Bashir Ahmad Rather & Ors vs State Of Jammu And Kashmir & Ors
2023 Latest Caselaw 921 j&K/2

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                     AT SRINAGAR


                            OWP No. 287/2012

                                                       Reserved On:16th of May, 2023
                                                   Pronounced On: 10th August, 2023

Bashir Ahmad Rather & Ors.
                                                               ... Petitioner(s)
                               Through: -
                         Mr G. A. Lone, Advocate.

                                     V/s

State of Jammu and Kashmir & Ors.
                                                            ... Respondent(s)

Through: -

Mr. Rizwan-u-Zaman Bhat, Advocate.

CORAM:

HON'BLE MR JUSTICE RAJNESH OSWAL, JUDGE.

(JUDGMENT)

01. The petitioners and their predecessor-in-interest were the tenants of the respondent Nos. 6 and 7 qua the land measuring 48 Kanals and 10 Marlas comprising Survey Nos. 80, 25, 28, 29, 30 and 41 situated at Moomin Hall, Tehsil and District Anantnag. The mutation under Section 4 was attested in favour of the State and the petitioners were declared as the prospective owners vide mutation No. 279. The owners of the land, through their attorney, filed an application under Section 7 of the Agrarian Reforms Act for resumption of the land and mutation No. 327 dated 27 th of July, 1985 of village Moomin Hall, sanctioning the resumption of half of the land above-mentioned was attested in favour of respondent Nos. 6 and 7. The petitioners, being aggrieved of the attestation of said mutation, assailed the said mutation before the Joint Commissioner, Agrarian Reforms, Kashmir. The petitioners further claim that while the said appeal was pending, the attorney holder of the respondent Nos. 6 and 7 approached the petitioners for negotiating settlement of the dispute and the negotiations continued for OWP No. 287/2012

about a year and ultimately, the petitioners and respondent Nos. 6 and 7, through their attorney, entered into private agreement, whereby the respondent Nos. 6 and 7 agreed to surrender their claim of resumption in respect of half of the land i.e. 24 Kanals and 05 Marlas against a consideration amount of Rs.1.30 lacs to be paid by the petitioners. Out of the agreed amount, the petitioners claim to have paid the ex-owners Rs.30,800/- in cash, along with the cheque drawn in the name of attorney Radha Krishan Misri for an amount of Rs.10,000/. The agreement as also the power of attorney was executed on 1st of January, 1987. The petitioners, therefore, did not prosecute the appeal filed by them against the mutation No. 327. It is further stated that the attorney holder of the respondent Nos. 6 and 7, at the back of the petitioners, got the fictious entries recorded in the revenue record in connivance with the Patwari concerned by concealing the factum of settlement of dispute. The petitioners further claim that they came to know about the fraud played by them in August 2011, when one Janki Nath Bazaz and Ghulam Nabi came to the village and disclosed that they had obtained a letter of authority from the ex-owners executed by Sh. Rakesh Mishri for taking steps to get the land vacated from the tenants and that the said Janki Nath Bazaz was authorized to take immediate steps for eviction of the tenants by resorting to the provisions contained in Jammu and Kashmir Migrants Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997 (for short „the Act of 1997‟). The petitioners, thereafter, filed a suit before the Joint Agrarian Commissioner, Anantnag for declaring the private agreement executed between the parties on 1st of January, 1987 as an agreement under Section 12-A of the Agrarian Reforms Act in respect of land about which sale was made with a prayer for quashing the mutation No. 327 that was attested in favour of respondent Nos. 6 and 7. While the said suit was pending, the respondent No.8 filed an application before the District Magistrate for eviction of the petitioners from the land and without issuing notice to the petitioners and conducting any inquiry, the District Magistrate passed the order dated 14 th of September, 2011 and the Tehsildar, Anantnag was directed to take OWP No. 287/2012

appropriate steps to preserve the migrant property. Subsequent to the passing of the order, the petitioners filed a review petition against the order dated 14th of September, 2011, however, the same was dismissed by the District Magistrate, Anantnag vide order dated 26th of December, 2011. It is further pleaded by the petitioners that the „Supurdnama' dated 28th of January, 2012 is a fake document and that the land continues to be in the possession of the petitioners.

02. The petitioners have assailed the mutation No. 327 of village Moomin Hall and entries made on the basis of said mutation in respect of land measuring 24 Kanals and 05 Marlas situated at Moomin Hall, Tehsil and District Anantnag with a further prayer for quashing the order of District Magistrate dated 14th of September, 2011, Supurdnama dated 28th of January, 2012 and for quashing the order of District Magistrate dated 26 th of December, 2011. The petitioners have also made a prayer for directing the official respondents to make entries of ownership in favour of the petitioners on the basis of tenancy recorded in the year 1971 and bring mutation No. 279 of village Moomin Hall to its logical conclusion by attesting mutation in favour of the petitioners under Section 8 of the J&K Agrarian Reforms Act. In the alternative, a prayer has also been made by the petitioners that the official respondents be commanded to vest the land mentioned above in favour of the State with further direction to allot the same in favour of the petitioners.

