{"id":214523,"date":"2009-04-04T00:00:00","date_gmt":"2009-04-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/majid-ahmad-khan-vs-satpal-ors-on-4-april-2009"},"modified":"2018-08-03T00:34:38","modified_gmt":"2018-08-02T19:04:38","slug":"majid-ahmad-khan-vs-satpal-ors-on-4-april-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/majid-ahmad-khan-vs-satpal-ors-on-4-april-2009","title":{"rendered":"Majid Ahmad Khan vs Satpal & Ors on 4 April, 2009"},"content":{"rendered":"
Jammu High Court<\/div>\n
Majid Ahmad Khan vs Satpal & Ors on 4 April, 2009<\/div>\n
       \n\n  \n\n  \n\n \n\n \n \n HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            \nLPAOW No. 2 OF 2009    \nMajid Ahmad Khan.  \nPetitioners\nSatpal & ors.\nRespondent  \n!Mr. R. S. Thakur, Advocate Mr. H. A. Siddiqui, Advocate.\n^Mr. S. S. Lehar, Sr. Advocate Mr. A. H. Qazi, AAG.\n\nHon'ble Mr. Justice Barin Ghosh, Chief Justice\nHon'ble Mr. Justice J. P. Singh, Judge\nDate: 04.04.2009 \n:J U D G M E N T :\n<\/pre>\n
Per Barin Ghosh, CJ:\n<\/p>\n
In this appeal, we are concerned with a land
\nmeasuring 2 Kanals 1 marla under Khasra no.99 situate at
\nGolod, Tehsil Mendhar. On September 26, 1987, by an
\norder, on the recommendation of the Assistant Custodian
\n(Tehsildar) Mendhar, the said land was leased out by the
\nCustodian, Evacuee Property, Jammu, in favour of the
\n                               2<\/span>
\nappellant at a premium of Rs.100 and ground rent of Rs.26
\nper month for a period of one year in the first instance. No
\nformal lease was executed. By an order dated February 22,
\n1989, lease of the said land in favour of the appellant was
\nextended for a further period of 20 years by the Custodian
\nGeneral, when the premium was increased to Rs.5,000 per
\nKanal and the ground rent was increased to Rs.50 per
\nkanal per annum, and certain conditions were imposed.
\nEven thereafter, no lease was executed. Petitioner-
\nrespondent approached the Special Tribunal and expressed
\nhis grievance in regard to the said grant. Before the Special
\nTribunal, it was contended by the petitioner-respondent that
\nhe has some interest in the land in question and that before
\ngrant or extension of the lease, he was entitled to be heard.
\nThe    Special   Tribunal   accepted    such   contention   of
\npetitioner-respondent and set aside the order of extension,
\nand directed the Custodian General, Jammu to pass fresh
\norders after hearing the parties. As a result extension of the
\nlease came to an end. The original lease was then not
\nsubsisting.\n<\/p>\n
                               3<\/span><\/p>\n
      Custodian General, Jammu heard the parties and
\nrecorded    that  admittedly     petitioner-respondent  is   a
\ndisplaced person and he had been allotted the said land
\nalong with other land under Khasra nos.99 and 96. The
\nCustodian General, at the same time, held that petitioner-
\nrespondent, as per records, never took possession of the
\nsaid land. He thereupon noted paragraph 5 of Cabinet
\nOrder no.578-C and held that, in terms of the provisions
\ncontained therein, petitioner-respondent has forfeited his
\nright to occupy the said land.\n<\/p>\n
      In order to arrive at the said conclusion, apart from
\nnoting paragraph 5 of the said Cabinet Order, the
\nCustodian    General,   Jammu,      took    into consideration
\nmutation order no.151 dated July 4, 1981 issued under
\nsection 3A of the Agrarian Reforms Act, 1976 and the
\nreport of the Custodian, Jammu, dated February 9, 1989,
\nwhich was allegedly called for by the then Custodian
\nGeneral before extending the lease. After looking at the
\nmutation order referred to above, the Custodian General
\nheld that, as recorded therein, petitioner-respondent himself
\n                              4<\/span>
\nadmitted before the Tehsildar, Mendhar that he had never
\ntaken or remained in possession of the land in question. By
\nlooking at the alleged report of Custodian, Jammu, referred
\nto above, the Custodian General, Jammu, observed that in
\nthe said report it has been reported that petitioner-
\nrespondent is holding surplus land than permissible under
\nthe said Cabinet Order and that petitioner-respondent was
\nnever in possession of the land in question since 1962. On
\nthe basis of the findings derived from the said mutation
\norder and the said report, and applying those findings to the
\nprovisions contained in the said Cabinet Order, the
\nCustodian General, Jammu held in his order dated
\nFebruary 18, 2002 that petitioner-respondent had no
\nsubsisting right in the land in question as on the date of
\ngrant of the initial lease as well as extension thereof and,
\naccordingly, non-suited the petitioner-respondent. At the
\nsame time, the Custodian General, Jammu, in his said
\norder dated February 18, 2002 held that grant of lease of
\nthe said land in favour of appellant and extension thereof
\nwere inappropriate and contrary to rules but, despite that,
\ndid not interfere with such grant and extension and, on the
\n                                 5<\/span>
\ncontrary, by the said order altered the terms of the
\nextended lease.\n<\/p>\n
       Petitioner-respondent then approached this Court by
\nfiling a writ petition. By that, he challenged the order of the
\nCustodian General, Jammu dated February 18, 2002.
