Sher Mohd. & Ors. vs State Of J&K & Ors.

The case set up by the petitioners is that their predecessors-in-interest were in cultivating possession of State land comprising Khasra Nos. 257 (20 kanals 14 marlas), 266 (07 kanals 14 marlas), 267 (18 marlas), 276 (01 kanal 15 marlas), 230 (24 kanals), 302 (24 kanals 17 marlas), 274 (10 kanals 16 marlas) and 273 (09 kanals 06 marlas), stated to be measuring 100 kanals in all, situated at Village Barote, Tehsil Basholi, District Kathua, prior to the year 1951. It is pleaded that, in the year 1960, the aforesaid land was allotted to the father of petitioner Nos. 1 to 5 and petitioner No. 1, who belonged to the “Jullah” community and were stated to be landless persons having no holding of their own.

The aforesaid land subsequently came to be acquired for construction of the Ranjit Sagar Dam (Thein Dam) Project, Basholi, and possession thereof was taken over by the respondents in the year 1994. The Collector Land Acquisition, vide Award dated 17.12.1993, assessed compensation in respect of land measuring 2375 kanals and 05 marlas acquired for the project, prescribing different rates according to the classification and nature of the land. Insofar as State land was concerned, compensation was assessed at the rate of Rs.625/- per kanal.

The petitioners further plead that the Collector Land Acquisition prepared an acquaintance roll in respect of the State land situated at Village Barote, Tehsil Basholi, District Kathua, wherein the petitioners were reflected as persons interested and entitled to receive compensation. Notwithstanding the same, compensation was allegedly denied to them on the ground that they did not hold proprietary title over the land, which continued to be recorded as State land.

The petitioners seek to found their claim upon Government Order No. LB-6/C of 1958 dated 05.06.1958, whereby, according to them, proprietary rights were directed to be conferred upon occupants of State land, including land which had vested in the State under the provisions of the Big Landed Estates Abolition Act, 2007 (Samvat). Reliance is also placed upon Government Order No. S-432 of 1966 dated 03.06.1966, under which proprietary rights were stated to be conferred upon cultivators of State land who were permanent residents of the erstwhile State of Jammu and Kashmir.

It is further pleaded that the predecessors-in-interest of the petitioners had been pursuing the matter with the Revenue Authorities for attestation of mutation in their favour. However, before such mutation could be attested, the land came to be acquired. According to the petitioners, the process of attestation of mutations under Government Order No. LB-6/C of 1958 and Government Order No. S-432 of 1966 remained affected on account of the bans imposed by the Government from time to time, including the ban stated to have remained operative up to 08.07.1996 and another ban imposed in the year 1989.

The petitioners contend that it was solely on account of the aforesaid restrictions that mutation conferring proprietary rights could not be attested in their favour. They further rely upon Government Order No. Rev (LB) 2001 of 2007 dated 12.06.2007, whereby the earlier orders imposing restrictions on attestation of such mutations were rescinded and the Revenue Authorities were directed to complete the pending process of mutations under Government Order Nos. LB-6/C and S-432 forthwith. According to the petitioners, by the time the impediment stood removed, the land in question had already been acquired and taken over for the project.

On the strength of the aforesaid assertions, the petitioners contend that they have been unlawfully deprived of compensation in respect of the acquired land despite their long-standing cultivating possession and claimed entitlement to conferment of proprietary rights. They, accordingly, seek a direction to the respondents to attest mutation in their favour in respect of the land in question and, as a consequence thereof, to release the compensation assessed by the Collector Land Acquisition together with all consequential benefits admissible under law.

Upon notice, the Collector Land Acquisition, the then Sub-Divisional Magistrate, filed objections/reply. The factum of acquisition of the land has not been disputed. The respondents, however, contest the petitioners‟ entitlement to compensation on the ground that the land in question was State land and that the petitioners were neither recorded owners nor held proprietary rights therein. It is pleaded that the Award was made in favour of the persons holding ownership rights in the acquired land and, consequently, the petitioners, not being owners thereof, had no enforceable claim to compensation.

