Romesh And Anr vs Jammu And Kashmir Special ...
2023 Latest Caselaw 672 j&K

                                                                Sr. No. 109


              HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                            AT JAMMU


                                               OWP No. 76/2006
                                               CM no. 96/2006


Romesh and anr                                     ....Petitioner/Appellant(s)

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


        V/s

Jammu and Kashmir Special Tribunal &                       ....Respondent(s)
ors.

                  Through :- Ms. Nazia Fazal, Advocate vice
                             Mrs. Monika Kohli, Sr. AAG for 1-3.
                             None for R-4.
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE

                                 ORDER

11.04.2023

1. This is a 2006 matter pending adjudication before this Court. The writ

petition is addressed against an adjudication of the Jammu and

Kashmir Special Tribunal, Jammu which, vide its order dated

24.01.2006 passed on file no. STJ 229 of 2000, came to dismiss the

revision petition of the petitioners herein preferred under the Jammu

and Kashmir Agrarian Reforms Act, 1976 (in short 'Act of 1976').

2. The revision petition was filed by the petitioners before the Jammu

and Kashmir Special Tribunal under Section 21 (2) of the Act of 1976

against a final appellate order dated 01.08.2000 passed by the Joint

Commissioner Agrarian Reforms (with powers of Commissioner

Agrarian Reforms), Jammu on file no. 70/AGR/Sectt. (Appeal).

3. This appeal was also filed by the petitioners before the Joint

Commissioner Agrarian Reforms (with powers of Commissioner

Agrarian Reforms), Jammu against attestation of mutation no. 193

dated 24.05.1998 passed by the Tehsildar, Agrarian Reforms, Jammu.

Attestation of mutation no. 193 of 24.05.1998 had a background. Said

background was that the petitioner no. 1's father, namely, Onkaru was

in recorded cultivating possession of land comprising three khasra

numbers i.e. 299, 293 and 761/300 involving land measuring 9 kanals

3 marlas of village Sagun, tehsil and district Jammu.

4. The petitioner no.1's father-Onkaru was a recorded protected tenant in

terms of the Jammu and Kashmir Tenancy Act, 1968. On the basis of

his said status, the khasra girdawari of 1971 reflected the same

position and as such upon coming into picture of the Act of 1976, the

ownership of the recorded owners being not in cultivating possession

of the land comprised in the aforesaid three khasra numbers came to be

extinguished under Section 4 of the Act of 1976 and in that regard a

mutation no. 193 of 1981 dated 25.02.1981 came to be attested in

terms whereof the petitioner no.1's father-Onkaru came to be declared

as a prospective owner who was to be vested with ownership rights by

way of attestation of mutation under Section 8 of the Act of 1976.

5. The aforesaid mutation no. 193 of 1981 came to be challenged by the

private respondent no. 4 herein, who is the wife of the real brother of

the petitioner no.1's father-Onkaru. This appeal by the private

respondent no. 4 against mutation no. 193 of 1981 seems to have

resulted in setting aside of the order dated 25.02.1981 passed with

respect to mutation no. 193 with a direction unto the Tehsildar,

Agrarian Reforms, Jammu to attest mutation after having a denovo

enquiry. The order in appeal is dated 15.11.1997 passed by the Joint

Commissioner Agrarian Reforms (with powers of Commissioner

Agrarian Reforms) Jammu on file no. 558/DLR/S.

6. The remand proceedings resulted in fresh order with respect to

attestation of mutation no. 193 dated 15.11.1997 passed by the

Tehsildar, Agrarian Reforms, Jammu. Against attestation of this

mutation no. 193 of 15.11.1997 by the Tehsildar, Agrarian Reforms

Jammu, the petitioners had felt aggrieved on account that the same was

not passed on the merits of the case but by reference to a purported

consensus said to have been arrived at between the petitioners and the

private respondent no. 4. Thus an appeal was filed by the petitioners

which came to be taken up on file no. 70-Agr/Sectt of 1998-99 on

17.07.1998 before the Joint Commissioner Agrarian Reforms (with

powers of Commissioner Agrarian Reforms), Jammu who came to

dispose of the same vide an order dated 01.08.2000 in terms whereof

the Joint Commissioner Agrarian Reforms (with powers of

Commissioner Agrarian Reforms), Jammu while dismissing the appeal

of the petitioners acted upon the premise that the attestation of

mutation no. 193 dated 15.11.997 had proceeded upon a purported

consensus and as such that consensus was not open to be questioned

by the petitioners.

7. Passing of the order dated 01.08.2000 in appeal by the Joint

Commissioner Agrarian Reforms (with powers of Commissioner

Agrarian Reforms), Jammu prompted the petitioners to invoke

revisional jurisdiction of the Jammu and Kashmir Special Tribunal

under Section 21(2) of the Act of 1976. After a pendency of six years,

the revision petition came to be dismissed by the Jammu and Kashmir

Special Tribunal by retaining the premise that since the impugned

mutation no. 193 dated 15.11.1997 was passed on so called consensus

as such the same was not amenable to question at the instance of the

petitioners. It is against this backdrop that the petitioners have come

to question the adjudication of their appeal as well as their revision

petition by the adjudicatory authorities below.

