General, Jammu dated February 18, 2002
and, at the same time, was advancing his grievance that
the said land, which stood allotted to him, has been leased
out to the appellant in violation of law.
By the judgment and order under appeal, the writ
petition has been allowed. Although the Custodian General
by his order dated February 18, 2002 did not in so many
words cancel the allotment in favour of petitioner-
respondent, but insinuated, for the reasons indicated
above, that the allotment of the said land in favour of
petitioner-respondent stood forfeited. By the judgment and
6
order under appeal, the learned Judge set aside the order
of cancellation of allotment in favour of petitioner-
respondent, i.e., insinuations that the allotment of the said
land in favour of petitioner-respondent stands forfeited and,
at the same time, the learned Judge quashed the orders
granting lease and extension thereof in favour of the
appellant, and directed eviction of appellant from the land in
question with a further direction to hand over possession
thereof to petitioner-respondent. Being aggrieved thereby,
the present appeal has been preferred.
The principal contention of the appellant before us is
that when the order was passed on September 26, 1987 to
lease the land in question in favour of appellant, petitioner-
respondent had no interest therein inasmuch as allotment
of the land in question in favour of petitioner-respondent
stood forfeited. The other contention of the appellant is that
there has been unexplained delay, latches and negligence
on the part of petitioner-respondent in taking steps as he
purported to take in the year 1999 by approaching the
7
Special Tribunal seeking to challenge the order dated
February 22, 1989, by which the lease was extended.
It is the contention of petitioner-respondent that there
is no forfeiture of the allotment made in his favour and the
records, upon which reliance has been placed, would amply
demonstrate that the facts justifying forfeiture were absent
in the instant case. It was also contended by petitioner-
respondent that there was no delay or latches on his part in
taking remedial measures for which he had approached the
Special Tribunal.
The contention of the State is that, in the given facts
and circumstances of the case, what best could be done by
the Custodian General, Jammu, was done by him while
passing the order dated February 18, 2002.
In course of submissions, the learned counsel
appearing on behalf of appellant submitted that on the
strength of the lease, appellant has constructed shops as
well as residential infrastructure on the land in question and
only after steps to do so had been taken, petitioner-
respondent took steps as were taken by him. The fact
8
remains that subsequent to 1999, i.e., after petitioner-
respondent approached the Special Tribunal, the extension
of the lease was cancelled by the Special Tribunal. The
appellant did not express any grievance in regard thereto.
By the order impugned in the writ petition dated February
18, 2002, the Custodian General directed grant of fresh
lease on new terms and conditions and, soon thereafter, in
2002, this writ petition was filed when orders were passed
to maintain status-quo and there is nothing on record as to
when permission to construct was obtained by the appellant
and when, in fact, construction commenced. Therefore, the
ground taken by the appellant that writ petitioner
respondent was guilty of latches or negligence is of no
effect.
The question that requires answer in this appeal is,
therefore, whether the Custodian or the Custodian General,
as on September 26, 1987 or on February 22, 1989 was
entitled to deal with the land in question as was dealt with
by them by granting a lease for one year and, thereupon,
extending the same for 20 years.
9
There is no dispute that the land in question is an
evacuee property and, accordingly, the same vested in the
Custodian of Evacuee Properties. Such lands have been
dealt with by the J&K Evacuees (Administration of Property)
Act, Svt. 2006. Clause (d) of Section 2 of the Act provides,
among others, that an evacuee property means any
property in which an evacuee has any right or interest and
includes any property which has been obtained by any
person from an evacuee after 14th day of August, 1947 by
any mode of transfer unless such transfer has been
confirmed by the Custodian. The said clause of the said
section excludes certain properties with which we are not
concerned. Section 3 of the said Act provides that
provisions of the Act and the Rules and Orders made
thereunder shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the
time being in force or in any instrument taking effect by
virtue of any such law. Section 5 of the said Act, subject to
the provisions thereof, vests all evacuee property in the
Custodian.
