Vijay Kumar vs J&K Special Tribunal And Others
2022 Latest Caselaw 247 j&K

     HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT JAMMU

                                            Reserved on: 14.02.2022
                                            Pronounced on: 22.02.2022

                                                     OWP No.1366/2015
                                                       IA No. 01/2015

Vijay Kumar                                            ...Petitioner(s)

            Through: - Mr. G. S. Thakur, Advocate.
      Vs.

J&K Special Tribunal and others                      ...Respondent(s)

            Through: - Mr. F. A. Natnoo, Advocate for R-2.

CORAM:
      HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE.

                         JUDGEMENT

1. In this petition the petitioner has called in question order dated

05.01.2015 passed by the Jammu and Kashmir Special Tribunal, Jammu

(„the Tribunal‟) in a revision petition titled Kewal Krishan and Ors v.

Deputy Custodian Evacuee Property, Rajouri and another, whereby the

Tribunal has dismissed the Revision Petition filed by the petitioner and

has up-held the order of Additional Deputy Commissioner (with powers of

Commissioner Agrarian Reforms), Rajouri, ( „the appellate authority‟)

dated 20.03.2004.

2. Briefly stated, the facts, as projected by the petitioner in this

petition are that, the land falling under Khasra No. 86/3 of Village Badika

Tehsil and District Rajouri was allotted to the petitioner and one Kewal

Krishan and Sham Lal as displaced persons from Pakistan. The petitioner,

on the basis of being in possession of the land as allottee thereof, was

conferred the proprietary rights under Section 3-A of the Jammu and

Kashmir Agrarian Reforms Act, 1976 ( „the Act of 1976‟). Mutation No.

38 was attested in this regard by the Naib Tehsildar, Rajouri on

04.12.1996. The respondent No.2 assailed the mutation after seven years

by filing an appeal before the Respondent No.3. The Respondent No.3, the

appellate authority, without formally condoning the delay, set aside the

mutation vide its order dated 20.03.2004. The order of the appellate

authority was challenged by the petitioner and the two others, namely,

Kewal Krishan and Sham Lal, by way of revision petition before the

Respondent No.1 on the ground that the appellate authority had passed the

order impugned without affording the petitioners an opportunity of being

heard and without appreciating the real controversy, but the Tribunal

dismissed the revision petition vide order dated 05.01.2015, hence the

present writ petition.

3. The writ petition is opposed by respondent No.2, who, in its

objections, has taken the stand that in view of the concurrent findings of

fact recorded by the two forums below, the writ petition is not

maintainable. It is the contention of the respondent No.2 that both the

forums below have found that the subject land was in possession of the

Army prior to Kharief 1971 and that, it was recorded as „Banjar Qadeem‟.

That being the position, the subject land was exempted from the operation

of the Act of 1976. It is contended by Mr. F. A. Natnoo, appearing for

respondent No.2, that mutation attested by the Naib Tehsildar, which was

subject matter of challenge in the appeal before the appellate authority,

was decided at the back of the respondent No.2 and, therefore, was rightly

interfered with by the appellate authority.

4. Having heard learned counsel for the parties and perused the

material on record, it is necessary to first set out the provisions of Section

3-A of the Act of 1976, which reads thus:-

"3-A. Notwithstanding anything to the contrary contained in this Act or any other law for the time being in force, displaced persons cultivating evacuees lands personally shall in respect thereof be deemed to be occupancy tenants and recorded as such. They shall be liable to pay rent equal to the amount of land revenue and cesses assessed thereon;

Provided that such displaced persons shall have right to transfer their right of occupancy tenancy by sale, mortgage or gift subject to the provisions of the Alienation of Land Act, and the provisions of Section 60 of the Jammu and Kashmir Tenancy Act, Samvat 1980 shall not apply to such transfer."

5. From reading of Section 3-A above, it is abundantly clear that in

case a displaced person is found to have been in personal cultivation of the

evacuees land, he shall be deemed to be occupancy tenant and recorded as

such. It is, therefore, clear that for attracting Section 3-A of the Act of

1976, a displaced person, claiming occupancy rights, must demonstrate

that he has been allotted the evacuee land and has been in cultivating

possession thereof at the time of attestation of mutation. That apart, it is

equally necessary for such person to demonstrate that the land claimed to

be under his personal cultivation is the land as defined under Section 2(9)

of the Act of 1976.

6. Both the forums below have, on facts, found that the land in

question was recorded as „Banjar Qadeem‟ and, therefore, could not have

been under the cultivating possession of the petitioner. The petitioner has

not been able to show his allotment by the department of Evacuee or the

Government nor has he proved that he was even personally cultivating the

subject land. Rather, it has come on record that the said land belonging to

the Evacuee Department was under the occupation of the Army since prior

to Kharief 1971. To top it all, the mutating Officer attested the mutation

without even affording any opportunity of being heard to the department

of Evacuees. The revisional court has also correctly noticed that though

the revision petition has been filed by the petitioner after a delay of five

years, yet there was no formal application for condonation of delay filed

by the petitioner.

7. The plea of Mr. G. S. Thakur, learned counsel appearing for the

petitioner, that the revisional court decided the revision petition without

affording opportunity of hearing to the petitioner, is belied by record. A

bare reading of the impugned order would show that it was the revision

petition filed by the petitioner himself and the petitioner was well

represented by learned counsel before the Tribunal. As is observed by the

Tribunal, the matter was adjourned a number of times to enable the

petitioner to address arguments but neither the petitioner nor his counsel

made himself available for arguments. The matter was accordingly

considered by the Tribunal on its merits and decided by the impugned

judgment..

8. The learned counsel for the petitioner was pointedly asked to show

the allotment of the petitioner or any entry in the revenue record which

substantiates the plea of the petitioner that he was in cultivating

possession of the subject land and therefore, entitled to the benefit of

Section 3-A of the Act of 1976. He, however, could not show any

document in this regard.

9. For the forging reasons I find no merit in this petition. The same is,

accordingly, dismissed.

(Sanjeev Kumar) Judge

JAMMU 22.02.2022 Anil Raina, Addl. Reg/Secy Whether the order is speaking: Yes/No.

Whether the order is reportable: Yes/No.