T.S. Thakur, J.
1. This Letters Patent Appeal is directed against the judgment of learned single Judge of this Court dated 3rd of March, 1903, whereby the appellants writ petition has been dismissed.
2. The brief facts in the background may be stated thus:
3. One Noor Din S/o Nabi Baksh Gujjar, the grandfather of the appellants before us, was reportedly in possession of land measuring 32 kanals and 15 Marias underlying Survey Nos. 659 and 661 situated in village Maheen Sarkar, Tehsil Samba.
4. In the year 1939 the Government issued an order being Council Order No. 1234C of 1939 dated 1st of December, 1939 by virtue of which, inter alia, it was provided that all tenants at will holding land under the State may be registered as possessing proprietary rights on payment of a sum equivalent to 20 times the land revenue fixed for such land. Tenants who were not prepared to pay the aforesaid amount as nazrana were in terms of the said order to continue as tenants at will. This concession was, however, restricted only to such tenants as were State subjects.
5. In the year 1940 another Council Order being Order No. 290C of 1940 on the same subject-matter was issued by the Maharaja's Government, by which it was directed that cultivators of Government land in Jammu District shall be allowed three years for the production of a State Subject Certificate for payment of nazrana equivalent to 20 times the land revenue fixed for the land in their respective possession. It was also provided that the concession granted under Council Order No. 1234C of 1939 shall be open to State subjects of all classes.
6. Sometime later yet another Council Order bearing No. 872C of 1940 was issued, by which in amplification and modification of Council Order No. 1234C of 1939, it was inter alia reiterated, that a tenant at will may secure proprietary rights on payment of the nazrana equivalent to 20 years land revenue. The appellants or their predecessors-in-interest did not avail of the benefit offered by the aforesaid Government Orders, with the result that neither was the nazrana paid nor were the ownership rights transferred from the State till as late as, 1978 when a mutation appears to have been attested by Additional Tehasildar, Samba in favour of the appellants herein on the basis of the aforesaid Government Order of the year 1939. This mutation came under challenge before the Director Land Records (with powers of Divisional-Commissioner Appeals, Jammu), who dismissed the revision petition filed before him by the allottees of the land and upheld the mutation attested in favour of the appellants.
7. Against the aforesaid order of the Divisional Commissioner, a further revision was taken by the allottees to the Financial Commissioner, who by his order dated 5th of September, 1983 allowed the same and set aside the mutation attested in favour of the appellants holding that the benefit offered under the Government orders mentioned earlier could be availed of only subject to the fulfilment of the conditions prescribed in the same; one of them being the deposit of nazrana equivalent to twenty years land revenue, within a period of three years from the date of the said orders. The Financial Commissioner observed thus :
'(4) It will he seen that the order refers to two classes of tenants :-- (i) those who had occupancy rights or had a continuous possession of 15 years, (ii) all other tenants-at-will. In the case of the first category, the effect of grant of proprietary rights was automatic, whereas for the second category the conferment of rights was conditional to the tenants being a State subject and his paying a 'Nazrana' equal to 20 years' land revenue. The order States in a very clear language that those tenants, who were not prepared to pay the 'Nazrana' he will be registered only as tenants-at-will. This requirement was relaxed under Council Order No. 290C of 1940 in so far as such tenants were allowed a period of three years to pay the 'Nazrana' and produce the State Subject Certificate. Thus the combined effect of the two orders will be that those of them who did not satisfy any of the two conditions within a period of three years would be registered only as a tenant-at-will.
(5) In the face of such a clearly worded provision in the Council Orders themselves, I cannot agree with my predecessor's conclusion in the orders passed by him in Revision No. 155 of 1969 dated 6-7-1970 that proprietary rights vested in such a tenant as soon as the council orders were issued and they were to be given effect to as and when he chose to satisfy the two conditions. It could be said purely by way of argument that even the most charitable interpretation on these lines should at least insist upon the tenant being still in possession on the date the two conditions are satisfied.'
