Shankari Devi vs UT of Jammu and Kashmir and others

Moksha Khajuria Kazmi, J

1 By this petition filed under Article 226 of the Constitution of India, the petitioner seeks issuance of an appropriate writ, order, or direction in the nature of certiorari for quashing the order dated 08.10.2020 passed by respondent No. 2 in the appeal titled Shankari Devi vs. Gundurb Singh and another, as well as the order dated 06.06.1988 passed on Mutation No. 981. By virtue of the said mutation, occupancy tenancy rights with respect to the land allotted to Khillu Ram (predecessor-in-interest of the petitioner and respondents No. 4 and 5) were conferred solely upon respondents No. 4 and 5, thereby depriving the petitioner of her rightful share. The petitioner also seeks issuance of a writ of mandamus directing respondent No. 3 to attest the mutation of the allotted land in favour of the petitioner and the private respondents in equal shares, and prays for any other appropriate relief this Court may deem fit and proper in the facts and circumstances of the case.

Factual Matrix

2 The petitioner is one of the persons displaced from her native place in Pakistan-occupied Kashmir (PoK) due to the Indo-Pak conflict of 1947. She migrated to the Indian side and settled in Lamberi, Tehsil Nowshera, District Rajouri as a 1947 refugee. The petitioner’s family was headed by her husband Khillu Ram (since deceased) and consisted of the following members: (i) Khillu Ram, (ii) Koushalaya (first wife), (iii) Shankari Devi (second wife and petitioner herein), and (iv) Raj (daughter). Respondents No. 4 and 5 were born subsequently. Khillu Ram passed away in 1985. The daughters born to him were married and had settled in their matrimonial homes. It is pertinent to mention that Koushalaya, the first wife of Khillu Ram, passed away before him. However, the Tehsildar, Agrarian Reforms, Lamberi (respondent No. 3) attested Mutation No. 981 dated 06.06.1988 under Section 3-A of the J&K Agrarian Reforms Act, 1976, exclusively in favour of the private respondents, thereby depriving the petitioner of her rightful one-third share in the land allotted to late Khillu Ram. The land under mutation comprises the following Khasra numbers situated at Village Lamberi, Tehsil Nowshera:

(i) Khasra No. 2447/1 (05 kanals 05 marlas)

(ii) Khasra No. 2183 min (14 kanals 13 marlas)

(iii) Khasra No. 2192 (05 kanals 04 marlas)

(iv) Khasra No. 2192 (07 kanals 16 marlas)

(v) Khasra No. 2181 (01 kanal)

(vi) Khasra No. 2447 min (03 kanals 12 marlas)

(vii) Khasra No. 2185 (12 kanals 13 marlas)

(viii) Khasra No. 2188 (05 marlas)

3 Aggrieved by the mutation, the petitioner preferred an appeal before the Additional Deputy Commissioner, Rajouri, exercising powers of Commissioner Agrarian Reforms, which was dismissed vide the impugned order dated 08.10.2020.

Grounds for Challenge

4 The land in dispute is an evacuee property allotted to the family based on family strength under Cabinet Order No. 578-C of 1954 dated 07.05.1954. Every member of the family had a rightful share therein. The inheritance of such land is governed by Clause (2) of Para 15-B of the said Cabinet Order. Respondent No. 3 erred in law by attesting Mutation No. 981 under Section 3-A of the J&K Agrarian Reforms Act, 1976 solely in favour of respondents No. 4 and 5. Khillu Ram passed away in 1985, prior to the attestation of the mutation in 1988. He died as an allottee, not as an occupancy tenant. Thus, the land ought to have been mutated in favour of all surviving family members, including the petitioner. Respondent No. 3 failed to correctly interpret the legal position. The applicable provision is Clause (2) of Para 15-B of Cabinet Order No. 578-C of 1954. Respondent No. 2, while deciding the appeal, failed to address this legal issue and passed a non-speaking order. The land was allotted based on family strength, and all family members at the time of allotment or those who entered the family by marriage, birth, or adoption were entitled to a share, excluding females who had left the family upon marriage.

5 Vide order dated 08.12.2020, this Court issued notice to the respondents and directed status quo to be maintained. Respondents No. 1 to 4 filed objections. The right of respondent No. 5 to file reply was closed vide order dated 06.10.2023, and he was proceeded ex parte. Vide order dated 18.09.2024, the petition was admitted and objections of respondents No. 1 to 4 were treated as the counter affidavit. The fresh notice to respondent No. 5 was returned unserved with a report stating that he had refused to accept service. This conduct clearly indicates that respondent No. 5 is not interested in participating in the litigation, therefore, the matter is proceeded with ex parte against him.

6 Respondents No. 1 to 3 have contended that Clause (2) of Cabinet Order No. 578-C of 1954 provides for the transfer of interest in the allotted land in favour of another member of the family in whose name the allotment of land was originally made or regularized under the said rules. However, the petitioner’s case is distinct, as she claims inheritance of occupancy and tenancy rights which were conferred upon the family under Section 3A of the Agrarian Reforms Act. Therefore, the petitioner’s case is governed exclusively by Section 67 of the Tenancy Act and not by the provisions relating to transfer of allotments under the Cabinet Order.