\nThere cannot be any dispute that the writ petition was not
\nappropriately drafted, but the fact remains that a reading of
\nthe writ petition would make it amply clear that petitioner-
\nrespondent was seeking quashing of the order passed by
\nthe Custodian General, Jammu dated February 18, 2002
\nand, at the same time, was advancing his grievance that
\nthe said land, which stood allotted to him, has been leased
\nout to the appellant in violation of law.\n<\/p>\n
       By the judgment and order under appeal, the writ
\npetition has been allowed. Although the Custodian General
\nby his order dated February 18, 2002 did not in so many
\nwords cancel the allotment in favour of petitioner-
\nrespondent, but insinuated, for the reasons indicated
\nabove, that the allotment of the said land in favour of
\npetitioner-respondent stood forfeited. By the judgment and
\n                               6<\/span>
\norder under appeal, the learned Judge set aside the order
\nof cancellation of allotment in favour of petitioner-
\nrespondent, i.e., insinuations that the allotment of the said
\nland in favour of petitioner-respondent stands forfeited and,
\nat the same time, the learned Judge quashed the orders
\ngranting lease and extension thereof in favour of the
\nappellant, and directed eviction of appellant from the land in
\nquestion with a further direction to hand over possession
\nthereof to petitioner-respondent. Being aggrieved thereby,
\nthe present appeal has been preferred.\n<\/p>\n
     The principal contention of the appellant before us is
\nthat when the order was passed on September 26, 1987 to
\nlease the land in question in favour of appellant, petitioner-
\nrespondent had no interest therein inasmuch as allotment
\nof the land in question in favour of petitioner-respondent
\nstood forfeited. The other contention of the appellant is that
\nthere has been unexplained delay, latches and negligence
\non the part of petitioner-respondent in taking steps as he
\npurported to take in the year 1999 by approaching the
\n                                7<\/span>
\nSpecial Tribunal seeking to challenge the order dated
\nFebruary 22, 1989, by which the lease was extended.\n<\/p>\n
     It is the contention of petitioner-respondent that there
\nis no forfeiture of the allotment made in his favour and the
\nrecords, upon which reliance has been placed, would amply
\ndemonstrate that the facts justifying forfeiture were absent
\nin the instant case. It was also contended by petitioner-
\nrespondent that there was no delay or latches on his part in
\ntaking remedial measures for which he had approached the
\nSpecial Tribunal.\n<\/p>\n
     The contention of the State is that, in the given facts
\nand circumstances of the case, what best could be done by
\nthe Custodian General, Jammu, was done by him while
\npassing the order dated February 18, 2002.\n<\/p>\n
     In course of submissions, the learned counsel
\nappearing on behalf of appellant submitted that on the
\nstrength of the lease, appellant has constructed shops as
\nwell as residential infrastructure on the land in question and
\nonly after steps to do so had been taken, petitioner-
\nrespondent took steps as were taken by him. The fact
\n                               8<\/span>
\nremains that subsequent to 1999, i.e., after petitioner-
\nrespondent approached the Special Tribunal, the extension
\nof the lease was cancelled by the Special Tribunal. The
\nappellant did not express any grievance in regard thereto.
\nBy the order impugned in the writ petition dated February
\n18, 2002, the Custodian General directed grant of fresh
\nlease on new terms and conditions and, soon thereafter, in
\n2002, this writ petition was filed when orders were passed
\nto maintain status-quo and there is nothing on record as to
\nwhen permission to construct was obtained by the appellant
\nand when, in fact, construction commenced. Therefore, the
\nground    taken   by   the   appellant  that writ petitioner
\nrespondent was guilty of latches or negligence is of no
\neffect.\n<\/p>\n
      The question that requires answer in this appeal is,
\ntherefore, whether the Custodian or the Custodian General,
\nas on September 26, 1987 or on February 22, 1989 was
\nentitled to deal with the land in question as was dealt with
\nby them by granting a lease for one year and, thereupon,
\nextending the same for 20 years.\n<\/p>\n
                              9<\/span><\/p>\n
      There is no dispute that the land in question is an
\nevacuee property and, accordingly, the same vested in the
\nCustodian of Evacuee Properties. Such lands have been
\ndealt with by the J&K Evacuees (Administration of Property)
\nAct, Svt. 2006. Clause (d) of Section 2 of the Act provides,
\namong others, that an evacuee property means any
\nproperty in which an evacuee has any right or interest and
\nincludes any property which has been obtained by any
\nperson from an evacuee after 14th day of August, 1947 by
\nany mode of transfer unless such transfer has been
\nconfirmed by the Custodian. The said clause of the said
\nsection excludes certain properties with which we are not
\nconcerned. Section 3 of the said Act provides that
\nprovisions of the Act and the Rules and Orders made
\nthereunder shall have effect notwithstanding anything
\ninconsistent therewith contained in any other law for the
\ntime being in force or in any instrument taking effect by
\nvirtue of any such law. Section 5 of the said Act, subject to
\nthe provisions thereof, vests all evacuee property in the
\nCustodian.\n<\/p>\n
                              10<\/span><\/p>\n
      Clause (a) of section 2 of the said Act defines
\nallotment. It says that allotment means grant by the
\nGovernment or the Custodian or any other person duly
\nauthorized by the Custodian in this behalf of a temporary
\nright of use and occupation of any immovable property of
\nan evacuee to any person otherwise than by way of lease.