10
Clause (a) of section 2 of the said Act defines
allotment. It says that allotment means grant by the
Government or the Custodian or any other person duly
authorized by the Custodian in this behalf of a temporary
right of use and occupation of any immovable property of
an evacuee to any person otherwise than by way of lease.
Section 39 of the Act authorizes Government to make rules
to provide, amongst others, the manner and conditions
subject to which the Custodian may allot any immovable
property vested in him as well as the circumstances in
which leases and allotments may be cancelled or
terminated or the terms of any lease or agreement varied,
as well as any other matter which has to be and may be
prescribed under the Act.
In terms of the power so conferred by section 39 of the
Act, the J&K State Evacueesb�(tm) (Administration of Property)
Rules Svt. 2008 were made by the Government. The same
originally did not, however, deal with either allotment or
lease of evacuee properties, unless so done by rule 13
thereof, which was not produced for our consideration.
11
Subsequently, in exercise of powers conferred by section
39 of the Act to provide the manner in which and the
conditions, subject to which the Custodian may allot any
immovable property vested in him and the
circumstances in which leases and allotments may be
cancelled or terminated or the terms of any lease or
agreement varied, Allotment of land to Displaced persons
Rules, 1954, more particularly known as Cabinet Order
no.578-C of 1954 dated May 7, 1954, was made by the
Government. The said Rules of 1954, however, did not
address either grant or cancellation or variation of the terms
or conditions of lease. It dealt with allotment of land and
cancellation of such allotment. Allotment of land has been
dealt with in rule 5; whereas cancellation of allotment of
land has been dealt with in rule 12 of the said rules. Rule 12
provides that Tehsildar or the Provincial Officer shall have
power to cancel allotment when the allotment is in excess
of the permissible limit and the allottee shall forfeit his right
to claim allotment of land in his favour in future. Rule 5 of
the said Rules is as follows:
12
b�Liability to cultivate allotted land personally and
consequences of failure to do so.
(1) A displaced family, who may hereafter be,
and such family as has already been, allotted land,
shall be bound to bring such land under personal
cultivation within six months of the date of delivery
of possession on allotment or the date of this
order, as the case may be, failing which such
family shall forfeit its right to occupy such land.
(2) The land, of which the right to occupy is
forfeited under clause (1) may be re-allotted to any
other displaced family, which shall not have been
settled on land by that time and failing it shall
continue with the person, who has been in actual
cultivating occupation thereof; provided such
person is a landless tiller, and otherwise will be let
out to a landless tiller, to the extent of the limit
permissible.
Explanation.- b�Personal cultivationb�(tm) includes
cultivation by any member of the family.b�
Rule 5 of the said rules, quoted above, would show
allotment of land can be made for cultivation thereof.
Forfeiture of the allotment is a certainty if the land is not
cultivated within six months from the delivery of
possession of the land on allotment or the date of
coming into force of the said rules. If an allotment is
made, the same denotes grant of right in favour of the
allottee to occupy the land, but for cultivation only. If the
13
right is forfeited, the allotted land becomes available for
re-allotment, but again, for cultivation. In the event re-
allotment of the land is not made, the land will continue
with the person who has been in actual cultivating
possession thereof, provided such person is a landless
tiller and, if the same is not in possession of any person
who has been in actual cultivating possession thereof,
the land would be let out to a landless tiller to the extent
of the limit permissible. In other words, it suggests that
once a land is allotted, such land would remain either
with the original allottee, if the allotment is not forfeited,
or with the re-allottee, or with the person in cultivating
occupation, or with a landless tiller, but for the purpose
of cultivation.
In this connection, one is required to take note of
rule 6 of the said rules, which grants exemption from
personal cultivation in certain cases. While granting
exemption, it has been expressly stated that the allotted
land in no case shall be left fallow, i.e., uncultivated. It
provides further that, if the land is left fallow or
14
uncultivated without sufficient cause for more than six
months from the date the said rules came into force or
the date of delivery of possession, it shall be lawful for
the revenue authority to let out the same to such
landless tiller as he deems fit and on payment of such
rent as he may consider fair. This is also an indication
that an allotted land was intended to remain in
cultivation for all times to come.