03. The Petitioners have questioned the mutation No. 327 of village Moomin Hall, Tehsil and District Anantnag in respect of land measuring 24 Kanals and 05 Marlas sanctioning the resumption of the land in favour of the ex-owners under Section 7 of the Agrarian Reforms Act and the subsequent entries made in their favour, inter alia, on the grounds:

(i) that the ex-owners had already transferred their land measuring 15 Kanals and 12 Marlas situated at village Baghat, Tehsil Sopore, therefore, they could not have been granted the benefit under Section 7 of the Agrarian Reforms Act; (ii) that the ex-owners were required to take over OWP No. 287/2012

the residence in the Village with in the period of six months from the date of resumption of the land, but the agreement executed by them reveals that they have shown their residence as Habba Kadal, Srinagar; (iii) that the ex- owners have defrauded the petitioners by executing an agreement and receiving the consideration amount from them and thereafter, getting the entries recorded in the revenue record in their favour; (iv) that the ex- owners have sold the land to respondent No.9 by virtue of agreement to sell and as such, as per the mandate of Section 28 (A) of the Agrarian Reforms Act, the land is required to be escheated to the State; and (v) that the order dated 14th of September, 2011 passed by the District Magistrate has been passed in utter disregard of the principles of natural justice and that the District Magistrate has committed a serious error in holding the land to be migrant land, particularly when agreement dated 1st of January, 1987 was executed by the petitioners and the ex-owners and the dispute was between the ex-owners and the tenants/ petitioners.

04. The respondents have filed their response. The respondent Nos. 1 to 5 have stated that the land was unauthorizedly occupied by the petitioners against whom the eviction order dated 14th of September, 2011 was passed under the provisions of the Act of 1997 declaring the petitioners to be unauthorized occupants. It is also stated that the respondent Nos. 6 and 7 were legally enjoying the occupation of the land before eruption of turmoil in the Valley and after their migration, they were constrained to hand over the land to their attorney holder to look after the same and the Patwari concerned has rightly made the necessary entries without suppressing any material facts. It is also submitted that the land has been physically resumed and recorded in the names of land owners two years prior to their migration from the Valley in the year 1990, who were subsequently declared as migrants under Section 2 of the Act of 1997. The petitioners were unauthorized occupants of the land and as per the revenue record, Mst. Pitty Devi and Mst. Jai Kishori have been recorded as „Khudkasht'. It is also stated that the agreement to sell itself does not create OWP No. 287/2012

any interest or right in such property, so no action under Section 28-A of the Agrarian Reforms Act can be initiated. It is also stated that the District Magistrate disposed of the case after hearing both the parties at length. The order passed by the District Magistrate does not suffer from any illegality.

05. The respondent Nos. 6 and 9 have also filed the reply, wherein they have stated that the petitioners availed the remedy of appeal and thereafter, filed a suit for same relief, as such, the present petition is not maintainable. The respondent Nos. 6 and 7 categorically denied the execution of any agreement to sell and also that they transferred any land by any means. It is pleaded that the respondent Nos. 6 and 7, after resumption of the land, have been in physical cultivation and possession of the same from the year 1987 to 89 and in the year 1989, they were forced by the circumstances to migrate from the Valley. Because of the said circumstances, the respondent Nos. 6 and 7 were forced to execute a power of attorney in favour of respondent No.8 to look after and protect the above said land. It is also stated that the petitioners have not availed the appropriate remedy, thereby challenging the order passed by the District Magistrate, therefore, the present writ petition is not maintainable.

06. Mr G. A. Lone, the learned counsel for the petitioners, submitted that the ex-owners i.e. respondent Nos. 6 and 7 were not entitled to resumption of land as they had transferred the land at Sopore and he further argued that after resumption was ordered, the respondent Nos. 6 and 7 were required to personally cultivate the land and acquire the residence in the village, whereas the agreement to sell and attorney executed by them reveal that they have shown themselves to be the residents of Habba Kadal, Srinagar. He also argued that as per the mandate of Section 28-A of the Act of 1997, the land is required to be escheated to the State for its onward distribution in terms of Section 15 of the Act as the respondent Nos. 6 and 7 have sold the land by virtue of agreement to sell. He also urged that the District Magistrate had no authority to adjudicate upon the controversy, OWP No. 287/2012

therefore, the order dated 14th of September, 2011 passed by the District Magistrate and the consequent „Supurdnama' are required to be set aside.

07. Per contra, Mr Rizwan-u-Zaman Bhat, the learned counsel for the private respondents, submitted that the respondent Nos. 6 and 7 never entered into any agreement with the petitioners and never received any consideration amount from them and the whole story has been concocted by the petitioners to continue the litigation. He also submitted that once the petitioners did not prosecute the appeal filed against the mutation bearing No. 327, subsequently they cannot file the writ petition challenging the same. He further argued that the petitioners have not availed the statutory remedy of appeal as provided under Section 7 of the Act of 1997 to assail the order of eviction passed against them by the respondent No.4. He also strenuously argued that the disputed questions of facts have been raised in the petition, as such, the petition deserves to be dismissed.