\nSection 39 of the Act authorizes Government to make rules
\nto provide, amongst others, the manner and conditions
\nsubject to which the Custodian may allot any immovable
\nproperty vested in him as well as the circumstances in
\nwhich leases and allotments may be cancelled or
\nterminated or the terms of any lease or agreement varied,
\nas well as any other matter which has to be and may be
\nprescribed under the Act.\n<\/p>\n
      In terms of the power so conferred by section 39 of the
\nAct, the J&K State Evacueesb\ufffd(tm) (Administration of Property)
\nRules Svt. 2008 were made by the Government. The same
\noriginally did not, however, deal with either allotment or
\nlease of evacuee properties, unless so done by rule 13
\nthereof, which was not produced for our consideration.\n<\/p>\n
                              11<\/span><\/p>\n
Subsequently, in exercise of powers conferred by section
\n39 of the Act to provide the manner in which and the
\nconditions, subject to which the Custodian may allot any
\nimmovable property vested in him and the
\ncircumstances in which leases and allotments may be
\ncancelled or terminated or the terms of any lease or
\nagreement varied, Allotment of land to Displaced persons
\nRules, 1954, more particularly known as Cabinet Order
\nno.578-C of 1954 dated May 7, 1954, was made by the
\nGovernment. The said Rules of 1954, however, did not
\naddress either grant or cancellation or variation of the terms
\nor conditions of lease. It dealt with allotment of land and
\ncancellation of such allotment. Allotment of land has been
\ndealt with in rule 5; whereas cancellation of allotment of
\nland has been dealt with in rule 12 of the said rules. Rule 12
\nprovides that Tehsildar or the Provincial Officer shall have
\npower to cancel allotment when the allotment is in excess
\nof the permissible limit and the allottee shall forfeit his right
\nto claim allotment of land in his favour in future. Rule 5 of
\nthe said Rules is as follows:\n<\/p>\n
                                  12<\/span><\/p>\n
      b\ufffdLiability to cultivate allotted land personally and
\n      consequences of failure to do so.\n<\/p><\/blockquote>\n
      (1) A displaced family, who may hereafter be,
\n      and such family as has already been, allotted land,
\n      shall be bound to bring such land under personal
\n      cultivation within six months of the date of delivery
\n      of possession on allotment or the date of this
\n      order, as the case may be, failing which such
\n      family shall forfeit its right to occupy such land.
\n      (2) The land, of which the right to occupy is
\n      forfeited under clause (1) may be re-allotted to any
\n      other displaced family, which shall not have been
\n      settled on land by that time and failing it shall
\n      continue with the person, who has been in actual
\n      cultivating occupation thereof; provided such
\n      person is a landless tiller, and otherwise will be let
\n      out to a landless tiller, to the extent of the limit
\n      permissible.<\/p><\/blockquote>\n
      Explanation.- b\ufffdPersonal cultivationb\ufffd(tm) includes
\n      cultivation by any member of the family.b\ufffd
\nRule 5 of the said rules, quoted above, would show
\nallotment of land can be made for cultivation thereof.
