Jammu & Kashmir High Court
Harbir Singh vs Ut Of J&K Through … on 24 July, 2025
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 01.05.2025
Pronounced on:- 24.07.2025
WP(C) No. 287/2023
1. Harbir Singh, Age 37 years, S/o .....Appellant(s)/Petitioner(s)
Dr. Harbhajan Singh, R/o H. No.
20B DC, Gandhi Nagar, Jammu,
through power of attorney holder
Dr. Balbir Kour Rissam W/o Dr.
Harbhajan Singh R/o House No.
20-B, D/C, Gandhi Nagar, Jammu,
Through: Mr. V. R. Wazir, Sr. Advocate with
Mr. Razat Sudan, Advocate
Mr. R. P. Sharma, Advocate with
Mr. Rohit Gupta, Advocate
vs
1. UT of J&K through Commissioner/Secretary
Revenue Department, Civil Secretariat, Jammu.
2. Jujhar Singh S/o Lt. Mahant Janak Singh R/o H. No.
49/2 Nanak Nagar, Jammu.
3. Sandeep Singh, S/o S. Jujhar Singh.
4. Satwant Singh S/o S. Jujhar Singh.
5. Jaswinder Kour W/o S. Jujhar Singh.
6. Deputy Commissioner, Jammu.
7. Tehsildar, R. S. Pura.
8. Custodian General, Evacuee Property, Jammu.
9. Custodian Evacuee Property, Jammu.
..... Respondent(s)
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WP(C) No. 287/2023
Through: Mrs. Monika Kohli, Sr. AAG
Mr. F. A. Natnoo, Advocate
Mr. Himanshu Beotra, Advocate
Mr. Faiz Ul Arif Fahmi, Advocate
Coram: HON‟BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. On the basis of Form-Alif, carrying the names of Janak Singh,
Ranjeet Kour w/o Janak Singh, Harbans Kour (alias Joginder
Kour) d/o Janak Singh, Harbhajan Singh & Jujhar Singh
(respondent No. 2) both sons of Janak Singh, the land measuring
37 kanals 4 marlas ( 30 kanals-Evacuee Land and 7 Kanals 4
Marlas- State Land), situated at Village-Gondla, Tehsil R.S Pura
was allotted to the family comprising of members as mentioned
above under Cabinet Order No. 578-C of 1954. Janak Singh
expired in the year 1991. Joginder Kour left the family on account
of marriage. Sardar Harbhajan Singh and Ranjeet Kour expired in
the year 2013 and 2016 respectively. After the demise of Sardar
Harbhajan Singh, his son i.e. the petitioner filed an application for
partition of land before Revenue Officer under J&K Land
Revenue Act, which ultimately landed before the respondent No.7
pursuant to order dated 07.02.2019 passed by the Joint Financial
Commissioner, J&K with powers of Commissioner, Agrarian
Reforms. Thereafter, the respondent No.7 vide order dated
28.06.2022 directed for affecting the partition of the land
mentioned above. Respondent No.2 assailed the order dated
28.06.2022 and order dated 18.07.2022 through the medium of a
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revision petition before respondent No. 9, who vide order dated
13.08.2022 dismissed the same. Respondent No.2 filed another
revision petition before respondent No.8, thereby assailing the
order dated 13.08.2022, but that revision petition was also
dismissed vide order dated 30.11.2022.
2. Aggrieved of the orders passed by the respondent Nos.7, 8 and 9,
respondent No.2 filed the revision petition before J&K Special
Tribunal, Jammu (for short „the Tribunal‟) and the learned
Tribunal vide order dated 23.12.2022 allowed the revision and
remanded the matter to respondent No.7 to conduct fresh and
separate proceedings in respect of Evacuee land and State land.
3. The petitioner being aggrieved of the order dated 23.12.2022 has
approached this Court for quashing the order passed by the
learned Tribunal on the ground that the learned Tribunal has
failed to make distinction between the rights envisaged under
Cabinet Order 578-C of 1954 and the rights inheritance before the
operation of Agrarian Reforms Act and thereafter, when superior
rights were granted under section 3-A of the Agrarian Reforms
Act. Precisely, the stand of the petitioner is that the Section 67 of
the Tenancy Act and not Rule 15-B of the Cabinet Order No.