7 In his reply, respondent No. 4 has stated that the petitioner, i.e., his mother, was included in the family of her husband, therefore, she is equally entitled to a share in the property left by her deceased husband, which has not been given to her due to the illegal orders passed by the revenue officers in violation of the mandatory provisions of law. Thus, the impugned orders, being illegal, deserve to be set aside. He has further stated that, being the widow, he is also entitled to a share in the property left by his deceased father, who is also the father of respondent No. 5. It is further stated that he has no objection if the petitioner is also held entitled to a share along with him and respondent No. 5.

Heard learned counsel for the parties and perused the material on record.

9 Learned counsel for the petitioner, while reiterating the submissions made, has placed reliance on the judgment of this Court in Joginder Kour vs. State and others, 2014 (2) JKJ (HC) 323, wherein it was held that succession to allotment rights under Cabinet Order No. 578-C of 1954 is not governed by the Hindu Succession Act but is instead regulated by the provisions of the said Cabinet Order and the rules framed thereunder. As per the Explanation to Rule 2 of the Rules, only unmarried children are deemed to be members of the family. Further, in terms of SRO 739 dated 17.11.1976, Clause (2) of Para 15-B was substituted to provide that the interest of an allottee shall devolve only upon members of his family by reason of marriage, birth, or adoption, and shall exclude those who have predeceased the allottee or have ceased to be members of the family due to marriage or adoption. It has been, thus, contended that succession to such allotment is governed exclusively by the Cabinet Order No. 578-C of 1954, and, therefore, the Tehsildar committed an error in invoking Section 3-A of the Agrarian Reforms Act, and the matter ought to have been considered strictly under the rules governing allotments as per the aforementioned Cabinet Order.

10 On the other hand, respondents No. 1 to 3 have argued that the mutation was correctly made under Section 3-A of the Agrarian Reforms Act along with Section 67 of the Tenancy Act. However, respondent No. 4 did not oppose the petitioner’s claim and raised no objection to the relief sought.

11 The issue that falls for consideration is as to whether the rights of succession to land allotted under Cabinet Order No. 578-C of 1954 are governed by personal succession laws or by the terms of the Cabinet Order itself, and whether Mutation No. 981 was validly attested solely in favour of the male heirs.

12 In Joginder Kour v. State and others, 2014 (2) JKJ (HC) 323, this Court held that succession to the rights in land allotted under Cabinet Order No. 578-C of 1954 is not governed by the Hindu Succession Act, but by the rules and terms of the allotment. The Explanation to Rule 2 and Para 15-B make it clear that family members at the time of allotment, including those joining by marriage or birth, are entitled, except females who have left the family due to marriage.The land in question is an evacuee property allotted as part of a rehabilitation scheme, and Khillu Ram died before acquiring occupancy rights under Section 8 of the Agrarian Reforms Act. Therefore, he remained an allottee at the time of his death.

13 The allotment of land under Cabinet Decision No. 578-C of 1954 to displaced persons from across the Cease Fire Line (now Line of Actual Control) did not vest ownership rights in the individual allottee. The authorities responsible for relief and rehabilitation of displaced persons made such allotments not in favour of individuals per se, but to families, with the objective of rehabilitating the entire family unit and ensuring their livelihood through cultivation of the land. Rule 15-B of the relevant Rules prescribes the manner in which allotted land is to devolve upon the death of the person in whose name the land was initially recorded. Given that the original allotment was made to the family as a unit, the succession to such allotted land is governed by the principle of survivorship rather than inheritance. Accordingly, the land devolves upon the surviving members of the family who were part of the family at the time of initial allotment and those who subsequently became members by way of marriage or adoption. Conversely, individuals who ceased to be members of the family such as daughters who left the family upon marriage or those who were adopted out are not entitled to any share in the allotted land.

14 A Division Bench of this Court in Makhan Singh vs State of Jammu and Kashmir and Ors (LPAOW No.74 of 2004, decided on 10.07.2014) has clarified the position and held that since the initial allotment was made to the family to keep the allotment procedure in tune with the initial objective, the allotted land is to devolve by survivorship rather than inheritance.

15 Allotment rights under Cabinet Order 578-C cannot be made subject to personal law. The rights devolve as per the rules of allotment framed under the said order, including amendments made through SRO 739/1976. Therefore, the mutation attested under Section 3-A of the Agrarian Reforms Act, 1976 in favour of only the sons, to the exclusion of the petitioner, is clearly unsustainable in law. Respondent No. 3 has failed to appreciate that Khillu Ram had died before acquiring statutory occupancy rights and thus, the succession ought to have followed the substituted Clause (2) of Para 15-B of the Cabinet Order which entitles surviving family members, including the widow, to a share in the allotment.

16 In view of the above discussion, this Court is of the considered view that the impugned Mutation No. 981 dated 06.06.1988, as well as the order dated 08.10.2020 passed by respondent No. 2, are legally unsustainable and deserve to be quashed. Accordingly, the writ petition is allowed and the following directions are issued:

(i) Order dated 08.10.2020 passed by respondent No. 2 is quashed.

(ii) Mutation No. 981 dated 06.06.1988 attested by respondent No. 3 is also quashed.

(iii) Respondent No. 3 is directed to re-attest the mutation of the land allotted to late Khillu Ram in accordance with Clause (2) of Para 15-B of Cabinet Order No. 578-C of 1954 (as amended vide SRO 739/1976), by including the petitioner as a legal heir entitled to a rightful share along with other eligible members of the family.

(iv) The said exercise shall be carried out within a period of three months from the date of receipt of a copy of this order.