Jammu & Kashmir High Court
Mohan Lal vs Union Territory Of J&K Through on 6 March, 2025
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on: 04.02.2025
Pronounced on: 06. 03.2025
WP(C) No. 346/2023
Mohan Lal, Age 59 years, .....Appellant(s)/Petitioner(s)
S/o Late Sh. Buta Ram
R/o H. No. 4-A, Ward No. 36, Indira
Colony, Janipur Jammu.
Through: Mr. G. S. Thakur, Advocate
vs
1. Union Territory of J&K Through ..... Respondent(s)
Commissioner Secretariat Revenue, Civil
Secretariat, Jammu.
2. Inspector General of Registration
Jammu & Kashmir, Jammu.
3. Sub Registrar Jammu North Jammu.
Through: Mrs. Monika Kohli, Sr. AAG
Coram: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGMENT
1. This petition has been filed by the petitioner for quashing the report No.
SRO/JN/22-23/250 dated 06.02.2023 submitted by respondent No. 3 to
respondent No. 2 in compliance to the judgment passed by this Court in
WP(C) No. 73/2023 stating therein that the kind of the land under sale was
‘Banjar Qadeem Arak’ which is prohibited for sale and the document of
the petitioner has not been found registered. The petitioner has also sought
a direction to the respondent No. 3 to register the sale deed dated
09.02.2022 in respect of the land measuring 7 Marlas comprising Survey
No. 1142 min, Khata No. 718 min, Khewat No. 64 situated at Village
2 WP(C) No. 346/2023
Paloura Tehsil Jammu North District Jammu and issue sale deed in favour
of the petitioner.
2. Earlier, this writ petition was disposed of by the Co-ordinate Bench of this
Court vide judgment dated 24.02.2023 but the Hon’ble Division Bench
vide its order dated 14.08.2023, set aside the judgment dated 24.02.2023
on the premise that the same was passed by the Co-ordinate Bench of this
Court without providing opportunity to the respondents to file objections.
The matter was remanded back and this is how the present petition has
come up before this Court.
3. It is stated by the petitioner that he had purchased the land measuring 7
Marlas comprising Survey No. 1142 min, Khata No. 718 min, Khewat No.
64 situated at Village Paloura Tehsil Jammu by virtue of two registered
sale deeds of 3½ marlas each from one Raghubir Singh and the sale deeds
were registered with the Sub-Registrar Jammu (North). After the
registration of the sale deeds, the same were reflected in the record of
rights and the mutations were attested in favour of the petitioner indicative
of the fact that the possession of the land was handed over to the
petitioner. It is further stated that Raghubir Singh in turn had purchased
the land from the erstwhile owner, namely, Bhag Singh vide sale deed
dated 07.03.1982. The petitioner has also got the site plan approved from
Jammu Municipal Corporation for raising construction of residential
house over the land mentioned above vide sanction dated 14.11.2022. The
petitioner decided to sell the above-mentioned plot of land and for that
purpose approached the revenue agency for issuance of Fard Intikhab
Jamabandi to sell the land. The Fard was issued and after the execution of
3 WP(C) No. 346/2023
the sale deed in favour of one Rakesh Gupta, submitted the sale deed
before the respondent No. 3 for its registration. The petitioner paid the
stamp duty of Rs. 1,48,110/- and also deposited the registration fee of Rs.
25,390/- which was received by respondent No. 3 vide receipt No.
3683071 dated 10.02.2022. After completing all the requisite formalities
for registration of the document and verifying the particulars of the vendor
and vendee, the respondent No. 3 directed the petitioner to get the
document after three days. The petitioner was made to run from one office
to another to get the document which was registered by the respondent No.
3 but could not get the same, as such, the petitioner approached the
respondent No. 2 to direct the respondent No. 3 to deliver the document
back to the petitioner, as the same stood registered. The respondent No. 2
directed the respondent No. 3 as well as the Deputy Commissioner,
Jammu to submit the detailed report which was submitted but no decision
was taken. The respondent No. 1 when asked for guidance by the other
respondents on 11.11.2022, intimated the respondent No. 2 that Section
133-BB of J&K Land Revenue Act (for short ‘the Act”) provides that the
land in the nature of grazing land, arak has to be used with the permission
of District Collector in accordance with the regulations notified by the
board.