It has further been pleaded that different rates of compensation were assessed having regard to the classification of the acquired land. Cultivable land was assessed at the rate of Rs.16,000/- per kanal, Banjar Qadeem land at the rate of Rs.8,000/- per kanal and Gair Mumkin land at the rate of Rs.4,000/- per kanal, whereas other categories of State land were assessed at the rate of Rs.625/- per kanal. The Collector Land Acquisition has further taken the stand that the question of attestation of mutation in favour of the petitioners falls within the domain of the competent Revenue Authorities and that respondent No. 4 has no concern with such attestation.

It is pertinent to notice that, apart from the aforesaid objections filed on behalf of the Collector Land Acquisition, the other respondents, including the concerned Revenue Authorities, have not filed any response controverting the material assertions made by the petitioners in the writ petition.

Heard both the counsels and seen the record.

In ‘Kewal Krishan Vs. State of J&K and Ors.’ reported in 2004 (3) JKJ 198, a Division Bench of this Court was hearing a case where petitioner‟s father was recorded as „tenant-at-will‟ over the acquired land in terms of Government Order No.LB-6, who had become entitled for conferment of ownership right. However, because of the ban imposed by the Government from time to time, the mutation could not be attested in favour of the petitioner therein. The question arose that whether non-attestation of mutation of a „tenant-at-will‟ will be regarded as an impediment for conferment of proprietary right in his favour in terms of Govt. Order No.432-C of 1966 on an occupation of State land, who is otherwise entitled to be regarded as „tenant-at-will‟ in terms of Govt. Order No.LB-6, it was held in para 11 as under: -

A Single Bench of this Court in ‘Rajesh Kumar and others Vs. Union of India and others’ reported in 2005(1) JKJ 511, was dealing with a case where the petitioners had made out a case that they were in cultivating possession for over more than 45 years and their continuous possession was not disturbed but because of ban to attest mutation, the respondents who asserted that the said land being requisitioned by the State and that the owners are not entitled to mutation. There also the issue was raised that since the claimants were in possession of the State land so they are not entitled to compensation on account of acquisition of land. In that case, the land was sought to be acquired by taking recourse to J&K Requisitioning and Acquisition of Immovable Property Act, 1968. During the course of acquisition proceedings, it was found that the claimants were holding cultivating possession but being not the owners nor conferred with the proprietorship, they were denied compensation under the Act, forcing them to approach this, Court. Negating such pleas, the Single Bench proceeded to observe in para 5 as under: -

Again, dealing with the similar matter, a Division Bench of this Court in ‘Krishan Singh and anr. Vs. UT of Jammu and Kashmir and Ors.’ [LPA No.153 of 2020 D.O.D. 21.08.2021] wherein the Collector Land Acquisition had conducted proceedings in terms of Acquisition Act and passed an award, and prepared apportionment statement. Pursuant thereto, the appellants who were shown in possession were not held entitled to compensation. The petitioners therein filed the petition seeking a direction for release of compensation. The Single Bench after hearing the learned counsel for the petitioners dismissed the same in limini. On appeal before the Division Bench, it was held in para 6 of the judgment as under:-

Before proceeding to examine the controversy on merits, it would be apposite to notice the earlier round of litigation. The present petition, OWP No. 1684/2011, was initially dismissed by the learned Single Judge of this Court vide judgment dated 05.10.2020, principally on the ground of delay and laches. The learned Single Judge was of the view that the cause of action had accrued to the petitioners as far back as in the year 1999, when their earlier writ petition was disposed of with a direction to consider their claim regarding attestation of mutation and payment of compensation. Since the petitioners had thereafter remained inactive for a considerable period, they were held disentitled to re-agitate the same cause and, accordingly, the writ petition came to be dismissed.