\nForfeiture of the allotment is a certainty if the land is not
\ncultivated within six months from the delivery of
\npossession of the land on allotment or the date of
\ncoming into force of the said rules. If an allotment is
\nmade, the same denotes grant of right in favour of the
\nallottee to occupy the land, but for cultivation only. If the
\n                                  13<\/span>
\nright is forfeited, the allotted land becomes available for
\nre-allotment, but again, for cultivation. In the event re-
\nallotment of the land is not made, the land will continue
\nwith the person who has been in actual cultivating
\npossession thereof, provided such person is a landless
\ntiller and, if the same is not in possession of any person
\nwho has been in actual cultivating possession thereof,
\nthe land would be let out to a landless tiller to the extent
\nof the limit permissible. In other words, it suggests that
\nonce a land is allotted, such land would remain either
\nwith the original allottee, if the allotment is not forfeited,
\nor with the re-allottee, or with the person in cultivating
\noccupation, or with a landless tiller, but for the purpose
\nof cultivation.\n<\/p>\n
       In this connection, one is required to take note of
\nrule 6 of the said rules, which grants exemption from
\npersonal cultivation in certain cases. While granting
\nexemption, it has been expressly stated that the allotted
\nland in no case shall be left fallow, i.e., uncultivated. It
\nprovides further that, if the land is left fallow or
\n                                14<\/span>
\nuncultivated without sufficient cause for more than six
\nmonths from the date the said rules came into force or
\nthe date of delivery of possession, it shall be lawful for
\nthe revenue authority to let out the same to such
\nlandless tiller as he deems fit and on payment of such
\nrent as he may consider fair. This is also an indication
\nthat an allotted land was intended to remain in
\ncultivation for all times to come.\n<\/p>\n
      Looking at rules 5, 6 and 12 of the said rules, it
\nappears that a land allotted should not only remain
\nunder cultivation, but if an allottee or a re-allottee fails
\nto bring the same under personal cultivation within six
\nmonths from the date of delivery of possession of the
\nland on allotment or re-allotment, his right to occupy the
\nland on the basis of allotment or re-allotment will stand
\nforfeited. Similarly, if an exempted allottee or re-allottee
\nfails to arrange cultivation of the land for more than six
\nmonths from the date of delivery of possession of the
\nland on allotment or re-allotment, his right to occupy the
\nland on the basis of the allotment or re-allotment will
\n                              15<\/span>
\nstand forfeited. However, in the event allotment of land
\nis more than the limit prescribed, the allotment is liable
\nto be cancelled beyond the prescribed limit. As
\naforesaid, the said rules did not make any provision for
\nleasing out any land.\n<\/p>\n
     On July 31, 1961, rule 13 of the Evacuees
\n(Administration of Property) Rules, referred to above,
\nwas substituted. The substituted rule 13 of the said
\nrules authorized the Custodian to allot or lease any
\nevacuee property in such manner and subject to such
\nconditions as may be prescribed by the Government.
\nThe said rule, however, imposed a restriction on the
\nperiod of lease or allotment. It directed, except with the
\npermission of the Custodian General, such lease or
\nallotment shall not exceed one year, in the case of
\nresidential property and two or three years in the case
\nof commercial and industrial undertakings, respectively.
\nThe said rule, therefore, authorized grant of lease or
\nallotment   of   residential, commercial     or industrial
\nproperties. Allotment, by reason of definition thereof
\n                              16<\/span>
\ngiven in the Act, would be for temporary use. Therefore,
\nwith effect from July 31, 1961, in terms of the said rules,
\nthe Custodian became entitled to allot or lease out
\nresidential, commercial or industrial properties. The
\npower, however, stood restricted to one year, two years
\nand three years, respectively. With the permission of
\nthe    Custodian     General,    such   power     became
\nexercisable beyond the periods of one year, two yeas
\nand three years, as the case may be.\n<\/p>\n
      On April 5, 1985, rules 13-A, 13-B, 13-C and 13-D
\nwere inserted in the Evacuees (Administration of
\nProperty) Rules. While rule 13-A authorized revision of
\nrent of all evacuee buildings; rule 13-B authorized
\nrevision of rent of houses or shops used for commercial
\npurposes. The said rules, therefore, authorized revision
\nof rent of buildings, shops and commercial properties
\nused as such. Rule 13-C directed fixation of premium
\nand rent in respect of vacant land to be leased out. It
\nsaid that, notwithstanding anything contained in rule 13,
\nthe Custodian shall put to an open auction lease of any
\n                               17<\/span>
\nevacuee land for a period not exceeding 40 years for
\ndetermination of premium to be charged from the
\nallottee to hold such land as leased out or may charge
\nthe premium and ground rent annually after taking into
\nconsideration the market value of such land of the
\nlocality in which it is situate. It further provided that
\ndifferent rates of premium and ground rent shall be
\nfixed for the lands put to use for residential, commercial
\nor industrial, as the case may be. Therefore, an
\nembargo was put on the Custodian, even with
\npermission of the Custodian General, to grant lease of
\na vacant land for a period not exceeding 40 years with
\na further obligation to determine the premium to be
\ncharged for grant of such lease at such rate as may be
\navailable on open auction or at such rate which may be
