Occupancy tenants of land acquired by state have right to claim compensation under land acquisition laws: High Court of Jammu and Kashmir

IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU THROUGH VIRTUAL MODE) Reserved on: 31.05.2021 Pronounced on: 16.06.2021 WP(C) No.1184 2020 CM Nos.3452 & 34520 PREM SINGH Through: Mr. P. S. Pawar Advocate. UNION TERRITORY OF J&K & ORS. Through: Mr. S. S. Nanda Sr. AAG for R1 to R5 & R8. Mr. F. A. Natnoo AAG for R6 & R7. CORAM: HON’BLE MR. JUSTICE SANJEEV KUMAR JUDGE The petitioner is aggrieved and has challenged the following I) Communication dated 4th of July 2020 issued by respondent No.6 and addressed to respondent No.4 whereby request has been made to the later to ensure the presence of concerned Tehsildar along with revenue officials and police force to avoid any objection or resistance from the local people for acquiring land for construction of 2 WP(C) No.1184 2020 CM Nos.3452 & 34520 Receiving Station at Greater Kailash under Central Sponsored Scheme PMDP Urban II) Certificate dated 6th of July 2020 whereby the authorities of Power Development Department have claimed to have taken over the possession of State land measuring 2 kanals falling in Khasra No.96 in Village Chowadhi construction of Receiving Station III) Communication of respondent No.5 dated 25th of June 2019 addressed to respondent No.4 whereby the former has certified to the later by reference to revenue documents that the land measuring 2 kanals each falling under Khasra No.96 and 1328 situated at Village Chowadhi is State land. The impugned communications have been assailed by the petitioner primarily on the ground that the subject land measuring 2 kanals falling under Khasra No.96 is being forcibly taken over by the respondents without adopting any due process of law. It is claimed that the petitioner is an occupancy tenant of the subject land and therefore is entitled to compensation should the respondents decide to acquire the said land. 3) With a view to appreciating the grievance of the petitioner as projected by him in this petition it is necessary to notice few material The subject land is a land measuring 2 kanals falling under Khasra No.96 of estate Chowadhi in District Jammu. As admitted by 3 WP(C) No.1184 2020 CM Nos.3452 & 34520 the respondent revenue authorities as per Girdawari entries from the year 1958 to Rabi 1962 the subject land is recorded in the ownership of State with the names of Balak Ram Santokh Singh and Daleep Singh in equal shares as “Maroosi Hissadaran” recorded as persons in cultivating possession. From Kharief 1962 to 1974 the subject land is recorded under the ownership of Rasal Singh and others and under the cultivation of Balak Ram Santokh Singh and Daleep Singh as “Hissadaran bahissa barabar”. However with effect from Rabi 1975 to Rabi 1982 the Girdawari entry of said Khasra number is recorded as under ownership of State and in cultivating possession of Balak Ram Santokh Singh and Daleep Singh. From Kharief 1982 to Rabi 1987 the subject land is recorded under the ownership of State with names of Balak Ram Santokh Singh and Daleep Singh in the tenancy column. However from Kharief 1987 till date the said Khasra Number is recorded under the ownership of State with names of Balak Ram Santokh Singh and Daleep Singh as “Maroosi” under Section 4(4) in the tenancy column. This is the indisputable position recorded in the revenue records. The dispute appears to be with regard to the attestation of mutation No.272 dated 08.06.1957. As per the petitioner by virtue of mutation No.272 dated 08.06.1957 the land falling in Khasra No.96 486 and 487 beyond 182 kanals of ceiling limit of the erstwhile owner was escheated to the State by operation of Big Landed Estates Abolition Act 1950 and simultaneously with the 4 WP(C) No.1184 2020 CM Nos.3452 & 34520 extinction of ownership right of the erstwhile owner the tillers namely Balak Rama the father of the petitioner and his brothers were conferred the occupancy tenancy rights. It is claimed that it is on the basis of aforesaid mutation the petitioner has all along been shown in the revenue records as occupancy tenant of the land including the subject land measuring 2 kanals. On the contrary the official respondents also placing reliance upon mutation No.272 dated 08.06.1957 submit that in terms of said mutation not only the land exceeding the ceiling limit of the erstwhile owners namely Dharmoo and others was escheated to the State but the rights of occupancy of Balak Ram and others whose ownership land was more than 182 kanals were also extinguished. It is thus submitted by Mr. Nanda learned Sr. AAG appearing for the Revenue Department that the subsequent entries favouring the petitioner are fictitious and without any authority of law. He further argues that the respondents have not been able to find out any order of the competent authority in the Revenue Record which would demonstrate the conferment of occupancy rights qua the subject land on the petitioner or his forefathers. He therefore concludes by saying that the subject land which is a part of big chunk of land is indisputably the State land with which the petitioner or any other person has no right title or Having heard learned counsel for the parties and perused the record it is seen that before the Court there are