Says imposition of ban on attestation of mutation in terms of Govt Order No.18/LB of 1989 ‘is arbitrary, without any lawful reason’
Srinagar: The J&K High Court while directing the government to not interfere with the possession of 40 kanals of land by a woman in Ganderbal has held that attestation of mutation in her favour during the period of an official ban is of no consequence and not sustainable in law.
The petitioner Saleema Begum sought a direction to the respondent authorities commanding them not to evict her from the land measuring 40 kanals at Estate Bakura, Tehsil Khas, District Ganderbal.
According to the petitioner, she is the owner in possession of the land and has been cultivating it since 1957 when ownership rights were conferred upon her in terms of mutation Nos.1154/1 and 1156. These mutations were attested in favour of the petitioner in accordance with Government Order No.S-432 of 1966 read with Government Order No.LB-6/C of 1958.
The woman pleaded “the government has issued an order in 2022, whereby sanction has been accorded to the transfer of State land measuring 214 kanals under Survey No.1275/287/2-min situated at Village Bakura Tehsil and District Ganderbal in favour of Housing and Urban Development Department.”
She claimed “the land owned by her is not the State land as she has been conferred ownership/proprietary rights in accordance with the procedure established under law but authorities, without even issuing a prior notice to her, are trying to evict her forcibly from her proprietary land and they are also trying to demolish the cowshed and servant quarter which the petitioner has constructed on the land in question.”
However, the official respondents contended “the aforesaid mutation has been attested in favour of the petitioner on 27.04.1996 and on the said date attestation of mutations under LB-6 and S-432C was banned”.
It has been further contended “vide Government Order No.158/LB of 1989 dated 22.06.1989, attestation of mutations in terms of Government Order No.LB-6/C dated 05.06.1958 and Government Order No.S-432 of 1966 dated 03.06.1966 was banned from the date of issuance of said order.”
Justice Sanjay Dhar, who heard the matter, observed “the Government Order of 1958 confers a right upon an occupant of Stand land to be recorded as ‘tenant at will’ subject to his/her satisfying the conditions prescribed in the said Government order. Government Order No.S-432 of 1966 dated 03.06.1966 provides for conferment of proprietary rights on the cultivators of the State land who were permanent residents of the State and stood declared as ‘tenants at will’ in terms of Government Order No.LB-6.
“Thus, with the attestation of mutation in favour of the petitioner in respect of the land in question, she has been recorded as ‘tenant at will’ and thereafter conferred proprietary rights on the land in question.”
Justice Dhar referred to a J&K High Court judgment which held that the ban order was bad in law and an arbitrary exercise of power.
He held “the imposition of ban on attestation of mutation in terms of Government Order No.18/LB of 1989 dated 22.06.1989 has been held to be arbitrary and without any lawful reason as it causes an unreasonable and irrational restriction upon the recognition of already vested rights.”
He said “it is the settled position of law, the contention of the respondents that attestation of mutation in favour of the petitioner having taken place during the period of ban and, as such, the same is of no consequence, is not sustainable in law.”
The judge concluded “since the petitioner has been conferred proprietary rights in respect of the land in question in terms of Government Order Nos.LB-6 of 1958 and S-432 of 1966, therefore, the respondents under the garb of transferring the State land to the Housing and Urban Development Department for public purpose cannot interfere with the possession and ownership of the petitioner over the land in question.”
