HIGH COURT OF JAMMU AND KASHMIR AT JAMMU OWP. no. 209/2006 Date of Decision: 26.08.2010 _________________________________________________ Radhey Sham and Ors Vs. State & Ors __________________________________________________ Coram: HON’BLE MR. JUSTICE SUNIL HALI, JUDGE. Appearing Counsel: For the Petitioner(s): Mr. R. Koul, Advocate. For the Respondent(s) Mr. A. H. Qazi, AAG. i) Whether to be reported in Press, Journal/Media : Yes ii/ Whether to be reported in Digest/Journal : Yes Under the “ Grow More Food Scheme” 4 Kanal and 16 marlas of land out of the State Land was allotted to the father of the petitioners vide Order No. 711 dated 22.04.2009 Bk. The said scheme was launched in order to make the un-cultivable land cultivable as also to give incentive to the landless persons. The petitioners, in pursuance to this Order have been cultivating the said land. The father of the petitioners pursued his case for transfer of ownership rights under different Government Orders i.e L-B/6 of 1958 read with Government Order No. 434 of 1966 but the revenue authorities did not adhere to the request of the father of the petitioners and declined the prayer. In the meanwhile the father of the petitioners died in June, 2002 and the land in question became the subject matter of acquisition by the respondents for construction of the road. Acquisition proceedings were initiated which finally culminated in passing of the award by the Collector. However, no notice was issued to the petitioners by the Collector under Section 4 of the Land Acquisition Act and their case for compensation was not considered. As a result of this the present writ petition has been filed by the petitioners. The case of the petitioners is that land was allotted to their father under the “Grow More Food Scheme” and under different government orders they were entitled for conferring ownership rights, particularly after issuance of Government Order No. 434 of 1966. This was a statutory duty of the respondents to effect the changes in the revenue record by conferring ownership rights on the petitioners. On the other hand, respondents' case is that the petitioners have been allotted the State land under “Grow More Food Scheme” and under the said scheme the allottee is recorded as “tenant at will” in Khasra Girdawari from Rabi 1956 BK to Rabi 2004 and thereafter as “Gair Maroosi” . The ownership rights have not been conferred on them as such they are not entitled to receive any compensation. I have heard the learned counsel for the parties. The short question that falls for consideration is as to whether the respondents had a statutory obligation to confer the ownership rights on the petitioners on the basis that they were entitled for the same under Government Order L-B/6 of 2 1958 read with Government Order No. 434 of 1966. It is admitted by the respondents that petitioners have been recorded as “Tenant At Will”. The possession of the petitioners being prior to 1957 makes them eligible to be conferred with the ownership rights under Government Order L-B/6 of 1958. Insofar as the question of application of Government Order No. L-B/6 of 1958 is concerned, it will clearly apply to those persons who are in occupation of the evacuee or State lands. In terms of this order, the occupants of the State Land, after being recorded as tenant at will, becomes entitled to ownership rights over such land. Government Order No. S-434 of 1966 dated 3rd June, 1966 provides that proprietory rights be conferred on the cultivators of State lands who are permanent residents of the State and have already been declared as tenants-at-will. Looking to the definition and the applicability of the aforesaid orders,it be seen that respondents have admitted the petitioners to be “tenants-at-will” and by virtue of Government Order S-434 of 1966 the petitioners will be entitled to be conferred with the ownership rights. I, accordingly hold that the petitioners are eligible to be declared as owners of the land which was allotted to them. The contention of the respondents that as the land has been allotted to the petitioners under the Grow More Food Scheme, and thus would not make them entitled to any benefit, in my, opinion, is 3 not correct position of law. All that makes a person eligible for conferring the ownership rights is that he should be in possession of the State land and not that under which scheme land has been allotted to him. The second question raised by the respondents is that there is no mutation conferring ownership rights on the petitioners. This argument, per se , is misconceived. It was statutory duty of the Tehsildar concerned to attest the mutation after issuance of order No. S-434 of 1966. Since the land was owned by the State and was allotted to the petitioners and after they have been declared as “tenants-at-will”, the Tehsildar was under statutory obligation to attest the mutation in their favour. His failure to attest the mutation will not take away the right of the petitioners to be declared as owners of the land. Right to be recorded as a tenant-at-will is a substantive right. Mutation or no mutation would be of no consequence so far as this right accrued under LB/6 is concerned. I am fortified in taking this view by a judgment of a Division Bench of this Court in case titled Kewal Krishan vs. State and Ors, reported as 2004 (3) JKJ 198 (HC), where it has been held as under:- “ The occupant of the State land after being recorded as “tenant-at-will” has become entitled to the ownership rights over such land under Govt. Order S-432. Both of the Government orders i.e. LB/6 and S-432 have not been rescinded till a cloud is being cast on so conferred rights by the Government Order No. 158 of 1989 dated 22.6.1989.........” 4 I, accordingly, allow this writ petition and direct the respondents to pay the compensation, as assessed by the Collector, to the petitioners, which amount is stated to have been apportioned and deposited in the State account, within a period of three months from the date this order is served on the respondents. (SUNIL HALI) Judge JAMMU: 26.08. 2010 Anil Raina, Secy. 5