08. Heard and perused the record.

09. The mutation No.327 attested in respect of land measuring 24 Kanals and 05 Marlas comprising different survey numbers situated at village Moomin Hall, Tehsil and District Anantnag sanctioning resumption of the same in favour of respondent Nos. 6 and 7 has been primarily assailed by the petitioners. It is an admitted fact that the petitioners assailed the mutation before the Joint Commissioner, Agrarian Reforms, Kashmir, Srinagar and the said appeal was dismissed for non-prosecution. The cause projected for the dismissal of the said appeal is that negotiations continued between the petitioners and ex-owners through their attorney for settling the dispute and finally the same was settled that led to execution of agreement dated 1st of January, 1987 between the respondent Nos. 6 and 7 through their attorney and the petitioners. The respondent Nos. 6 and 7 have categorically denied the execution of the said agreement and receipt of any amount by them. Whether the agreement was executed or not and the payment was made or not, are the disputed questions of facts, which cannot be adjudicated in the present proceedings. In „Shubhas Jain v. Rajeshwari OWP No. 287/2012

Shivam & Ors. 2021 SCC Online SC 562, it has been held that it is well settled that the High Court exercising its extraordinary writ jurisdiction under Article 226 of the constitution of India, does not adjudicate hotly disputed questions of facts.

10. Be that as it may, the petitioners did not avail any remedy for reviving of the appeal filed by them that was dismissed for non-prosecution, though they subsequently filed a suit before the Joint Commissioner, Agrarian Reforms, Anantnag for declaration of the private agreement as an agreement in terms of Section 12-A of the J&K Agrarian Reforms Act, 1976. Once the statutory remedy was not prosecuted or taken to its logical conclusion, this Court is of the considered view that the Writ Petition challenging the mutation is not maintainable, more particularly when disputed questions of facts have been raised by the petitioners in the petition. Whether the respondent Nos. 6 and 7 had sold or voluntarily transferred any land prior to the order of resumption is also a question of fact and this also cannot be decided by this Court, being a disputed question of fact in view of the categoric stand of the respondent Nos. 6 and 7 that they never sold the land or executed any agreement and the „Jamabandi' (Annexure-B), relied upon by the petitioners, does not reveal as to when the land was alienated. This issue, too, was required to be considered before the appellate authority and once, as already observed by this Court hereinabove that the statutory remedy was not taken to its logical conclusion by the petitioners, this issue cannot be raised by the petitioners in a Writ Petition for assailing the mutation. In 'Radha Krishan Industries versus State of Himachal Pardesh' 2021 SCC OnLine SC 334, the Hon‟ble Apex Court has laid down the principles for the purpose of exercising writ jurisdiction in the presence of alternative remedy. The Hon‟ble Supreme Court has observed:

"28. The principles of law which emerge are that: (i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well; (ii) The High Court has the discretion not to entertain a writ petition. One of the OWP No. 287/2012

restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person; (iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged; (iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law; (v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and (vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with."

11. It was also urged by the petitioners that the respondent Nos. 6 and 7, after resumption of the land, did not cultivate the land physically within the period of six months as they never assumed the residence in the village within six months of the order of resumption, so the order of resumption is required to be quashed, more particularly when in the agreement to sell and attorney, the respondent Nos. 6 and 7 have shown themselves to be the residents of Habba Kadal, Srinagar. The respondent No.4, i.e., the District Magistrate, has filed reply that the suit land was physically resumed and recorded in the name of land owners two years prior to their migration from the Valley in 1990 and more so, the agreement to sell and attorney relied upon by the petitioners to demonstrate the residence of the respondent Nos. 6 and 7 as Habba Kadal, Srinagar, are of July, 2011, whereas, the mutation was attested in the year 1985. This is also a disputed question of fact. The petitioners have also filed the suit that is pending before the Joint Commissioner Agrarian Reforms, wherein they have raised the similar issue, as such, this Court is of the considered view that the petitioners cannot maintain the Writ Petition for challenging the OWP No. 287/2012

mutation, particularly when they availed the statutory remedy and did not pursue the the same to its logical conclusion.

12. The petitioners have also prayed for the quashing of the order dated 14th of September, 2011 and the „Supurdnama' dated 28th of January, 2012. The order dated 14th of September, 2011 was passed by the District Magistrate in exercise of power under Section 5 of the Act of 1997 and the said order is appealable. The remedy of appeal has been provided under the Act and the said remedy has not been availed by the petitioners. Once the statutory remedy was not availed by the petitioners, the petitioners cannot maintain writ petition for the purpose of challenging the order passed under section 5 of the Act of 1997.

13. In view of what has been said and discussed hereinabove, this Court is of the considered view that the Writ Petition filed by the petitioners is misconceived and is an abuse of process of law, therefore, deserves to be dismissed. Ordered accordingly. Interim direction(s), if any, subsisting as on date, shall stand vacated.

(Rajnesh Oswal) Judge SRINAGAR 10th August,2023 "TAHIR"

              Whether the Judgment is reportable?                  Yes/ No.