\ndetermined after taking into consideration the market
\nvalue of such land of the locality in which it is situate
\nand such market value should be determined on the
\nbasis of the proposed use of the land, i.e., whether for
\nresidential or for commercial or for industrial purpose.\n<\/p>\n
                                18<\/span><\/p>\n
      From what has been stated above, it would be
\nevidenced that, though allotment may be made of
\nresidential or commercial or industrial properties and, at
\nthe same time, lease thereof may be granted, but while
\nprovisions have been made as regards lease of vacant
\nland to be used for residential or commercial or
\nindustrial purpose, no provision has been made for
\nallotment thereof. The rules, as above, authorize
\nallotment of land for cultivation. Since, after April 5,
\n1985, lease of vacant land for residential, commercial
\nor industrial purpose is also permissible. The same is
\nrequired to be made only by fixing premium by taking
\nrecourse     to   open    auction  or  upon   taking  into
\nconsideration the market value thereof. No provision
\nhas been made for grant of lease for residential,
\ncommercial or industrial purposes of a plot of land,
\nwhich had been allotted for the purpose of cultivation. In
\nother words, cultivable lands allotted as such should
\nremain cultivable lands and lands which have not been
\nallotted for cultivation and, accordingly, may be used for
\nresidential, commercial or industrial purposes, may be
\n                               19<\/span>
\nleased out on such premium as may be determined by
\ntaking recourse to two options, namely, open auction or
\nby determining market value thereof. The rules framed
\nunder the Act do not authorize use of a land, allotted for
\ncultivation, for residential, commercial or industrial
\npurpose. At the same time, the rules do not suggest
\nforfeiture of land allotted for cultivation beyond the
\nperiods of six months, as referred to in rules 5 and 6 of
\nthe Allotment of Land to Displaced Persons Rules. At
\nthis juncture, it must also be noted that allotment of land
\nfor cultivation is available only to displaced persons or
\nfamilies, i.e., those who held land in Pakistan held
\nterritory of the State and whose source of livelihood
\nwas the income from such land, and to no one else. In
\ncase of forfeiture of allotment of such land, a tiller in
\noccupation or a landless tiller, who may not be a
\ndisplaced person, may be authorized to remain in
\noccupation of the forfeited allotted or re-allotted land. At
\nthe same time, lease may be granted to any one.\n<\/p>\n
                                 20<\/span><\/p>\n
       Nothing is mentioned in the said rules as to what
\nwill happen if the allotment of land for cultivation to
\ndisplaced persons is not forfeited or cancelled for failure
\non their behalf to do what has been provided in rules 5
\nand 6 of Allotment of Land to Displaced Persons Rules,
\nbut the land becomes fallow later on. It is well settled in
\nlaw that when a field is not covered by rules, the same
\nmay be supplied by administrative instructions. By the
\nadministrative instructions contained in Government
\nOrder dated September 9, 1971, it appears, the
\nlacunae in the rules, as regards cancellation of
\nallotment or re-allotment of land to displaced persons
\nfor cultivation for their failure to cultivate the same after
\nexpiry of the period mentioned in rules 5 and 6 of
\nAllotment of Land to Displaced Persons Rules, was
\nsupplied when it was provided that it would be
\npermissible to cancel allotment of land or re-allotment
\nof land to those displaced persons \/ locals, i.e., the
\ntillers in occupation or landless tillers, who have not so
\nfar cultivated land themselves or got it cultivated by
\ntenants and whose land is lying fallow for the last two
\n                                21<\/span>
\nsuccessive harvests. While doing so, the said order
\ndirected    that   before   allotment  \/   re-allotment is
\ncancelled, a notice should be served upon the allottee
\nor the re-allottee or the person in possession, to show
\ncause within 30 days of the issue of the notice as to
\nwhy the allotment or re-allotment of the land should not
\nbe cancelled for non-cultivation. It further provided that
\nin case no satisfactory explanation is tendered, or in
\ncase the allottee or the person in occupation fails to
\ntender any explanation, the allotment may be cancelled
\nand he be ejected. As would be evidenced from the
\nsaid Government Order, the object and purpose of
\ncancellation of allotment or re-allotment as provided
\ntherein, was aimed at grant of allotment \/ re-allotment to
\na larger segment of displaced persons. It directed the
\nmanner of assessing excess land held by a displaced
\nperson and the mode and method of cancellation
\nthereof. It directed for that purpose to take into account
\nrecords contained in the revenue records.\n<\/p>\n
                                  22<\/span><\/p>\n
       Reading the Act, the rules and the Government
\nOrder referred to above, allotment or re-allotment can
\nbe made of land for purposes of cultivation; whereas
\nland can be leased out for residential, commercial as
\nwell as industrial purpose. The land allotted or re-
\nallotted for the purpose of cultivation would remain as
\nsuch. In the event land allotted for cultivation is not
\ncultivated by the allottee or the re-allottee within six
\nmonths from the date of obtaining possession by him
\non such allotment, his right to occupy the land will stand
\nforfeited. In other words, the allotment \/ re-allotment will
\nstand cancelled. In such event, the tiller in possession
\nshall continue to remain in possession of the land in
\nquestion; if not, the same will be given to a landless
