34.The learned counsel for the respondents asserts that the appropriate
authority to contest the mutation order is before the Revenue Officer,
rather than through a writ petition. Consequently, she argues that the writ
petition is not maintainable and should be dismissed.
35.The learned counsel for the respondents has invited this Court's attention
to a comprehensive order dated 10.03.2015 issued by the Financial
Commissioner Revenue, Jammu (acting in the capacity of Commissioner
of Agrarian Reforms), which upon examination indicates that the revision
petition submitted by Hasan Mohammed and others has been rejected for
lacking merit, resulting in the annulment of all unlawful entries in the
revenue records pertaining to Khasra Nos. 59/41 and 56, together with
other referenced Khasra numbers.
36.The Financial Commissioner Revenue (Commissioner Agrarian Reforms),
J&K Jammu, in issuing the aforementioned order, has additionally
determined that any actions undertaken or claimed to have been
undertaken based on the specified entries concerning the designated
khasra numbers are rendered null and void ab initio, along with the
imposition of costs on the petitioner amounting to ₹ 20,000/-. In
conjunction with the aforementioned order, the Financial Commissioner
Revenue has instructed the Forest Department to identify forest land
similarly affected by encroachment and to report these findings to the
respective Deputy Commissioners. Consequently, all Deputy
Commissioners in the former State were mandated to facilitate the
eviction of illegal encroachments reported by the Forest Department from
such lands, adhering to the appropriate procedures. Furthermore, the
officers were instructed to solicit assistance from the Crime Branch of the
J&K Police, to which the matter had previously been committed for
investigation. The aforementioned order was known to the petitioners, and
they have not challenged the same as yet.
37.The learned counsel for the respondents contends that, in the absence of a
specific challenge to the aforementioned orders in both petitions, the
arguments presented by the learned counsel for the petitioner fail to
withstand legal scrutiny and should be dismissed; thus, the writ petition,
lacking merit, warrants dismissal.
38.Finally, the learned counsel for the respondents asserts that the
terminology employed in Government Order No. LB-6/C of 1958
explicitly stipulates that the land possessed by the beneficiary of LB-6/C
must be continuously in cultivation from kharif 1957-58, in addition to
meeting all conditions outlined in the aforementioned order. Since the
predecessor-in-interest of the petitioner did not cultivate the specified land,
he could not be designated as "tenants-at-will" and subsequently, as
owners based on Government Order No. S-432 of 1966, issued June 3,
1966.
39.Consequently, as the error was first committed based on Government
Order and consequently, the conferment of ownership rights under LB-
6/C of 1958, based on the aforementioned Government order was also
unconstitutional; hence, the resulting mutations have been annulled. The
arguments presented by the petitioner's counsel concerning the issuance of
notice prior to the cancellation of the relevant mutation have been
supported by the respondents' counsel, who has placed reliance upon the
Supreme Court's ruling in "Escorts Farms Ltd vs Commissioner, Kumaon
Division, Nanital, UP & Ors" in Appeal (Civil) No. 1584/1998, decided
on February 20, 2004.
PERUSAL OF RECORD
40.During the proceedings, Mr Vishal Bharti, esteemed Deputy Advocate
General, was requested to present the record to demonstrate to this Court
the satisfaction documented by the Forest Department prior to
commencing eviction proceedings against the petitioner, purportedly
based on the order issued by the Financial Commissioner. Nevertheless,
Mr. Bharti, the learned Deputy Attorney General, failed to satisfy this
Court and did not present the record. He has subsequently produced the
record, which this Court has reviewed, and contends that the action was
taken based on the Financial Commissioner's order passed in the year
2015. The eviction proceedings commenced in 2021 pursuant to this order,
to which he acknowledges the petitioner was not a party and was not
afforded a hearing. Nonetheless, this order has been enforced to the
petitioner's detriment, leading to the initiation of eviction proceedings
against the petitioner, ultimately resulting in demolition.
REBUTTAL ARGUMENTS ON BEHALF OF THE PETITIONER
41.The learned counsel for the petitioner contends in rebuttal that the
arguments presented by Mrs Kohli fall outside the parameters of the
respondents' reply, in which they have conceded to all assertions made by
the petitioner in WP(C) No. 435/2021 in paragraphs 4, 5, and 6. The
respondents have submitted an evasive response, and having
acknowledged the petitioner's position, they cannot justifiably claim that
relief cannot be granted to the petitioner at this juncture. Mrs. Kohli's
reliance on the aforementioned judgment by the Apex Court pertains to a
distinct context, namely regarding "the doctrine of superfluous formality",
indicating that even if notice had been issued, the outcome would have
remained unchanged. Consequently, by employing the aforementioned
doctrine, the Apex Court has issued its judgment, and the facts presented
in this case are distinct, rendering the judgment cited by Mrs. Kohli
inapplicable to the instant matter.
42.The learned counsel for the petitioner asserts that the petitioners have been
deprived of their ownership rights, which were granted based on a
mutation following the declaration of ownership by the previous owners
of the land in question. Consequently, the rights vested in the petitioner
cannot be revoked without adhering to due process of law or affording the
petitioner an opportunity to be heard.
43.The learned counsel for the petitioner asserts that he has contested the
derivative order issued by the Tehsildar, Jammu, which is the subject of
writ petition WP(C) No. 435/2021. Consequently, no additional
amendments or facts could be introduced, as the petitioner has already
challenged the subsequent order from the Tehsildar, Jammu, which is
predicated on the aforementioned order, given that the Tehsildar's order is
a direct result of the Collector's order. Consequently, there was no
necessity to contest the aforementioned order afresh, as Mrs. Kohli has
contended, as no new facts needed to be asserted through either
amendment or the submission of a new writ petition. Consequently, the
argument presented by Mrs. Kohli is legally untenable and should be
dismissed.
44.Finally, the petitioner's counsel contends that the respondents were
obligated to provide a copy of the relevant order when submitting their
reply in WP(C) 435/2021. However, they intentionally concealed this
critical information and failed to include the order in the record. The
petitioner was never given a copy of the order, which only came to their
attention upon the Forest Department's reply in the related petition, now
included as Annexure R-5. Furthermore, the order was issued without any
prior notice to the petitioner.
45.In his rebuttal, Mr. Bhushan cited Section 19-A of the Land Revenue Act,
which indicates that a Revenue Officer may refer a case to a subordinate
Revenue Officer for inquiry and report only if he possesses the authority
to adjudicate under the Act, and may subsequently resolve the case based
on the findings of such inquiry and report. The learned counsel asserts that
the Revenue Officer who issued the impugned order is not authorised to
do so under the Land Revenue Act, and hence, the reliance put by Ms.
Monika Kohli, learned Senior Counsel, is misplaced. The stand of the
respondents on Section 19-A is erroneous and should be categorically
dismissed.
46.Regarding the argument presented by the learned counsel for the
respondents, asserting an alleged breach of the terms and conditions of
LB-6/C of 1958 dated June 5, 1958, and the terms of Government Order
S-432 of 1966, which served as the sole foundation for the Tehsildar's
order, Mr. Bhushan contended that this ground is inapplicable to the
petitioner's case. He acquired the land from the legal heirs of the deceased,
Mohd Yaqoob. At this juncture, even if any wrongdoing has transpired, it
is not attributable to the petitioner, who cannot be held accountable for
any infractions that may have occurred at that time. He additionally
asserts that during the intervening period, when individuals were
designated as "tenant-at-will" based on LB-6, governmental action was
necessitated in the event of any transgression; however, the conferment of
proprietary rights in 1966 unequivocally demonstrates that no purported
violation of the terms and conditions of LB-6 occurred. The argument
presented by the respondents counsel about an alleged infringement of the
aforementioned Government Order at this late date is unfounded and
should be dismissed.
47.To substantiate his argument, learned counsel has referenced the judgment
passed by a Co-ordinate Bench of this Court in OWP No.982/2015 titled
"Mohd. Akbar Shah v. State of J&K & Ors," decided on 31.05.2016,
indicates that the primary objective of granting ownership rights to
individuals classified as "tenants-at-will" was to ensure that the benefits of
the land were conferred upon the grantee, who was to utilize it solely for
agricultural purposes and was prohibited from alienating it without
governmental consent. It is indisputable that agricultural activity
constituted the foundation of the State's economy in earlier times, and the
land allocated for agricultural purposes to a state subject/domicile aimed
to alleviate the hardships of that individual and their family, as well as to
fulfill the objectives outlined in the aforementioned policy in LB-6. The
Court, in its recent judgment, noted that agriculture is no longer the
primary economic activity of the Union Territory. Consequently, the
requirement for prior approval of the Government for the alienation of
land designated for agricultural purposes, as stipulated in paragraph 4 of
Government Order S-432 of 1966, has been rendered otiose and will not
impede the landowner's right to alienate the property, provided that other
statutory conditions for such alienation are satisfied. Based on the
aforementioned principle, the argument presented by the respondents is
legally untenable and should be dismissed.
48.Regarding respondents contention that the petitioner has not pursued the
alternative and effective remedy stipulated by the statute regarding the
cancellation of the mutation, Mr. Bhushan cites the judgement of the Apex
Court in "Whirlpool Corporation v. Registrar of Trade Marks, Mumbai &
Ors," reported in (1988) (8) SCC 1, which delineates exceptions
permitting the direct filing of a writ petition without exhausting the
alternative remedy, provided the petitioner's case pertains to the
enforcement of fundamental rights, a breach of natural justice, an order
without jurisdiction or proceeding, or a challenge to the vires of an Act.
Based on the aforementioned exceptions, the learned counsel asserts that
the core of the petitioner's argument in this case is the infringement of the
principle of natural justice, as the petitioner has been condemned without
a hearing and has not been afforded the opportunity to contest the
cancellation of the mutations, a fact that has already been acknowledged
by the respondents. According to him, this is a suitable example in which
the writ petition might have been filed directly, bypassing the alternative
and effective remedy available under the statute against such an order.
Furthermore, he contends that the entire proceedings initiated by the
relevant Tehsildar or the Collector are void in the eyes of the law, as the
petitioner has been condemned without a hearing, which constitutes a
valid basis for directly approaching this Court through the present petition
under Article 226 of the Constitution of India. Consequently, the doctrine
of alternate and effective remedy will not apply in the context of the
petitioner's case.
LEGAL ANALYSIS
49.Heard Learned Counsel for the parties at length and perused the record.
50.The issues involved in both writ petitions are analogous; therefore, the
petitions have been clubbed and adjudicated collectively through a unified
judgment.
51.In order to resolve the issue at hand, this Court finds it appropriate to
establish the following questions of Law:
a) Whether writ petition is maintainable despite the lack of a
specific challenge to the order issued by the Collector, as the
petitioner contests only a derivative order from the Tehsildar,
Jammu, which references the Collector's order?
b) Whether Deputy Commissioner as well as Tehsildar lacks the
administrative authority to revoke a mutation?
c) Whether the Deputy Commissioner, Jammu was competent
to issue such order and could have resorted to Section 19(a)
while getting the report from his subordinate officer, more
particularly, when it was incumbent on part of the Collector
to have invoked the powers only in the eventuality, if he was
competent under law or empowered to do so by strict
interpretation of the language used under Section 19(a) of
the Land Revenue Act.
d) What was the actual significance of Order No. LB-6/C of
1958, dated June 5, 1958, published in the Government
Gazette on June 19, 1958, followed by the conferment of
proprietary rights under Government Order No. 432 of 1966,
dated June 3, 1966.
e) Once ownership rights were granted under Government
Order No. 432 of 1966 to the predecessor-in-interest of the
petitioner, from whom the land was acquired, can the
Government now, at this delayed juncture, contest the
legality of the initial declaration of the occupants of State
Land as tenants-at-will and the subsequent conferment of
ownership rights, and is it possible to retroactively declare
the entire process as illegal?
f) Can the Government, at this late juncture, after 62 years,
annul the entire process and revoke the mutation when the
petitioner acquired the land from Mohd Yaqoob, who has
since passed away and was initially designated as a tenant-at-
will, later granted ownership rights in 1966, upon which the
Fard was issued and the Sale Deeds were registered based on
those mutations?
g) It is questionable whether the respondents were warranted in
rescinding the mutation at this late juncture, without
contesting the Sale Deeds, which remain valid and have not
been disputed by any aggrieved party. In the absence of any
particular objection to the Sale Deeds, which are registered
based on a Fard issued by the Revenue Department, what
will be the effect of nullifying the mutation in favour of the
petitioner?
h) Whether impugned order has been passed in violation of
principles of natural justice?
i) After the petitioner has secured a 'No Objection Certificate'
from all relevant authorities for the building of Grand Hill
Restaurant, can the respondents, at this juncture, adopt a
contradictory position by asserting that the land in question
is under the jurisdiction of the Forest Department?
