Shanker vs Dy. Commissioner and Others

O.P. Sharma, J.—Petitioner's case is that he was in possession of land measuring 10 kanals comprising khasra No. 549-min. situate in

village Kawa Tehsil Udhampur. Since the land was owned by the state, he was entitled to its ownership under LB-6/C of 1958 because he was

holding the possession much prior to 1957. However, Tehsildar Udhampur by order dated 25-11-75, directed his eviction from the aforesaid

land. This order of Tehsildar was challenged by him in Appeal No. 139/1972-73 titled Shanker v. State, which was allowed by the Dy.

Commissioner by his order dated 22-09-73. The Deputy Commissioner while allowing the appeal not only set-aside the order of ejectment passed

by the Tehsildar, Udhampur but also directed him to mutate the aforesaid land in the name of the petitioner under Government Order No. LB-6/C

of 1958. So, petitioner's possession over the land was maintained. Latter this land was acquired by the State and award made in 1994 but since

the mutation was not attested in favour of the petitioner, he has not been paid compensation for the same.

The relief claimed by the petitioner is thus two folds:

(i) That the mutation be attessted in his favour, as directed by the Deputy Commissioner under Govt. Order No. LB-6/C of 1958 and ownership

conferred upon him; and

(ii) That he be paid the compensation as the land has been acquired for defence purposes.

In the counter filed on behalf of the respondents State, the defence pleaded is that the petitioner having failed to challenge the award in terms of

which the compensation was assessed in favour of the state, he is precluded from claming any relief. It is also stated that the Deputy Commissioner

decided the appeal in the year 1973, during which period the petitioner did not seek implementation of the order passed in his favour. The petition

is, therefore, barred by delay and laches. So far his factum of possession is concerned, the same has not been disputed.

The question involved is whether the petitioner can be denied the right conferred upon him under Govt. Order No. LB-6/C of 1958 merely

because the Revenue Officer failed to comply the direction of the Deputy Commissioner (Collector) Udhampur, when the right is created by the

factum of possession of State land on particular date. Attestation of mutation is a statutory duty of the Revenue Officer. Once the Deputy

Commissioner found the petitioner entitled to the benefit of Government order No. LB-6/C of 1958, the right to hold the land in the manner

provided in the aforesaid Government Order matured in the petitioner and attestation of the mutation was only a formality. The Tehsildar,

Udhampur was neither to hold an enquiry to find out the status of the petitioner not even to proceed on spot as required under the standing order

because the right of the petitioner to hold state land under LB-6/C of 1958 stood finally determined. This position could have changed only if the

State has preferred revision before the Revisional Authority, which is not the case, as admitted by the respondents. It is thus failure on the part of

Tehsildar to perform statutory duty to attest mutation specially when he was directed by the Deputy Commissioner.

So, on the admitted facts, the petition is allowed and by a writ of mandamus, the respondent, Tehsildar, Udhampur is directed to implement the

order of Deputy Commissioner, Udhampur passed in Appeal No. 139 of 1972-73 on 22-09-73, directing attestation of mutation under

Government Order No. LB-6/C of 1958 within a period of three months. The respondents are further directed to assess and pay compensation of

the land to the petitioner, in case he is eligible for compensation on the basis of right conferred upon him under Government Order No. LB-6/C of

1958 within the same period. Both these petitions raise common facts of law and are being disposed of by this common judgment. There is no

order as to costs.