578-C of 1954 would determine the devolution of interest and the
partition of estate.
4. Respondent No.2 in his response has stated that the learned Joint
Financial Commissioner (with the powers of Commissioner,
Agrarian Reforms), J&K in its order dated 07.02.2019 had
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observed that in the normal process, after the death of late Sh.
Janak Singh, his interest in the allotted land would devolve as per
the provisions of Rule 15-B(2) of the Cabinet Order 578-C of
1954 on the surviving members of his family and thereafter, a
review petition filed by the petitioner, was dismissed vide order
dated 20.04.2022. The orders of the Joint Financial
Commissioner have attained finality, but the respondent No. 7
had overlooked the orders of the Joint Financial Commissioner
while deciding the matter. It is further stated that the parties are
refugee/allottees of land and they have been allotted the land
under the Cabinet Order No. 578-C of 1954 and succession under
the said rules is by devolution of interest in terms of Rule 15- B
and not under Section 67 of the Tenancy Act. It is a settled law
that when there is a conflict between special law and general law,
it is the special law which prevails. Respondent No. 2 has in fact
supported the order passed by the learned Tribunal and has
prayed for dismissal of the writ petition preferred by the
petitioner.
5. Respondent Nos. 3 and 5 in their response have followed the
stand of the respondent No. 2 and have prayed for the dismissal
of the writ petition.
6. Responded No. 7 in his response has stated that land measuring
37 Kanals 4 marlas at village Gondola, Tehsil R.S Pura was
allotted to the family of late Shri Janak Singh under the Cabinet
Order Number 578-C of 1954. Out of total allotted land, 30
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kanals of land was evacuee land and remaining 7 Kanals 4 marlas
was State land. Occupancy rights in respect of 30 Kanals of
evacuee land were conferred in terms of Section 3-A of Agrarian
Reforms Act and the ownership rights were conferred in respect
of remaining land measuring 7 Kanals 4 marlas. After the death
of Janak Singh, the occupancy rights of 30 Kanals were
transferred equally among Ranjit Kaur wife of late Janak Singh,
Jujhar Singh s/o Janak Singh and Harbir Singh s/o Harbhajan
Singh as per Section 15-B of Cabinet Order Number 578-C of
1954. Similarly, vide mutation No. 53/1, the ownership rights in
respect of land measuring 7 Kanals 4 Marlas comprising survey
number 88 were transferred equally among 4 legal heirs of Shri
Janak Singh, namely, Ranjit Kaur, Jujhar Singh, Joginder Kaur
D/o Janak Singh and Harbir Singh. It is further stated that in
compliance to the directions of the Joint Financial Commissioner-
respondent No.7 he had passed an order dated 28.06.2022 and the
land was partitioned among the legal heirs of late Janak Singh as
per their shares as recorded in the revenue record vide mutation
number 51 and 53/1.
7. Respondent No. 8 and 9, though have not taken any specific stand
being the statutory authorities but have prayed for the dismissal of
the writ petition.
8. Mr. Ved Raj Wazir, learned Senior Counsel for the petitioner has
argued that the rights of the petitioner and respondent No. 2 are to
be governed by Section 67 of the Tenancy Act, as the occupancy
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WP(C) No. 287/2023
rights were conferred upon them in terms of section 3-A of
Agrarian Reforms Act and Rule 15-B of the Cabinet Order No.
578-C of 1954 was not applicable at all. He has placed reliance
upon the judgment of Division Bench of this Court in ‘S.Kirpal
Singh vs. S. Suchet Singh and Ors., 2017JKJ ONLINE 8494’
and the judgment of High Court of Punjab and Haryana in case
titled „Mangli Devi vs. Jagmal‘, 2022 Latest Case Law 4779.