52.A cursory examination of the record reveals that prior to the petitioner's
acquisition of the land, the previous owners consulted the Revenue
Authorities and received the Fard Intekhab, Jamabandi for Khasra No.
59/41, Khewat No. 17, and Khata No. 45. The relevant Patwari issued
Fard Intkhab on 02.03.2000 and also provided "Titma Shajra." Since
Mohd. Yaqoob possessed the land identified as khasra No. 59/41 located
in Dawara, and the vendors are the legitimate heirs of Mohd Yaqoob.
Upon reviewing the Fard Intkhab Jambandi, issued by the Revenue
Authorities and certified by the Tehsildar Samba, it was determined that
Noor Bibi, Arshad Bibi, and Moorad Ali are the lawful heirs of Mohd
Yaqoob, in whose favour the Fard Intkhab has been issued by the Revenue
Authorities. Subsequently, the petitioner acquired a parcel of land
measuring 12 Kanal 7 Marlas through three distinct Sale Deeds, which
remain unchallenged by any aggrieved party as of the present date. These
deeds were duly registered by the competent authority, namely the Sub
Registrar of Samba, on 08.03.2000, 05.02.2002, and 11.06.2004,
respectively.
53.The records indicate that following the acquisition of the land by the
petitioner through three distinct Sale Deeds referenced above, the
petitioner was granted possession of the land by the previous owners.
Mutations have been duly attested for the land measuring 12 kanals 7
Marlas, which includes Khasra No. 59/41, Khewat No. 17/17, and Khata
No. 45/39 for 8 kanals, as per the sale deed dated 05.02.2002 concerning
4 kanals of land under Khasra No. 59/41 min, Khewat No. 17, Khata No.
45min, and the sale deed dated 11.06.2004 for 7 marlas of land under
Khasra No. 59/41, Khewat No. 10min, Khata No. 25min, located in
Dawara Tehsil Samba.
54.The record indicates that the petitioner established a restaurant named
"Grand Hill" on a section of land in 2012, having secured all necessary
approvals from the relevant authorities, which the respondents have not
contested. The remaining land has been enclosed with iron fencing, and
the petitioner has been operating the business on the disputed land. The
petitioner possesses proper authorisation and has secured an electrical
connection to operate the aforementioned business.
55. The petitioner operated the aforementioned restaurant business for over
nine years until the specified order was issued. The relevant authorities at
that time granted permission for the said construction, issued by the BDO
of the area after the petitioner obtained a "no objection" certificate from
all concerned parties, leading to the inescapable conclusion that the
respondents have no objection to the business activities conducted on the
land owned and possessed by the petitioner. Respondent No. 4, prior to
issuing the impugned order relevant to WP(C) No. 435/2021, failed to
provide any notice or summons to the petitioner or the previous owners
from whom the petitioner acquired the land through duly registered Sale
Deeds.
56.This issue has been explicitly asserted by the petitioner and remains
unrefuted by the respondents. Conversely, the respondents' action of
cancelling the mutations attested in favour of the petitioner in 2002 and
2004, as per the order dated 15.09.2020 issued by respondent No. 4
Tehsildar Jammu, has occurred after 18 years without notifying the
petitioner or granting an opportunity for a hearing. This cancellation
pertains to mutation No. 97 dated 16.05.2002, mutation No. 98 dated
16.05.2002, and mutation No. 105 dated 10.10.2004.
57.The aforementioned mutations were initially documented and recognised
by the Revenue Authorities at the registration of the sale deeds, and based
on these sale deeds, the land was transferred. Nonetheless, the
Respondents initiated the cancellation of the mutation in 2020 after
approximately 18 years, and did so without affording the petitioner an
opportunity to be heard or issuance of a notice. The registered sale deeds
are valid as of today and have not been contested by any aggrieved party
or the Government; all requisite documentation was finalized at the time
of the sale deeds without any objections raised. Consequently, the
respondents should not have had any justification to modify or annul the
mutation based on the contested order at this late juncture, 18 years later,
without compelling reasons.
58. This Court perceives the cancellation of the mutation, as dictated by the
impugned order, to constitute an arbitrary action by the respondents,
which contradicts their prior acknowledgement, wherein no objections
were raised by the Revenue Authorities during the registration of the sale
deeds, thereby affirming the validity of the sale and the mutation.
Consequently, this Court determines that the respondent's action, as per
the impugned order to cancel the mutation, is unlawful, capricious, and
infringes upon the petitioner's constitutional right to possess the property.
Finding on Questions of Law marked supra as "a"
a) The writ petition is maintainable despite the absence of a specific
challenge to the Collector's order, as it contests only a derivative
order issued by the Tehsildar of Jammu, which references the
Collector's order.
59.The order challenged in this petition was issued by the relevant Tehsildar
based on an administrative directive from the Deputy Commissioner of
Jammu, a copy of which was intentionally withheld from the petitioner.
Furthermore, the respondents have failed to include this document in their
response to the current petition. The petitioner became aware of the
issuance of the aforementioned order solely upon the filing of the Forest
Department's reply in a similar petition, WP(C) No. 795/2022, as an
annexure to the objections. The order issued by the Tehsildar is a
derivative of the order issued by the Collector, which was needed to be
communicated to the petitioner by the respondents. As the order issued by
the Collector was concealed by the respondents, the petitioner cannot be
denied relief or placed at a disadvantageous position for failing to contest
it. Consequently, this Court determines that the writ petition is
maintainable despite the lack of a direct challenge to the order issued by
the Collector, as the petitioner has contested a derivative order, namely the
subsequent ruling by the Tehsildar, Jammu, which negatively impacts the
petitioner's rights to retain the property in question, resulting in the
cancellation of the mutations.
Consequently, question No. (a) is answered accordingly.
Findings on Question of Law marked supra as "b"
(b) Whether Deputy Commissioner as well as Tehsildar lack the
administrative authority to revoke a mutations?
60.The primary concern is whether the Tehsildar possesses the competence to
annul mutations or if such a determination necessitates a formal quasi-
judicial procedure. If the legislation permits the Tehsildar to make
determinations solely based on legal procedures or particular provisions
within the act, then the cancellation of mutations solely by administrative
directives by the Deputy Commissioner contravenes procedural fairness.
Furthermore, the Tehsildar has exceeded the jurisdiction conferred by the
J&K Land Revenue Act of 1939, as he possesses no power to annul or
amend mutations solely based on administrative directives from a superior
officer, namely, Deputy Commissioner of Jammu. The authority to annul
a mutation or assess it necessitates a formal procedure, entailing legal
examination and a quasi-judicial decision-making process, which seems to
be absent in the current instance. Consequently, it is evident that the
Tehsildar has acted beyond the jurisdiction vested in him and has
circumvented the legal due procedure. The impugned order dated
15.09.2020 was issued in contravention of the specific stipulations of the
J&K Land Revenue Act, 1939. The order, which nullifies the mutations,
explicitly states that it was issued by respondent no. 4, exclusively based
on directives from respondent no. 3, the Deputy Commissioner of Jammu,
as communicated in his order dated 14th September 2020. The Tehsildar
lacked the authority under any provision of the J&K Land Revenue Act to
issue an order rescinding the mutations, particularly when, acting solely
on the administrative order of the Deputy Commissioner, Jammu, which
was neither provided to the petitioner nor included in the respondent's
reply to the current petition. Moreover, the Deputy Commissioner lacks
the administrative authority to revoke a mutation, a matter that has been
corroborated by a Coordinate Bench of this Court in the case named "Om
Prakash & ors." In the case of "v. UT of J&K & Ors" in WP(C) NO.
2360/2021, adjudicated on 20.03.2024, the following decision was
rendered:
"12.The stand taken by the respondents is that respondent
No. 2, Deputy Commissioner, Kathua has exercised his
administrative powers. I am afraid, there is no such
administrative power vested with the Deputy Commissioner
that would give him jurisdiction to set aside the mutation
orders passed by the Tehsildar. The power to attest a
mutation as also the power to set aside the mutation, is quasi
judicial in nature. The said power can never be termed as an
administrative power of the Revenue Officer. This power is
to be exercised by the Revenue Officers strictly in
accordance with the provisions contained in the J&K Land
Revenue Act and that too after affording an opportunity of
hearing to the affected party by adhering to the principles of
natural justice. As has been already noted, even while
reviewing its own order, a Revenue Officer has to give an
opportunity of hearing to the affected party. The same is the
position when Divisional Commissioner or Financial
Commissioner exercises his revisional powers under Section
15 of the Act. A Revenue Officer is obliged to adhere to the
principles of natural justice before setting at naught a
mutation order attested in favour of a person.''
61.A cursory examination of an impugned order reveals that it was issued by
the Tehsildar based on the directive from the Deputy Commissioner,
exercising appellate authority under Section 11 of the J&K Land Revenue
Act. It is noteworthy that the mutations in question have not been
contested by any aggrieved party; hence, the Deputy Commissioner
appears to have acted suo moto in this instance. Nonetheless, pursuant to
Section 11 of the J&K Land Revenue Act, the Deputy Commissioner
lacks the authority to act suo moto. For ease of reference, Section 11 of
the J&K Land Revenue Act is reproduced below:
"[11. Appeals. -- Save as otherwise provided by this Act, an
appeal shall lie from an original or appellate order of a
Revenue officer as follows, namely:--
(a) to the Collector when the order is made by an Assistant
Collector of either class;
(b) to the 2[Divisional Commissioner] when the order is
made by a Collector;
(c) to the Financial Commissioner when the order is made
by a 2 [Divisional Commissioner]:
Provided that:-
(1) where an original order is confirmed on first appeal,
no further appeal shall lie except on the grounds
mentioned in clauses (a), (b) and (c) of sub-section (1) of
section 100 of the Code of Civil Procedure, 1977;
(2) where any such order is modified or reversed on appeal
by the Collector, the order made by the 2[Divisional
Commissioner] on further appeal, if any, to him shall be final;
(3) the Government may especially empower an Assistant
Collector of the first class to hear appeals against the orders
of an Assistant Collector of the second Class.]"
62.The aforementioned stance has been validated by a Coordinate Bench,
which determined that the Deputy Commissioner lacks such authority
under the provisions of the specified Act in the case titled "Mohd Farooq
& ors." In the case "v. UT of J&K & Ors" in WP(C) No. 2571/2021,
decided on 07.02.2023, the following was held:
Similarly, even the power of revision is not available to the
Deputy Commissioner. Section 15 of the Act confers the
powers of revision only on the Divisional Commissioner and
the Financial Commissioner which powers can be exercised
by the said Authorities either on an application by party
aggrieved or suo motu. For ready reference, relevant extract
of Section 15 of the Act is reproduced hereunder:
"15. Power to revise orders:
(1) The Financial Commissioner may at any time call for
the record of any case pending before or disposed of by any
Revenue Officer under his control;
(2) The Divisional Commissioner may call for the record of
any case pending before or disposed of by any Revenue
Officer subordinate to him;
(3) If in any case in which, the 4 [Divisional Commissioner]
has called for a record he is of opinion that the proceedings
taken or order made should be modified or revised he shall
report case with his opinion thereon for the orders of the
Financial Commissioner.
(4) The Financial Commissioner may, in any case called for
by him under sub-section (1) or reported to him under sub-
section (1) or reported to him under sub-section (3), pass
such order as he thinks fit:
Provided that, he shall not under this section pass an order
reversing or modifying any proceeding or order of a
subordinate officer affecting any question of right between
private persons without giving those persons an opportunity
of being heard"
63.The Deputy Commissioner has not been vested with any revisional
authority pursuant to Section 15 of the J&K Land Revenue Act, 1939.
