Mohd Sultan Khan. vs State Of J&K; & Ors on 29 January, 2014

[Cites 14, Cited by 1]

Jammu & Kashmir High Court - Srinagar Bench

Mohd Sultan Khan. vs State Of J&K; & Ors on 29 January, 2014

(4) Nautor Kunindas of Nautors after Kharif 1982 to Kharif 1989 will have no separate individual claims over these are as. Such areas to the extent required can, however, be included as Shamilat as allotted on 100 per cent basis provided there is a margin for their inclusion in the Shamilat Deh.

The village Assamis are entitled to their pro rata share in this area on the basis of the cultivated areas in their possession, and they can have the 'Kami Beshi" adjusted by partition. (5) Shamilat shall be allotted in the following order of precedence:

(a) Areas falling under rule No.4;

(b) Nautor upto Kharif 1982 under rules 8 and 9

(c) Nautor after Kharif 1982 upto Kharif 1989;

(d) and then the areas refereed to in rule 5 (if necessary and available) Provided always that the total of all the above mentioned areas shall in no case exceed the established basic cultivated area of a particular village.

In case, however, Nautor after Kharif 1982 exceeds the prescribed limit, Nautor Kunindas shall be rejected from the area in excess under Section 155 of the Land Revenue Regulation No.1 of 1980.

Illustration I The cultivated area of a village is:

(a) Present cultivated area: 550 acres

(b) Nautor referred to in rules 8 and 9 upto Kharif 1982 50 acres © Nautor after Kharif 1982 to Kharif 1989: 100 acres

(d) Basic cultivated area of the village 550-(50+100) 400 acres

(e) Khalsa area referred to in rule 4: 200 acres

(f) Nautor after Kharif 1982 to Kharif 1989 referred to in (c) above: 100 acres The whole area of Nautor after Kharif 1982(c) can be given in Shamilat Deh. Besides a further area of 100 acres out of the area falling under rule 5(f) can be allotted as Shamilat Deh.

Illustration II .....

(8) It seems unnecessary to give any further explanation in this respect here, but to avoid possibilities of future misunderstanding, it is pointed out that in working out the pro- rata share of Assamis at the time of partition the cultivated area 29 and the culturable waste will alone be taken into consideration, while the areas of common use such as village grazing grounds, grave-yards, kuhls, village roads, etc., will be left out of account.

(9) Assamis who have made Najaiz Nautor from prohibited areas such as Kuhls, graveyards, roads, Kahcharai, areas etc., shall be ejected on the spot forthwith according to the provisions of Section 155 of the Land Revenue Regulation No.1 of 1980) and revenue assessed and recovered thereon from the date of possession upto the date of ejectment.

No Najaiz Nautor Kuninda should, however, be allowed to remain in possession of such Nautor. Tehsildars and Naib Tehsildars will be personally responsible to see that the instructions are strictly enforced on the spot and that the orders are not recorded on paper only.

(10) As the instructions in regard to the Amaldaramed of Shamilat Rules have now been given in detail, all mutations pertaining to rule 5(b) and rule 9 of Notification No.2 of 1984 will now be attested by the Tehsildar.

(11) All mutations made in contravention of the rules as explained above will be annulled. Immediate effect should, however, be given to the concessions and privileges provided in boon 4 in compliance with these instructions and no delay should be allowed to take place in the disposal of such cases. ...

...

(13) The Governor of Kashmir and the Wazirs of Anantnag, Baramulla and Muzaffarabad will be responsible to see that this work is completed in every details within a period of 5 months from today."

32. It thus becomes axiomatic from the aforesaid Rules that the Rules provided for conversion of Khalsa lands into Shamilat and setting aside such land equivalent in size to the total cultivated land in a village. Out of the said Shamilat, the holders of cultivated lands in a village would jointly own that part of the Shamilat mutated under Rule 5. This part of the Shamilat constituted partible Shamilat and would vest in the individual holders on pro rata basis proportional to their holdings. The rest of the Shamilat would be for common use of the villagers as village roads, 30 tanks, shrines, burning ghats, burial grounds, village grazing fields etc. etc. This part of the Shamilat land would be mutated under Rule 4 and was not partible. It continued to vest in the State to be used for public purpose. Thus, the Shamilat land under Rule 5 and Rule 4 are not the same. In other words, whereas Shamilat land covered under Rule 5 represents that part of the Shamilat granted to a person proportionate to his holding in the Mahal on pro rata basis, Shamilat land covered under Rule 4 does not fall under that category - it continues to vest in the State and is not partible.