4. It is contended by the petitioner that as the land is situated within the
Municipal Limits, so it does not fall within the definition land in nature of
arak or land meant for grazing purpose and the respondents by ignoring
the above proposition of law withheld the sale deed submitted for
registration. The petitioner thereafter filed the writ petition bearing WP(C)
4 WP(C) No. 346/2023
No. 73/2023 which was disposed of by the Court with a direction to
respondent No. 3 to deliver the registered sale deed to the petitioner and in
the event, respondent No. 3 intends to withhold the delivery of the
document, then to endorse the reasons in writing for doing so and submit
report to respondent No. 2. In compliance to the judgment dated
19.01.2023, the respondent No. 3 submitted report to the respondent No. 2
that the nature of the land is Banjar Qadeem Arak and there is a
prohibition of sale and registration of sale deed, in respect of such land in
view of Section 133-BB of the Act.It is also urged by the petitioner that
the Village Paloura has been declared as a residential area and as per the
provisions of Section 11 of the Development Act, the Government is
competent to notify the area for the Master Plan or for a zone, as the case
may be for the purpose of the Development Act. Section 4 of the J&K
Land Revenue Act envisages the exclusion of certain lands from the
operation of the Act and the land of the petitioner is within the residential
area and not assessed to land revenue, therefore the provisions of Section
133-BB of the Land Revenue Act are not applicable. Besides the above
mentioned contentions, it is also urged that the provisions of Section 35 of
the Registration Act envisages the procedure required to be adopted by the
Registrar on admission and denial of the execution and as the sale deed
was presented before the Registrar and the parties admitted the contents
thereof and also deposited the registration fee, the respondent No. 3 was
under obligation to deliver the registered document to the petitioner as
indicated in Section 60 of the Registration Act.
5 WP(C) No. 346/2023
5. The respondents have filed the response stating therein that the sale deed
bearing Token No. 20220000009363 was presented by the petitioner and
Rakesh Kumar Gupta before respondent No. 3 on 10.02.2022 for
registration through NGDRS portal and steps upto step 6 were completed.
However, before issuance of the final document/certificate of registration
in terms of Section 60 of the Registration Act, it transpired that the type of
the land mentioned in Fard-e-Intekhab was ‘Banjar Qadeem Arak’, which
is prohibited for sale. The respondents have given the factual aspects of
the case which may not be relevant for the purpose of disposal of the
present petition. However, it is stated that Fard Intekhab Jamabandi did
not mention any reference of Master Plan 2032, which is sine qua non for
the same and the Department of Law, Justice & Parliamentary Affairs vide
communication dated 27.10.2022 has inter alia observed that Section 11-
A of the Development Act deals with the change of land use falling under
any zone or Master Plan and it does not deal with alienation of such land,
which therefore is to be governed by the land laws for the time being in
force. Section 133-BB of the Land Revenue Act provides that the land
which is in the form of grazing land, arak is to be used with the permission
of the District Collector in accordance with the regulations notified by the
Board and transfer of such land or any interest therein is not permitted and
no such document relating to transfer of such land can be admitted to
registration. Respondent No. 3 submitted a detailed report dated
06.02.2023 to respondent No. 2 thereby stating that the document under
challenge was not found to be registered. Precisely, the respondents have
objected the petition by urging that in view of Section 133-BB of the Act,
6 WP(C) No. 346/2023
the sale deed could not have been executed and registered and further that
in the records, the document was not registered and steps upto step 6 only
were completed.
6. Mr. G. S. Thakur, learned counsel for the petitioner has argued that the
land which is the subject matter of the sale deed falls within the Municipal
area of Ward No. 38 situated at Paloura, therefore the provisions of
Section 133-BB of the Act are not applicable. He has further submitted
that the document was registered by the respondent No. 3 and without any
authority, he has refused to return the same after its registration.
7. Mrs. Monika Kohli, learned Sr. AAG has submitted that alienation is
barred under Section 133-BB of the Act.
8. Heard learned counsels for the parties and perused the record.
9. The question that requires for adjudication of this Court is as to whether
Section 133-BB of the Land Revenue Act inserted by SO 3808(E) of 2020
would apply to the land of the petitioner which is situated within the limits
of Municipal Corporation Jammu.?
10. In order to answer the above-mentioned question, this Court deems it
proper to extract the relevant provisions of law. Section 4 and Section
133-BB of the J&K Land Revenue Act are extracted as under: –
Section 4: Exclusion of certain land from operation of the
Act.- (1) Except so far as may be necessary for the record,
recovery and administration of village cesses, nothing in this
Act applies to land which is occupied as the site of a town or
village and is not assessed to land revenue.
(2) An assistant Collector of the first class may define for the
purpose of this Act, the limits of any such land.
