Makhan Singh vs Amar Nath

Hasnain Massodi, J.—LPA on hand is directed against writ court judgment in writ petition titled Amarnath versus State of Jammu and

Kashmir and Ors. ( OWP No.149/2001) dated 14th May 2004, whereby writ petition has been allowed, order of Jammu and Kashmir Special

Tribunal dated 31st October 2000, set aside and order of Commissioner Agrarian Reforms (Appellate Authority) dated 22nd November 1983

restored.

First an overview look of background facts.

Shri Amar Nath appellant-herein, Makhan Singh-respondent no.5 and their uncle Ram Saran migrated to this part of the state in wake of

partition in 1947. Being migrants from Pakistan Administered Kashmir, they were allotted a plot of land measuring 32 kanals comprising khasra

No. 86, 122/37, 34, 37 min situated at Kotli Galabana, Tehsil R. S. Pura in terms of Cabinet Order No. 578-C of 1954. Shri Ram Saran being

eldest member of the family was declared as head of the family and allotment was made in his favour. The possession of allotted land was handed

over and they together cultivated the land till Ram Saran passed away in 1977.

In wake of the death of Ram Saran who was head of the family and in whose name the land was allotted, the appellant approached Revenue

Authorities with a request to declare him as head of the family. On the application mutation order no. 304 u/s 3A Agrarian Reforms Act 1978 was

passed in his favour on 22nd November 1983.

Respondent No. 1assailed order dated 22nd November 1983 before Agrarian Commissioner Reforms Jammu. The case set up was that he

was in actual physical possession of plot of land measuring 8 kanals out of land allotted in favour of appellant, respondent no.5 and late Ram Saran

and that mutation order No. 304 u/s 3A Agrarian Reforms Act 1976 was passed by Tehsildar R. S, Pura without making any enquiry or spot

inspection and therefore it was liable to be set aside. The appeal was allowed vide order dated 22ndNovember 1983. The appellate court took

the view that appellant as member of the family in whose favour land was initially allotted was entitled to equal share of the land and to be

conferred occupancy rights u/s 3A Jammu and Kashmir Agrarian Reforms Act, 1967 to that extent.

The appellate courts order was questioned by Makhan Singh appellant, herein by preferring a revision petition before J&K Special Tribunal.

The Tribunal found that respondent No. 5 was allotted a plot of land measuring 18 kanals at Suchetgarh after his separation from the family of Ram

Saran and therefore did not have any interest left in the land initially allotted to appellant, respondent no.5 and late Ram Saran on their migration to

this part of the state. It was submitted that as respondent No. 5 was allotted land at Suchetgarh vide order dated 29.9.1967 under G.O. No. L.

B.-7-C of 1958, allotment would not come in his way to get his share on separation from family of Ram Saran. However the submission did not

find favour with the Tribunal. The Tribunal held that order dated 22nd November 1983 passed by the Agrarian Reforms Commissioner was

untenable and proceeded to observe that respondent No. 5 did not have any right to claim any share out of land initially allotted to appellant,

respondents no.5 and late Ram Saran under Cabinet Order No. 578-C of 1954. The Tribunal accordingly accepted revision, set aside appellate

court order and restored mutation order dated 22.11.1983.

Respondent No. 5aggrieved with order of J&K Special Tribunal dated 31.10.2000, filed writ petition being OWP 149/2001 relatable to this

letters patent appeal. The respondent No. 5 reiterated his stand that his separation from the family of late Ram Saran cannot disentitle him from his

share of land (32 kanals) initially allotted to appellant respondent No. 5 and late Ram Saran and that view taken by the Tribunal was erroneous

and was not sustainable under law. Respondent No. 5 however maintained that he was in possession of land measuring 8 kanals out of allotted

land (32 kanals) and had a right to have occupancy rights conferred u/s 3-A Jammu and Kashmir Agrarian Reforms Act 1967 over this plot of

land.

The writ petition was contested by appellant reiterating stand taken before appellate court and Special Tribunal. It was pleaded that as

respondent No. 5 /writ petitioner on his own admission separated from the family headed by late Ram Saran and then persuaded revenue

authorities to allot him land measuring 18 kanals at Suchetgarh in his favour, lost any have right to get any part of the allotted land much less

maintain the writ petition assailing the Tribunal order dated 31.10.2000.

