Jang Bahadur Singh & Ors vs Special Tribunal J&K & Others
2021 Latest Caselaw 1100 j&K/2

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR

                                                Reserved on: 03.09.2021
                                              Pronounced on:17.09.2021

                          OWP No.1772/2015

Jang Bahadur Singh & Ors.                          ...PETITIONER(S)
Through: - Mr. Nazim Khan, Advocate.

Vs.

Special Tribunal J&K & others                   ...RESPONDENT(S)
Through: - Mr. M. M. Dar, Advocate.

CORAM:       HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE.


                              JUDGMENT

1) The petitioners, through the medium of instant petition, have

assailed order dated 24.09.2015 passed on file No.STS/4004/2015 by

J&K Special Tribunal (respondent No.1) and order dated 30.12.2014

passed by Commissioner Agrarian Reforms, Sriangar (respondent No.2).

In terms of impugned order dated 24.09.2015, respondent No.1 has,

while rejecting the revision petition filed by the petitioners, upheld the

impugned order dated 30.12.2014, passed by respondent No.2

2) Briefly stated, the facts emanating from the pleadings of the

parties are that the predecessors-in-interest of respondents No.4 to 12

(hereinafter referred to as the private respondents) happen to be the

owners of land in Village Singhpora Kalan District Baramulla whereas

predecessors-in-interest of the petitioners were recorded as tenants in

Khasra Girdawari of Kharief 1971 in respect of aforesaid land. The

landlord tenant relationship between the parties is not in dispute. After

coming into force of the Jammu and Kashmir Agrarian Reforms Act,

1976 [for short "the Act" hereinafter], mutation No.255/1 under Section

4 of the said Act came to be attested in respect of the aforesaid land and

the prospective ownership rights were conferred on the predecessors-in-

interest of the petitioners herein.

3) It appears that the predecessors-in-interest of the private

respondents filed an application for resumption and mutation No.348

was entered under Section 7 of the Act. The Mutating Officer, however,

held them ineligible for resumption and attested mutation Nos.530, 574

and 575 under Section 8 of the Act in favour of the petitioners herein.

The aforesaid mutations were challenged by the landlords i.e., private

respondents herein, by way of four appeals before the Financial

Commissioner (Revenue)-cum-Commissioner Agrarian Reforms, J&K,

Srinagar. Vide a detailed order passed by the said Authority on

29.9.1999, the orders passed on mutation No.348 under Section 7 and

mutation No.530, 574 and 575 under Section 8 of the Act were set aside

and the case was remanded to Tehsildar, Baramulla, with a direction to

decide the resumption application under Section 7 in accordance with

law after affording an opportunity of being heard to the parties.

4) In compliance to the aforesaid order of the Financial

Commissioner (Revenue)-cum-Commissioner Agrarian Reforms, the

Tehsildar again passed an order on mutation No.348 on 19.04.2002

thereby rejecting the resumption application filed by the

landlords/private respondents herein.

5) The aforesaid order dated 19.04.2002 passed by the Tehsildar was

assailed by the landlords/private respondents before the Financial

Commissioner (Revenue)-cum-Commissioner Agrarian Reforms again

by way of an appeal. Along with the appeal, an application seeking

condonation of delay in filing the appeal was also made which was

allowed by the said Authority vide its order dated 01.06.2005. This order

came to be challenged by the tenants/petitioners in a revision petition

before the Special Tribunal, Srinagar, but the said revision petition was

dismissed by the Tribunal vide its order dated 12.05.2006 on the ground

that no final order was passed by the Financial Commissioner

(Revenue)-cum-Commissioner Agrarian Reforms and the matter was

remanded back to the aforesaid Authority. Accordingly, the Financial

Commissioner (Revenue)-cum-Commissioner Agrarian Reforms

considered the matter on merits and dismissed the appeal of the

landlords/private respondents vide its order dated 25.10.2007.

6) The aforesaid order again came to be challenged by the

landlords/private respondents by way of a revision petition before the

J&K Special Tribunal, Srinagar. Vide order dated 17.07.2008, passed by

the Tribunal, the order dated 25.10.2007 passed by the Financial

Commissioner (Revenue)-cum-Commissioner Agrarian Reforms was

set aside and the matter was remanded back to the said Authority for

deciding the appeal afresh in the light of observations made by the

Tribunal in the aforesaid order.

7) The matter again landed before the Financial Commissioner

(Revenue)-cum-Commissioner Agrarian Reforms. The said Authority

after hearing the parties allowed the appeal vide its order dated

30.12.2014 and remanded the matter back to the Tehsildar, Baramulla,

with a direction to hear the parties with respect to resumption and pass

appropriate orders regarding the fate of the other mutation orders passed

under Section 8 of the Act. The Authority further made a direction to the

Tehsildar to verify the authenticity of mutation No.255/1 of Village

Singhpora Kalan attested under Section 4 of the Act.

8) The aforesaid order was challenged by the tenants/petitioners

before the J&K Special Tribunal, Srinagar, by way of a revision petition.

The said revision petition came to be dismissed by the Tribunal vide its

order date 24.09.2015 with a further direction to the Tehsildar to recover

the rent, if any, from the petitioners and to pay the same to the private

respondents. It is these two orders i.e., order dated 30.12.2014 and order

dated 24.09.2014, passed by the authorities below, that are under

challenge by way of instant writ petition.

