The High Court of J&K and Ladakh has observed that the holder of Shamilat land has got the same rights in respect of the land as in the proprietary land and if a portion of Shamilat land comes under acquisition, holder thereof is entitled to its compensation in the same manner as in the case of proprietary land.
The Court further observed that right to property though used to be a fundamental right, now has been recognized as a constitutional right under Article 300-A of the Constitution of India, which provides that no one can be deprived of his property except by the authority of law. The aforesaid constitutional right has been acknowledged to be akin to a fundamental right and more importantly a basic human right. Thus, no one can be deprived of his property without following the procedure prescribed in law and payment of adequate compensation
-The Petitioners stated in their petition that they are village land holders/owners having their respective shares in Shamlat Deh which they inherited from their ancestors as descendents of one, namely, Mst. Parro having succeeded by one Banku, being in cultivating possession of the land since 1979-80 B.K and after their death inherited by the petitioners being as successors.
-Petitioners stated that while being in cultivating possessions of the land in question, respondent No. 3 issued Notification dated 23.01.2018 under Section 4(1) of the Jammu and Kashmir Land Acquisition Act, 1990 notifying the said land falling under Khasra No. 635/605/580 min measuring 900 Kanals for public purposes i.e., for establishment of Industrial Estates at Village Sahar and during the acquisition proceedings the respondent No. 2 issued the impugned order whereof the land of the petitioners came to be declared as the State land, without hearing them.
-Petitioners assailed the impugned order passed by the respondent no. 2 on the ground that the order impugned is against the law and facts as the title of land has been changed from state land to Shamlat Deh in the light of Boon No. 4 published in the Govt. Gazette dated 14th Phagan 1982 and Revenue Department Alan No. 17 dated 27 Bhadoon, 1984, vide mutation No. 63 of the said village.
-Petitioners further contended that the respondent No. 2 has no jurisdiction for correction of any revenue entry of Jamabandi/Record of Rights without a declaratory suit filed within limitation period as per Section 32 of the Land Revenue Act.
Observations of the Court:
Nature and Character of Shamlat-Deh Land
Before considering the main question, the Court went on to explain the nature and character of the Shamlat-Deh land with reference to the Land Law in Jammu and Kashmir (Revenue Manual) authored by Justice H. Imtiyaz Hussain, which reads as;
“14…when the village community system got transformed into the customary family system i.e., the land instead of being owned by the entire community, began to be owned by the families, certain portion of the land were still retained as community property for common use and this community property came to be known as village common land or Shamilat land [Paras Dewan,Customary law, 269 (1978).]
As per Revenue Manual (supra) the village common land is not one consolidated chunk of land, but it consists of several chunks of land reserved for certain common purposes, as classified in the following land areas:-
>Chaupal or hujra, which is used as a place of meeting by village flocks, a place where most of the social and cultural functions are held and where political meetings are arranged;
>Shamilat deh, which is used for grazing of the cattle, a place from where the proprietors fetch wood and grass and like things, and which includes all the banjar land of the village;
>Gora deh, where cattle, before going to pasturage gather and which area is reserved for the further extension of village dwellings; and
>Abadi deh, the inhabited village sites including the land meant for dharamsalas, mosque, emples and gurdwaras, for burning ghats and graveyards, for tanks, wells and ponds, for streets and necessary lanes and by lanes.
Further as per the Manual (supra) as a general rule, only proprietor of the village (malikana-deh) as distinguished from the proprietors of their own holding (malikana-makbuza khud) are entitled to share in the Shamilat-Deh and the rights and incidents of Shamilat land in occupation of a person are the same, as if he is the owner thereof.
Holder of Shamlat land got the same rights as in the Proprietary Land and therefore entitled to compensation
The Court referred to the Judgment in Union of India vs. Mst. Freeni Boga, reported in 2004 (II) S.L.J 776, wherein at para 31 following has been laid down:-
“31. Following the view expressed by this Court in these authorities we hold that holder of Shamilat land (which in revenue parlance is known as Shamilat dafa 5) has got the same rights in respect of the land as in the proprietary land and if a portion of Shamilat land comes under acquisition, holder thereof is entitled to its compensation in the same manner as in the case of proprietary land. Argument of the learned counsel for the appellant on this court, therefore, cannot be accepted.”
Rules to Regulate Mutation of Shamilat-Deh Land in the Jammu Province:
16. It would be profitable to mention here that on 25.02.1926 A.D, the Maharaja of the erstwhile State of Jammu and Kashmir issued Boon No. 4, published in Government Gazette on 14th Phagan 1982, (corresponding to February-March 1926 A.D) whereunder Khalsa /State land commonly known as Khalsa Sarkar was ordered to bestow upon village community and this land was henceforth ordered to be shown as Shamilat-Deh and the villagers concerned were awarded jointly the same rights therein, which they possess in their individual holdings. By the said Boon, it was ordered that the landholder in a particular village would be entitled to have a share in the land declared as Shamilat-Deh pro rata to their holdings meaning thereby that a villager shall have proprietary rights in the Shamilat land in proportion of the seize of his holding.
17. In furtherance, to Boon No. 4 (supra) Ailan No. 17 dated 27 Bhadon, 1984 (corresponding to August-September 1927-28 A.D) came to be issued as rules to regulate mutation of Shamilat-Deh land in the Jammu province. The said Alan No. 17 was published in the Government Gazette on 13 Assuj, 1990 B.K (corresponding to September-October 1933-34 A.D) Clause 5 of the said rules, provided that Shamilat entries made under this rule shall be recorded in the form of Shamilat-malikan, Shamilat malguzaarn, Shamilat- murusian, according to the nature of rights of the villages and holders and the entries shall be made in the ownership or tenancy column of Jamabandi, according to the same methods as the land holder rights in their private holding are recorded.