Section 15 of the Act confers revisional authority upon higher officials,
namely the Financial Commissioner and Divisional Commissioner, under
certain conditions, allowing them to review and amend decisions made by
subordinate authorities. The Deputy Commissioner is not explicitly
endowed with the capacity to exercise revisional powers under this section.
The differentiation between appellate and revisional powers is essential
for comprehending the legal structure. The appellate powers, as delineated
in Section 11 of the Act, permit a superior authority to examine decisions
rendered by a subordinate authority, specifically in an appeal by a party
dissatisfied.
64.Conversely, the revisional powers under Section 15 enable an authority to
intervene in instances where an order may be erroneous, illegal, or unjust,
irrespective of whether an appeal has been lodged. In this instance, the
Deputy Commissioner has acted suo moto to annul the mutation order,
which is not legally authorised. Nonetheless, the J&K Land Revenue Act
does not contain any provision that explicitly confers upon the Deputy
Commissioner the right to annul mutations certified by the competent
body. This limitation period has been acknowledged in multiple
judgements by this Court, which have determined that revisional power
under Section 15 is reserved for higher authorities and cannot be exercised
by the Deputy Commissioner in this context.
65.The Deputy Commissioner's action in this case lacks statutory
authorisation under both Section 11 and Section 15, exceeding his
jurisdiction and power. Thus, all actions stemming from the administrative
decisions are legally null and void, as the Deputy Commissioner lacks the
competence to amend or rescind mutation. This stance has been
reaffirmed by Coordinate Benches in previous rulings, further
substantiating the lack of such powers conferred upon the Deputy
Commissioner.
66.Consequently, this Court determines that the Deputy Commissioner
lacked the authority to issue the administrative orders/instructions that
underpin the actions taken by the relevant Tehsildar and are the subject of
the present petition, despite the fact that the petitioner has not contested
the order issued by the Deputy Commissioner Jammu.
67.The actions of respondent No. 4, based on the administrative directives of
the Deputy Commissioner, to nullify the mutation orders validated in
favour of the petitioner, plainly demonstrate his arbitrariness. Neither the
Tehsildar nor the Collector possesses the authority to issue the impugned
order revoking the mutations, therefore, the impugned order cannot
withstand legal scrutiny and should be annulled.
Thus, the question No. "b" is accordingly answered.
Finding on Questions of Law marked supra as "c"
c. Whether the Deputy Commissioner, Jammu was
competent to issue such order and could have resorted
to Section 19(a) while getting the report from his
subordinate officer, more particularly, when it was
incumbent on part of the Collector to have invoked the
powers only in the eventuality, if he was competent
under law or empowered to do so by strict
interpretation of the language used under Section 19(a)
of the Land Revenue Act.
68.The arguments of Mrs. Monika Kohli, learned Sr. AAG for the
respondents that a report was called from Tehsildar, Jammu in conformity
with the provisions of Section 19(A) of the Land Revenue Act, which
provides that the Revenue Officer may refer a case which he is
empowered to dispose of under the aforesaid Act to another Revenue
Officer subordinate to him for enquiry and report and may decide the case
upon such enquiry and report.
69.From a bare perusal of Section 19(A), it is apparently clear that such
powers can be invoked by the Revenue Officer only in the eventuality if
he is empowered to dispose of the case under the Act and admittedly in
the instant case, the Deputy Commissioner was not empowered to dispose
of the case, thus, any such report, which has been relied upon by the
Revenue Officer has no legal backing and cannot be relied upon while
taking action against the petitioner. Once the Revenue Officer was not
competent to dispose of the case under the Act, then he is precluded from
getting any report or enquiry from his subordinate officer. Thus, such ex
parte report which has been relied upon by the Deputy Commissioner
loses its significance and has no legal implication. Thus reliance placed by
Mrs. Kohli, Section 19(A) of the aforesaid Act is misplaced and rejected.
Thus question No.(c) is answered accordingly.
Finding on Questions of Law marked supra as "d, e, f & g"
d). What was the actual significance of Order No. LB-6/C of
1958, dated June 5, 1958, published in the Government
Gazette on June 19, 1958, followed by the conferment of
proprietary rights under Government Order No. 432 of 1966,
dated June 3, 1966.
e). Once ownership rights were granted to the predecessor-
in-interest of the petitioner in accordance with Government
Order No. 432 of 1966, can the Government now, at this late
juncture, contest the legality of the initial declaration of the
occupants of State Land as tenants-at-will and the
subsequent conferment of ownership rights? Is it permissible
to declare the entire process illegal at this delayed stage?
f.) Can the Government, at this late juncture, after 62 years,
annul the entire process and revoke the mutation when the
petitioner acquired the land from Mohd Yaqoob, who has
since passed away and was initially designated as a tenant-at-
will, later granted ownership rights in 1966, upon which the
Fard was issued and the Sale Deeds were registered based on
those mutations?
g.) It is questionable whether the respondents were
warranted in rescinding the mutation at this late juncture,
without contesting the Sale Deeds, which remain valid and
have not been disputed by any aggrieved party. In the
absence of any particular objection to the Sale Deeds, which
are registered based on a Fard issued by the Revenue
Department, what will be the effect of nullifying the mutation
in favour of the petitioner?
70.Government Order No. LB-6/C of 1958, dated 05.06.1958, published in
the Government Gazette on 21.06.1958, mandated that occupants of State
land, including that vested in the State under the Big Landed Estates
Abolition Act, 2007, and those from which ejectment was ordered under
Council Order No. 40-C of 1944 but not executed by Kharif 1957-58, be
designated as "tenants-at-will" (under the State) for the area they
cultivated or occupied during Kharif 1957-58, subject to the following
conditions:
1. "(a) The occupant shall pay land revenue at-
(i) Rs.10 per kanal, where the land is an
orchard, maliari land or a seed farm:
(ii) Rs.5/- per kanal, where the land is a
plantation of trees other than fruit trees or
is covered by a shop or other structure
used for commercial purposes:
(iii) Rs.2.40 per kanal, where the land is
covered by a residential building lor is
used for raising grass:
(iv) Village rates including cesses and other
dues for the time being in force in case of
land other than that mentioned in sub-
clauses (i), (ii) and (iii).
(b) The arrears of revenue as calculated under
clause (a) shall be paid from the date of occupation
subject to a maximum of fifteen years prior to
Kharif 1957-58, provided that, the arrears for more
than five years but less than ten years may be paid
in three and those for more than ten years in five
equal annual installments;
(c ) the occupants shall not-
(i) transfer the land or any interest therein; or
(ii) sub-let the land for more than two successive
harvests or, with the permission in writing of a
revenue officer not below the rank of a
Tehsildar, for more than three years: or
(iii) where the land is used for growing paddy,
maize or what crop, convert it into an orchard
or plantation or otherwise render it unfit for
the cultivation of such crops: or
(iv) fail to cultivate the land for more than one
year or neglect to conform to standards of
cultivation prevalent in the village.
Explanation:- The land covered by a "shop" or
"structure for commercial purposes" or "residential
building" shall be deemed to include the land
appurtenant to such shop, structure or residential
building.
2. Nothing contained in paragraph I shall apply to such
land as is-
(i) Held by occupants, who do not reside or own any
land in the village in which the land occupied is
situate;
(ii) Recorded or used as path-way, grazing ground,
graveyard, cremation ground camping ground,
khul (irrigation channel) or forest demarcated or
otherwise including Berun line:
[1][xxxx]
(iii) Held by any Government Department or
institution under the control of the Government;
(iv) Situated on a hill slope and likely to be affected
by erosion;
(v) Situated within the limits of a Municipality, [2][a
town area] a Notified Area or a Cantonment or
in areas to which rules for the grant of land for
building purposes of other rules and orders in
respect of Nazool lands for the time being in
force extend;
(vi) Allotted to or left with the displaced persons
under the provisions of Cabinet Order No. 578-C
of 1954 dated 7th May, 1954;
[3][(vii) in excess of 100 kanals; or is held by
occupants whose ownership or tenancy holding
or both together with the area so occupied
exceeds 100 kanals to the extent only of such
excess;
Provided that it is not laid with an orchard or
that there are no permanent structure standing thereon.]
[4][(viii) held by a displaced family or a person other
than a displaced person, in excess of the Unit
prescribed under Cabinet Order No. 578-C of
1954 dated 7th May, 1954;
Provided that the land so cultivated was neither
virigin nor was recorded as Banjar Quadim or 'Ghair
Mumkin' during the last settlement and was not such at
the time when it was broken.]
3. No land of which the possession or occupation is sought
to be regularized in accordance with these provisions
shall be deemed to include trees of any description
standing thereon but the occupants thereof shall be
responsible for the preservation, maintenance, and
upkeep of such trees.
4. A tenant-at-will who does not accept or who contravenes
any of the conditions land in paragraph 1 and the [5]
[transferee] or sub-lessee of such a tenant, shall be
ejected and the land revenue calculated under clause (a)
of paragraph 1 for the period of occupation shall,
subject to a maximum of 15 years, be recorded for him".
71.Consequently, a cursory examination of the aforementioned order allows
for the conclusion that the occupant of State land will be documented as
tenant-at-will concerning the area under their cultivation or occupation in
Kharif 1957 and 1958, contingent upon specific conditions previously
stated, which granted them temporary rights for agricultural use of the
land. The commendable aim of this classification was to enable the State
to enhance land management and boost agricultural productivity, while
retaining overarching control over the land. The government's initiative to
promote agriculture granted temporary rights intended to incentivise
productive land usage rather than to reward or permanently enrich
landholders.
72.The perusal of the said order outlines that certain lands as detailed in
paragraph 2, are exempted from the advantageous stipulations of
paragraph 1. Land owned by government departments or institutions
under governmental authority is classified as one such group, as stated in
clause (iii) of paragraph 2. These territories are exempted from the
advantages outlined in paragraph 1 of the directive. Nonetheless, the
petitioner contends that the defendants' actions stem from a
misinterpretation of the advantageous stipulations outlined in the
Government Order supra. The petitioner asserts that significant areas of
land were allocated to the State in accordance with land reforms enacted
by the Big Landed Estates Abolition Act of 1950. The objective of the
aforementioned Government Order No. LB-6/C of 1958, dated June 5,
1958, issued by the Revenue and Rehabilitation Department, aimed to
enhance agricultural activities in the State of Jammu and Kashmir during
the late 1950s and early 1960s by bringing uncultivated "Banjar Quadim"
and uncultivable "Gair Mumkin" State lands into cultivation to increase
food production. Consequently, individuals in cultivating possession or
occupation of such State lands during the Kharif season of 1957-58 were
initially designated as tenants-at-will under the State at the first instance.
73.Nonetheless, the learned counsel for the petitioner asserts a specific
position, which, although not pleaded in the writ petition, was presented
during the arguments and explicitly detailed in the brief synopsis provided
to this Court. The petitioner contends that if the land in question is either
virgin or classified as "Banjar Quadim or Gair Mumkin," then the
exclusion does not apply, and such land is encompassed within the
advantageous provisions of paragraph one. The petitioner asserts that a
cursory examination of the qualifying proviso alongside paragraph 2 of
Government Order No. reveals... LB-6/C of 1958 indicates that the
"Banjar Quadim and Gair Mumkin" lands are included in the
advantageous stipulations of paragraph 1.
74.Conversely, the respondents in this case assert that "Banjar Quadim and
Gair Mumkin" lands do not qualify for the beneficial provisions of
paragraph 1.