two versions of 5 WP(C) No.1184 2020 CM Nos.3452 & 34520 mutation No.272 dated 08.06.1957 one placed on record by the petitioner with his writ petition and one relied upon and placed on record by respondent No.1 to 5 and 8 along with their objections filed through Mr. S. S. Nanda learned Senior Additional Advocate General. In the given facts and circumstances it is however difficult for this Court to believe one version and ignore the other. This makes the task of this Court not only difficult but very complicated. However without going into this aspect of the matter I would like to address the controversy on the basis of facts which are indisputable and with regard to which the parties are at ad idem. Admittedly and indisputably in the year 2007 when the Jammu and Kashmir Big Landed Estates Abolition Act Svt. 2007hereinafter “the Act of Svt. 2007” for short) the recorded position of the subject land was that it was in the ownership of State with Balak Ram Santokh Singh and Daleep Singh in equal shares as “Maroosi Hissadaran” recorded in the tenancy cultivation column. The Act of Svt. 2007 it needs to be emphasized was promulgated by Shri Yuvaraj under Section 5 of the Jammu and Kashmir Constitution Act 1996 on 1st of Kartik 2007 with a view to achieving the objective of abolition of big landed estates of the proprietors and to transfer the land held by them to the actual tillers. The Act of Svt. 2007 was the first milestone towards agrarian reforms set in motion by the then Shri Yuvaraj. Under Section 4 of the Act of Svt. 2007 the right of ownership held by a proprietor in land other than the land mentioned 6 WP(C) No.1184 2020 CM Nos.3452 & 34520 in sub sectionshall extinguish and cease to vest in him from the date of coming into force of the Act. Reference to sub section would make it abundantly clear that with the promulgation of the Act of Svt. 2007 a landlord was not permitted to hold land in ownership beyond 182 kanals. Such land as exceeded the aforesaid ceiling limit vested in the State and the ownership rights of the land were extinguished. If this land which by operation of law vest in the State was in actual cultivating possession of the tiller in Kharief 2007 same was to be transferred to such tiller to the extent of his actual possession provided the land so transferred along with land which he owned did not exceed 160 kanals in ownership right. There is thus found no provision in the Act of Svt. 2007 which would provide for the occupancy tenants to retain their occupancy rights even qua the land that vested in the State by operation of Section 4 of the Act. As a matter of fact the occupancy tenants were also granted ownership rights qua the land that vested in the State by operation of Section 4 with the extinguishment of ownership rights of landlord though to a limited extent as prescribed in Section 5(6)(1) of the Act of Svt. 2007. Viewed from this angle one would tend to believe the document of mutation i.e. the mutation No.272 dated 08.06.1957 placed on record by the respondents. A perusal of mutation No.272 supra) placed on record by Mr. Nanda Sr. AAG makes it abundantly clear that ownership rights of erstwhile owners namely Dharmoo and 7 WP(C) No.1184 2020 CM Nos.3452 & 34520 others were extinguished in terms of mutation No.328 and the tenants namely Balak Ram and others were provided opportunity to establish their claim. On enquiry it was found that the subject land in Kharief 2007was recorded in the personal cultivation of tenants i.e. Balak Ram and others but the same could not be transferred in their favour because the ownership land possessed by Balak Ram and others was found to be more than 182 kanals i.e. much beyond the ceiling limit prescribed under Section 5(6) of the Act of Svt. 2007. It is because of this reason no ownership rights qua the land measuring 36 kanals and 8 marlas comprised in Khasra Nos.486 487 and 96 could be conferred on Balak Ram and others the predecessor in interest of the petitioner. 10) Be that as it is it appears that though the ancestors of the petitioner were not found entitled to conferment of ownership rights but there was no specific order by any competent authority determining their occupancy rights. Undoubtedly the necessary consequence of not finding the occupancy tenants like Balak Ram father of the petitioner entitled to any ownership rights qua the land vested in the State by operation of Section 4 was the termination of occupancy tenancy. It appears that since there was no formal order of termination of occupancy rights of Balak Rama and others and there was no process undertaken to evict them they continued to remain in possession and were recorded in the tenancy column from time to time. Sometimes they were recorded as tenants in cultivating 8 WP(C) No.1184 2020 CM Nos.3452 & 34520 possession simpliciter and on some occasions they were recorded as “Maroosi” i.e. occupancy tenants. 