The writ court on going through the pleadings and background facts as also record available on the file allowed the petition and set aside the

Tribunal order dated 31.10.2000. The order of appellate authority was accordingly restored. However petitioners claim to get occupancy rights

conferred u/s 3A J&K Agrarian Reforms Act was held to be restricted to only 8 kanals out of 32 kanals. The official respondents were directed to

examine whether petitioners land i.e. 8 kanals under Cabinet decision no. 578-C of 1954 and 18 kanals under Government Order No. L. B.-7-C

of 1958 put together, exceeded the prescribed limits as provided in ceiling of land laws. The writ court traced mode and manner in which allotment

of land under Cabinet decision no. 578-C of 1954 was passed in terms of Rule 15-B as amended by SRO 379 dated 27th November 1976. The

writ court noticed that in terms of rules, devolution has to be on the basis of survivorship in favour of such members of the family who were part of

the family at the time of initial allotment or those who become members of the family due to marriage adoption, birth except those who may have

left the family on account of marriage or adoption. The writ court opined that respondent No. 5/writ petitioner was member of the family at the

time head of the family breathed his last, and had interest in allotted land to the extent of his share in terms of Rule 15-B as amended by SRO 739

dated 17th November 1976. The writ court judgment dated 14th May 2004 is questioned in the present LPA on the grounds urged in the memo

of appeal.

The main plank of the appellants case is that as respondent no.1 admittedly separated from the family headed by late Ram Saran and thereafter

got 18 kanals of land allotted in his favour under Government Order No. LB/7-C of 1958, and declared himself head of the family cannot maintain

any claim to 8 kanals out of allotted land inasmuch as respondent no. 1 cannot be a part of two separate families at one time.

It is pointed out that respondent no. 1 persuaded authorities to allot land in his favour only after he projected himself as landless person and

respondents therefore cannot take a stand different from the one taken before the authorities at the time 18 kanals were allotted in his favour under

order No. L. B./7-C of 1958 and lay claim to any part of initially allotted land to appellant, respondent no.1 and late Ram Saran.

Heard. We have considered the matter.

The allotment of land under Cabinet decision no. 578-C of 1954 to displaced persons from other side of Cease Fire Line (now Line of Actual

Control) did not confer ownership rights on an allottee. The authorities involved in relief and rehabilitation of displaced persons did not make

allotment of land infavour of such persons individually. The allotment was made to the families so that whole family as a unit was rehabilitated and

could cultivate the land for its sustenance. Rule 15-B lays the mode and manner in which allotted land is to pass in case death of person in whose

name it was initially allotted. Since initial allotment was made to the family to keep allotment procedure in tune with the initial object, allotted land is

to devolve by survivorship rather than inheritance. The allotted land goes to the surviving members of the family who were present and part of the

family at the time of initial allotment and to such person(s) who became part of the family because of marriage or adoption etc. Similarly those who

left the family because of marriage and adoption are not to have any part of the land devolving by survivorship.

The writ court while concluding held that respondent no.1 had a right to get his share from the land allotted, by survivorship. It is admitted

position of the parties that respondent no.1, appellant and Ram Saran were present part of the family at the time of initial allotment. The appellant

either by getting himself declared head of the family after the death of Ram Saran or on the ground of respondent no.1's separation from the family

cannot deny the right of respondent no.1 to have the land initially allotted to the family devolved to him by survivorship. The plea that respondent

no.1 got a separate plot of land at Suchetgarh allotted in his favour and that at the time of such allotment, he admittedly had separated from the

family, is not to change complexion of the matter. The respondent no. 1 would continue to have right to have his share to the land initially allotted to

him, appellant and late Ram Saran. The allotment of 18 kanals in favour of respondent no.1 at Suchetgarh is not to strip respondent no.1 of his

right to have his share out of allotted land.

This may raise the question of legality to the allotment of land at Suchetgarh or the question that the total land i.e. 27 kanals is much more than

the prescribed ceiling limits. It is for the authorities to take notice of this aspect of the matter and find out whether respondent no.1 has resorted to

any of legal means or made mis- representation while getting land allotted in his favour.

For the reasons discussed, we do not find any reason to take a view different from the one taken by the writ court. The appeal is without any

merit and deserved to be dismissed.

Dismissed accordingly.