75.Mr. Bhushan has adopted a definitive position regarding the qualifying
proviso attached to the conclusion of paragraph two of Government Order
No. LB-6/C of 1958, dated 05.06.1958, should be interpreted in
conjunction with the exclusions outlined in clauses (1) to (viii) of
paragraph 2, rather than with the primary paragraph 1. However, the
respondents are erroneously associating the qualifying proviso with the
main paragraph 1, resulting in unnecessary confusion and undermining the
fundamental purpose of Government Order No. LB-6/C of 1958, dated
June 5, 1958, and according to him, the accurate interpretation of the
Government Order No. LB-6/C of 1958 is that the advantageous
provisions of paragraph 1 shall apply regardless of whether the subject
property is classified as virgin or designated as "Banjar Quadim" or "Gair
Mumkin." Consequently, he asserts that the respondents' opposing
interpretation--that the stipulations of paragraph one do not apply if the
subject land is either virgin or designated as "Banjar Quadim or Gair
Mumkin"--results from a misreading of the qualifying proviso in relation
to the main paragraph one, rather than considering the various exclusions
outlined in clauses (i) to (viii) of paragraph two of Government Order No.
LB-6/C of 1958 is entirely aberrant.
76.A cursory examination of the order issued by the Deputy Commissioner of
Jammu on 14.09.2020, which has not been contested by the petitioner in
the current petition, indicates that the Deputy Commissioner based his
decision on the report submitted by the Tehsildar of Jammu following a
site investigation, which states that mutation No. 63 was attested under
Government Order No. LB-6/C of 1958, mutation No. 64 certified by
Government Order No. S-432 pertains to the land measuring 12 kanals
and 7 marlas located in Village Dawara, Tehsil Jammu, under mutation
Nos. 97 and 98 (Sale of land associated with mutation Nos. 64 and 122,
attested under Government Order No. 254/C of 1965). Additionally, it
includes land measuring 04 kanals under mutation No. 140 (attested under
LB-6/C and S-432) for the land measuring 10 kanals in Village Dwara,
which do not adhere to the fundamental and obligatory conditions
stipulated in the Government Order. LB-6/C and S-432 are entirely
erroneous and unlawful, warranting their annulment.
77. The Deputy Commissioner in the aforementioned ruling has additionally
observed that according to the obligatory stipulations outlined in
Government order No. LB-6/C of 1958, the occupier of the State Land
must have been cultivating the land throughout the Kharif season of 1957.
In the present case, according to the Deputy Commissioner and the
investigation conducted by the Tehsildar, which the Deputy
Commissioner relied upon, the land for which mutation has occurred was
classified as "Banjar Quadim and Gair Mumkin Banna" in Kharif 1957,
and the entries recorded in the jamabandi of 1997-98 designated the
subject land as "Gair Mumkin Jarh." The Deputy Commissioner opined
that the recipient, having not cultivated the property throughout the critical
crop period, was consequently ineligible to be designated as a tenant-at-
will under the State for the specified land. In this perspective, the
contested mutation No. 63 of the village recorded and verified by
Government Order No. LB-6/C is entirely unlawful and erroneous ab
initio and has been annulled.
78.The Deputy Commissioner opined that Mohd Yaqoob, the purported
recipient, was not entitled to any preliminary benefits under Government
Order No. LB-6/C, procedures for conferring ownership rights over the
specified land under government authority. Accordingly, Mutation No. 64
of S-432 was deemed equally unjust and fraudulent; hence, the Deputy
Commissioner concluded that it failed to meet legal standards from any
perspective, leading to its annulment. Nonetheless, mutation No. 97
pertaining to the sale of 4 kanals of land from khasra No. 59/41, executed
by Murad Ali, a shareholder, in favour of Abdul Hamid, remains valid.
The aforementioned mutation No. 98, pertaining to the sale of 8 kanals of
land executed by Noor Bibi and Arshed Bibi, daughters of Mohd Yaqoob,
in favour of Abdul Hamid, was likewise unlawful. The Deputy
Commissioner, exercising appellate authority under Section 11 of the
Land Revenue Act 1996, approved the reference submitted by the
Tehsildar, Jammu, and annulled mutations Nos. 63, 64, 97, 98, 122, and
140, concerning land measuring 26 kanal and 7 marlas under Khasra No.
59/41 in Village Dwara, Tehsil Jammu. The Tehsildar was instructed to
amend the pertinent record, and upon the issuance of this order, the
petitioner contested it. However, this Court must not overlook the fact that
Government Order No. LB-6/C of 1958, dated June 5, 1958, was
succeeded by another directive, namely Government Order No. S-432 of
1966, dated 03.06.1966, issued by the Revenue Department in accordance
with Council Decision No. 916 of 04.04.1966, mandates the conferment
of proprietary rights to cultivators of State lands who are permanent
residents and have been designated as tenants-at-will per Government
Order No. LB-6/C of 1958, contingent upon the stipulations that:
Land is held by them in self cultivation continuously from
Kharif 1957-58;
The areas of the land given on proprietary rights should
not exceed two acres of Abi and four acres of Khushki in
Kashmir Province including the District of Ladakh and
four acres of Abi or 6 acres of Khushi in the Jammu
Province, in both cases including the land already held in
ownership rights;
No right should be conferred in respect of land entered in
records or used as Kahcharai or for any common purpose
or orchard, tree plantations, shop sites, land under
structures used for commercial purposes and residential
buildings;
The grantee shall use it for agricultural purposes only and
shall not be entitled to alienate it without the previous
permission of the Government;
The grantee shall be liable to pay the land revenue
including cesses and other dues as provided for in the
orders by which they are declared as tenants-at-will.
79.Upon a cursory examination of Government Order LB-6/C of 58, dated
05.06.1958, indicates that specific land mentioned in paragraph 2 has been
omitted from the advantageous stipulations of paragraph 1. The proviso,
which has caused confusion regarding the cultivated land, must be
interpreted in conjunction with exclusion clause [4](viii) rather than with
clause (1), as asserted by the respondents in their reply affidavit. The
exclusion clauses are detailed in the aforementioned order from (i) to
[4](viii) of Para 2, stipulating that nothing contained in para shall apply to
such land as held by displaced family or individuals other than displaced
persons in excess of the unit specified in Cabinet Order No. 578-C of
1954, dated 07.05.1954. Additionally, there are other exclusion clauses
with a specific proviso that must be interpreted in conjunction with
[4](viii), which states that the cultivated land was neither virgin nor
classified as "Banjar Quadim or Ghair Mumkin" during the last settlement
and was not such at the time of its cultivation. For facility of reference the
proviso reads as:
"Provided that the land so cultivated was neither
virgin nor was recorded as Banjar Quadim OR
'Gair Mumkin' during the last settlement and was
not such at the time when it was broken"
80.Consequently, the accurate interpretation of Government Order No. LB-
6/C of 58 dated 05.06.1958 stipulates that the aforementioned proviso
should be interpreted in conjunction with exclusion clause [4](viiii), rather
than independently with paragraph 1, as erroneously asserted by the
respondents. The respondents' interpretation, as represented in the Deputy
Commissioner's ruling, contradicts both the meaning and the spirit of the
policy established in the aforementioned Government ruling. As per the
directive, individuals in possession of State land, encompassing land
allocated to the State under the Big Landed Estates Abolition Act of 2007,
and land from which ejectment was mandated under Council Order 40-C
of 1944 but not executed until Kharif 1957-58, were to be documented as
tenants-at-will (under the State) for the area they occupied during Kharif
1957-58, contingent upon specific conditions.
81.It is not a case of the respondents that the case of the petitioner falls in the
exclusion clauses 2 and 4(viii), being a displaced family or a person
otherwise other than a displaced person have excess of unit prescribed
under Cabinet Order No. 578-C of 1954, dated May 7, 1954 to which the
aforementioned proviso regarding land cultivated as "Virgin, Banjar
Quadim or Ghair Mumkin" is applicable, rendering the respondents'
interpretation inconsistent with the LB-6/C of 1958.
82.Therefore, this Court unequivocally asserts that the cultivation of "Banjar
Quadim or Ghair Mumkin" land, based on the aforementioned order, shall
be recognised as tenant-at-will for the area under their cultivation or
occupation during Kharif 1957-58.
83.This proviso prohibits or excludes specific lands from being regularised or
granted rights over them. It pertains primarily to land exceeding the limits
established by Cabinet Order No. 578-C of 1954. It applies to:
"Displaced families, mostly from Partition or resettlement due to
various circumstances, and non-displaced individuals, including
standard landholders or occupants, cannot assert regular rights
over excess land, regardless of ownership. designated as "virgin
land" (previously uncultivated), categorised as "Banjar Quadim"
(permanently barren for an extended period), or identified as
"Ghair Mumkin" (uncultivable--such as rocky terrain, roads,
streams, etc.), either at the time of the most recent official land
settlement or when the land was initially cultivated ("broken")."
84.Thus, it can safely be concluded that the case of the petitioner falls within
the ambit of the terms and conditions of the aforesaid order issued in 1958
and the exclusion clause (2) was not applicable to the predecessor-in-
interest of the petitioner and rightly so, the benefit has been given to the
petitioner on the strength of the valid sale deeds which are intact as on
date. The declaration of Mohd Yaoob and other members of his family as
tenant-at-will in 1958 leads to an irresistible conclusion that they fulfilled
all the terms and conditions of LB6/C of 1958 and rightly so they were
conferred proprietary rights thereafter on the strength of Government
Order No. 432 of 1966 dated 03.06.1966 being permanent residence of the
state. Thus, this Court is of the opinion that once a substantive and
independent right which emanates from Government Order No. LB6/C
and is independent only upon the satisfaction of the conditions set out in
the order itself.
85.Thus, LB6/C does not extinguish the ownership of the state over the land
in occupation of a person who becomes tenant-at-will after satisfying the
requisite conditions. Attestation of mutation would be of no consequence
so for as his right accrued under LB6/C is concerned.
86.The occupant of the state land after being recorded as tenant-at-will has
become entitled to the ownership rights over such land under Government
Order No.432 of 1966 which confer substantive right upon the occupant
of the said land. Had there been any infraction of the terms and conditions
of LB6/C then there was no occasion for the Government to have given
any benefit to them under 1966 Order.
87.Thus, it can safely be concluded that all the conditions of both the orders
were complied with and rightly so the ownership rights were conferred on
Mohd. Yaqoob and his family members which later on have dwelled over
the petitioner on the basis of valid sale deeds. Those substantive rights
cannot be taken away without away following due process of law or
without providing an opportunity of being heard to the petitioner.
88.Under what circumstances did the concerned Tehsildar conduct a one
sided inquiry on 12.09.2020, i.e., 62 years later, resulting in a report
indicating that the beneficiary had not cultivated the land during the
critical cropping period and thus was not recognized as a tenant-at-will for
the land? This inquiry occurred despite significant developments from
1958 to 2020, when proprietary rights were granted to the petitioner based
on Government Order No. S-432 of 66 dated 03.06.1966, which
confirmed that the "tenants-at-will" were the cultivators of the land and
permanent residents of the State. Once proprietary rights have been
granted to the cultivators of State land, the Government cannot, after 62
years, reverse this decision by asserting that benefits under LB-6/C cannot
be conferred due to the beneficiary's lack of cultivation, especially when
proprietary rights have already been established for the predecessor-in-
interest of the petitioner. The Government, after maintaining a prolonged
silence for 62 years, has emerged from its inertia and adopted a position
that astonishes the Court's conscience, which is impermissible under the
law and contradicts the established record.
89.The proprietary rights were to be granted exclusively to the permanent
residents of the State, contingent upon their designation as tenants-at-will
according to Government Order No. LB-6/C of 58, contingent upon
certain requirements outlined in the aforementioned order, was under
cultivation, and no objections were submitted by the respondents
throughout the intervening period, when the land's cultivators were
tenants-at-will from 1958 to 1966.
90.The respondents, having relinquished their rights to raise objections
during the intervening period regarding the status of the cultivators as
tenants-at-will, are legally precluded from contesting the status of the
petitioner's predecessor-in-interest after 62 years, when proprietary rights
were granted to the cultivators of State land, who are permanent residents,
following their designation as tenants-at-will, contingent upon the
fulfillment of the conditions outlined in the aforementioned order or upon
the conferment of proprietary rights to the cultivators of State land, it can
be inferred that these rights are contingent upon the fulfillment of the
requirements outlined in Government Order No. Under S-432 of 66, after
proprietary rights have been given, the Government cannot, under any
circumstances, alter the status of the petitioner who acquired the
aforementioned land from the lawful heirs of Mohd Yaqoob.