9. Mr. Faiz Ul Arif Fahmi and Mr. Himanshu Beotra, learned
counsels for the private respondents have argued that the rights of
the contesting parties are to be determined in terms of Rule 15-B
of the Cabinet Order No. 578-C of 1954, as it is the complete
code in itself prescribing the mode of devolution of interest in
case of death of an allottee and not under Section 67 of the
Tenancy Act. They have placed reliance upon the judgments of
the Co-ordinate Bench of this Court in case titled „Kanta Devi vs.
Kaki Devi’, 2011(4)JKJ(HC)16 and ‘Joginder Kour vs. State of
J&K & Ors.‘, 2014(2)JKJ(HC)323.
10. Heard learned counsel for the parties and perused the record.
11. From a perusal of the record, it is evident that the land was
allotted to family of Janak Singh comprising of Janak Singh,
Ranjeet Kour W/o Janak Singh, Harbans Kour (alias Joginder
Kour) D/o Janak Singh, Harbhajan Singh & Jujhar Singh
(respondent No. 2) both sons of Janak Singh. After the demise of
Harbhajan Singh, the respondent No.2 filed an application for
partition of land allotted to the family of Janak Singh under
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Cabinet Order No. 578-C of 1954. It is also an admitted fact that
vide order dated 07.02.2019 passed by the Joint Financial
Commissioner, J&K with powers of Commissioner, Agrarian
Reforms, the respondent No.7 was directed to conduct fresh
enquiry into the matter in presence of the concerned parties and
pass appropriate orders as per relevant law/rules. However, while
passing the order dated 07.02.2019, the Joint Financial
Commissioner, J&K with powers of Commissioner Agrarian
Reforms made the following observations:
“Late Janak Singh was allotted land measuring 37 Kanals 18
marlas under Cabinet Order No. 578-C of 1954, out of week 31
Kanals 15 marlas (wrongly mentioned) was evacuee land and
remaining 7 Kanal was state land. In the normal process, after
the death of Mahant Janak Singh, his interest in the allotted land
would devolve as per the provisions of Rule 15-B(2) (substituted
by SRO-739 dated 17.121.1976) of allotment of land to
Displaced persons Rules on the surviving members of the
family.—-”
12. The order dated 07.02.2019 was sought to be reviewed but
application for review was dismissed vide order dated
20.04.2022. The said order dated 07.02.2019 has attained finality.
13. Be that as it may, without prejudice in respect of observations
made by the Joint Financial Commissioner, J&K, this Court
would consider the contention raised by the petitioner
independently.
14. Learned Senior Counsel for the petitioner has laid much stress on
the judgment of the Division Bench of this court in „S. Kirpal
Singh vs. S. Suchet Singh and Ors., 2017JKJ Online 8494′, to
bring home a point that once a person becomes an occupancy
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WP(C) No. 287/2023
tenant under Section 3-A of Agrarian Reforms Act, then
succession of occupancy rights shall be regulated by section 67 of
the Tenancy Act. The relevant part of the judgment is extracted as
under:
“9. So our conclusions are (1) that transfer of occupancy
rights u/s 3-A of the Agrarian Reforms Act is permissible
only by sale, mortgage or gift. (2) that the only mode of
succession to occupancy rights is as provided in section
67. (3) that application of section 68 in this case is ruled out
because the testator has not executed the will with the
permission and consent of the Custodian i.e. the landlord in
this case as required under section 68 of the Act which is
mandatory.”
(emphasis added)
15. In S. Kirpal Singh‟s case (supra), the writ court had held that
right to transfer by sale, gift or mortgage under section 3-A of
Agrarian Reforms Act includes other modes of transfer also.