\ntiller. If the allottee or re-allottee having had cultivated
\nthe land in question for a period of six months from the
\ndate of obtaining possession on allotment or re-
\nallotment     and,    thereupon,     fails, or the tiller  in
\npossession or the landless tiller keeps the land fallow
\nfor two consecutive harvests, he faces the threat of
\nejectment, unless satisfactory reason is furnished by
\n                               23<\/span>
\nhim therefor in a proceeding to be initiated upon issuing
\na notice to him. Any other land, not allotted for
\ncultivation, may be leased for residential, commercial or
\nindustrial purpose and such lease, since after April 5,
\n1985, is required to be settled upon fixation of premium
\nto be ascertained by putting the land in question to
\nopen auction or by taking into consideration the market
\nvalue thereof.\n<\/p>\n
      In the instant case, the revenue records do
\nsuggest that the land in question was allotted in favour
\nof petitioner-respondent. Even the alleged report of the
\nCustodian, Jammu, dated February 9, 1989, considered
\nby the Custodian General in the order impugned in the
\nwrit petition, says that petitioner-respondent was in
\npossession of the land in question before 1962 as its
\nallottee. The revenue records upon which reliance has
\nbeen placed, suggests that petitioner-respondent was
\nthe allottee of the land in question. They do not suggest
\nthat there was forfeiture. The mutation order no.151,
\nalso taken into consideration by the Custodian General
\n                              24<\/span>
\nin his order impugned in the writ petition, clearly
\nsuggests that petitioner-respondent was allottee of the
\nland in question. We have read the said mutation order
\nno.151 dated July 4, 1981 with the assistance of
\nlearned counsel for the parties. We found by reading
\nthe same that nowhere therein it had been recorded
\nthat petitioner-respondent stated before the authority
\npassing the said order that he was never in possession
\nor occupation of the said land; instead he stated that he
\nis not now in possession of the said land. The revenue
\nrecords, at the same time, suggest that though the said
\nland was allotted in favour of petitioner-respondent but
\nthe   same    was   in   possession    of   the  revenue
\ndepartment. The rules referred to above do not suggest
\nany mechanism by which at any point of time the
\nrevenue department could have come in possession of
\nthe said land. At the same time, though the land in
\nquestion vests in the Custodian, but there is nothing
\nwhich would suggest that the Custodian could take
\npossession of the land allotted in favour of petitioner-
\nrespondent before cancellation of his allotment. No
\n                              25<\/span>
\nsuch step had been taken is not in dispute. There was,
\nthus, no forfeiture of the allotment of the land in
\nquestion in favour of the petitioner-respondent, nor
\nthere was cancellation thereof.\n<\/p>\n
      It may be possible that petitioner-respondent, or
\nhis family, is holding excess land but again cancellation
\nof allotment of excess land is required to be made and,
\nfor that matter, a quasi judicial proceeding, as
\nmentioned in the said Government Order of 1971, is
\nrequired to be taken. Admittedly, no such proceeding
\nhas been taken.\n<\/p>\n
      While the allotment of the said land in favour of
\npetitioner-respondent stands admitted in the revenue
\nrecords, the revenue records do not suggest that the
\nsame is in occupation of a tiller. On the other hand, it
\nsuggests that the same was in possession of the
\nrevenue department since July 4, 1981. In terms of the
\nlaw governing the subject matter discussed above, until
\nsuch time the allotment in favour of petitioner-
\nrespondent is cancelled, he is entitled to be in
\n                               26<\/span>
\npossession thereof and, if he is not in possession
\nthereof and, accordingly, has not taken any steps to
\nhave the same cultivated for two harvests, petitioner-
\nrespondent has exposed himself to the threat of
\ncancellation of the allotment followed by ejectment.\n<\/p>\n
     In order to understand the aspect discussed
\nabove, one is also required to take notice of the
\nprovisions of the Jammu and Kashmir Agrarian
\nReforms Act, 1976.\n<\/p>\n
     Before we consider the provisions of the Jammu
\nand Kashmir Agrarian Reforms Act, 1976, it would be
\nappropriate to take note of two other Acts also: one of
\nthem is the Jammu and Kashmir Displaced Persons
\n(Permanent Settlement) Act, 1971. The said Act grants
\nauthority to the Government to transfer any land owned
\nby the State, any land which has escheated to the State
\nand any evacuee land acquired under section 4 of the
\nAct for permanent settlement of any displaced person.
\nThe land dealt with in the said Act means land which is
\noccupied or has been let for agricultural purposes or for
\n                              27<\/span>
\npurposes subservient to agriculture. Section 4 of the
\nAct authorizes the Government to acquire any evacuee
\nland allotted to displaced persons by publishing a
\nnotification to the effect that the government has
\ndecided to acquire such evacuee land. The purpose of
\nsuch acquisition, as aforesaid, is to transfer land to any
\ndisplaced person for his permanent settlement. The
\nevacuee land carries the same meaning as given in the
\nJammu and Kashmir State Evacuee (Administration of
\nProperty) Act, 2006. The said Act provides for payment
\nof compensation after acquisition of evacuee land and
\nother provisions in connection therewith. Section 6 of
\nthe said Act provides that the provisions of the said Act
\nshall not apply to, amongst others, any evacuee land
\nother than such land which has been allotted under
\nAllotment of Land to Displaced Persons Rules 1974, i.