91.Consequently, it can safely be concluded that the petitioner possessed full
authority over the aforementioned land, which was conveyed to him in
accordance with Government Order supra. The sale deed, executed in
favour of the petitioner has not been contested by any aggrieved party to
date. Regarding Government Order No. S-432 of 66, dated 03.06.1966,
stipulated that proprietary rights be granted to cultivators of State lands
who are permanent inhabitants and have been officially recognised as
tenants-at-till per Government Order No. LB-6/C of 58 is contingent upon
several restrictions, including that the property is to be utilised solely for
agricultural purposes and that the grantee is prohibited from transferring it
without prior consent from the Government.
92.The requirement of obtaining prior governmental consent for the
alienation of land, for which ownership rights were granted by the
Government to an individual who held the land as a tenant under the State,
was instituted to guarantee that the advantages of the land are realised by
the grantee and utilised for agricultural purposes.
93.Historically, agricultural activities constituted the foundation of the State's
economy. The land allocated for agricultural uses to a State subject was
intended to alleviate the hardships of that individual and their family. The
times have now changed. Agricultural activity is no longer the primary
economic endeavour of the State. The requirement to obtain prior
governmental permission for the alienation of land designated for
agricultural purposes, as stipulated in paragraph 04 of the 1966 order, is
deemed "rendered otiose" and will not impede the landowner's right to
alienate the property, provided that other statutory prerequisites for such
alienation are satisfied.
94.Consequently, this Court believes that the land cultivator, specifically the
predecessor-in-interest of the petitioner, obtained full dominion over the
property granted to him pursuant to the 1966 Order, and both the 1958 and
1966 Orders were enacted under the J&K Land Revenue Act. Upon the
conferral of proprietary rights over the land to the petitioner's predecessor-
in-interest pursuant to the Order of 1966, the prior order LB-6/C of 1958
became obsolete. The rights will subsequently be governed by the
Transfer of Property Act, the Land Alienation Act, and the Agrarian
Reforms Act. Once, absolute ownership of the land is attained, restrictions
on its alienation cannot be imposed. As the requirement for prior
governmental approval for the alienation of the land designated for
agricultural purposes has become superfluous, it will not affect the
owner's right to alienate the land, provided that other statutory conditions
for such alienation are met.
95.Consequently, based on the legal precedent established by a Coordinate
Bench of this Court in the analogous case of "Mohammad Akbar Shah
& Ors vs State & Ors" in OWP No. 982/2015, decided on 31.05.2016, the
Sale Deeds were executed by the competent Court, facilitating the transfer
of land from the predecessor-in-interest to the legal heirs and subsequently
to the petitioner. The essential portion of the aforementioned judgement is
copied as follows:-
"12. It appears that the condition of seeking previous
permission from the Government for alienation of land,
in respect of which, ownership rights were conferred by
the Government as the person was holding the land as
tenant under the State, was done with the purpose to
ensure that the benefit of land accrues to the grantee
and he uses it for agriculture purposes.
13. In earlier times, agriculture activity was the
backbone of economy of the State. The land, which was
given for agriculture purposes to a State subject, was to
ameliorate the sufferings of such person/his family.
Now the times have changed. The agriculture activity is
no more the main economic activity of the State. The
condition of seeking previous permission of the
Government for alienation of land, which was given for
agriculture purposes, in terms of paragraph 04 of the
order of 1966, is rendered otiose and will not effect right
of the owner of land to alienate the same provided other
statutory requirements are fulfilled for such alienation."
96.The judgment mentioned supra holding condition no. 4 of Government
order No. 432 of 1966 dated 03.06.1966 is a judgment in rem and have to
be implemented by all the concerned which includes the present Tehsildar
also and any deviation would be contemptuous and tantamount to acting
in derogation to the mandate and spirit of the law laid down in the
aforesaid judgment which has been reiterated by this Court in WP(C) No.
3249/2023 decided on 13.03.2024 in case titled " Puran Chand & Ors vs.
UT of J and K & Ors." and in case titled "Angrez Sigh vs. UT of J and K
and Ors." decided on 3rd July, 2023 in WP( C) 1657/2023.
97.Consequently, in light of the above discussion, the interpretation applied
by the respondents in cancelling the mutation contradicts the mandate and
intent of the policy established by the Government in Order No. LB-6/C
of 58, in conjunction with Government Order of 1966, fails to withstand
legal scrutiny and is subject to annulment.
Consequently, question Nos. c, d, e, f are answered.
[[[[
Finding on question of law marked supra as "h"
h.) Whether impugned order has been passed in violation of
principles of natural justice?
98.To address questions No "h", this Court emphasises that a fundamental
tenet of natural justice is the right to be heard, embodied in the principle
of "audi alteram partem." In any judicial procedure that affects an
individual's rights, appropriate notice must be given to ensure the
individual has the opportunity to submit their position. In a scenario when
mutations have been annulled and the petitioner's rights are infringed, it
contravenes the tenents of natural justice. It would be unjust and legally
prohibited to strip an individual of their property rights without granting
them the chance to challenge the decision. The sale deeds and Fard are
crucial documents that establish the petitioner's entitlement to the property.
Consequently, the respondents' decision to annul the mutations after 18
years, without adequate investigation, notice, or justification, constitutes
an inherent contradiction that undermines the petitioners' vested rights.
99.The Government was expected to provide a formal notice to the petitioner
prior to issuing any unfavourable order, constituting the minimum
procedural safeguard. The failure to issue such notice contravenes the
concept of fairness, which necessitates that an individual be informed of
any forthcoming action that may impact their legal rights and be have the
opportunity to respond. Consequently, the contested order dated
15.09.2020, which annulled mutation Nos. 97, 98, and 105 issued by
respondent no. 4, Tehsildar, without notifying the petitioner, warrants
annulment.
100. Due to the lack of notification and the illegal annulment of the
aforementioned mutations, the Court is obligated to censure the
Government's actions for neglecting procedural fairness and due process.
This Court determines that the mutations confirmed in favour of the
petitioner by the competent authority regarding the land purchased from
Mohd Yaqoob and his legal heirs cannot be revoked after 18 years without
affording the petitioner an opportunity to be heard or issuing a notice,
particularly given that ownership was granted to Mohd Yaqoob in 1962
under the policy established by Government Order No. 432 of 1966 dated
03.06.1966, based on the declaration of the petitioner's occupation of the
land as "tenant-at-will" pursuant to the Order No. LB-6/C of 1958, dated
June 5, 1958.
Thus the question No "g"" is accordingly, answered.
Finding on question of law marked supra as "i"
i. Once the petitioner has obtained 'No Objection Certificate' from
all the respective departments for raising construction of Grand Hill
Restaurant whether the respondents, at this stage, can take a
contradictory stand by projecting that the land in question belongs to
the Forest Department.
101. With a view to answer the aforesaid question, it would be apt to
reproduce the stand which has not been controverted by the respondents
while filing the reply or at the time of arguments by the Forest Department.
102. I have gone through the order passed by the Financial
Commissioner (Rev) dated 10.03.2015, which has been made basis by the
Forest Department to initiate eviction proceedings against the petitioner, a
perusal whereof reveals that the petitioner was not a party to the lis before
the Financial Commissioner. Thus, this Court is of the view that the said
order cannot be made applicable to the petitioner. Even the said order is
based upon wrong understanding of the Government Order No. LB-6/C of
58 which has already been clarified by this Court supra. The respondents
have not denied that joint demarcation (nishandehi) has been carried out
but the respondents have disputed the same as the said report was not
signed by any Forest officials. However, from a bare perusal of
communication dated 23.02.2017, which has been placed on record as
Annexure-R-2 with the objections filed by the Forest Department in the
instant petition shows that the respondents have admitted the correctness
of the jointly agreed map, which has been referred as a Annexure to the
said communication, though, the respondents have deliberately not
attached the said jointly agreed map with the aforesaid communication.
103. The correct understanding of the Government Order No., LB-6/C of
1958 has already been discussed by the Hon'ble Division Bench of this
Court in "Kewal Krishan vs State of J&K & Ors", (LPAOW No. 8/2000),
reported as 2004(II) SLJ, 617, decided on 15.04.2004, wherein it has
been held as under:
"6 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.
8. 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.
9. 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.
10. 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."
11. 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
104. From a bare perusal of the aforesaid order and the interpretation
drawn by Division Bench of this Court, the Court is of the view that the
right to be recorded as a 'tenant-at-will' under Government Order LB-6 of
1958 is a substantive and independent right, not contingent upon the
attestation of mutation, and that such a right, once accrued upon
fulfillment of the conditions attached to said order, entitles the occupant to
proprietary rights under Government Order No. 432 of 1966. Both these
government orders remain in force and confer vested rights which cannot
be arbitrarily curtailed. The imposition of a ban on mutation attestation
through Government Order No. 158 of 1989 was deemed arbitrary and
legally unsustainable, as it imposed an unreasonable restriction on the
recognition of these rights without justification. Consequently, the court
quashed the 1989 order, set aside the decision dated 21.8.1993 issued by
the Director Land Records, and remanded the case for fresh adjudication,
also allowing the writ petition by setting aside the earlier judgment of the
learned Single Judge.
105. From a careful perusal of the said jointly agreed map shows that
same is not in any way different from joint demarcation (nishandehi)
report dated 15.02.2017 and the other map forming part of the said
demarcation report dated 15.02.2017. Both the maps lead to an irresistible
conclusion that the subject land measuring 12 kanals falling under Khasra
No. 59/41 of village Dwara, Tehsil Jammu are exactly the same. Thus, the
stand taken by the respondents regarding joint demarcation report dated
15.02.2017 is contrary to their own admission regarding the correctness of
the jointly agreed map in their own communication dated 23.02.2017,
which has been placed as annexure along with objections. Even the reply
given under RTI dated 17.06.2015 vindicates the stands of the petitioner
that there is no encroachment on any forest land in village Dawara, Tehsil
and District Jammu.
106. There is no specific mention of Compartment No. 65/Ch of Bahu
Forest Block in the said reply which was subject matter of show cause
notice and RTI reply given by PIO/DFO. From a bare perusal of the stand
taken by the respondents in their objections in the instant petition, the
respondents have taken a stand by placing reliance on some
communication dated 17.10.2016 addressed by State Vigilance
Commission to Chief Secretary, which has nothing to do with the subject
matter land measuring 12 kanals falling under Khasra No. 59/41 of
Village Dawara, Tehsil Jammu.
107. This Court after examining the original record which has been
supplied by Mr. Vishal Bharti indicates that khasra No. 59/41 is very large
in size and comprises of total 2206 kanals and 7 marlas (339K 06M State
land +1854K 14 M Forest land+12K 7M ownership land) which is clear
from joint demarcation (nishandehi) report dated 15.02.2017 and therefore
the alleged encroachment on 374 Kanals Forest land (out of 1854K 14M)
falling under this Khasra has nothing to do with the distinct and separate
ownership land measuring 12 Kanals which is the subject matter of the
present writ petition.
108. The petitioner in WP (C) No. 795 of 2022 contests the Forest
Department's actions, which are purportedly based on a 2015 order issued
by the Financial Commissioner. The Forest Department initiated eviction
proceedings against the petitioner based on this order, in which the
petitioner was not a party and the same was not applicable to the petitioner.
The respondents commenced eviction proceedings in 2021, seven years
after the issuance of the aforementioned order, in which the petitioner was
neither a party nor afforded an opportunity to be heard. The pertinent
questions of law for consideration in the present petition are:
A. It is questioned whether the Forest Department was
warranted in commencing eviction proceedings based on the
order issued by the Financial Commissioner, which merely
referenced the land acquired by the petitioner through a
legitimate and valid Sale Deed.
B. The Forest Department, having undertaken demarcation in
the presence of the Revenue Department, acknowledges on
record that the petitioner has not encroached into any forest
land. Under what conditions has the Forest Department
initiated unlawful eviction procedures against the petitioner
in the specified demarcated land, absent any justification?
C. Can the actions of the Forest Department be deemed rational
for such demolition, given that they are signatories to the
demarcation report, which acknowledges that the petitioner
has not encroached upon any portion of the Forest
Department's land or State land?