8. Aggrieved by the aforesaid order of the Financial Commissioner, the appellant herein filed a writ petition before this Court, which was heard and dismissed by a single Judge of this Court (Sethi, J.) by his order dated 3rd of March, 1993 impugned in the present appeal. The learned single Judge concurred with the view taken by the Financial Commissioner and held that the conditions requisite for the grant of benefit under the Government orders in question had not been satisfied by the appellants or their predecessors-in-interest, thereby dis-entitling the appellants from claiming the benefit of the said orders at this distant point of time.
9. The appellants are in appeal before us against the aforesaid judgment of the learned single Judge.
10. We have heard the learned counsel for the parties and perused the record.
11. Mr. S. A. Salaria, learned counsel appearing for the appellants has strenuously argued that the period of three years prescribed by the Council order No. 290C of 1940 for the production of a State Subject Certificate of payment of twenty years land revenue was only a directory provision. He submitted that the failure of any person otherwise entitled to the benefit of the said Government orders to satisfy the requirements of the said orders, could not ipso facto result in the loss of ownership rights in respect of the property in question. He has relied upon the judgment of the Hon'ble Supreme Court titled 'Mukand Lal Bhandari v. Union of India' repotted in AIR 1993 SC 2127, R.C. Gandhi and S. K. Anand appearing for the respondents have, on the other hand, urged that the Government orders relied upon by the appellants restricted the benefit of the offer made by the Crown, to a period of three years within which the persons concerned were required to deposit the nazrana prescribed under the same. They submitted that the failure on the part of the appellants or their predecessor-in-interest to have availed of the said concession in the manner and within the time prescribed by the said orders totally dis-entitles the appellants from claiming the said benefit subsequently.
12. The controversy as is apparent from the submissions made on the either side entirely turns on a true and correct interpretation of the three Government orders reference where to has been made in the earlier part of this judgment. It is, therefore, fruitful to reproduce in extenso the said three Government orders. These orders read thus :
Council order No. 1234 of 1939, provides :
'Subject: Status of the cultivators of Rakhs and villages transferred from the private Department to the State in the Jammu District.
It is ordered that proprietary rights be conferred on tenants in these villages on the following lines :--
(a) All tenants who are able to prove that occupancy rights were conferred on them 'during the time of His Late Highness and all tenants-at-will had been in continuous possession for not less than 15 years prior to 1982 and who have continued in unbroken possession since may be registered as possessing proprietary rights without the levy of any. Nazrana;
(b) all other tenants-at-will may be registered as possessing proprietary rights on payment of a sum equivalent to 20 years land revenue; and
(c) tenants-at-will who do not come under Clause (a) or who are not prepared to pay the Nazrana mentioned in Clause (b) will he registered only as tenants-at-will.
2. The concessions in para 1 are available only to tenants who are State Subjects. No proprietary rights can be conferred on tenants, who are not State Subjects.
3. It is further ordered that no Shamilat rights be given in these estates and that all uncultivated and waste areas be recorded as Khalsa.'
Council order No. 29-O-C of 1940, provided :
Subject: Revenue Minister's Memo No. S-531 dated 29th January, 1940 regarding status of the cultivators of the Rakhs and villages transferred from the Private Department.
It is ordered that :--
(c) the cultivators of the Rakhs andvillages transferred from Private Department,to the State in Jammu District be allowed 3years for production of State Subject Certificate for payment of 20 years land revenue asthe case may be; and
(b) further that the concession granted under Council Order No. 1234-C of 1939, shall be open to State Subjects of classes.'
Council Order No. 872C of 1940 further provided:
It is ordered that the Council Order No, 1234C of 1939 be amplified and modified as under :--
1.A tenant whose name exists in all the available registers from 1967 to 1982 be presumed to fulfill the conditions of continuous and unbroken possession for 15 years as laid down, in para (a) of the Council Order No. 1234C of 1939, provided he may be in unbroken possession under S-1982 also.