It is pertinent to mention here that subsequent to Boon No. 4 (supra), a similar Alan being Alan No. 2 dated 20th September, 1927 and notified on 16th Katik 1984 (corresponding to October-November 1927-28 A.D) cmae to be issued for Kashmir province as well with two kids of Shamilats there viz., Shamailat -Rule 4 and Shailat –Rule 5.
18. What comes to fore from the above is that the State land/Khasla land came to be converted by the Maharaja in terms of Boon No. 4 (supra) treating to be as common land/Shamilat land bestowing upon the land holders, the said Shamilat land to the extent a land holder has his own proprietary land in the village conferring upon him the rights and incidents of the said Shamilat Deh land as if he is the owner thereof, followed by Alan No. 17 (supra) framing rules there under for regulating mutation of the said Shamilat land in Jammu province.
Consideration of main issues raised in the Petition:
The Court observed that as per the record of rights in the form of Jamabandi and Girdhawari appended with the petition reveals that the land, i.e., subject matter of the writ petition is Shamilat Deh and predecessor-in-interest of the petitioners/ petitioners are recorded to be in possession of their respective portion/parcels of land covered under their respective survey numbers as cultivating tenants. The said revenue records are of the year 2001-2002 B.K (corresponding to 1943-44, 1944- 45 A.D).
Further record tends to demonstrate that mutations also stand attested qua the said respective portion/ parcel of land in favour of the predecessor-in-interest of the petitioners/petitioners. Facts also remain that the said position has even been acknowledged and admitted by the Collector Land Acquisition/Addl. Deputy Commissioner, Kathua in the notice dated 28.08.2018, issued under Section 9 and 9-A of the Act, forming annexure V to the petition, wherein the particulars of the land in tabulated form reflect the nature of the land, name of the cultivator, Khasra numbers and areas. The respondents in their reply have neither disputed nor denied the contents of the said notice dated 28.08.2018 in their reply.
20. On the contrary, record reveals that the revenue records annexed with their objections and relied upon by the respondents in the shape of missal-ihaqqiqat „Jamabandi‟ (Jamabandi) are of the year 1979-80 B.K. (corresponding to 1922-23, 1923-24 A.D). The said entries in respect of the said land in the records of rights seemingly have been changed upon issuance of Boon No. 4 dated 25.02.1926 A.D, i.e., after of the 1922-23, 1923-24 A.D and consequent mutations attested pursuant to Alan No. 17 (supra) which provided for rules to regulate mutations of the State waste land as Shamilat Deh in Jammu province. The entries made in the revenue records in favour of the predecessors-in-interest of the petitioners/petitioners, cannot be by any sense of imagination said to be illegal or effected by any incompetence authority.
The Court observed that pursuant to the Boon No. 4 issued by an order of the Maharaja published in the Govt. Gazette on 25.02.1926 A.D, a legal legally recognizing substantive right has accrued in favour of the predecessor-in-interest of the petitioner/petitioners emanating from the said order (supra). The said substantive right even cannot said to have been depended upon the attestation of a mutation under Alan No. 17 (supra).
“23. Therefore, the petitioners are held to have been in cultivating possession of their respective portion/parcels of Shamilat Deh land validly and legally and could not have been divested of the same by the respondents upon taking recourse to acquisition proceedings in terms of Land Acquisition Act without following the mandate of the Act and denying the petitioners compensation thereof to which they would be entitled thereto, more so, in view of an un-rebutted and an uncontroverted fact pleaded by the petitioners in the petition that similarly situated land holders adjacent to the land in question had been awarded compensation in the year 1978-79 by the respondents upon its acquisition by the respondents for construction of Rivi Canal. The respondents in this view of the matter have subjected the petitioners to grave hostile discrimination viz-a-viz the said land holders having infringed Article 14 of the Constitution”
Right to Property is recognized as Constitutional Right (Article 300-A of the Constitution of India):
“24. Law is no more res integra that right to property though used to be a fundamental right, now has been recognized as a constitutional right under Article 300-A of the Constitution of India, which provides that no one can be deprived of his property except by the authority of law. The aforesaid constitutional right has been acknowledged to be akin to a fundamental right and more importantly a basic human right. Thus, no one can be deprived of his property without following the procedure prescribed in law and payment of adequate compensation…….”
Deletion of Entries of the Petitioners from the Revenue Records at their back is breach of the Principle of Natural Justice
The Court observed that Section 24 (4) of the Revenue Act prima facie suggest that while effecting variation of entry in the records, a notice or hearing have had to be provided to the effected person(s). The said requirement of notice or hearing even though is not specifically provided there under in sub-section 4 of Section 24, yet the said requirement can in law said to be imbedded in the said provision.
The Court after referring to relevant sections of the Revenue Law and the judgment of the Supreme Court in Dharampal Satyampal Limited vs. Deputy Commissioner of Central” reported in 2015 (8) SCC 519 observed that;
“27. The respondent No. 2 in view of the provisions of the Land Revenue Act (supra), as also the judgment of the Apex Court in Dharampal’s case (supra) could not have directed deletion of the entries of the petitioners from the revenue records at their back in breach of the principles of natural justice inasmuch as, the above provisions of the Act. The impugned order, therefore, issued by the respondent No. 2 directing deletion of entries qua the parcels of land possessed by the petitioners being Shamilat Deh and handing over to the respondent Nos. 4 and 5 is not legally sustainable.”
Ultimately the Court by issuance of a writ of Certiorari quashed the impugned order passed by the respondent no. 2 and issued a Mandamus whereby the respondents were directed to process the payment of compensation to the petitioners in accordance with law for their respective portion/parcels of land taken over from them.