109. The petitioner asserts that the purported eviction order dated
02.03.2022 was neither served to them nor included in the record with
objections. Furthermore, respondent No. 2 unlawfully entered the
petitioner's property on 27.03.2022, a Sunday, accompanied by a team of
officers and police, and illegally demolished the existing structures
without following the proper legal procedures, which constitutes a clear
abuse of authority.
110. The circumstances under which the Forest Department has reached
a subjective conclusion regarding the petitioner's encroachment on forest
land are not evident from the records, and this particular query was raised
by this Court to Mr. Vishal Bharti, learned Deputy Advocate General and
he was instructed to present the original record to ascertain whether the
Forest Department has drawn any satisfaction in this matter. However, the
Learned Deputy Advocate General could not produce any record, to this
effect, to substantiate this position as to whether the petitioner was heard
by the Financial Commissioner in 2015 or if any notice was issued to the
petitioner. The learned counsel was unable to provide a satisfactory
explanation regarding the initiation of eviction proceedings by the Forest
Department against the petitioner, and the record which has been
submitted to this Court by Mr. Bharti do not substantiate and justify the
stand of the Forest Department.
111. In relation to the eviction proceedings, the respondent, the Forest
Department, commenced the demolition of the disputed building on
Sunday, despite the petitioner having expressed a willingness to
participate in any demarcation process should the Forest Department have
concerns regarding the land in question. Instead of permitting the
petitioner to engage in the demarcation, the Forest Department proceeded
with the demolition, resulting in the petitioner estimating a loss of
approximately 76,40,200 (rupees seventy six lacs, forty thousand and
two hundred).However, in accordance with the interim order passed by
this Court, the respondents have been prohibited from proceeding with
further demolition. For ease of reference, the interim order issued by this
Court is reproduced as follows:
"The short grievance projected by the petitioner in this
petition is that respondent No.4 has cancelled the
mutation Nos. 97, 98 and 105 on the asking of the Deputy
Commissioner, Jammu without even affording an
opportunity of being heard to the petitioner. It is
submitted that the aforesaid mutations have been attested
in pursuance to the sale deed duly executed by the owners
in favour of the petitioner.
Issue notice to Mr. S S Nanda, learned Sr. AAG for 10th
March, 2021.
Till then, there shall be status quo with regard to the
properties covered by the impugned mutations.
List on 10th March, 2021.
Copy of the order be supplied to the petitioner under the
seal and signatures of the Bench Secretary."
112. Once there is admission on part of respondents in the joint
demarcation that the petitioner has not encroached any forest land, then
under what circumstances, the respondents have initiated the eviction
proceedings against the petitioner, is not forthcoming from the record
113. Consequently, the entire eviction proceedings, stemming from the
order issued by the Financial Commissioner (Rev) on 10.03.2015, in
which the petitioner was not involved, are legally null and void ab initio
and cannot be enforced.
114. In countering the respondent's assertion that the petitioner neglected
to pursue the alternative remedy stipulated by the statute concerning the
annulment of mutations or the submission of an appeal under sub-section
3 of Section 79-A of the Indian Forest Act, the petitioner has referenced
the principles delineated in "Whirlpool Corporation v. Registrar of
Trademarks, Mumbai & Ors.", reported as 1998(8) SCC (1), a seminal
ruling, wherein, the Hon'ble Supreme Court has carved out certain
exceptions to the doctrine of exhausting alternative remedies. The ruling
underscores that in instances of fundamental rights infringement, breaches
of natural justice, or where an authority exceeds its jurisdiction, a writ
petition to the Court may be allowed despite not seeking an alternative
remedy.
115. The Hon'ble Apex Court in Whirlpool Corporation (above)
emphasised that the notion of exhausting alternative remedies is a
common rule in administrative law, but it is not absolute. Numerous
clearly delineated exceptions exist. This include scenarios where the
action or decision infringes against the individual's fundamental rights,
where there is a violation of natural justice principles (such as the denial
of a fair hearing), or where the authority has exceeded jurisdiction to issue
the order. Furthermore, if a statutory provision or action is contested based
on Constitutional or legal infirmity, the affected party may have the right
to immediately petition the Court by-passing the alternative remedy.
116. The petitioner asserts that the basis of the petition is grounded in the
infringement of natural justice principles. The petitioner asserts that the
annulment of the mutation occurred without affording him the chance to
present his case, a principle essential to natural justice. The respondents
admit the denial of opportunity to the petitioner to oppose the cancellation
of the mutations, so constituting a clear violation of procedural fairness.
117. Moreover, the petitioner contends that this circumstance, in which a
decision is rendered without providing a fair hearing, unequivocally aligns
with the exceptions established in "Whirlpool Corporation" (supra). The
petitioner contends that the infringement of his right to a fair hearing is so
egregious that it warrants a direct writ to the Court, circumventing the
usual statutory remedy mandated by law. The petitioner asserts that no
effective remedy would have been accessible via the statutory process due
to the intrinsic nature of the violation of natural justice.
118. The Court concurs with the petitioner's assertion and determines
that the instant case falls within the exceptions carved out in "Whirlpool
Corporation" (supra).
119. The Court recognises that a breach of natural justice principles,
especially where a party is denied a fair opportunity to state their case,
warrants a direct writ to this Court. Likewise, if the authority's decision is
rendered without jurisdiction or its legality is disputed, a direct petition
may be considered and is permissible.
120. Consequently, the Court determines that the petition is admissible
without the necessity of first seeking the alternative remedy stipulated by
the legislation. This approach aligns with the exceptions, wherein access
to the Court is not precluded solely owing to the non-exhaustion of
alternative remedies, particularly when significant questions over fairness
and justice in the administrative procedures arise.
121. Coming back to the facts of the present case, once the petitioner has
addressed the show-cause notice issued by the Forest Department, how
can the respondents proceed with the demolition of the structure without
awaiting the resolution, particularly when, the petitioner has provided a
report and offered to undergo a new demarcation.
122. The petitioner had previously responded to the show-cause notice;
therefore, the authorities were required to defer any further action pending
the resolution of the proceedings. The authorities are legally prohibited
from proceeding with demolition while the petitioner's response to the
show-cause notice remains pending and under review. The petitioner's
prior response to the show-cause notice signifies that the procedure was in
progress, and the expedited demolition, particularly on a Sunday, has
compromised the principles of fairness and procedural protections.
123. The Forest Department should have adhered to the idea of due
process, which entails providing the petitioner a fair opportunity to submit
his case and awaiting a resolution. Commencing demolition prior to the
resolution is illegal and contravenes principles of natural justice. The
petitioner's prior willingness to undergo a new demarcation is a
noteworthy consideration. This action indicates that the parties concerned
were diligently striving to resolve any disagreements. The initiation of
demolition prior to the resolution of the show-cause notice infringed
against the petitioner's right to procedural fairness, given that they had
previously submitted their response to the notice. The authorities cannot
circumvent this process and proceed with demolition, as it would violate
their rights under Article 300-A of the Indian Constitution, which ensures
the Right to Property.
124. The order of 10th March 2015, issued by the Financial
Commissioner (Revenue), is inapplicable to the instant case as the
petitioner was not a participant in the proceedings before the Financial
Commissioner. As the petitioner was not a participant in earlier
procedures, the aforementioned order cannot be executed or applied to the
detriment of the petitioner in the present case. Moreover, it is essential to
emphasise that the aforementioned directive was affirmed on a flawed
interpretation of Government directive No. LB6 of 1958. The impugned
order misconstrues the provisions and intent of this Government Order, so
compromising the legitimacy of the decision rendered by the Financial
Commissioner. Consequently, even if the petitioner had participated in the
proceedings, the ruling would remain defective due to a misinterpretation
of the pertinent legal requirements, rendering it inapplicable to the
petitioner's case.
125. The respondents have conducted the joint demarcation executed by
officials from the JDA, Revenue Department, Forest Department, and the
Assistant Commissioner of Revenue, who presented a report dated the
15th of February 2017, it is clear from the perusal of the said report that
the petitioner has not unlawfully occupied any portion of Forest land.
126. The respondents' assertion that the joint demarcation was conducted
but lacks signatures from any forest officials cannot serve as a basis for
the respondents to evade their legal obligations at this stage, especially
since the Revenue Department has not refuted the report in question. The
material on record and the examination of the letter dated 23.02.2017
demonstrate that the respondents acknowledge the accuracy of the
mutually accepted map.
127. It is also apparent that the two maps are identical. The respondents
now assert that although the joint demarcation was conducted, it was not
endorsed by any official from the Forest Department. The respondents
claim that the Divisional Forest Officer (DFO) Jammu articulated five
objections concerning the demarcation in his correspondence dated 23
February 2017, which has been officially documented. On examination, it
is apparent that the joint demarcation report, notwithstanding the absence
of signatures from Forest Department officials, unequivocally
corroborates the petitioner's assertion of not encroaching over any Forest
territory. Moreover, the arguments presented by the DFO do not modify
the significant conclusions of the demarcation exercise as recorded in the
report.
128. Further, upon examination of the RTI response dated 17th June
2015 from the Public Information Officer (PIO/DFO), it is unequivocally
confirmed that there is no encroachment on any forest area in the hamlet
of Dwara, Tehsil and District Jammu. The RTI answer notably omits
reference to Compartment Number 65/Ch of the Bahu Forest Block,
which was the focus of the show cause notice. This omission reinforces
the petitioner's claim that there is no encroachment on Forest land in the
area in question, as corroborated by the official RTI response.
Consequently, the assertion of encroachment regarding the previously
indicated compartment is not corroborated by the facts presented in the
RTI response.
129. The issue indicates a conflicting move by the DFO after a
prolonged duration, despite his past participation in the joint demarcation
process. The issuance of a show cause notice after seven months raises
numerous questions about the legitimacy and consistency of the Forest
Department's position. The DFO's challenge to his own findings
constitutes a blatant contradiction, and the seven-month wait between the
joint demarcation report and the issuance of the show-cause notice
represents a substantial gap. The delay prompts enquiries regarding the
lack of rapid action following the joint demarcation and the prolonged
interval before the report was handled. The show cause notice was
ambiguous, without a particular reference to the khasra number, despite
the petitioner receiving a notification labelled as a final show cause notice
that included a directive to vacate. The petitioner responded and informed
the DFO that the demarcation report has become final, since no party,
including the Forest Department, has contested it. In this situation, the
petitioner requested a new demarcation; however, the respondent
disregarded this request and unlawfully chose a holiday to trespass onto
the petitioner's property in most clandestine and illegal manner.
130. Consequently, this Court determines that the Forest Department
lacked justification in commencing eviction proceedings based on the
order issued by the Financial Commissioner, in which the petitioner was
not involved, and which merely referenced land acquired by the petitioner
through a valid sale deed that has not been contested by any aggrieved
party or the Revenue Department and Forest Department till date. The sale
deed remains intact as on today. Moreover, due to lack of any material on
record concerning the said encroachment, the entire eviction action
initiated by the Forest Department cannot withstand legal scrutiny and is
liable to be set aside. Specifically, the respondents concede that the
petitioner has not encroached into any portion of the Forest Department's
land.
Consequently, questions Nos. A, B and C are addressed
accordingly in WP(C) 795/2022.
REPARATION FOR ACTUAL LOSS AND OTHER FORMS OF
COMPENSATION.
131. Numerous legislative frameworks lay down provisions on
demolitions, mandating authorities to adhere to a defined procedure,
which includes the delivery of a demolition notice to the aggrieved party.
This affords the individual the opportunity to raise objections or pursue
alternative remedies, including the right to be heard. If the demolition
occurs without the necessary procedures, it will be deemed illegal and
unauthorized, as it violates established legal norms and protections
designed to shield citizens from arbitrary state actions. An illegal
demolition transpires when the mandated protocols for demolition,
including adequate notification, the opportunity for a hearing, and the
provision for contesting the demolition orders, are disregarded. The
absence of sufficient notice to the petitioner renders the demolition
unconstitutional, as the Government acted without openness, justice, or
regard for the rights of the injured person. This form of unlawful
demolition may result in a claim for compensation, encompassing both
tangible damages incurred due to the demolition (e.g., loss of property,
business, livelihood, etc.) and for the annoyance or other detriment caused
without following due procees.