While deciding the above issue, the Division Bench of this Court
had held that transfer of occupancy rights by sale, mortgage and
gift does not include the transfer by will or testamentary
disposition. It appears that Rule 15-B of Cabinet Order No. 1954-
C was not brought to the notice of Division Bench and as such,
the Division Bench had no occasion to consider the applicability
of Rule 15-B of Cabinet Order No. 1954-C vis-a-vis the
applicability of Section 67 of the Tenancy Act for determination
of devolution of interest after the demise of allottee. Thus, the
aforesaid judgment of the Division Bench cannot be said to have
determined the issue conclusively, in absence of consideration of
Rule 15-B of Cabinet Order 578-C. It would be apt to take note
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WP(C) No. 287/2023
of another judgment of the Division Bench in case titled
‘Makhan Singh vs. Amar Nath & Ors.‘, 2015(1) JKJ 679,
wherein it has been held as under:
“The allotment of land under Cabinet decision no. 578-C of
1954 to displaced persons from other side of Cease Fire Line
(now Line of Actual Control) did not confer ownership rights on
an allottee. The authorities involved in relief and rehabilitation
of displaced persons did not make allotment of land in favour of
such persons individually. The allotment was made to the
families so that whole family as a unit was rehabilitated and
could cultivate the land for its sustenance. Rule 15-B lays the
mode and manner in which allotted land is to pass in case
death of person in whose name it was initially allotted. Since
initial allotment was made to the family to keep allotment
procedure in tune with the initial object, allotted land is to
devolve by survivorship rather than inheritance. The
allotted land goes to the surviving members of the family
who were present and part of the family at the time of initial
allotment and to such person(s) who became part of the
family because of marriage or adoption etc. Similarly those
who left the family because of marriage and adoption are
not to have any part of the land devolving by survivorship.”
(emphasis added)
16. Learned Tribunal has relied upon the judgements of the Co-
ordinate Bench of this court in case, titled,„Kanta Devi vs. Kaki
Devi’, 2011(4)JKJ(HC)16 and ‘Joginder Kour vs. State of J&K
& Ors.‘, 2014(2)JKJ(HC)323, to arrive at the conclusion that
after the demise of original allottee, his interest shall devolve in
terms of Rule 15-(B) of Cabinet Order 578-C.
17. In „Kanta Devi vs. Kaki Devi‟, (supra), the issue was raised with
regard to the jurisdiction of the civil court to entertain suit for
partition of evacuee land, in respect of which occupancy rights
were vested in terms of section 3-A of Agrarian Reforms Act. In
this case, no reference was made to section 67 of Tenancy Act but
it was held as under:
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WP(C) No. 287/2023
” The fact that in terms of Section 3-A of the Jammu and
Kashmir Agrarian Reforms Act, 1976, “Occupancy Tenancy
Rights” have been conferred on the displaced persons
cultivating evacuees’ land personally and that such displaced
persons are given right to transfer of occupancy tenancy by sale,
mortgage or gift, does not change complexion of the matter.
Section 3-A of the Agrarian Reforms Act, 1976 makes use of
the “occupancy tenancy” only to identify the status and
rights of displaced persons granted, land under the
Allotment of Land to Displaced Persons Rules 1954 and the
Evacuees Property Act as also the Rules made there under
continue to govern all the matters relating to end, flowing
out of allotment of the land to the displaced persons under
the Allotment of Land to Displaced Persons Rules 1954. In
terms of Section 3-A of the Agrarian Reforms Act, whereby the
displaced persons cultivating evacuees’ land personally are to be
deemed to be occupancy tenants and recorded as such, does not
divest the Custodian in whom evacuee property is vested in
terms of Section 5 of the Evacuees Property Act of such
property. It is pertinent to point out that in terms of Section 3 of
the Agrarian Reforms Act, 1976, the application of Agrarian
Reforms Act, 1976 to the evacuees land is restricted to Sections
4(2)(c), 5, 7, 13, 14 and 26(3). It is expressly provided that the
provisions of the Agrarian Reforms Act, 1976 would not confer
any ownership rights upon a displaced person or other person in
any evacuees’ land or affect or interfere with the rights of
possession or legal obligation of a displaced or other person
conferred or imposed by or under any law, rule or order, for the
time being in force, in respect of such land. The conferment of
Occupancy Tenancy Rights on displaced person in terms of
Section 3-A of the Agrarian Reforms Act, 1976, does not divest
the authorities under Evacuees Property Act of the jurisdiction
to adjudicate rights of the allottees–parties in the present case.
