Noor Hussain, Barkat Bibi vs Financial Commissioner and Ors.

These petitions involve the interpretation of Council Orders No : 1234 of 1939, 290C of 1940 and 872C of 1940 and the affect of these orders

on the rights of the parties litigating.

Some of the facts of the case are: that the land measuring 32 kanals 15 marlas covered by Survey No. 659 (23 KI. 16 mis.) and Survey No. 661

(8 Kls. 19 mis.) belonging to the State situate village Maheen Sarkar, tehsil Samba, was held as nonoccupancy tenant by one Noor in the

predecessorininterest of the petitioners in Writ Petition No : 774/83. Similarly the predecessorininterest of the petitioner in Writ petition No.

1108/85, were stated to be in cultivating possession of the land measuring 54 kanals 5 marlas under survey Nos. 683 and 696 situate in the same

village. It is submitted by the petitioners that the State Government with a view to better the lot of peasantry conferred proprietary rights on such of

the nonoccupancy in Samvat year 1982 and prior to 1982 for less than 15 years and also on such nonoccupancy tenants who were in possession

thereof for which the aforesaid Council orders were promulgated. The petitioners in both the writ petitions submit that they were entitled to the

benefit of the aforesaid Council Orders but wrongly deprived of the land which was allotted to other nonofficial respondents. It is submitted that

the respondent authorities were under an obligation to have afforded an opportunity to the petitioners and their predecessorininterest of making the

payment of the amount and production of the State subject certificate in terms of the aforesaid council orders before allotting the said land to any

other person.

In the Counter affidavits filed in the cafe it is submitted that the Government issued the orders to confer proprietary rights upon the tenants who

were in possession of the land on the relevant date and satisfied the condition of the order at the relevant time. According to the terms of the

Council Orders, the persons claiming their benefit were liable to production of their state subject certificates and payment of the specified land

revenue within the period specified therein. It is contended that contention of the petitioners that the payment of Nazarana and the production of

State Subject certificate was subsequently dispensed with, is erroneous. It is further contended that the tenantsatwill who did not satisfy the

stipulated conditions, contained in the aforesaid council orders, were not entitled at all to be registered as proprietors. The petitioners or their

predecessorininterest never opted to avail of the benefit under the aforesaid Council orders with the result that they were deprived of their benefits.

Their rights if any, in the land, stood extinguished and they were not entitled to the grant of any relief of this stage. It is urged that the grand father of

the petitioners in Writ Petition No. 774/83 miserably failed to take advantage of the concessions and thereby failed to fulfil their part of conditional

offer made by the Government. According to the respondents, a tenantatwill could secure proprietary rights on payment of 20 times of land

revenue within the stipulated period and on production of State subject certificate.

In Writ Petition No. 1108/85, respondents 5 to 11 have stated that no mutation was ever attested in favour of Jumma, the predecessorinintereset

of the petitioners. It is contended that from the remarks column of Jamabandi of Kharif 1992 and Rabi 1997 (Bikrami) it is indicated that Jumma

was entitled to the conferment of ownership rights only after the payment of Nazarana of Rs. 2128 annas being 20 times the land revenne and on

the production of state subject certificate within three years from the date of the relevant Council order. According to the report of the patwari, it is

submitted, Jumma had failed to produce the requisite State Subject certificate and did not deposit the Nazarana within the stipulated period. The

order of Tehsildar passed in mutation No. 387 was set aside by respondent No. 1 on the recommendations of the Director, Land Records, with

Powers of the Divisional Commissioner dated 1691983. The entries of Jamabandi of 195859 show respondents 5 to 11 to be in cultivating posses

ion of the land. It is contended that the land was never declared as an evacuese property in terns of Sec. 6 of the J&K Evacuees (Administration

of Property) Act. The writ petitions are stated to be misconceived and liable to be dismissed.

I have heard learned counsel for the parties and perused the record

It appears that Shri S.M. Agha, the then Financial Commissioner was of the view that if a person was found to be in cultivatiting possession of the

land at the relevant time in terms of the aforesaid Council orders he was, qualified to get the proprietory rights over the land notwithstanding the

ether conditions. Shri R.K. Takkar, another Financial Commissioner was, however, of the view that the payment of Nazarana and production of

the State Subject certificate within a period of three years was a condition precedent for conferment of the rights under the aforesaid Council

Orders. Council Order No : 1234 of 1939, provides :

Subject:

Status of the cultivators of Rakhs and villages transferred from the private department to the State in the Jammu District. It is ordered that

proprietary rights be conferred on tenants in these villages on the following ines :

a) All tenants who are able to prove that occupancy rights were conferred on them during the time of His late High ness and all tenantsatwill who

had been in continuous possession for not less than 15 years prior to 1982 and who have continued in urbroken possession since, may be

registered as possessing proprietory rights without the levy of any Nazarana;

all other tenantsatwill may be registered as possessing proprietory rights on payment of a sum equivalent to 20 years land revenue; and

tenantsatwill who do not come under clause (a) or who are not prepared to pay the Nazarana mentioned in clause (b) will be registered only as

tenantsatwill

The concessions in para 1 are available only to tenants who are State Subjects. No proprietory rights can he conferred on tenants who are not

State Subjects.

3 It is further ordered that no Shamlat rights be given in these estates and that all uncultivated and waste areas be recorded as Khalsa. Council

order No: 290C of 1940, provided:

Subject:

Revenue Minister's Memo No. S531 dated 29th January 1940 regarding status of the cultivators of the Rakhs and villages transferred from the

Private Department.