33. In the instant case, as per the minutes / decision of the Committee of high ranking Revenue Officers of Deputy Commissioners etc. held under the Chairmanship of Divisional Commissioner on 22.04.2010, on perusal of the relevant and original record, it was found that in terms of intikal No. 45 with respect to village Laripora Pahalgam of the year 1932-33 AD, an area of 2400 Kanals and 07 Marlas had been kept reserved as Shamilat 'Hasbi Rasad' (Pro rata). From the said area of 2400 Kanals 07 Marlas, an area of 373 Kanals 17 Marlas had been set apart as 'Nautor Jaiz', meaning thereby that these 373 Kanals and 17 Marlas of land had fallen jointly to the share of the villagers under Rule 5 and the rest, i.e., (2400 K, 07 M - 373 K, 17 M = 2026 K, 10 M) constituted Shamilat land under Rule 4 meant for common use for the purposes defined in Rule 4, which included grazing etc. Nautor on this land was called "Naujtor Najaiz" and there were specific directions that no Najaiz Nautor Kuninda should be allowed to remain in possession of such Nautor. Tehsildars and Naib Tehsildars were made personally responsible to see that the instructions are strictly enforced on the spot and that the orders are not recorded on paper only.

34. In the minutes, in paragraph (c), it is further disclosed that land measuring 156 Kanals 13 Marlas of the Shamilat land has come under the alignment of extension of Golf Course at village Laripora Pahalgam.

Though in this paragraph it is not disclosed whether these 156 Kanals and 13 Marlas constituted part of the 373 Kanals and 17 Marlas of land which had fallen jointly to the share of the villagers under Rule 5 and in respect of which "Bhiachara Mukamal" had been done, yet in paragraph (f) of the minutes, it is said that out of these 156 Kanals and 13 Marlas, only 61 Kanals and 13 Marlas, covered under the Khasra numbers mentioned in paragraph (g), were from the aforesaid 373 Kanals and 17 Marlas of land. Meaning thereby, that the remaining 96 Kanals (146 K, 13 M - 61 K, 13 M) were from that part of the Shamilat land out of 2400 Kanals and 07 Marlas which had continued to vest in the State in terms of Rule 4. Accordingly, the Committee concluded:

i) That only an area measuring 373 Kanals 17 Marlas declared as 'Nautor Jaiz' and assigned Land Revenue in accordance with the law and standing orders is 'Shamilat' Hasab-e-Rasad / Jaiz Shamilat. Therefore, only an area of land measuring 61 Kanals 13 Marlas acquired for extension of Golf Course at Pahalgam and entered into the names of individual owners / occupants during Kharief 1971 are entitled for payment of compensation in accordance with LB 10 and the Collector shall have to record certificate in this behalf in respect of entitled land owners.

ii) All such occupants who are in occupation of these 61 Kanals 13 Marlas acquired through various modes viz. alienation / transfer are also entitled for payment of compensation, irrespective of the fact whether they have or not have proprietary land in the estate.

iii) All such occupants whether having or not having proprietary land in the estate who are in occupation of Shamilat land 'Nautor Jaiz' coming under alignment of extension of Golf Course other than 61 Kanals 13 Marlas 'Jaiz Shamilat' shall not be entitled to the payment of compensation."

35. The above position is, however, belied by the Collector, Land Acquisition, Anantnag, in his affidavit filed in the Court. In paragraph 4 of the affidavit, the Collector has made the following statement:

"On examining the records minutely, it revealed that intikal No.45 of village Laripora Pahalgam of the year 1932-33 AD shows that an area of 2400K-07M had been kept reserved as 32 Shamilat 'Hasab Rasad (Prorata) basis. Out of the said area, land measuring 373 Kanal - 17 Marlas had been set apart as 'Nautor Jaiz' and out of this area only land measuring 156K- 13M of the Shamilat land has come under the alignment of acquired land for extension of Golf Course at Laripora Pahalgam which includes an area of 61K-13M 'Nautor Jaiz' (Section-5) comprising following survey Nos."