Looking at rules 5, 6 and 12 of the said rules, it
appears that a land allotted should not only remain
under cultivation, but if an allottee or a re-allottee fails
to bring the same under personal cultivation within six
months from the date of delivery of possession of the
land on allotment or re-allotment, his right to occupy the
land on the basis of allotment or re-allotment will stand
forfeited. Similarly, if an exempted allottee or re-allottee
fails to arrange cultivation of the land for more than six
months from the date of delivery of possession of the
land on allotment or re-allotment, his right to occupy the
land on the basis of the allotment or re-allotment will
15
stand forfeited. However, in the event allotment of land
is more than the limit prescribed, the allotment is liable
to be cancelled beyond the prescribed limit. As
aforesaid, the said rules did not make any provision for
leasing out any land.
On July 31, 1961, rule 13 of the Evacuees
(Administration of Property) Rules, referred to above,
was substituted. The substituted rule 13 of the said
rules authorized the Custodian to allot or lease any
evacuee property in such manner and subject to such
conditions as may be prescribed by the Government.
The said rule, however, imposed a restriction on the
period of lease or allotment. It directed, except with the
permission of the Custodian General, such lease or
allotment shall not exceed one year, in the case of
residential property and two or three years in the case
of commercial and industrial undertakings, respectively.
The said rule, therefore, authorized grant of lease or
allotment of residential, commercial or industrial
properties. Allotment, by reason of definition thereof
16
given in the Act, would be for temporary use. Therefore,
with effect from July 31, 1961, in terms of the said rules,
the Custodian became entitled to allot or lease out
residential, commercial or industrial properties. The
power, however, stood restricted to one year, two years
and three years, respectively. With the permission of
the Custodian General, such power became
exercisable beyond the periods of one year, two yeas
and three years, as the case may be.
On April 5, 1985, rules 13-A, 13-B, 13-C and 13-D
were inserted in the Evacuees (Administration of
Property) Rules. While rule 13-A authorized revision of
rent of all evacuee buildings; rule 13-B authorized
revision of rent of houses or shops used for commercial
purposes. The said rules, therefore, authorized revision
of rent of buildings, shops and commercial properties
used as such. Rule 13-C directed fixation of premium
and rent in respect of vacant land to be leased out. It
said that, notwithstanding anything contained in rule 13,
the Custodian shall put to an open auction lease of any
17
evacuee land for a period not exceeding 40 years for
determination of premium to be charged from the
allottee to hold such land as leased out or may charge
the premium and ground rent annually after taking into
consideration the market value of such land of the
locality in which it is situate. It further provided that
different rates of premium and ground rent shall be
fixed for the lands put to use for residential, commercial
or industrial, as the case may be. Therefore, an
embargo was put on the Custodian, even with
permission of the Custodian General, to grant lease of
a vacant land for a period not exceeding 40 years with
a further obligation to determine the premium to be
charged for grant of such lease at such rate as may be
available on open auction or at such rate which may be
determined after taking into consideration the market
value of such land of the locality in which it is situate
and such market value should be determined on the
basis of the proposed use of the land, i.e., whether for
residential or for commercial or for industrial purpose.
18
From what has been stated above, it would be
evidenced that, though allotment may be made of
residential or commercial or industrial properties and, at
the same time, lease thereof may be granted, but while
provisions have been made as regards lease of vacant
land to be used for residential or commercial or
industrial purpose, no provision has been made for
allotment thereof. The rules, as above, authorize
allotment of land for cultivation. Since, after April 5,
1985, lease of vacant land for residential, commercial
or industrial purpose is also permissible. The same is
required to be made only by fixing premium by taking
recourse to open auction or upon taking into
consideration the market value thereof. No provision
has been made for grant of lease for residential,
commercial or industrial purposes of a plot of land,
which had been allotted for the purpose of cultivation. In
other words, cultivable lands allotted as such should
remain cultivable lands and lands which have not been
allotted for cultivation and, accordingly, may be used for
residential, commercial or industrial purposes, may be
19
leased out on such premium as may be determined by
taking recourse to two options, namely, open auction or
by determining market value thereof. The rules framed
under the Act do not authorize use of a land, allotted for
cultivation, for residential, commercial or industrial
purpose. At the same time, the rules do not suggest
forfeiture of land allotted for cultivation beyond the
periods of six months, as referred to in rules 5 and 6 of
the Allotment of Land to Displaced Persons Rules. At
this juncture, it must also be noted that allotment of land
for cultivation is available only to displaced persons or
families, i.e., those who held land in Pakistan held
territory of the State and whose source of livelihood
was the income from such land, and to no one else. In
case of forfeiture of allotment of such land, a tiller in
occupation or a landless tiller, who may not be a
displaced person, may be authorized to remain in
occupation of the forfeited allotted or re-allotted land. At
the same time, lease may be granted to any one.