\ne., Cabinet Order no.578-C of 1954. Thus, the said Act
\napplied to the land in question since the same was
\nallotted under the said Rules \/ Cabinet Order. It does
\nnot appear that the land in question was acquired in
\nterms of the said Act.\n<\/p>\n
                              28<\/span><\/p>\n
      The other Act, which is required to be taken note
\nof, is the Jammu and Kashmir Agrarian Reforms Act,
\n1972. Section 17 of the Act provides, amongst others,
\nthat any land to which the provisions of the Jammu and
\nKashmir Displaced Persons (Permanent Settlement)
\nAct, 1971 apply, i.e., those settled under the said rules \/
\nCabinet Order, shall, with effect from the date
\nappointed under section 3 of the said Act, be deemed
\nto have been acquired by the Government within the
\nmeaning of section 4 of the Jammu and Kashmir
\nDisplaced Persons (Permanent Settlement) Act, 1971
\nand the same shall vest in the displaced person who
\nheld it in personal cultivation on the first day of
\nSeptember, 1971, subject to the provisions of section
\n18 of the said Act. It further provides that where a
\ndisplaced person held such land in more than one
\nvillage, he shall be deemed to have held it in personal
\ncultivation if he was, on the first day of September,
\n1971, in personal cultivation of the portion of land in at
\nleast one village. It further added that where any
\ndisplaced person held any such land not in his personal
\n                                29<\/span>
\ncultivation on the first day of September, 1971, the land
\nshall vest in the State. However, if the monthly income
\nof the displaced person does not exceed Rs.500 per
\nmonth, he would be entitled to resumption and, for that
\nmatter, within the time to be prescribed, if he does not
\napply, the prescribed authority shall itself determine
\nwhether the land is rC(c)sumeable by such person in the
\nprescribed manner as if the application of such person
\nwas duly made before it.\n<\/p>\n
      It is not known whether the petitioner-respondent
\nand his family members were allotted land in more than
\none village and whether they held land in one of such
\nvillages in their personal cultivation as on September 1,
\n1971 or whether their income did not exceed Rs.500
\nand, accordingly, they became entitled to resumption.
\nOn the other hand, the revenue records show that even
\nuntil July 4, 1981, writ petitioner-respondent and his
\nfamily were recognized as allottees of the land in
\nquestion. The said Act provides that if the vested land is
\nnot cultivated within a period of six months from the
\n                               30<\/span>
\nappointed date or if the resumed land is not cultivated
\nwithin a period of 8 months from the date of entering
\ninto possession, the right in the land shall extinguish
\nbut, for that matter, an enquiry in the prescribed manner
\nis required to be made followed by a declaration. It
\ndoes not appear any such step had been taken. The
\nonly logical reason, therefore, can be that the petitioner-
\nrespondent was holding land in more than one village
\nand held land in personal capacity in at least one
\nvillage.\n<\/p>\n
      On August 21, 1976 the Jammu and Kashmir
\nAgrarian Reforms Act, 1976 came into force. By section
\n43 thereof, with effect from August 21, 1976, the
\nJammu and Kashmir Agrarian Reforms Act, 1972 was
\nrepealed. In terms of the provisions of the said Act,
\nevacuee land means land as defined in the Jammu and
\nKashmir Evacuee (Administration of Property) Act and
\nland means which was occupied or was let for
\nagricultural purposes or for the purposes subservient to
\nagriculture or for pasture in Kharief 1971. Section 3
\n                              31<\/span>
\nthereof provides that the provisions of the said Act,
\nexcept those specified in clause (c) of sub-section (2) of
\nSection 4 and Sections 5, 7, 13 and 14 and sub-section
\n(3) of Section 26 of the Act shall not apply to evacuees
\nland. Clause (c) of sub-section (2) of Section 4 of the
\nAct provides that the land mentioned in Schedule-II to
\nthe Act (which deals with State land), allotted to a
\ndisplaced person, shall not vest; provided that such
\nland and evacueesb\ufffd(tm) land, if any, allotted to the same
\ndisplaced person, is situate in more than one village
\nand such displaced person cultivated personally the
\nland in at least one village in Kharif 1971. As against
\nthat, Section 5 of the Act provides that notwithstanding
\nanything contained in any other law for the time being in
\nforce, where any land held by an individual in personal
\ncultivation, whether as owner or tenant or otherwise,
\nwas in excess of the ceiling area on the first day of
\nSeptember, 1971, the rights, title and interest of such
\nindividual in the excess land shall be deemed to have
\nvested in the State free from any encumbrances on the
\n1st day of May, 1973. Similarly, where aggregate of
\n                               32<\/span>
\nsuch land is held by the members of a family, the
\nexcess land shall also vest. Section 7 of the Act deals
\nwith resumption for bona fide personal cultivation by ex-
\nlandlord. Section 13 imposes restriction on utilization of
\nland and Section 14 deals with optimum retainable area
\nof land. Sub-section (3) of Section 26 of the Act deals
\nwith unauthorized occupation of State land reserved for
\ngrazing purpose. Therefore, in terms of the provisions
\nof the said Act only in case of the petitioner holding
\nexcess land, the same may vest in the State or in the
\nrevenue department. Nothing has come on record of
\nthis case that the land in question, at any point of time,
\nby reason of the provisions of the said Act, vested in
\nthe State.\n<\/p>\n
      Section 3-A of the said Act, inserted in 1978,
\nconverted displaced persons cultivating evacuee land
\npersonally into occupancy tenants with right to transfer
\ntheir right of occupancy tenancy by sale, mortgage or
\ngift, subject to the provisions of the Alienation of Land
\n                               33<\/span>
\nAct, and to which the provisions of Jammu and Kashmir