8. It is pertinent to make mention here that as on date when this writ

petition is coming for adjudication, the Jammu and Kashmir Agrarian

Reforms Act, 1976 has come to undergo an amendment by virtue of

S.O no. 3808(E) of 2020 dated 26.10.2020 whereby the revisional

remedy under Section 21(2) of the Agrarian Reforms Act, 1976 has

been done away meaning thereby in case if this Court is to quash the

impugned order of Jammu and Kashmir Special Tribunal, then also the

matter may not be cognizable by the Jammu and Kashmir Special

Tribunal on account of lack of jurisdiction.

9. This Court is now left to examine the legality and validity of order

dated 24.1.2006 of the Jammu and Kashmir Special Tribunal read with

order dated 01.08.2000 of the Joint Commissioner Agrarian Reforms

(with powers of Commissioner Agrarian Reforms), Jammu and attend

to the final outcome.

10. This Court is of studied conclusion that both the adjudicatory forums

fell in a serious error of law in the sense that they chose to rely upon a

purported consensus without bothering to first put it on record in terms

of their respective impugned orders as to what was that consensus

which had come to be arrived at between the petitioners and the

private respondent no. 4. Without identifying the said consensus so

obtaining between the petitioners and the private respondent no. 4, the

appellate authority of Joint Commissioner Agrarian Reforms (with

powers of Commissioner Agrarian Reforms), Jammu could not have

enabled itself to dislodge the petitioners from their appeal. In this

regard, it is to be stated that operation of the Jammu and Kashmir

Agrarian Reforms Act, 1976 is not dependent upon the consensus of

the parties governed by the said Act inasmuch as if a person is found

to be not obtaining in terms of his or her status in the revenue record

so as to have the benefits of the provisions of Sections 4 and 8 of the

Act of 1976 then consensus whatsoever between the person/s whose

name is reflected in the revenue records of the relevant year with the

person/s whose name is not so mentioned cannot come into an

understanding to share the benefits of the Act of 1976 without first

having entered into a registered agreement that too admissible in the

eyes of law before the Agrarian Reforms Authority.

11. In this regard, the learned counsel for the petitioners has placed

reliance upon a Division Bench judgment of this Court titled "Rajesh

Suri and ors. Vs. Tara Chand and ors" 2003 KLJ 261 wherein in

para 7 clearly deals with the situation that the provisions of the

Agrarian Reforms Act are not subjected to any consensus between the

parties so as to make the Agrarian Reforms Authorities to be driven by

the said consensus.

12. Learned counsel for the petitioners has further placed reliance upon a

Division Bench judgment of this Court titled "Parkash Singh vs.

Naseeb Singh" 2002 KLJ 216 wherein it has been held that a person

cultivating the land personally on Ist of September, 1971 and onwards

is only entitled to earn the benefits of the Agrarian Reforms Act, 1976

in his/her favour by virtue of his/her name being so recorded in the

revenue record.

13. In the light of the aforesaid, this Court holds that the Jammu and

Kashmir Special Tribunal had erred in denying its revisional

jurisdiction in the matter and acted in a pedantic manner to pass the

impugned order dated 24.01.2006 which is accordingly set aside.

14. This Court further holds that the Joint Commissioner Agrarian

Reforms (with powers of Commissioner Agrarian Reforms), Jammu

has also erred very seriously in simply relying upon the so called

consensus of the parties to avoid the adjudication of appeal on its

merits quo the order dated 15.11.1997 with respect to mutation no. 193

and as such the order dated 01.08.2000 passed by the Joint

Commissioner Agrarian Reforms (with powers of Commissioner

Agrarian Reforms), Jammu on file no. 70/Agr/Sectt. (Appeal) of 1998-

99 is also held to be bad and seriously flawed as such same is also set

aside.

15. As a consequence of the setting aside of the aforesaid two orders, the

matter is remanded to the Additional Deputy Commissioner, Jammu

with powers of Commissioner Agrarian Reforms to restore the file no.

70/Agr/Sectt. of 1998-99 and to re-hear the appeal of the petitioners on

its merits and dispose of the same by keeping in view the position of

law obtaining.

16. Petitioners to appear before the Additional Deputy Commissioner

(with powers of Commissioner Agrarian Reforms) Jammu on

15.05.2023. The Additional Deputy Commissioner (with powers of

Commissioner Agrarian Reforms) Jammu shall also summon the

private respondent no. 4 who being the respondent in the said appeal is

entitled as a matter of right for hearing in the said appeal.

17. Disposed of accordingly.

(RAHUL BHARTI) JUDGE

JAMMU 11.04.2023 NARESH/PS