The aforesaid judgment, however, was reversed by the Division Bench of this Court vide judgment dated 27.11.2025 passed in LPA No. 129/2020. The Division Bench held that the doctrine of delay and laches does not admit of mechanical or automatic application and that its applicability has to be examined in the facts and circumstances of each case. It was further observed that the pursuit of substantial justice ought not to be defeated by a rigid application of procedural considerations such as delay and laches. Having noticed that the appellants had raised substantive issues requiring adjudication on merits, the Division Bench set aside the judgment of the learned Single Judge and remitted the matter to this Court for consideration afresh on merits. While doing so, the Division Bench took note of the law laid down by the Hon‟ble Supreme Court in Tukaram Kana Joshi and Others v. Maharashtra Industrial Development Corporation and Others, AIR 2013 SC 565, wherein the approach required to be adopted by Constitutional Courts while considering claims arising out of deprivation of property without payment of compensation was emphasized. It was held that the State, particularly a welfare State governed by the rule of law, cannot arrogate unto itself a position beyond that sanctioned by the Constitution. Delay and laches constitute a rule of discretion governing exercise of extraordinary jurisdiction and cannot, in every case, be employed to perpetuate an illegality or defeat a legitimate claim arising out of deprivation of property.

The Division Bench also relied upon Urban Improvement Trust v. Smt. Vidhya Devi and Others, 2024 INSC 980, and observed that while the Court must remain conscious of the need for finality in legal proceedings, such consideration has to be balanced against the equally compelling need to remedy manifest injustice. The right of a person to vindicate and protect his interest in private property, therefore, cannot invariably be defeated merely on the ground of delay and laches.

Viewed in the backdrop of the aforesaid legal position, the material on record assumes significance. From the stand taken by the respondents, it emerges that, at the time of acquisition, the land in question was under the use and occupation of the petitioners/their predecessors-in-interest, though not as recorded proprietors but as “tenants-at-will”. Their case for conferment of proprietary rights under Government Order No. LB-6/C of 1958, followed by Government Order No. S-432 of 1966, had not culminated in attestation of the requisite mutation. Significantly, the apportionment/acquaintance statement prepared by the Collector also reflects that, though the land was recorded as State land, Khasra Nos. 257, 266, 267, 276, 230, 302, 273 and 274 were in the recorded possession of the petitioners/their predecessors-in-interest. The Award further reveals that different rates of compensation were prescribed for different categories of land and, insofar as the category of State land was concerned, compensation was assessed at the rate of Rs.625/- per kanal.

The petitioners, through the medium of the present petition, seek, inter alia, a writ of mandamus commanding the respondents to release compensation in their favour in terms of the Award. The question, therefore, is whether the petitioners, notwithstanding absence of a formally attested mutation conferring proprietary rights upon them, can be regarded as “persons interested” for the purposes of the Land Acquisition Act. Once it stands established from the revenue record itself that the petitioners or their predecessors-in-interest were in settled and recorded possession of the land at the time of its acquisition, their interest in the acquired land cannot be ignored merely because the formal process of conferment of proprietary rights had not been completed. They would, therefore, fall within the ambit of “persons interested” as contemplated under Section 3(b) of the Land Acquisition Act. More importantly, once the Award stood finalized and the petitioners/their predecessors-in-interest were reflected therein as persons in possession of the acquired land, the State cannot take advantage of its own failure to complete the process of conferment of proprietary rights and thereby appropriate to itself the benefit flowing from the acquisition proceedings.

The controversy is also substantially covered by the principle noticed in Krishan Singh‟s case (supra). Reference in this regard may also be made to the judgment of the Hon‟ble Supreme Court in Sharda Devi v. State of Bihar and Another, (2003) 3 SCC 128, wherein it was held that the Government, at whose instance land is acquired for a public purpose, is not a “person interested” within the meaning of Section 3(b) of the Land Acquisition Act so as to claim compensation for its own land. The principle is readily understandable. Where land required for a public purpose belongs exclusively to the State and no third person possesses any right, title or interest therein, there would ordinarily be no occasion for the State to acquire its own land by invoking the provisions of the Land Acquisition Act. Acquisition proceedings assume relevance where some right or interest of a person other than the acquiring authority subsists in the land and is extinguished or adversely affected by such acquisition. It is such right or interest which attracts the statutory entitlement to compensation.