20
Nothing is mentioned in the said rules as to what
will happen if the allotment of land for cultivation to
displaced persons is not forfeited or cancelled for failure
on their behalf to do what has been provided in rules 5
and 6 of Allotment of Land to Displaced Persons Rules,
but the land becomes fallow later on. It is well settled in
law that when a field is not covered by rules, the same
may be supplied by administrative instructions. By the
administrative instructions contained in Government
Order dated September 9, 1971, it appears, the
lacunae in the rules, as regards cancellation of
allotment or re-allotment of land to displaced persons
for cultivation for their failure to cultivate the same after
expiry of the period mentioned in rules 5 and 6 of
Allotment of Land to Displaced Persons Rules, was
supplied when it was provided that it would be
permissible to cancel allotment of land or re-allotment
of land to those displaced persons / locals, i.e., the
tillers in occupation or landless tillers, who have not so
far cultivated land themselves or got it cultivated by
tenants and whose land is lying fallow for the last two
21
successive harvests. While doing so, the said order
directed that before allotment / re-allotment is
cancelled, a notice should be served upon the allottee
or the re-allottee or the person in possession, to show
cause within 30 days of the issue of the notice as to
why the allotment or re-allotment of the land should not
be cancelled for non-cultivation. It further provided that
in case no satisfactory explanation is tendered, or in
case the allottee or the person in occupation fails to
tender any explanation, the allotment may be cancelled
and he be ejected. As would be evidenced from the
said Government Order, the object and purpose of
cancellation of allotment or re-allotment as provided
therein, was aimed at grant of allotment / re-allotment to
a larger segment of displaced persons. It directed the
manner of assessing excess land held by a displaced
person and the mode and method of cancellation
thereof. It directed for that purpose to take into account
records contained in the revenue records.
22
Reading the Act, the rules and the Government
Order referred to above, allotment or re-allotment can
be made of land for purposes of cultivation; whereas
land can be leased out for residential, commercial as
well as industrial purpose. The land allotted or re-
allotted for the purpose of cultivation would remain as
such. In the event land allotted for cultivation is not
cultivated by the allottee or the re-allottee within six
months from the date of obtaining possession by him
on such allotment, his right to occupy the land will stand
forfeited. In other words, the allotment / re-allotment will
stand cancelled. In such event, the tiller in possession
shall continue to remain in possession of the land in
question; if not, the same will be given to a landless
tiller. If the allottee or re-allottee having had cultivated
the land in question for a period of six months from the
date of obtaining possession on allotment or re-
allotment and, thereupon, fails, or the tiller in
possession or the landless tiller keeps the land fallow
for two consecutive harvests, he faces the threat of
ejectment, unless satisfactory reason is furnished by
23
him therefor in a proceeding to be initiated upon issuing
a notice to him. Any other land, not allotted for
cultivation, may be leased for residential, commercial or
industrial purpose and such lease, since after April 5,
1985, is required to be settled upon fixation of premium
to be ascertained by putting the land in question to
open auction or by taking into consideration the market
value thereof.