132. The eviction order issued on 2 March 2022, following an
unexplained delay of four months, was never properly served to the
petitioners, nor was any notice regarding the status of the proceedings
provided. The absence of a notice has led to the petitioner being
uninformed of the developments until the action taken on 27 March 2022.
The respondents have not annexed the eviction order dated 2 March 2022
with the objections filed in this petition, nor have they provided any
evidence that such an order was served to the petitioner. The lack of
adequate service and communication of the order constitutes a blatant
infringement of procedural fairness and due process. Furthermore, on 27
March 2022, which serendipitously occurred on a Sunday when the courts
were closed, the second respondent (DFO), accompanied by a team of
officers and police personnel, conducted the unlawful demolition of
structures on the petitioner's property. The eviction was executed
surreptitiously, without compliance with the legal protocols or stipulations
prescribed by law. This action was done without due process and
constituted an arbitrary exercise of power and an abuse of authority. The
respondents' conduct in this case are unlawful, representing an abuse of
authority and directly violating the petitioner's rights under the law. The
Court determines these actions to be arbitrary, void and violative of
principles of natural justice.
133. The petitioner submitted a comprehensive valuation assessment,
conducted by an accredited valuer, appraising the amount of ₹76,40,200.
This valuation relies on the Government's established prices for the
reconstruction of structures damaged due to the unlawful actions of the
respondents. The valuation report, dated April 2, 2022, has been properly
submitted as part of the instant petition. The respondents have not
challanged the accuracy or validity of the appraisal in their objections to
this report. The respondents have sought to rationalize their capricious and
unlawful actions rather than contest the report's content or methodology.
Considering that the respondents' actions have been deemed arbitrary and
in contravention of legal principles, and acknowledging the undisputed
valuation of ₹76,40,200 for the incurred damages, there is no legal barrier
to mandating the respondents to compensate the petitioner for the
damages sustained. The sum of ₹76,40,200, as evaluated by the certified
appraiser, is both fair and reasonable.
134. Consequently, this Court finds it appropriate to hold the
respondents accountable for the payment of ₹76,40,200/- in compensation
to the petitioner, as determined by the approved valuer, within one month
from today. Should this amount not be remitted within the specified
timeframe, the petitioner shall be entitled to receive interest at a rate of
6% from the date it became due and was not paid.
135. The Hon'ble Supreme Court has underscored that demolitions must
adhere to established legal protocols and due process. IN RE MANOJ
TIBREWAL AKASH in WP(Civil) No. 1294/2020,decided on 06.11.2024
the Supreme Court noted in Paragraph 29 as follows:
"29.....In any case, such high-handed and unilateral
action by the State Government cannot be countenanced.
Justice through bulldozers is unknown to any civilized
system of jurisprudence. There is a grave danger that if
high handed and unlawful behaviour is permitted by any
wing or officer of the state, demolition of citizens'
properties will take place as a selective reprisal for
extraneous reasons. Citizens' voices cannot be throttled by
a threat of destroying their properties and homesteads.
The ultimate security which a human being possesses is to
the homestead. The law does not undoubtedly condone
unlawful occupation of public property and
encroachments. There are municipal laws and town-
planning legislation which contain adequate provisions
for dealing with illegal encroachments. Where such
legislation exists the safeguards which are provided in it
must be observed. We propose to lay down certain
minimum thresholds of procedural safeguards which must
be fulfilled before taking action against properties of
citizens. The state must follow due process of law before
taking action to remove illegal encroachments or
unlawfully constructed structures. Bulldozer justice is
simply unacceptable under the rule of law. If it were to be
permitted the constitutional recognition of the right to
property under Article 300A would be reduced to a dead
letter. Officials of the state who carry out or sanction such
unlawful action must be proceeded against for disciplinary
action. Their infractions of law must invite criminal
sanctions. Public accountability for public officials must
be the norm. Any action in respect of public or private
property must be backed by due process of law."
136. The Supreme Court reaffirms the imperative for stringent
compliance with protocols prior to any demolition, underscoring that
demolitions may not proceed without adequate notice and an opportunity
for the aggrieved parties to challenge the proceedings. This demonstrates
the Court's dedication to preventing capricious state actions and ensuring
accountability.
137. The fundamental objective of the Rule of Law is to avert the misuse
of power. The Rule of Law is characterised as an overarching concept
including many legal and institutional mechanisms designed to safeguard
citizens from state authority. The rule of law is essential for democracy
and effective governance.
138. The Hon'ble Supreme Court in the matter of "Smt. Indira Nehru
Gandhi v. Shri Raj Narain" reported in (1976) 2SCR347 established that
the rule of law is integral to the Constitution's basic construction. It is
appropriate to cite the subsequent remarks of Justice Mathew:
"341 .. .I cannot conceive of rule of law as a twinkling star up above
the Constitution. To be a basic structure, it must be a terrestrial
concept having its habitat within the four corners of the Constitution.
The provisions of the Constitution were enacted with a view to
ensure the rule of law ... "
139. In "Justice K.S. Puttaswamy (Retd.) & Anr. v. Union of India &
Ors.", reported in (2018) 8SCR(1) while dealing with the constitutionality
of the Aadhaar Act, 2016, the Apex Court held:
"As the interpreter of the Constitution, it is the duty of this Court
to be vigilant against State action that threatens to upset the fine
balance between the power of the state and rights of citizens and
to safeguard the liberties that inhere in our citizens."
140. In his dissenting opinion, Dr. Justice D.Y. Chandrachud (as His
Lordship then was) described the principle of the rule of law as under:
"The rule of law is the cornerstone of modern democratic societies
and protects the foundational values of a democracy. When the rule
of law is interpreted as a principle of constitutionalism, it assumes a
division of governmental powers or functions that inhibits the
exercise of arbitrary State power. It also assumes the generality of
law: the individual's protection from arbitrary power consists in the f
act that her personal dealings with the State are regulated by general
rules, binding on private citizens and public officials alike."
141. In "Rojer Mathew v. South Indian Bank Ltd. & Ors", reported in
(2019) 16 SCR 1 wherein the Hon'ble Apex Court held:
"If Rule of law is absent, there is no accountability, there is abuse of
power and corruption. When the Rule of law disappears, we are
ruled not by laws but by the idiosyncrasies and whims of those in
power."
142. In "Bilkis Yakub Rasool v. Union of India & Others", reported in
(2024) 1 SCR 743 wherein the Apex Court has discussed the concept of
the rule of law in detail. It was held:
"Rule of law means wherever and whenever the State fails to
perform its duties, the Court would step in to ensure that the Rule
of law prevails over the abuse of the process of law. Such abuse
may result from, inter alia, inaction or even arbitrary action of
protecting the true offenders or failure by different authorities in
discharging statutory or other obligations in consonance with the
procedural and penal statutes. Breach of the Rule of law,
amounts to negation of equality under Article 14 of the
Constitution.
The concept of Rule of law is closely intertwined with
adjudication by courts of law and also with the consequences of
decisions taken by courts. Therefore, the judiciary has to carry
out its obligations effectively and true to the spirit with which it is
sacredly entrusted the task and always in favour of Rule of law.
There can be no Rule of law if there is no equality before the law;
and Rule of law and equality before the law would be empty words
if their violation is not a matter of judicial scrutiny or judicial
review and relief and all these features would lose their
significance if the courts don't step in to enforce the Rule of law.
Thus, the judiciary is the guardian of the Rule of law and the
central pillar of a democratic State. Therefore, the judiciary has
to perform its duties and function effectively and remain true to
the spirit with which they are sacredly entrusted to it.
Further, in a democracy where Rule of law is its essence, it has to
be preserved and enforced particularly by courts of law.
Compassion and sympathy have no role to play where Rule of law
is required to be enforced. If the Rule of law has to be preserved
as the essence of democracy, it is the duty of the courts to enforce
the same without fear or favour, affection or ill-will."
143. Thus, in the light of the law laid down by the Hon'ble Apex Court
and the directions issued from time to time, it can safely be concluded that
the principle of Rule of Law is intrinsically linked to judicial adjudication
and the ramifications of court decisions. Consequently, the judiciary must
fulfill its responsibilities effectively and in accordance with the sacred
trust bestowed upon it, consistently upholding the Rule of Law. The Rule
of Law cannot exist without equality before the law; furthermore, both
concepts would be rendered meaningless if violations are not subject to
judicial scrutiny, review, and redress. These elements would lose their
significance if the courts fail to enforce the Rule of Law. Thus, the
judiciary serves as the guardian of the Rule of Law and is a fundamental
pillar of a democratic state. Therefore, the judiciary must execute its
duties effectively and remain faithful to the spirit of its sacred mandate.
144. Moreover, in a democracy where the Rule of Law is fundamental, it
must be upheld and enforced, especially by the judiciary. Compassion and
sympathy are irrelevant when the Rule of Law is to be upheld. If the Rule
of Law is to remain the cornerstone of democracy, it is the obligation of
the courts to enforce it impartially, without fear or favour, affection or
animosity.
145. Consequently, based on the legal principles established by the Apex
Court and the directives issued periodically, it can be conclusively said
that the Rule of Law serves as a protection against the capricious exercise
of State authority. It guarantees that the acts of the Government and its
authorities are regulated by established legal principles instead of arbitrary
discretion.
146. The rule of law establishes a framework and value system in which
institutions, principles and rules are implemented to reign in the arbitrary
exercise of State power and to prevent abuse of power, to ensure
predictability and stability, and guarantee that individuals are aware that
their lives, liberty, and property will not be taken from them arbitrarily or
abusively.
147. The executive undeniably acts as a trustee for the citizen,
necessitating that its activities align with the preservation of public trust.
When the administration oversteps its authority and functions arbitrarily,
dismantling individual's structures without adhering to the legally
mandated procedures. The Constitutional Courts will intervene, coming
back to the facts of this case, in a classic instance where, after 62 years,
the Government has questioned the title of the petitioner's predecessor-in-
interest as tenants-at-will based on Government Order No. LB-6/C of
1958 and thereafter, the granting of proprietary rights based on
Government Order No. S-432 of 1966. The executive in this case seems to
have emerged from a profound slumber to execute the demolition in a
highly secretive and unlawful manner, neglecting to adhere to the due
process of law.
148. Consequently, the Constitutional Courts, as guardians of citizens'
civil freedoms, would undertake all necessary measures to safeguard
against the detrimental consequences of State actions. The ideals of public
accountability and transparency regarding State actions apply to instances
of executive or statutory power, necessitating that such actions also
exhibit bona fides. The Hon'ble Supreme Court, in a series of rulings, has
determined that public officials of public servants are accountable for their
inaction and irresponsible conduct. Responsibility for such actions or
inactions must be assigned to the negligent officers to uphold the genuine
public goal of an accountable administration. The norms of public
accountability are rigorously applicable to government officials. The
greater the authority to make decisions, the higher the obligation to act
justly and equitably. The Apex Court has determined that every official
within the State hierarchy, by virtue of being a "public officer" or "public
servant,' is accountable for their decisions to both the public and the State.