(emphasis added)
18. This Court is of the considered view that mere attestation of
mutation under Section 3-A of Agrarian Reforms Act would not
make the Cabinet order No. 578-C inapplicable so far as
devolution of interest of deceased allottee is concerned, as
Section 3-A of Agrarian Reforms Act uses expression
“occupancy tenant‟ only for a limited purpose of status of
displaced persons and their right to transfer their occupancy rights
subject to the provisions of Alienation of Land Act. It does not
affect the devolution of interest of deceased allottee because
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WP(C) No. 287/2023
already a special provision is in place in the Cabinet Order No.
578-C.
19. This is an admitted fact that the land in question was allotted
under Cabinet Order No. 578-C of 1954 and it prescribes the
mode of devolution on interest in case of death of an allottee in
the manner that if an allottee dies, his interest in the allotted land
shall devolve upon other members of his family in whose favour
allotment has been originally made or regularised under the rules
and those who may have become members of the family by way
of marriage, birth or adoption after such allotment excluding
those who may have died earlier or may have left the family on
account of marriage or adoption. This provision is in fact a
complete code prescribing the devolution of interest of deceased
allottee. If the allotted land in terms of Cabinet Order (ibid) is an
evacuee land, then the authorities under the Act of 2006 shall
have the jurisdiction to deicide any dispute between the parties.
Rule 15-B of Cabinet Order No. 578-C of 1954 does exclude a
female member of family, who by marriage moves out of the
family before the demise of original allottee, to get any right in
respect of allotted land after the demise of original allottee but the
rights of the original female allottee are not extinguished just
because of her marriage. So far as Section 67 of the Tenancy Act
is concerned, it provides the mode of succession to right of
occupancy and in case of death of occupancy tenant, the right of
succession shall first vest in male lineal descendants, meaning
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WP(C) No. 287/2023
thereby the females are excluded to succeed to the right of the
deceased occupancy tenant in the presence of male lineal
descendant. In the order dated 28.06.2022, Joginder Kour is
conspicuous by her absence, so far partition in respect of evacuee
land is concerned, despite the fact that she was an original
allottee, though no interest in respect of share of Janak Singh
would devolve upon her even in terms of Rule 15-B of Cabinet
Order 578-C.The learned Tribunal while allowing the revision,
has considered this aspect of the matter as well and has returned
the following findings (Page no 30 of the order impugned):
“It is manifest from the fact that Joginder Kaur, who is an
original allottee, though married outside could not have been
ignored while determining shares, especially when there is
nothing available on record to suggest that she has relinquished
her share.Original allottee is not divested of shares in the
allotted property even by marriage. This rules applies to the
persons falling in the second category of persons, who becomes
member after the allotment. It required the officer determining
shares for partition to give a definite finding as to who were the
persons whether original surviving allottees or the second
category of persons, who may have become the members of the
family after allotment, who were entitled to the share in the
allotted.Without determiningthis aspect of the matter, the
enquiry whatever may have been conducted is incomplete
exercise and based on it the rights and interests cannot be set to
have being rightly settled.”
20. This Court has examined the order dated 23.12.2022 and finds
that the learned Tribunal has observed that respondent No.7 has
determined three equal shares in the name of dead person-Ranjeet
Kour, petitioner and respondent No.2 only on the basis of earlier
mutation Nos. 51 and 51/3, which is not permissible. The opinion
formed by the learned Tribunal is un-exceptionable, as to
determine the shares of the parties on the basis of mutations is
contrary to settled proposition of law that mutation entries neither
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create nor extinguish any interest in the landed estate and are
meant for fiscal purpose only.
21. In view of what has been considered, discussed and observed
above, this Court does not find any reason to interfere with the
well-reasoned order passed by the learned Tribunal. Accordingly,
this petition is found to be without merit and the same is,
accordingly, dismissed.
(RAJNESH OSWAL)
JUDGE
Jammu
24.07.2025
Karam Chand/Secy.
Whether the order is reportable: Yes/No
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