In the instant case, the revenue records do
suggest that the land in question was allotted in favour
of petitioner-respondent. Even the alleged report of the
Custodian, Jammu, dated February 9, 1989, considered
by the Custodian General in the order impugned in the
writ petition, says that petitioner-respondent was in
possession of the land in question before 1962 as its
allottee. The revenue records upon which reliance has
been placed, suggests that petitioner-respondent was
the allottee of the land in question. They do not suggest
that there was forfeiture. The mutation order no.151,
also taken into consideration by the Custodian General
24
in his order impugned in the writ petition, clearly
suggests that petitioner-respondent was allottee of the
land in question. We have read the said mutation order
no.151 dated July 4, 1981 with the assistance of
learned counsel for the parties. We found by reading
the same that nowhere therein it had been recorded
that petitioner-respondent stated before the authority
passing the said order that he was never in possession
or occupation of the said land; instead he stated that he
is not now in possession of the said land. The revenue
records, at the same time, suggest that though the said
land was allotted in favour of petitioner-respondent but
the same was in possession of the revenue
department. The rules referred to above do not suggest
any mechanism by which at any point of time the
revenue department could have come in possession of
the said land. At the same time, though the land in
question vests in the Custodian, but there is nothing
which would suggest that the Custodian could take
possession of the land allotted in favour of petitioner-
respondent before cancellation of his allotment. No
25
such step had been taken is not in dispute. There was,
thus, no forfeiture of the allotment of the land in
question in favour of the petitioner-respondent, nor
there was cancellation thereof.
It may be possible that petitioner-respondent, or
his family, is holding excess land but again cancellation
of allotment of excess land is required to be made and,
for that matter, a quasi judicial proceeding, as
mentioned in the said Government Order of 1971, is
required to be taken. Admittedly, no such proceeding
has been taken.
While the allotment of the said land in favour of
petitioner-respondent stands admitted in the revenue
records, the revenue records do not suggest that the
same is in occupation of a tiller. On the other hand, it
suggests that the same was in possession of the
revenue department since July 4, 1981. In terms of the
law governing the subject matter discussed above, until
such time the allotment in favour of petitioner-
respondent is cancelled, he is entitled to be in
26
possession thereof and, if he is not in possession
thereof and, accordingly, has not taken any steps to
have the same cultivated for two harvests, petitioner-
respondent has exposed himself to the threat of
cancellation of the allotment followed by ejectment.
In order to understand the aspect discussed
above, one is also required to take notice of the
provisions of the Jammu and Kashmir Agrarian
Reforms Act, 1976.
Before we consider the provisions of the Jammu
and Kashmir Agrarian Reforms Act, 1976, it would be
appropriate to take note of two other Acts also: one of
them is the Jammu and Kashmir Displaced Persons
(Permanent Settlement) Act, 1971. The said Act grants
authority to the Government to transfer any land owned
by the State, any land which has escheated to the State
and any evacuee land acquired under section 4 of the
Act for permanent settlement of any displaced person.
The land dealt with in the said Act means land which is
occupied or has been let for agricultural purposes or for
27
purposes subservient to agriculture. Section 4 of the
Act authorizes the Government to acquire any evacuee
land allotted to displaced persons by publishing a
notification to the effect that the government has
decided to acquire such evacuee land. The purpose of
such acquisition, as aforesaid, is to transfer land to any
displaced person for his permanent settlement. The
evacuee land carries the same meaning as given in the
Jammu and Kashmir State Evacuee (Administration of
Property) Act, 2006. The said Act provides for payment
of compensation after acquisition of evacuee land and
other provisions in connection therewith. Section 6 of
the said Act provides that the provisions of the said Act
shall not apply to, amongst others, any evacuee land
other than such land which has been allotted under
Allotment of Land to Displaced Persons Rules 1974, i.
e., Cabinet Order no.578-C of 1954. Thus, the said Act
applied to the land in question since the same was
allotted under the said Rules / Cabinet Order. It does
not appear that the land in question was acquired in
terms of the said Act.