149. The Hon'ble Supreme Court in the matter of "Express Newspapers
Pvt. The case Ltd. and others v. Union of India and others" reported in
(1986) 1 SCC 133, addressed the differentiation between the exercise of
power in good faith and its misuse in bad faith. The Supreme Court
articulated the principle of fraud on power as follows:
"119. Fraud on power voids the order if it is not exercised bona
fide for the end design. There is a distinction between exercise of
power in good faith and misuse in bad faith. The former arises
when an authority misuses its power in breach of law, say, by
taking into account bona fide, and with best of intentions, some
extraneous matters or by ignoring relevant matters. That would
render the impugned act or order ultra vires. It would be a case of
fraud on powers ..... "
150. In the case of "Nilabati Behera v. State of Orissa and others"
reported in (1993) 2 SCC 746, the Apex Court while considering as to
whether the courts exercising writ jurisdiction could grant relief under the
public law to a citizen complaining of infringement of the indefeasible
right guaranteed under the Constitution, observed thus:
"32. Adverting to the grant of relief to the heirs of a victim of
custodial death for the infraction or invasion of his rights
guaranteed under Article 21 of the Constitution of India, it is
not always enough to relegate him to the ordinary remedy of a
civil suit to claim damages for the tortuous act of the State as
that remedy in private law indeed is available to the aggrieved
party. The citizen complaining of the infringement of the
indefeasible right under Article 21 of the Constitution cannot
be told that for the established violation of the fundamental
right to life, he cannot get any relief under the public law by
the courts exerc1s1ng writ jurisdiction. The primary source of
the public law proceedings stems from the prerogative writs and
the courts have, therefore, to evolve 'new tools' to give relief in
public law by moulding it according to the situation with a view
to preserve and protect the Rule of Law. While concluding his
first Hamlyn Lecture in 1949 under the title "Freedom under
the Law' Lord Denning in his own style warned:
"No one can suppose that the executive will never be guilty of
the sins that are common to all of us. You may be sure that they
will sometimes do things which they ought not to do: and will
not do things that they ought to do. But if and when wrongs are
thereby suffered by any of us what is the remedy? Our
procedure for securing our personal freedom is efficient, our
procedure for preventing the abuse of power is not. Just as the
pick and shovel is no longer suitable for the winning of coal, so
also the procedure of mandamus, certiorari, and actions on the
case are not suitable for the winning of freedom in the new age.
They must be replaced by new and up-to date machinery, by
declarations, injunctions and actions for negligence .... This is
not the task for Parliament ... the courts must do this. Of all the
great tasks that lie ahead this is the greatest. Properly exercised
the new powers of the executive lead to the welfare state; but
abused they lead to a totalitarian state. None such must ever be
allowed in this country.""
PROPERTY RIGHTS
151. Article 300-A of the Indian Constitution is a Constitutional right
concerning the safeguarding of property rights. It asserts: "No person shall
be deprived of his property except by the authority of law."
152. This provision safeguards an individual's property rights,
prohibiting arbitrary confiscation by the Government or any authority.
The right is contingent upon legal stipulations, permitting property
acquisition or expropriation solely through due process of law. Article
300-A guarantees that no individual may be deprived of their property
without adherence to legal procedures, necessitating that any action
leading to property loss be sanctioned by law and comply with established
legal protocols.
153. The executive must operate transparently to prevent arbitrariness.
Given the unique facts and circumstances of this case, which shocks the
Court's conscience, specific directives are necessary to ensure that public
officials refrain from acting in a high-handed, arbitrary, and
discriminatory manner. Should they engage in such conduct,
accountability must be imposed upon them.
154. This Court reiterates the directions issued by Apex Court in para 90
and 91 of writ petition (Civil) No. 259 of 2022 with clubbed petitions in
the matter of demolition of structure authored by His Lordship Hon'ble
Mr. Justice B.R Gavai dated 13.11.2024. For facility of reference, para 90
and 91 of the judgment is reproduced as under:
IX. DIRECTIONS 90.
In order to allay the fears in the minds of the citizens with regard
to arbitrary exercise of power by the officers/officials of the State,
we find it necessary to issue certain directions in exercise of our
power under Article 142 of the Constitution. We are also of the
view that even after orders of demolition are passed, the affected
party needs to be given some time so as to challenge the order of
demolition before an appropriate forum. We are further of the
view that even in cases of persons who do not wish to contest the
demolition order, sufficient time needs to be given to them to
vacate and arrange their affairs. It is not a happy sight to see
women, children and aged persons dragged to the streets
overnight. Heavens would not fall on the authorities if they hold
their hands for some period.
91. At the outset, we clarify that these directions will not be
applicable if there is an unauthorized structure in any public
place such as road, street, footpath, abutting railway line or any
river body or water bodies and also tocases where there is an
order for demolition made by a Court of law.
A. NOTICE
i. No demolition should be carried out without a prior show cause
notice returnable either in accordance with the time provided by
the local municipal laws or within 15 days' time from the date of
service of such notice, whichever is later.
ii. The notice shall be served upon the owner/occupier by a
registered post A.D. Additionally, the notice shall also be affixed
conspicuously on the outer portion of the structure in question.
iii. The time of 15 days, stated herein above, shall start from the
date of receipt of the said notice.
iv. To prevent any allegation of backdating, we direct that as soon
as the show cause notice is duly served, intimation thereof shall
be sent to the office of Collector/District Magistrate of the district
digitally by email and an auto generated reply acknowledging
receipt of the mail should also be issued from the office of the
Collector/District Magistrate. The Collector/DM shall designate a
nodal officer and also assign an email address and communicate
the same to all the municipal and other authorities in charge of
building regulations and demolition within one month from today.
v. The notice shall contain the details regarding:
a. the nature of the unauthorized construction.
b. the details of the specific violation and the grounds of
demolition.
c. a list of documents that the noticee is required to furnish along
with his reply.
d. The notice should also specify the date on which the personal
hearing is fixed and the designated authority before whom the
hearing will take place;
vi. Every municipal/local authority shall assign a designated
digital portal, within 3 months from today wherein details
regarding service/pasting of the notice, the reply, the show cause
notice and the order passed thereon would be available.
B. PERSONAL HEARING
i. The designated authority shall give an opportunity of personal
hearing to the person concerned.
ii. The minutes of such a hearing shall also be recorded.
C. FINAL ORDER
i. Upon hearing, the designated authority shall pass a final order.
ii. ii. The final order shall contain:
a. the contentions of the notice, and if the designated authority
disagrees with the same, the reasons thereof;
b. as to whether the unauthorized construction is compoundable,
if it is not so, the reasons therefor;
c. if the designated authority finds that only part of the
construction is unauthorized/no compoundable, then the details
thereof.
d. as to why the extreme step of demolition is the only option
available and other options like compounding and demolishing
only part of the property are not available.
D. AN OPPORTUNITY OF APPELLATE AND JUDICIAL
SCRUTINY OF THE FINAL ORDER.
i. We further direct that if the statute provides for an appellate
opportunity and time for filing the same, or even if it does not so,
the order will not be implemented for a period of 15 days from the
date of receipt thereof. The order shall also be displayed on the
digital portal as stated above.
ii. An opportunity should be given to the owner/occupier to
remove the unauthorized construction or demolish the same
within a period of 15 days. Only after the period of 15 days from
the date of receipt of the notice has expired and the
owner/occupier has not removed/demolished the unauthorized
construction, and if the same is not stayed by any appellate
authority or a court, the concerned authority shall take steps to
demolish the same. It is only such construction which is found to
be unauthorized and not compoundable shall be demolished.
iii. Before demolition, a detailed inspection report shall be
prepared by the concerned authority signed by two Panchas.
E. PROCEEDINGS OF DEMOLITION
i. The proceedings of demolition shall be video-graphed, and the
concerned authority shall prepare a demolition report giving the
list of police officials and civil personnel that participated in the
demolition process. Video recording to be duly preserved.
ii. The said demolition report should be forwarded to the
Municipal Commissioner by email and shall also be displayed on
the digital portal.
CONCLUSION:
155. In light of the authoritative enunciation of the law mentioned above,
petition WP(C) No. 435/2021 is allowed, and the order dated 15.09.2020
issued by Respondent No. 4, Tehsildar, Jammu, which pertains to
mutations Nos. 97, 98, and 105 dated 16.05.2002 and 13.10.2004, is
hereby annulled. Furthermore, the actions of Respondent No. 4, Tehsildar,
Jammu, in cancelling the aforementioned mutations are declared null, void,
inoperative, and non-binding on the petitioner's rights.
156. The petition being WP(C) No. 795/2022 is hereby allowed, and the
respondents' actions in demolishing the petitioner's properties are declared
unlawful and executed without due process. Consequently, the
respondents are mandated to compensate the petitioner with damages to
the tune of Rs. 76,40,200/- for the reconstruction of the damaged
structures, calculated according to the Government's established rates, and
to recover this amount from the concerned officials responsible for the
illegal demolition.
157. The respondents are additionally prohibited from disrupting the
petitioner's tranquil/peaceful possession of the land comprising 8 kanals in
Khasra No. 59/41min, Khewat No. 17/17, Khata No. 45/39, and 4 kanals
in Khasra No. 59/41min, Khewat No. 17, Khata No. 45min, and land
measuring 7 Marlas, identified by Khasra No. 59/41, Khewant No. 10 min,
Khata No. 25 min, located in Dawara, Tehsil and District Jammu.
158. Furthermore, in the present case, the arbitrary and unilateral actions
of the former State (now Union Territory) cannot be countenanced, as the
State (now UT) has failed to adhere to the due process of law and has
attempted to revisit an issue that was conclusively resolved in 1958, when
the predecessors-in-interest were designated as tenants-at-will, and later
when proprietary rights were granted pursuant to a Government Order in
1966, which facilitated the attestation of mutations and the registration of
sale deeds. Consequently, this Court believes that the officials of the State
(now UT) who execute or endorse such unlawful actions should face
disciplinary measures, and their illegal transgressions should result in
criminal as well as disciplinary repercussions, as public accountability for
public officials must be the norms.
159. The Hon'ble Supreme Court, in the unique facts and circumstances
of the case titled "Zulfiquar Haider vs State of U.P," reported as (2025)
SC 625, has imposed costs of ₹60,00,000/- on the State, allocating
₹10,00,000/- to each of the six affected families. This decision was made
to compensate for the infringement of fundamental rights and to ensure
accountability for the authorities' unlawful actions. For ease of reference,
the pertinent paragraph is reproduced below:
We quantify the costs of Rs. 10,00,000/- (Rupees ten lakhs) in
each case. We, therefore, set aside the impugned order dated 8th
March, 2021, passed by the High Court of Judicature at
Allahabad and dispose of these appeals by passing the following
order:
1) We direct the PDA to scrupulously follow the directions in the
decision of this Court in Re: Directions in the matter of
demolition of structures1;
2) We direct the PDA to pay costs of Rs.10,00,000/-(Rupees ten
lakhs) in each appeal to the appellants within a period of six
weeks from today. On the failure to pay the amount within the
stipulated time, it will carry interest at the rate of 6% per annum
from the date of the filing of the present Special Leave Petitions
till the payment;
3) Even assuming that a copy of the order referred to in
paragraph 6 of the counter affidavit of the third respondent is
already served upon the appellants, we direct the third
respondent to provide a copy thereof to the appellants; and
4) We leave it open to the appellants to file appropriate
proceedings to establish their rights in respect of the land
subject matter of these appeals.
They will also be entitled to file proceedings to claim
compensation on account of illegal demolition.
160. Since any action in respect of a public or a private property must be
backed by due process of law and in the instant case, the respondents have
acted in most clandestine manner by wrongly interpreting the true import
and spirit of Government Order No. LB-6/C of 1958 after 62 years, which
shocks the conscious of this Court, more particularly, when the ownership
rights were also conferred thereafter in 1966 and no grouse was ever
raised by any aggrieved party all along these years and clandestinely, on
Sunday, the structures belonging to petitioner were demolished. Thus, it is
a fit case where the State (now UT) must make payment of punitive
compensation as well.
161. Accordingly, the respondents are directed to pay the petitioner a
punitive compensation to the tune of ₹10,00,000/- (ten lacs) as an interim
measures which will be in addition to the compensation by way of
damages to the tune of ₹76,40,200/- (seventy six lacs, forty thousand, two
hundred) which has been assessed and is being granted by this Court for
demolishing the property of the petitioner without any authority of law.
162. Besides, the Chief Secretary of the Union Territory of J&K is also
directed to conduct an in-depth enquiry within a period of two months
from today and on the basis of the findings of the said enquiry, take
suitable action including penal measures to ensure accountability of
individual officers who have acted in violation of the law in the instant
case, in the light of the guiding principles laid down by the Apex Court in
catena of judgments, where the individual officers have acted in violation
of law.
163. Consequently, both writ petitions and all connected applications are,
accordingly, disposed of.
164. The Registry is directed to handover the original record to Mr.
Vishal Bharti, learned Dy. AG against proper receipt.
(WASIM SADIQ NARGAL)
JUDGE
SRINAGAR:
07.05.2025
Vijay & Mubashir
Whether the order is speaking: Yes
Whether the order is reportable: Yes