In the present case, the petitioners/their predecessors-in-interest were admittedly reflected in the revenue record as being in possession of the land. The acquaintance/apportionment roll prepared in the course of acquisition proceedings also acknowledges their possession and interest in the acquired land. Their claim cannot, therefore, be rejected merely because proprietary rights had not formally been conferred upon them, particularly when their case is that such conferment could not take place owing to the inaction of the Revenue Authorities and the restrictions imposed by the Government from time to time. Government Order No. LB-6/C of 1958 contemplated determination of the status of occupants of State land, including land which had vested in the State under the Big Landed Estates Abolition Act, 2007 (Samvat), with reference to the relevant revenue entries, including those pertaining to Kharif 1957-58. The petitioners' claim of entitlement, therefore, has to be examined in the light of their recorded possession during the relevant period and cannot be defeated merely because the consequential mutation remained unattested.

It is also not the pleaded case of the respondents that the petitioners/their predecessors-in-interest were otherwise ineligible for conferment of proprietary rights under Government Order No. LB-6/C of 1958. The said Government Order was subsequently followed by Government Order No. S-432 dated 03.06.1966, providing, subject to the prescribed conditions, for conferment of proprietary rights upon cultivators of State land who were permanent residents of the erstwhile State and had been recognized as tenants-at-will under Government Order No. LB-6/C of 1958.

The State cannot be permitted to take advantage of its own inaction. If consideration or attestation of mutations under the aforesaid Government Orders remained suspended on account of restrictions imposed by the Government itself, and such restrictions were subsequently withdrawn, the failure of the authorities to complete the process cannot operate to the prejudice of persons whose claims had otherwise crystallized under the applicable Government Orders. Administrative inaction cannot be converted into a source of advantage for the State, much less where its consequence is deprivation of property or denial of compensation without authority of law.

In the present case, the material on record establishes that the petitioners/their predecessors-in-interest were in occupation of the land since Kharif 1957-58 and that their possession continued to be reflected in the relevant revenue/acquisition record. The Collector appears to have declined their claim essentially on the premise that, since the land continued to be recorded as State land and proprietary rights had not formally been conferred upon them, they were not entitled to compensation. Such an approach cannot be sustained. The absence of a formally attested mutation, in the peculiar facts of the case, cannot obliterate the petitioners' recorded possessory interest, particularly when the failure to complete the process of conferment of proprietary rights is attributable to the acts and omissions of the State authorities themselves. The fact that the concerned Revenue Authorities have chosen not to file objections controverting the material assertions made in the writ petition lends further support to the petitioners' case.

Once the petitioners/their predecessors-in-interest are shown to have been in recorded possession since Kharif 1957-58 and their claim falls within the framework of Government Order No. LB-6/C of 1958 read with Government Order No. S-432 of 1966, the respondents cannot defeat their entitlement by relying upon their own omission to formally confer proprietary rights. For the purposes of the acquisition proceedings, the petitioners are, therefore, required to be treated as persons interested and their entitlement to the compensation assessed in respect of the land in question cannot be denied on the sole ground that the land continued to stand recorded as State land.

For the foregoing reasons, the writ petition is allowed. A writ of mandamus is issued commanding the respondents to treat the petitioners as entitled to the benefit flowing from their claim to proprietary rights in respect of the land in question and to release in their favour the compensation assessed by the Collector Land Acquisition in respect of the State land, i.e., at the rate of Rs.625/- per Kanal. The amount payable to the petitioners shall be worked out, after due verification of their respective entitlement and the extent of land held by them/their predecessors-in-interest, and shall be released in their favour within a period of three months along with interest @ 7.5% throughout until realization of whole amount.

The petition stands disposed of in the above terms.