28
The other Act, which is required to be taken note
of, is the Jammu and Kashmir Agrarian Reforms Act,
1972. Section 17 of the Act provides, amongst others,
that any land to which the provisions of the Jammu and
Kashmir Displaced Persons (Permanent Settlement)
Act, 1971 apply, i.e., those settled under the said rules /
Cabinet Order, shall, with effect from the date
appointed under section 3 of the said Act, be deemed
to have been acquired by the Government within the
meaning of section 4 of the Jammu and Kashmir
Displaced Persons (Permanent Settlement) Act, 1971
and the same shall vest in the displaced person who
held it in personal cultivation on the first day of
September, 1971, subject to the provisions of section
18 of the said Act. It further provides that where a
displaced person held such land in more than one
village, he shall be deemed to have held it in personal
cultivation if he was, on the first day of September,
1971, in personal cultivation of the portion of land in at
least one village. It further added that where any
displaced person held any such land not in his personal
29
cultivation on the first day of September, 1971, the land
shall vest in the State. However, if the monthly income
of the displaced person does not exceed Rs.500 per
month, he would be entitled to resumption and, for that
matter, within the time to be prescribed, if he does not
apply, the prescribed authority shall itself determine
whether the land is rC(c)sumeable by such person in the
prescribed manner as if the application of such person
was duly made before it.
It is not known whether the petitioner-respondent
and his family members were allotted land in more than
one village and whether they held land in one of such
villages in their personal cultivation as on September 1,
1971 or whether their income did not exceed Rs.500
and, accordingly, they became entitled to resumption.
On the other hand, the revenue records show that even
until July 4, 1981, writ petitioner-respondent and his
family were recognized as allottees of the land in
question. The said Act provides that if the vested land is
not cultivated within a period of six months from the
30
appointed date or if the resumed land is not cultivated
within a period of 8 months from the date of entering
into possession, the right in the land shall extinguish
but, for that matter, an enquiry in the prescribed manner
is required to be made followed by a declaration. It
does not appear any such step had been taken. The
only logical reason, therefore, can be that the petitioner-
respondent was holding land in more than one village
and held land in personal capacity in at least one
village.
On August 21, 1976 the Jammu and Kashmir
Agrarian Reforms Act, 1976 came into force. By section
43 thereof, with effect from August 21, 1976, the
Jammu and Kashmir Agrarian Reforms Act, 1972 was
repealed. In terms of the provisions of the said Act,
evacuee land means land as defined in the Jammu and
Kashmir Evacuee (Administration of Property) Act and
land means which was occupied or was let for
agricultural purposes or for the purposes subservient to
agriculture or for pasture in Kharief 1971. Section 3
31
thereof provides that the provisions of the said Act,
except those specified in clause (c) of sub-section (2) of
Section 4 and Sections 5, 7, 13 and 14 and sub-section
(3) of Section 26 of the Act shall not apply to evacuees
land. Clause (c) of sub-section (2) of Section 4 of the
Act provides that the land mentioned in Schedule-II to
the Act (which deals with State land), allotted to a
displaced person, shall not vest; provided that such
land and evacueesb�(tm) land, if any, allotted to the same
displaced person, is situate in more than one village
and such displaced person cultivated personally the
land in at least one village in Kharif 1971. As against
that, Section 5 of the Act provides that notwithstanding
anything contained in any other law for the time being in
force, where any land held by an individual in personal
cultivation, whether as owner or tenant or otherwise,
was in excess of the ceiling area on the first day of
September, 1971, the rights, title and interest of such
individual in the excess land shall be deemed to have
vested in the State free from any encumbrances on the
1st day of May, 1973. Similarly, where aggregate of
32
such land is held by the members of a family, the
excess land shall also vest. Section 7 of the Act deals
with resumption for bona fide personal cultivation by ex-
landlord. Section 13 imposes restriction on utilization of
land and Section 14 deals with optimum retainable area
of land. Sub-section (3) of Section 26 of the Act deals
with unauthorized occupation of State land reserved for
grazing purpose. Therefore, in terms of the provisions
of the said Act only in case of the petitioner holding
excess land, the same may vest in the State or in the
revenue department. Nothing has come on record of
this case that the land in question, at any point of time,
by reason of the provisions of the said Act, vested in
the State.
