Mohd. Yaqoob and Others vs Custodian General and Others

Mufti, J.—This petition must be dismissed on the short ground that the petitioners have no right to maintain it.

The case of the petitioners is that land comprised in Khasra Nos. 26, 33, 34, 35, 36, 37 and 38 situate in village Dwara, Tehsil Samba was

allotted in favour of respondent No. 2 under Cabinet Order No. 578-C of 1954 dated 7-5-1954, that the said respondent did not bring the land

under personal cultivation nor even occupied it; that he therefore forfeited his right to occupy the same under para 5(1) of the aforesaid Cabinet

order. Their further case is that in the year 1974 they brought the land under their personal cultivation and continue to be in possession thereof and

are not liable to be dispossessed therefrom. But, acting on the concurrent report of the Assistant Custodian, Samba, and Custodian, Jammu that

the petitioners were illegal occupiers, the Custodian General respondent No. 1 herein, by his order dated 19-12-1975, directed their eviction and

declined to rescind the order upon review applied for by the petitioners. Aggrieved by the order the petitioners have filed this writ petition and

challenged the order as illegal and unjustifiable.

Appearing for the petitioners, Mr. Kotwal argued that having regard to the facts of the case the order was unwarranted by Law. In this he relied

on paragraph (2) of Cabinet Order 578-C of 1954 which provides:

The land, of which the right to occupy is forfeited under Clause (1), may be re-allotted to other displaced family, which shall not have been settled

on land by that time and failing it shall continue with the person, who has been in actual cultivating occupation thereof; provided such person is a

landless tiller, and otherwise will be let out to a landless tiller, to the extent of the unit admissible.

This paragraph envisages two classes of occupiers; (1) allottee occupiers (2) tiller-occupiers. Allottee-occupiers have got a substantive right in the

sense that they cannot be evicted from the land unless they have violated the conditions of the allotment. The tiller occupiers are mere licensees.

They can hold the land until the license is revoked.

On facts stated above the land in question was never allotted to the petitioners. Nor even was it held by them in cultivating possession when the

respondent allottee forfeited the right to occupy the land so as to entitle them to continue in possession thereof. The word 'continue' appearing in

the paragraph significantly denotes that a person should be in actual cultivating occupation of the land at the time the allottee forfeited his right to

occupy the same. In this view the Custodian General and the authorities subordinate to him were justified in holding that the petitioners were illegal

occupants of the land and liable to be evicted therefrom. Taking a view favourable to the petitioners let me assume that this paragraph also

envisages subsequent actual cultivating possession as is the case of the petitioners. What follows is that they were holding the land as licensees. The

license could be revoked any time the Custodian General liked and they could be dispossessed as in law the Custodian General was entitled to do

in the view expressed above on the scope and effect of paragraph 5(2).

Viewed from any angle therefore this petition is not maintainable and is hereby dismissed in limine.