It is ordered that.

a) the cultivators of the Rakhs and villages transferred from the Private Department to the State in Jammu District be allowed 3 years for

production of State Subject Certificates or payment of 20 years land revenue as the case may be; and

b) b) further that the concession granted under council order No. 1234C of 1939, shall be open to State subjects of all classes.

Council order No: 872C of 1940 further provided :

It is ordered that the Council order No. 1234C of 1939 be amplified and modified as under :

A tenant whose name exists in all the available registeres from 1967 to 1982 be presumed to fulfil the condition of continuous and unbroken

possession for 15 years as laid down, in para (a) of the Council Order No. J234C of 1939, provided he may be in unbroken possession after

S1982 also.

The uncultivated portions of such fields as have been measured as one be recorded in the names of holders thereof and not as Khalsa, and any

Nautor from this area be assessed at village revenue rates.

All Nautors whether made before or after S1982 be charged at the Parta Deh rates from the date of Nautor subject to a maximum of 5 years land

revenue to be recovered on account of arreais and Nautors as they have in their individual holdings, but a tenantatwill may secure proprietory rights

on payment of Nazarana equivalent to 20 years land revenue.

A perusal of the aforesaid Council Orders clearly shows that a tenant whether occupancy or nonoccupancy, was entitled to the benefit of the said

council Orders provided, (a) he was shown to be in possession for the period specified in the orders at the relevant time and such possession was

unbroken; (b) if the tenant was a tenantatwill and in possession, had paid a sum equivalent to 20 years land revenue; and (c) was a State subject.

The law is well settled that if a particular act is required to be done in the specified manner, no rights would arise or liabilities accrue without

compliance of the directions of law strictly in the manner prescribed. The orders passed as early as in December, 1939 were never availed of by

the petitioners or their predecessorsininterest for a number of decades with the result that the property stood transferred to various other persons

as allottees. The uncertainty could not be allowed to prevail for years together nor could the petitioners or their predecessorsin interest bi permitted

to exercise their option at any time of their choice. The then Director, Land Records (with powers of Divisional Commissioner), Shri K. C. Bhagat

after referring to various orders passed by the Financial Commissioners, lightly held in the case of Barkat Blbi (WP No. 1108/85 :

Consequent upon the discussion done as above and with due respect of now conflicting orders passed in this concern regarding to the attestation

of mutations by the Tehsildar, the possession in this case is broken, three years condition has not been complied within the stipulated period of 3

years, the village has not been transferred to Sarkar under the orders regarding Land Grant Act applies, Town Planning Act has been extended

and finally Agrarian Reforms Act has come into play. Therefore, I am clear about it that provisions of 1234C of 1939 cannot be extended in this

village The land was not owned originally and therefore failing of the obligations imposed does not confer any tights under 1234C of 1939 within

13 Kms area. Hence I recommend to the Financial Commissioner (Collector) and Tehsildar dated 14.7.1979 and 7.1.1979 passed on mutation

No. 387 Maheen Sarkar calling upon the findings for further guidance of whole Revenue Agency analysing confusion with which they are suffering

at present.

Shri R. K. Takkar, the then Financial Commissioner, was alo right in holding that it was no longer open to any person to invoke the provisions of

Council Order No 1234C of 1939 by paying Nazarana and producing State Subject certificate at any time of his choice. While disposing of

revision No. 57/198182, he held :

It will be seen that the order refers to two classes of tenants : (i) those who held occupancy rights or had a continuous possession of 15 years; (ii)

all other tanantsatwill. In the case of first category, the effect of grant of proprietory rights was automatic; whereas for the second category the

conferment of rights was conditional to the tenant being a state subject and his paying a Nazarana equal to 20 years land revenue. The order states

in a very clear language that those tenants who are not prepared to pay the 'Nazarana' will be registered only as tenantsatwill. This requirement was

relaxed under Council order No. 290C of 1940 in so far as such tenants were allowed to period of (here years to pay the 'Nazarana' and produce

the State Subject Certificate. Thus the combined effect of the two orders will be that those of them who did not satisfy and one of the two

conditions within a period of three years, would be registered only as tenant atwill.

In the face of such a clear worded provision in the Council orders themselves, I cannot agree with any predecessor's conclusion in the orders

passed by him in Revision No. 155 of 1969 dated 6.7.70, that proprietory rights vested in such a tenant as soon as the Council orders were issued

and they were to be given effect to as and when he chose to satisfy the two conditions. It could be said purely by way of argument that even the

most charitable interpretation on these lines would at least insist upon the tenant being still in possession on the date if two conditions are satisfied.

That the rights in question could not be claimed after the prescribed period was over is clear from the provisions of Instruction No. 11 in Annexure

11 of rules made under the B. L. Estates Abolition Act, 2007 quoted by another predecessor of mine in the orders passed by him in Revision Nos.

98 and 99 dated 20.10.1978 entitled Mst. Kaki v/s Kamyon I agree with the findings and the position of law as settled by Shri R.K. Takkar. The

petitioner of their predecessorsininterest have not availed of the benefit of the aforesaid Council Orders as per conditions specified therein and are,

therefore, not entitled to be conferred the rights under the aforesaid Council Orders. The orders impugned do not suffer from any illegality or error

of jurisdiction requiring any interference.

There is no merit in both these petitions which are dismissed but without any order as to costs. Interim direction of the court shall stand vacated.