\nTenancy Act shall have no application.\n<\/p>\n
      The order no.151 dated July 4, 1981 deals with
\nthe claim of the petitioner-respondent to record him and
\nhis family as the occupancy tenant of the land in
\nquestion. The prayer made to that effect was refused
\nsince   petitioner-respondent     accepted    before   the
\nauthority concerned that he was not cultivating the land
\nin question. Despite that, no record of the revenue
\ndepartment has been placed before us suggesting
\nvesting of the land in question in the State. On the other
\nhand, the revenue records went on suggesting that the
\nland stands allotted in favour of the petitioner-
\nrespondent and his family. From the action of the
\nCustodian General, complained of in the writ petition, it
\nis clear that the land in question did not vest in the
\nState in terms of the Jammu and Kashmir Agrarian
\nReforms Act, 1976, for, if the same had vested, the
\nCustodian of Evacueesb\ufffd(tm) Properties or the Custodian
\nGeneral could not deal with the land in question in the
\n                               34<\/span>
\nmanner they purported to do firstly in the year 1987,
\nthen in the year 1989 and lastly on February 18, 2002;
\nand, instead, the same would have been dealt with by
\nthe    Government,    may    be    through  its  revenue
\ndepartment.\n<\/p>\n
      In the facts and circumstances, the conclusion
\nwould be that though the petitioner-respondent was not
\nin possession of the land in question but, being allottee
\nthereof, not only he had right to resume possession but,
\nin any event, the same could not be dealt with in the
\nmanner the same was purported to be done.\n<\/p>\n
      The appellant by referring to the records of the
\nrevenue department contended that this land was not
\ncultivable and, accordingly, the very allotment was
\ninappropriate. The fact remains that the land in question
\nwas allotted and allotment of land is permissible only for
\ncultivation purpose. Abandoned lands, so far as
\nevacuee lands are concerned, would become non-
\ncultivable due to passage of time but if an evacuee land
\nis allotted, the same is to be cultivated. The
\n                              35<\/span>
\nconsequences for non-cultivation have been provided.
\nHowever, every effort must be made to cultivate it in the
\nmanner and through the mechanism provided in the
\nActs and the rules referred to above. Till such time, it is
\ndeclared by an appropriate authority of the State that
\nthe land has become impossible to be cultivated, which
\ndeclaration is absent in the instant case, the land in
\nquestion could not be used but for cultivation.\n<\/p>\n
      Lastly, despite noting the applicable rules, the
\nCustodian General in the order impugned in the writ
\npetition did not make any effort to at least find out the
\nmarket value of the land for the purpose of fixation of
\npremium while passing the said order. Further more, for
\nthe purpose of fixation of premium one may proceed to
\ntake into account the market value, but the larger
\nquestion is how to select the lessee? In the absence of
\nrules governing the subject, the minimum that was
\nrequired was invitation of applications from persons
\notherwise thought to be eligible. That too was not done
\nin the instant case. The manner in which the Custodian
\n                               36<\/span>
\nGeneral dealt with the matter denotes that he felt that
\nthe land in question is his personal property. We
\ndeprecate wholeheartedly the actions of the Custodian
\nas well as of the Custodian General.\n<\/p>\n
     The conclusion, therefore, would be that there is
\nno scope of interference with the intimate conclusion of
\nthe judgment and order under appeal. In the order of
\nthe Custodian General, impugned in the writ petition, he
\nhas in no uncertain terms held that the appellant has
\nraised illegal constructions and for that purpose has
\nimposed penalty upon the appellant. However, this
\npenalty has been imposed for making a false
\ndeclaration or statement while obtaining lease. No step
\nhas been taken in respect of the adjudged illegal
\nconstruction.\n<\/p>\n
     In the circumstances, we would only modify the
\njudgment and order under appeal to the extent that the
\nappellant shall remove himself lock, stock and barrel,
\nincluding all illegal constructions made by him on the
\nland in question and restore back the land to its original
\n                                37<\/span>
\ncondition within a period of six months from today,
\nwithin which period it shall be open for the Custodian to
\nhave the allotment made in favour of the petitioner-
\nrespondent cancelled or the revenue department to
\nhave a declaration made that the land in question vests
\nin the State. In default, it shall be obligatory on the part
\nof the Custodian to hand over possession of the land in
\nquestion to the petitioner-respondent immediately after
\nexpiry of six months from today after taking possession
\nthereof from the appellant.\n<\/p>\n
       We were minded to impose exemplary costs upon
\nthe appellant as well as upon the State, but we have,
\nwith great effort, restrained ourselves from doing so.\n<\/p>\n
       The appeal is, accordingly, disposed of.\n<\/p>\n
                 (J. P. Singh)             (Barin Ghosh)\n                                            Chief Justice.\n                     Judge\nSrinagar,\n    .03.2009\nA. H. Khan, JR.\n\n\n\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Jammu High Court Majid Ahmad Khan vs Satpal & Ors on 4 April, 2009 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,17],"tags":[],"class_list":["post-214523","post","type-post","status-publish","format-standard","hentry","category-high-court","category-jammu-high-court"],"yoast_head":"\nMajid Ahmad Khan vs Satpal & Ors on 4 April, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/majid-ahmad-khan-vs-satpal-ors-on-4-april-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Majid Ahmad Khan vs Satpal & Ors on 4 April, 2009 - 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