Thus, the Collector, Land Acquisition, in his aforesaid affidavit has clearly stated that 156 Kanals, 13 Marlas Shamilat land formed part of the 373 Kanals, 17 Marlas (Nautor Jaiz). In light of this statement made in the affidavit filed by the Collector, Land Acquisition, Antnang, before this Court in answer to the claims put forth by the petitioners in their respective writ petitions, the decision dated 22.04.2010 of the Committee of High Level Revenue Officers taken in its meeting headed by the Divisional Commissioner, Kashmir is clearly at variance.

36. If one believes what the Collector, Land Acquisition has stated in his affidavit, then the land on which the petitioners lay their claim has to be held to fall in that category of Shamilat which in revenue parlance is known as dafa 5. But in the very same breath, the Collector has stated that as regards 95 Kanals of Shamilat land (156 Kanals, 13 Marlas - 61 Kanals, 13 Marlas) coming in the acquired alignment, the same as per records is recorded as Shamilat u/s 4 (Najaiz) and are not entitled for payment of compensation.

37. Then the question arises whether the State / Collector can challenge the title of the land owners or their right to receive compensation after the final award is made under Section 12 of the Land Acquisition Act? As a matter of fact, learned counsel for the petitioners, citing and relying upon the judgments of the Supreme Court in Sharda Devi v. State of Bihar, AIR 2003 SC 942 and M/s Ahad Brothers v. State of M. P., AIR 2005 SC 355, and the judgment of the Allahabad High Court in Baru Mal v. State of U. P., AIR 1962, Allahabad 61, submitted that once final award is 33 passed the State and / or the Collector is debarred from challenging the title of the land owners or their right to payment of compensation.

38. I have perused the aforesaid judgments. In Sharda Devi v. State of Bihar (supra) the law on the subject has been summed up in paragraph 40 of the judgment in the following words:

"To sum up the State is not a 'person interested' as defined in Section 3(2) of the Act. It is not a party to the proceedings before the Collector in the sense, which the expression 'parties to the litigation' carries. The Collector holds the proceedings and makes an award as a representative of the State Government. Land or an interest in land pre-owned by State cannot be subject matter of acquisition by State. The question of deciding the ownership of State or holding of any interest by the State Government in proceedings before the Collector cannot arise in proceedings before the Collector [as defined in Section 3(c) of the Act]. It it was a government land there was no question of initiating the proceedings for acquisition at all. The Government would not acquire the land, which already vests in it. A dispute as to pre-existing right or interest of the State Government in the property sought to be acquired is not a dispute capable of being adjudicated upon or referred to the Civil Court for determination either under Section 18 or Section 30 of the Act. The reference made by the Collector to the Court was wholly without jurisdiction and the Civil Court ought to have refused to entertain the reference and ought to have rejected the same. All the proceedings under Section 30 of the Act beginning from the reference and adjudication thereon from the reference and adjudication thereon by the Civil Court suffer from lack of inherent jurisdiction and are therefore a nullity liable to be declared so."

In paragraph 41 of the judgment, however, the Supreme Court has made some important clarifications which are most relevant here. It reads thus:

"40. However, we would like to clarify our decision by sounding two notes of caution. Firstly, the quashing of the proceedings under Section 30 of the Land Acquisition Act would not debar the State from pursuing such other legal remedy before such other forum as may be available to the State Government and on the merits and the maintainability thereof we express no opinion herein. Secondly, the situation in 34 law would have been entirely different if the title of the appellant would have come to an end by any event happening or change taking place after the making of the award by the Collector as was the case in Dr. G. H. Grant v. State of Bihar, (1995) 3 SCR 576. The title of Dr. Ghosh had come to an end by change of law referable ti a date subsequent to the making of the award. In this context it was held - '...there is no reason why the right to claim a reference of a dispute about the person entitled to compensation may not be exercised by the person on whom the title has devolved since the date of the award and there is nothing in Section 30 which excludes a reference to the Court of a dispute raised by a person on whom the title of the owner of land has since the award devolved'."

