Kewal Krishan vs State of Jammu & Kashmir and Others

Nargotra, J.—This Letters Patent Appeal arises from the judgment dated 9.11.1999 passed by the learned Single Judge whereby OWP

No. 285/95 has been dismissed.

The case of the appellant/writ petitioner in the writ petition was that petitioner's father being in continous and cultivating possession over the

State land measuring 6 kanal and 6 marlas comprising in khasra No. 62/min.situated in village Murlian Tehsil R.S.Pura since 1956 became entitled

to be regarded as tenant-at-will in view of Govt.order No. LB-6 and also became entitled for conferment of ownership rights under Govt.order

No. 432-C of 1966. The father of the petitioner claimed benefit of Govt.order No. 254 of 1965. Tehsildar R.S.Pura attested mutation No. 394 by

his order dated 19.11.1982 in his favour giving him the benefit of the said Govt.order.

The order of Tehsildar was challenged by the respondent No. 6 before the Financial Commissioner in a revision petition filed against the

petitioner who was continuing in possession after the death of his father. Learned Financial Commissioner accepted the revision and set aside the

order of Tehsildar and while remitting the case back directed that the ""plea of the non-applicant that he is in physical possession of the land since

2013 Bk and acquired the rights of ""tenant-at-will"" (i.e. by LB-6 of 1958) may also be kept in view.

Tehsildar Settlement accordingly attested mutation No. 354 in favour of the appellant in acceptance of the claim of the appellant under LB-6.

The order of the Tehsildar Settlement was challenged in appeal by the respondent No. 6 before Director Land Records. Learned Director Land

Records by his order dated 21.8.1993 set aside the mutation principally on the ground that same could not have been attested in view of the ban

imposed on attestation of mutations by Govt.order No. 1458 of 1989 dated 22.6.1989. The order of Director Land Records was challenged by

the petitioner in the above said writ petition which has been dismissed by the learned Single Judge, hence the appeal.

We have heard the learned counsel for the parties and perused the record.

Govt.order No. LB-6 of 1958 provides:-

Revenue and Rehabilitation Department - Order No. LB-6/C of 1958 dated 5th June 1958 - It is ordered that the occupants of State land

including that vested in the State under the provisions of the Big Landed Estates Abolition Act, 2007 and that from which ejectment was ordered

under Council Order No. 40-C of 1944 but ejectment has not taken place till Khariff 1957-58 be recorded as tenants-at-will (under the State) in

respect of the area in their cultivating possession or occupation in khariff 1957-58.

From the bare reading of the above quoted order it is manifest that this Govt.order confers a right upon an occupant of State land on the

relevant time to be recorded as 'tenant-at-will"" subject to his satisfying the conditions prescribed in Govt.Order itself. As a necessary consequence

of such status conferred upon such occupant he had to pay the arrears of revenue and rent therefore mutations were being attested under the

provisions of Land Revenue Act. Then the Government of Jammu & Kashmir issued Govt.order No. 432 of 1966 dated 3.6.1966 providing for

conferment of proprietary rights on the cultivators of the State lands who were permanent residents of the State and stood declared as 'tenants-at-

will' in terms of Govt.order No. LB-6.

Perhaps being of the view that all such cases stood settled, the Government imposed ban on attestation of mutations by its order dated

29.9.1973.This order then was rescinded by order No. 163 of 1986 dated 8.7.1986. The Government however again imposed such ban by its

order No. 1158 of 1989 dated 22.6.1989 on the basis of this order the claim of the petitioner for attestation of the mutation under LB-6 has been

rejected.

The question arising for our consideration is whether the right conferrable under Government order Lb/6 is dependent on attestation of a

mutation in this regard and for that matter can the non-attestation of a mutation of tennat-at-will be regarded as an impediment for conferment of

proprietary rights of Govt.order No. 432 on an occupant of State land who is otherwise entitled to be recorded as tenant-at-will under Govt.order

No. Lb-6.

In our considered opinion right to be recorded as 'tenant-at-will"" is a substantive and independent right which emanates from Govt.order No.

Lb-6 and is independent on;y upon the satisfaction of the conditions set out in the order itself. LB-6 does not extinguish the ownership of the State

over the land in occupation of person who becomes 'tenant-at-will' after satisfying the requisite conditions. Mutation or no mutation would be of no

consequence so far as this right accrued under LB/6 is concerned.

The occupant of a State land after being recorded as tenant at will has become entitled to the ownership rights over such land under

Govt.order Section 432. Both of the Government orders i.e.LB/6 and Section 432 have not been rescinded still a cloud is being cast on so

conferred rights by the Govt.order No. 158 of 1989 dated 22.6.1989 which reads as follows:-

Government order No. 158 of 1989.

Dated 22.6.1989.

It is hereby ordered that no mutation under Government order No. LB-6/C of 1958 dated 5.6.1958 and Section 432 of 1966 dated 3-6-1966 in

respect of the land to which these were applicant shall be attested hence forth.

By order of the Government of Jammu & Kashmir.

Could such a ban as envisaged by the Government order be legally imposed by the Government? In our considered opinion the ban order is

bad in law being an arbitary exercise of the power. The mutations to be attested pursuant to Government orders LB/6 and Section 432 are in the

nature of recognition of vested rights in favour of the person entitled to be recorded as tenant-at-will and owner under the said Government orders.

Though the rights emanating from the said Government orders are not dependent upon the attestation of mutations yet the ban order arbitrarily

without any lawful reason causes unreasonable and irrational restriction upon the recognition of already vested rights. So long as these Government

orders which confer substantive rights upon the occupants of State lands are in force, no restriction can be imposed upon the recognition of such

rights by imposing a ban upon the attestation of mutations. No reason for necessitating such ban on the attestation of mutation has been brought to

our notice by the learned Deputy Advocate General nor any is discernable from the language of the Government order. We, therefore, quash the

same for the reason of its being arbitrary. Consequently we set aside the order dated 21.8.1993 passed by learned Director Land Records

(Settlement Officer) in appeal No. 46/DLR/AP/92-93 with a direction to him for passing fresh order in accordance with law after hearing the

parties. The judgment passed by the learned Single Judge is also set aside and writ petition is allowed.