Section 3-A of the said Act, inserted in 1978,
converted displaced persons cultivating evacuee land
personally into occupancy tenants with right to transfer
their right of occupancy tenancy by sale, mortgage or
gift, subject to the provisions of the Alienation of Land
33
Act, and to which the provisions of Jammu and Kashmir
Tenancy Act shall have no application.
The order no.151 dated July 4, 1981 deals with
the claim of the petitioner-respondent to record him and
his family as the occupancy tenant of the land in
question. The prayer made to that effect was refused
since petitioner-respondent accepted before the
authority concerned that he was not cultivating the land
in question. Despite that, no record of the revenue
department has been placed before us suggesting
vesting of the land in question in the State. On the other
hand, the revenue records went on suggesting that the
land stands allotted in favour of the petitioner-
respondent and his family. From the action of the
Custodian General, complained of in the writ petition, it
is clear that the land in question did not vest in the
State in terms of the Jammu and Kashmir Agrarian
Reforms Act, 1976, for, if the same had vested, the
Custodian of Evacueesb�(tm) Properties or the Custodian
General could not deal with the land in question in the
34
manner they purported to do firstly in the year 1987,
then in the year 1989 and lastly on February 18, 2002;
and, instead, the same would have been dealt with by
the Government, may be through its revenue
department.
In the facts and circumstances, the conclusion
would be that though the petitioner-respondent was not
in possession of the land in question but, being allottee
thereof, not only he had right to resume possession but,
in any event, the same could not be dealt with in the
manner the same was purported to be done.
The appellant by referring to the records of the
revenue department contended that this land was not
cultivable and, accordingly, the very allotment was
inappropriate. The fact remains that the land in question
was allotted and allotment of land is permissible only for
cultivation purpose. Abandoned lands, so far as
evacuee lands are concerned, would become non-
cultivable due to passage of time but if an evacuee land
is allotted, the same is to be cultivated. The
35
consequences for non-cultivation have been provided.
However, every effort must be made to cultivate it in the
manner and through the mechanism provided in the
Acts and the rules referred to above. Till such time, it is
declared by an appropriate authority of the State that
the land has become impossible to be cultivated, which
declaration is absent in the instant case, the land in
question could not be used but for cultivation.
Lastly, despite noting the applicable rules, the
Custodian General in the order impugned in the writ
petition did not make any effort to at least find out the
market value of the land for the purpose of fixation of
premium while passing the said order. Further more, for
the purpose of fixation of premium one may proceed to
take into account the market value, but the larger
question is how to select the lessee? In the absence of
rules governing the subject, the minimum that was
required was invitation of applications from persons
otherwise thought to be eligible. That too was not done
in the instant case. The manner in which the Custodian
36
General dealt with the matter denotes that he felt that
the land in question is his personal property. We
deprecate wholeheartedly the actions of the Custodian
as well as of the Custodian General.
The conclusion, therefore, would be that there is
no scope of interference with the intimate conclusion of
the judgment and order under appeal. In the order of
the Custodian General, impugned in the writ petition, he
has in no uncertain terms held that the appellant has
raised illegal constructions and for that purpose has
imposed penalty upon the appellant. However, this
penalty has been imposed for making a false
declaration or statement while obtaining lease. No step
has been taken in respect of the adjudged illegal
construction.
In the circumstances, we would only modify the
judgment and order under appeal to the extent that the
appellant shall remove himself lock, stock and barrel,
including all illegal constructions made by him on the
land in question and restore back the land to its original
37
condition within a period of six months from today,
within which period it shall be open for the Custodian to
have the allotment made in favour of the petitioner-
respondent cancelled or the revenue department to
have a declaration made that the land in question vests
in the State. In default, it shall be obligatory on the part
of the Custodian to hand over possession of the land in
question to the petitioner-respondent immediately after
expiry of six months from today after taking possession
thereof from the appellant.
We were minded to impose exemplary costs upon
the appellant as well as upon the State, but we have,
with great effort, restrained ourselves from doing so.
The appeal is, accordingly, disposed of.
(J. P. Singh) (Barin Ghosh)
Chief Justice.
Judge
Srinagar,
.03.2009
A. H. Khan, JR.