9) The impugned orders have been, primarily, assailed on the ground

that the same are patently illegal, arbitrary and without jurisdiction; that

the impugned orders as full of chaos and confusion rendering the whole

proceedings illegal and patently wrong; that the moot question of law

before the respondent No.1 was whether Commissioner Agrarian

Reforms can, on its own, question mutation under Section 4 which was

never subject matter of appeal and was not disputed for 15 years and

whether respondent No.2 could have passed an order against a dead

person but the respondent No.1 without going into this question, while

passing the impugned order has wrongly interpreted the law besides

erroneously interpreting the provisions contained in Order 22 Rule 6 of

the Code of Civil Procedure and that the direction for recovering of rent

is illegal and transgression of powers on the part of the Tribunal.

10) Private respondents have resisted the petition by filing reply

thereto. Most of the factual averments narrated hereinbefore have been

admitted by the said respondents in their reply and they have contended

that the direction passed by the Tribunal as well as by the Financial

Commissioner Revenue-cum-Commissioner Agrarian Reforms which

have been impugned in this petition are in accordance with law.

11) I have heard learned counsel for the parties and perused the record

of the case.

12) Vide the impugned orders passed by the J&K Special Tribunal and

the Financial Commissioner Revenue-cum-Commissioner Agrarian

Reforms, the rejection of resumption application of private

respondents/landlords has been set aside and the matter in this regard has

been remanded to Tehsildar, Baramulla, for fresh decision after hearing

the parties. To this extent there does not appear to be any illegality or

impropriety on the part of authorities below. This is for the reason that

the rejection of resumption form of the landlords has been ordered by the

Tehsildar concerned on the basis of an erroneous reading of Section 7 of

the Act. According to the Tehsildar, since the landlords/private

respondents are residing in Srinagar City, as such, it cannot be stated that

they intend to undertake personal cultivation of the land in question. The

Financial Commissioner Revenue-cum-Commissioner Agrarian

Reforms as well as Special Tribunal have rightly interpreted the

provisions contained in Section 7 by observing that an applicant for

resumption has to take up residence for the purposes of cultivating the

land personally in the village in which the land sought to be resumed is

situated or in an adjacent village within a period of six months from the

date of resumption of land and it is not necessary that he should be

actually residing in the concerned village at the time of making an

application for resumption. To this extent, no fault can be found with the

impugned orders.

13) The other contention of the writ petitioners that the authorities

below have passed the impugned orders against a dead person and, as

such, the same is a nullity, is also without any merit. The Commissioner

Agrarian Reforms, Srinagar, has specifically noted in para 3 of the order

impugned that legal heirs of deceased appellant No.2 and those of

deceased respondent No.1 before the said Authority were brought on

record during the proceedings. Thus, all the parties were represented

before both the Authorities below and it cannot be stated that the orders

have been passed against dead person. The contention of the writ

petitioners, therefore, deserves to be rejected.

14) The other contention raised by the petitioners is that the authorities

below while passing the impugned orders, were not justified in re-

opening the issue with regard to the attestation of mutation under Section

4 of the Act as it was the admitted position between the parties that the

petitioners happen to be the tenants and the private respondents happen

to be the landlords.

15) A perusal of the record, particularly orders passed by different

authorities in earlier rounds of litigation between the parties reveals that

the landlords/private respondents have admitted that the petitioners

happen to be their tenants. It is also not in dispute that in Khasra

Girdawari of Kharief, 1971, the predecessors-in-interest of petitioners

have been recorded as tenants. Neither before the Financial

Commissioner Revenue-cum-Commissioner Agrarian Reforms nor

before the Tribunal the landlords/private respondents had challenged the

status of the petitioners as tenants. In such circumstances, it was not open

to the Financial Commissioner Revenue-cum-Commissioner Agrarian

Reforms to re-open the question with regard to authenticity of the

mutation No.255/1 attested under Section 4 of the Act. By passing such

a direction, the Authority has exceeded its jurisdiction and travelled to

an area which was not subjudice before it. The Tribunal by upholding

said direction of the Financial Commissioner Revenue-cum-

Commissioner Agrarian Reforms, in terms of the impugned order dated

24.09.2015, has also fallen into an error and exceeded its jurisdiction.

16) The direction of the Tribunal to recover rent from the petitioners/

tenants and pay the same to the private respondents/landlords is in

contradiction to its own finding that Section 4 mutation attested in

respect of the land in question is suspicious. One the one hand, the order

of the Tribunal casts a cloud upon the very status of the petitioners as

tenants and on the other it directs the petitioners to pay rent to the private

respondents/landlords. The direction to this extent is, therefore, not in

accordance with law.

17) For the forgoing reasons, the petition is partly allowed and the

impugned orders passed by the authorities below to the extent of issuance

of direction to the Tehsildar concerned to decide the matter relating to

resumption of land by private respondents/landlords under Section 7 of

the Agrarian Reforms Act and setting aside of the subsequent mutation

orders attested under Section 8 of the Agrarian Reforms Act, are upheld.

However, the directions regarding holding of an enquiry with regard to

authenticity of the mutation No.255/1 attested under Section 4 of the

Agrarian Reforms Act as well as the direction to recover rent from the

petitioners/tenants are set aside.

18) The writ petition stands disposed of accordingly.

(Sanjay Dhar) Judge Srinagar 17.09.2021 "Bhat Altaf, PS"

                                      Whether the order is speaking:           Yes/No
                                      Whether the order is reportable:         Yes/No
MOHAMMAD ALTAF BHAT
2021.09.17 15:14
I attest to the accuracy and
integrity of this document