Sat Pal vs State

The brief facts of the case are that respondent No:l leased out nazool land comprised under Survey Nos: 331/Min and 32/ Min measuring 2538

Sfts. and 874 Vz Sft. situated at Chand Nagar, Jammu to one Munshi Ram, the father of the petitioners. The lease was for a period of 40 years w.e.f. 7th of March 1938. The lease deed with respect to land measuring 874 Vz Sfts. was entered upon in the year 1971, but the effect there to was given from March 1938. Out of the said Khasra Nos., land measuring 2537V& Sfts. was leased out to one Sarwan Dass w.e.f 7th March,

1938. He, during his lifetime, disposed of a portion of land measuring 2106 Sfts. to one S. Amar Singh. He was himself left with only 431 Vz Sfts of land, which was adjacent to the land leased out to Munshi Ram. The possession of this left over land of 431 l/2 Sfts. was given by Krishen Chander S/o Sarwan Dass, the lessee, to Munshi Ram. Munshi Ram then raised a construction on a portion of the land leased out to him, during the year 193940. He made further construction on a portion of land leased out to him in the year 197677, measuring 431 l/2 Sfts. which was taken by him from Krishen Chander.

According to the petitioners, Munshi Ram before his death had executed a will, and partitioned the construction raised on the land which was in his occupation, amongst his sons. Munshi Ram during his lifetime made an application for extension of lease to Assistant Commissioner, Nazool, and according to the petitioners, the Assistant Commissioner Nazool recommended his case for extension of lease for a further period of forty

years. The application of the petitioner seeking extension of lease, however, remained pending with respondent No.2 from 1980 till 1991.

According to the petitioners, without affording an opportunity of being heard and behind the back of the petitioners, the respondent No.2 issued an order on Februrary 18th, 1991, cancelling/determining the lease with respect to land measuring 1306 Sfts comprised under Khasra No. 331/Min and 32/Min stituate in Chand Nagar, Jammu and ordered its resumption subsequent to the application for renewal of lease by Munshi Ram, his son the present petitioners also moved an application for renewal, which according to the petitioners was not decided.

Munshi Ram also moved an application for granting him the proprietary rights of the land on payment of full market value in terms of certain Government orders. The respondents appeared and have filed their counter.

I have heard learned counsel for the parties and gone through the record. The prayer made in this petition by the petitioners is that the Government order dated 18th. February, 1991, be quashed and by a mandamus, respondents be directed to confer proprietary rights on the petitioners in respect of the land in terms of Government Order No. Rev. (NDU)/46 of 1973 dated: 28th of January, 1973 and Government Order

No. Rev. (NDUJ/248 of 1981 dated: 2781981 and/or Government Order No. Rev. (NDUJ/309 of 1985 dated: 2491995. Since petitioners have not sought a direction to the respondents for extension of lease, I will not deal with that aspect of the matter. I will only deal with the matter as to whether the petitioners were entitled to be given proprietary rights over the land in question, and whether the order impugned needs to be quashed?

On the basis of Cabinet, Decission, an order was passed by the Government bearing No. Rev. (NDU)46 of 1973 dated: 2811973. This order pertained to transfer of Nazool lands to the Development authorities and it ordered that all vacant and lease free Nazool lands situate in and around the cities of Srinagar and Jammu shall be transferred to the respective Development authorities, but also made certain exceptions. Exceptions 5 and 6, which are relevant for purpose of present case, are reproduced hereinbelow:

Patches of Nazool lands below ten marlas encroached upon but required for any public purpose shall be transferred by the Revenue Department to the respective Development Authorities after removal of encroachment therefrom:

Patches of Nazool land below 10 marlas but encroached upon by private individuals and not required for any public purpose shall be sold off in proprietary rights to the encroachers on payment of price at market rates prevailing in the locality to be fixed by the Revenue Minister on the recommendations of the concerned. Dy. Commissioner except in cases where market rate of a certain piece of land is either less or more than that prevailing in the locality. In such cases market rates shall be fixed with concurrance of Finance Department.

Keeping in view the mandate of the order referred to about, it becomes clear that Nazool lands which were below ten marlas and were encroached upon, were to be sold to be encroachers on payment of price at market rates, provided those lands were not needed for public purpose. Then another order based upon a Cabinet decision came to be passed by the Government on 1781981. It dealt with the transfer of leases and ordered that wasidars who have acquired Nazool lands on lease basis, shall have option to acquire the said land on proprietary basis on payment of price equivalent to half of the prevailing market price. Subsequently, another Govt Order bearing No.34 (NDU)34 of 1985 dated:

2111985 came to be passed on the subject, which was later on modified by a Govenment order dated: 2491985. This order was passed pursuant to Cabinet decision No.344 dated: 2291985. It reads, as under :

In partial modification to clause (1) of Government order No. Rev. (NDU)34 of 1985 dated: 2111985, it is ordered that the lessees who are interested in converting their leases into free hold rights, may do so after payment of full market price.

It has been contended that keeping in view the Government orders issued from time to time, it becomes dear that Government had given option to lessees to convert their lands into proprietorship, and no discretion was reserved by the Government in itself not to convert lease hold rights into proprietary rights, if an option was exercised by the lessee. The only condition to be fulfilled was (at an earlier stage one half of the market price had to be paid and subsequently after 1985, the full market value had to be paid for securing proprietary rights over the land), as per the language of Government orders, particularly, Rev. (NDU)248 of 1981 dated: 1781981 and No. Rev. (NDU)309 of 1985 dated: 2491985. This plea has been taken by the petitioners in view of the fact that Government has been acting upon these orders and conferring proprietary rights on lessees.

Copies of two orders have been annexed by the petitioners with the petition, which have not been denied by the other side. They pertain to Shri Satya Paul and Smt. Padmanl Mahey. Therefore, there was no ground whatsoever for the respondents not to grant proprietary rights to the petitioners with respect to land that was in their lease hold rights. By the order impugned, the lease has been determined by the respondents with respect to land measuring 874Vfe Sfts. which was infact leased out to Munshi Ram, father of the present petitioners.

For the aforesaid reasons, the determination of lease with respect to the said land without conferring proprietary rights on the petitioners is bad and liable to be quashed. The possession over land measuring 432 Sfts has not been claimed by the petitioners as part of leased land granted to their father, but the possession of the petitioners over this land has not been disputed. I do not want to comment as to whether transfer of land from its original lessee i.e. Sarwan Dass in favour of the father of the petitioners was legal or otherwise, but since the petitioners were in possession of the land in question, they could have been treated as encroachers, and in terms of the order (supra) issued by the Government on 2811973, they had a right to purchase the said land and acquire proprietary rights thereof on the basis of price fixed by the Revenue Minister on the recommendations of the concerned Deputy Commissioner. Therefore, the order impugned, determining the lease with respect to this patch, of land is bad and liable to be quashed.

In view of the above discussion, I quash the order impugned, and direct the respondents to grant proprietary rights to the petitioners in respect of land measuring 874% Sfts. in accordance with Government Order No. Rev. (NDU)/309 of 1985 dated: 2491995. They are further directed to grant proprietary rights to the petitioners with respect to land measuring 432 Sfts. in accordance with Government Order No. Rev. (NDU)46 of 1973 dated: 2811973.

The petition is disposed of accordingly.