2. The uncultivated portions of such fields as have been measured as one be recorded in the names of holders thereof and not at Khalsa, and any Nautor from this area be assesseed at village revenue fates.
3. All Nautors whether made before or after S-1982 be charged at the Parta Deh rates from the date of Nautor subject to a maximum of 5 years land revenue to be recovered on account of arrears and Nautor Kuninda be given the same rights over such Nautors as they have in their individual holdings, but a tenant-at-will may secure proprietary rights on payment of Nazrana equivalent to 20 years land revenue.'
13. Reading of the three orders aforementioned would show that none of them supersedes the other. Government Order No. 1234C of 1939 and 290C pertain to the same subject, namely, 'Status of the cultivators' of Rakhs and villages transferred from the Private Department to the State in Jammu District, Government Order No. 872C of 1940, however, without superseding the earlier orders, simply amplifies and modifies the same. It is, therefore, apparent that all the three orders aforesaid will have to be harmoniously construed, so as to make each one of them serve the purpose for which it was issued. It is one of the salutory rules of interpretation that where more than one provisions are relevant to the determination of a controversy, the Court should adopt the rule of harmonious construction unless, of course, any provision is so patently in-consistent with the other provision that the two cannot co-exist.
14. Applying this rule, it is apparent that the requirement of the cultivator depositing the Nazrana within a period of three years in terms of Council order No. 290C of 1940 cannot be said to be either inconsistent or incompatible with the earlier order of the year 1939. For all intents and purposes therefore, it shall be presumed that the provision regarding production of a State Subject Certificate and payment of Nazrana within a period of three years allowed for that purpose was a part and parcel of Council Order No. 1234C of 1939.
15. The subsequent Council Order No. 872C of 1940 does not in our opinion, contain any provision which may militate against the aforesaid interpretation of the provision regarding depositor Nazrana within time fixed. The said subsequent order pertains primarily to para (a) of Council Order of 1939, with which we are not concerned in the instant case. The mention in para '3' of the said order of conferment of proprietary rights on deposit of Nazrana, does not, in our opinion, supersede or otherwise dilute the effect of the provision contained in Council Order No. 290C of 1940 in so far as deposit of the Nazrana is concerned. Suffice it to say, that on a harmonious construction of the three orders, it is not possible to hold that the requirement of deposit of Nazrana within three years stood superseded or was rendered a surplusage as was feebly suggested by Mr. Salaria.
16. That takes us to the argument of Mr. Salaria on which he mainly relied during the course of his submission. The argument was that since the provisions contained in the three Government orders were of a beneficial character meant to improve the lot of the peasantry, the requirement of deposit within three years be given a liberal construction and should be deemed to be only a directory provision. Mr. Salaria was at pains to persuade us to agree with him that a peasant, who did not know about the issue of the Government orders could not be deprived of the benefit of the above provision contained in the same only on account of his ignorance.
17. We have thoughtfully considered this argument, but regret our inability to agree to the same. It is true that the beneficial provisions have to be liberally construed, but it is equally true that once the provision envisages the conferment of benefit limited in point of time and subject to the fulfilment of certain conditions such (sic) in case the prospective beneficiary has done his part and complied with the requirements of the provisions. It is not a case where the conferment of ownership rights upon the cultivating tenant was automatic. Had this been so, the delay in the deposit of the Nazrana may not have the effect of nullifying the benefit which was otherwise conferred upon the peasant. The requirement of deposit of Nazrana in such an event within a period of three years could well have been interpreted to be a directory provision. Thus, however, is not the position in the instant case. Here the tenant-at-will could have acquired proprietary rights only if he fulfilled the requirements of the order, one of which was depositing the Nazrana within the period specified. It is not possible for us to hold that the said requirement was subject to the tenant coming to know about the offer. It is not disputed before us that the Government orders were duly gazetted. They were, therefore, presumed to have been known to all concerned including the cultivating tenant. We also cannot assume a state of facts which would explain the inordinate delay of over nearly 39 years in tenant staking a claim for conferment of ownership rights. We feel that the non-deposit of the amount of Nazrana was deliberate in the given facts of this case, and since Government Order No. 1234C of 1939 envisaged a situation where the tenant was not prepared to pay the Nazrana, the instant case squarely fell under the said provision in terms of Clause (c) of the said Government order. If the tenant was not prepared to pay the Nazrana as mentioned in Clause (b), he was to continue only as a tenant-at-will. In our opinion, the failure on the part of the tenants to have deposited the rent. within the prescribed period of three years arid their failure even to state a claim for ownership rights for nearly four decades, clearly shows that they were not prepared to pay the Nazrana within the meaning of Clause (c) Government Order No. 1234C of 1939. The only right which the tenants could, therefore, claim would be that of continuing as a tenant-at-will under the State.