In M/s Ahad Brothers v. State of M. P. (supra), the Supreme Court has held the same view as in Sharda Devi v. State of Bihar (supra) in the following words:

"In the present appeal, it is not the case of the respondent State that he title of the appellant had come to an end on happening of any event or change taking place after making of the award by the Collector. As stated in para 37 in the case of Sharda Devi (supra), the decision in this appeal does not preclude the State from pursuing such other legal remedy before any other forum, if available in law and if such a claim is maintainable in law..."

39. The argument raised by the learned counsel for the petitioners is thus answered by the very same judgments relied upon by him, i.e., the State is not precluded from pursuing a legal remedy before an appropriate forum. In the present case, however, the fact of the matter is that the State functionaries have not challenged the award so far in any forum. They are only contesting the reliefs prayed for in these writ petitions by disputing the ownership of the petitioners. They are not before the Court challenging the award as such. Looking at the peculiar facts and circumstances of the case and the allegations made in some of these petitions that some bureaucrats and influential persons have been not only paid compensation for the same kind of land, but have also been allotted land in exchange, which allegations have not been rebutted by the 35 respondents, it appears to be a case where public interest and patronage has gone hand in glove and the consequence is natural - loss to the public exchequer, tax payers money. The Chief Executive Officer, Pahalgam Development Authority, had sounded enough caution well in advance in this behalf, but the Collector seems to have not heeded to such caution. What is more astonishing is that the concerned respondents, except the Chief Executive Officer, Pahalgam Development Authority, have not chosen to file any effective replies in these writ petitions. That being the position, this Court would not act as a conduit to facilitate squandering of public money.

40. The fact remains, on the one hand the award has been finally made, on the other hand the ownership of the petitioners is denied, not in appropriate proceedings and before appropriate forum, though, this Court in its extra ordinary writ jurisdiction would not determine the question of ownership. These petitions are fundamentally based on the claim of ownership of the petitioners over the land in question and consequentially their right to receive compensation as determined by the Collector. In strict legal sense, the petitions, therefore, involve such disputed facts which cannot be determined in writ jurisdiction.

41. On a thoughtful consideration, I think it would be just and appropriate to leave the parties free to take recourse to appropriate remedial measures to establish their respective claims under the Act or otherwise. It is, however, made clear that if the award withstands the scrutiny of law in any maintainable remedial measure that may be chosen by the State / its concerned functionaries, the petitioners would be entitled to the compensation determined by the Collector in the final award. In that case, the petitioners would also be entitled to seek reference under Section 18 of the Act to the Civil Court, without insisting on the period of limitation. Further, as long as the award stands, the recovery notices 36 issued to some of the petitioners in these writ petitions and impugned herein cannot be allowed to be acted upon. The same shall be put on a hold for a period of two months from the date of this judgment during which period the State and its concerned functionaries would take a decision whether they would wish to seek appropriate remedy against the award in any forum, if any such remedy is legally available, or implement it as it is. In any case, if the State fails to take any such remedial measure within the aforesaid period of two months, the award would have to be acted upon by the Collector plus the petitioners would be entitled to seek reference in terms of Section 18 of the Act, if they so choose. It may also be mentioned here that petitioner no.2 in OWP no.837/2010 claims that his land measuring 1 Kanal comprising Khasra no.1693/224 too has been acquired and possession taken over, but his name has not been shown in the final award. He would be free to seek appropriate remedy before the Collector in terms of the provisions of the Act.

42. All these petitions together with the connected CMPs, are accordingly disposed of. Registry to place copy of the judgment on the records of each file.

43. In light of the above decision in the main writ petitions, nothing survives in the contempt petitions. The same are dismissed.

(Ali Mohammad Magrey) Judge Srinagar, 29.01.2014 Syed Ayaz, Secretary

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Jammu & Kashmir High Court - Srinagar Bench