11) Admittedly on the date the respondents decided to take over possession of 2 kanals of land out of Khasra No.96 for construction of some Receiving Station the recorded position in the revenue records was that the petitioner was an occupancy tenant in cultivating possession of the subject land. I have not been able to find out nor could Mr. Nanda point out that any remedial measures were taken by the competent authorities to set the record straight and to correct the Girdawari and Jamabandi entries etc. recorded in favour of the 12) Having a ringside appraisal of the whole issue and in the peculiar facts and circumstances of the case I am of the view that the petitioner cannot be fastened with the whole blame. The mess as it appears is the result of inefficiency of the revenue officers concerned. The unholy alliance between the petitioner and the revenue officials concerned also cannot be ruled out. 13) Be that as it is the fact remains that the petitioner and before him his ancestors should have been evicted from the subject land right in the year 1950 or at least when mutation No.272 of 1957 was attested. That however did not happen and the petitioner and his predecessors in interest continued to be in cultivating possession of the subject land as occupancy tenants and this position is clearly reflected in the revenue records and is corroborated by the stand of 9 WP(C) No.1184 2020 CM Nos.3452 & 34520 official respondents. It has also been brought to my notice that the subject land has already been taken over by Power Development Department and the construction of Receiving Station has been going on ever since. This also makes the issue fait accompli. In these circumstances and for the reasons stated above this petition is disposed of by providing as under: The Assistant Commissioner Revenue Jammu along with Tehsildar Bahu shall conduct an in depth enquiry in the matter in the light of observations made judgment and the referred provisions of the Act of Svt. 2007 as also other applicable provisions of law and shall make the Deputy Commissioner ii) The Committee of Revenue Officers aforesaid which is entrusted the job of holding enquiry shall in particular find out the reasons and circumstances under which the petitioner and his predecessors in interest continued to remain in possession of the land even after attestation of mutation No.272 dated 08.06.1957. The Committee shall also find out as to how petitioner and his predecessors in interest remained in cultivating possession of the land when in terms of mutation No.2757 they had ceased in law to be the occupancy tenants. iii) The Committee shall also find out as to why and how different entries in the tenancy column came to be made from time to time by the revenue officers and if 10 WP(C) No.1184 2020 CM Nos.3452 & 34520 possible identify the officers responsible for the lapse if any. iv) Should the Committee find no illegality in the matter or that to the error or omission if any committed by the revenue authorities the petitioner was not in any manner contributory he shall be deemed to be the occupancy tenant and the Deputy Commissioner Jammu shall accordingly initiate action under the relevant provisions of Land Acquisition Law to work out permissible compensation payable petitioner as occupancy tenant. The requisite funds for shall be provided by the Power Development Department which has already taken over the land and has been in the process of constructing the Receiving Station. v) The whole exercise as indicated above shall be conducted by the named respondents within a period of four months from the date copy of this judgment along with paper book is served upon the respondents 15) Disposed of along with connected CM(s) Judge “Bhat Altaf PS” Whether the order is speaking: Whether the order is reportable: Judgment pronounced today on 16.06.2021 in terms of Rules 138of the Jammu and Kashmir High Court Rules 1999. Javed Iqbal Wani) Judge 

Summary: Occupancy tenant has the right of occupancy in respect to the land held by him so he can live and cultivate on the land to earn a livelihood. Despite not owning the land, occupancy tenants have the right to be compensated in a situation where the land is acquired for some purpose by the state. This was held in the judgement passed by a bench of the High Court of Jammu and Kashmir consisting of Justice Sanjeev Kumar and Justice Javed Iqbal Wani in the case of Prem Singh v Union Territory [WP(C) No. 1184/2020] on 16th June 2021. The petitioner, Prem Singh challenged the acquisition of 2 kanals of land in Chowadhi village by the state for the construction of a receiving station. The petitioner contends that subject land was acquired without following the due process of law and that as an occupancy tenant; he should be entitled to compensation from the respondents. Upon examining the documents of the land, it was discovered that the land came under the state ownership after the passing of Big Landed Estates Abolition Act, 1950 and the tillers who worked for former owner were given occupancy rights to live and earn a living from the land. The occupancy rights over the strip of land in question were supposedly given to one tiller named Balak Ram who is the father of the petitioner, although the ownership was still under the state. Later mutations of revenue files showed contradictory information that Balak Ram’s occupancy rights had been terminated in 1957, although he continued to cultivate and earn his livelihood on the land. The court ordered for a committee to be constituted of revenue officers who will conduct necessary enquiries and further examine the circumstances under which the petitioner and his predecessors remain in possession of the land in question.