Section 133-BB: Restriction on use of grazing land, etc. and
prohibition on transfer.- (1) The land which is in the form of
grazing land, arak, kap or kah-i-krisham or which grows fuel
and fodder and belongs to such class as is notified by the
Government shall not be used for any other purpose except with
the permission of the District Collector who shall accord
7 WP(C) No. 346/2023
permission only in accordance to the regulations notified by the
Board.
Provided that such permission shall be deemed to be accorded
where land is being acquired permanently or hired temporarily
for public purposes under the relevant Act:
Provided further that the transfer of such land or any interest
therein shall not be permissible and no documents relating to the
transfer of such land shall be admitted to registration.
(2) The Board shall be competent to notify regulations for the
purpose of this section.
11. In order to bring the land within the purview of the restriction in terms of
Section 133-BB of the Act, it is necessary that the land should be grazing
land/arak/kap/kah-i-krisham or which grows fuel or fodder and belongs to
such class as is notified by the Government and the same cannot be used
for any other purpose except with the permission of the District Collector
who shall accord permission only in accordance with the regulations
notified by the Board. Further, transfer of such land is prohibited and no
document relating to transfer of such land can be admitted for registration.
12. In response to a query by this Court, Ms. Kohli, learned Sr. A.A.G has
submitted that the Board has not been constituted till date. The
respondents have not been able to deny that the land of the petitioner falls
within the Municipal Limits. Rather the permission accorded by the
Jammu Municipal Corporation to raise construction of house, placed on
record by the petitioner clearly proves the fact that the area is within the
limits of JMC. Further, an endorsement has been made on Fard Intekhab
Jamabandi that the area falls within the limits of Ward No. 38 of Jammu
Municipal Corporation and on spot, the houses and shops are existing
around the area. This entry of ‘Banjar Qadeem Arak’ was made in the year
1959-1960 and the same continues to be so till date. The revenue record in
the form of Jamabandi was prepared in the year 1959-60 on the basis of
8 WP(C) No. 346/2023
position existing on spot. Initially, there was Jammu Municipality with
limited territorial jurisdiction and with the increase in population, the
Municipality of Jammu was replaced by Jammu Municipal Corporation
and number of villages were included with in the Municipal limits, but the
Revenue Department continued with its historical legacy and never
bothered to update its record with the changing ground realities.
13. Section 4 of the Land Revenue Act provides that the provisions of this Act
shall not apply to the land which is occupied as the site of a town or
village and is not assessed to land revenue except as may be necessary for
the record, recovery and administration of village cesses. Admittedly, the
plot of the petitioner is within the Municipal Limits and is not assessed to
land revenue and as such, the Act is applicable only for the limited
purpose of record and recovery & collection of Village cesses. Once the
provisions of the Act are applicable only to the limited extent for purpose
of record and recovery & collection of Village cesses, section 133-B of the
Act cannot be applied in the instant case, particularly when the plot of the
petitioner is not assessable to any land revenue.
14. The respondent No.1 pursuant to the directions of this Court filed an
affidavit and perusal of the same reveals that he too is in a fix, as he has
stated that the Government is committed in principle to examine the issue
in consultation with the stake holder departments and thereafter the matter
would be referred to Board of Revenue. Simultaneously, the respondent
No.1 has acknowledged that there is need to relook the entire soil
classification system, as it exists today and move towards the
classification of kinds of soils into two broad categories- Agriculture and
9 WP(C) No. 346/2023
Non-Agriculture consistent with the requirements of the present times and
the Master Plans. It is worthwhile to mention here that the Government is
discouraging the use of wood for fuel purpose and that is why has
launched many schemes such as Ujjwala etc.
15. In view of above, this court is of the considered view that the action of the
respondent No.3 in not registering the sale deed submitted by the
petitioner has no sanction of law, as section 133-B of the Act is not
applicable in the case of petitioner and the respondent No.3 could not have
refused to register the sale deed submitted for registration by the
petitioner.
16. Accordingly, the report No. SRO/JN/22-23/250 dated 06.02.2023
submitted by the respondent No. 3 is quashed. The respondent No. 3 is
directed to register the sale deed in accordance with law. It is made clear
that the respondent No. 3 shall not demand more stamp duty as well as
registration fee from the petitioner and the stamp duty and the registration
fee already paid by the petitioner shall suffice the requirement of law for
the purpose of registration of the sale deed.
17. Disposed of.
(RAJNESH OSWAL)
JUDGE
Jammu
06.03.2025
Neha-II
Whether the order is speaking: Yes
Whether the order is reportable: Yes
NEHA KUMARI
2025.03.06 16:27
I attest to the accuracy and
integrity of this document