18. Reliance by Mr. Salaria upon the judgment of their Lordships of the Supreme Court in Mukand Lal Bhandari case (supra) is, in our opinion, misplaced. The said case is clearly distinguishable on facts. In that case, the Supreme Court was dealing with the cases of freedom fighters who had failed to apply for the benefits envisaged by the scheme framed by the Government within the time prescribed. It, was in the peculiar circumstances of that case, that the Supreme Court held the provision regarding making of the application by the freedom fighters within the prescribed time, to be a directory provision. We do not see any justification for extending the said rationale to the instant case.
19. That apart, it is settled that if the law requires a particular thing to be done in a particular manner, then it should be done only in the manner prescribed and all other modes of performance are excluded. It was so held by their Lordships of the Supreme Court in Hukam Chand Shyam Lal v. Union of India, AIR 1976 SC 789. We may gainfully quote the following from the said judgment :
'It is well settled that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all, and all other modes of performance are necessarily forbidden. It is all the more necessary to observe, this rule where power is of a drastic nature and its exercise in a mode other than the one provided, will be violative of the fundamental principles of natural justice......'
20. There is yet another reason, which in our opinion, would disentitle the appellants to any relief on the basis of the said Government orders. From a reading of the said. orders, it is apparent that the benefit of conferment of ownership rights was available only in cases where the tenant had been in continuous possession of the land and was actually in possession even on the date the said rights were claimed.
21. This position has not been disputed by Mr. Salaria, appearing for the appellants. His submission, however, was that since the appellants and their predecessors-in-interest had been uprooted on account of the communal disturbance of the year 1947, the possession of the land was taken over by the Custodian, Evacuee Property. He submitted that the possession of the Custodian, whether actual or constructive through the allottees should be deemed to be the possession of his clients.
22. Mr. Salaria, however, has not been able to point out from the mutation attested by the Additional Tehsildar, any finding in favour of the appellants to the effect that the land had been in possession of the appellants or their predecessor-in-interest, either actually or constructively in the year 1978. Mr. R. C. Gandhi, appearing for the allottees/ respondents has submitted that the land is in possession of the respondents as allottees uninterruptedly for a number of years, and that since it was never declared as evacuee property, the question of its restoration by the Custodian or the question of the Custodian's alleged possession being for the benefit of the appellant's, did not arise.
23. Be that as it may, it is apparent that there is no finding returned either by the Additional Tehsildar or the Divisional Commissioner to the effect that the appellants or their predecessor-in-interest was continuously in possession of the land in question up to the date the mutation was attested. On the contrary, the Financial Commissioner has come to the following conclusion in this regard :--
'It can be said purely by way of argument that even the most charitable interpretation on these lines should at least insist upon the tenant-at-will being still in possession on the date of two conditions are satisfied.'
24. This implies a finding that the tenants were not actually in possession of the land in the year 1978. There is no material before us on record to show that this finding given by the Financial Commissioner was factually incorrect.
25. For what has been stated above, we find no merit in this appeal, which is hereby-dismissed. We, however, direct that the parties shall bear their own costs. C.M.P. No. 80 of 1993 shall stand dismissed and the interim order issued on 8-7-1993 shall stand vacated.