Reserved On : 06.02.2024 vs J&K Special Tribunal
2024 Latest Caselaw 109 j&K

Jammu & Kashmir High Court

Reserved On : 06.02.2024 vs J&K Special Tribunal on 9 February, 2024

Author: Sanjeev Kumar

Bench: Sanjeev Kumar

                                      1.2 5




    IN HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                       AT JSMMU


                                               OWP No. 1036/2003


                                               Reserved on : 06.02.2024
                                               Pronounced on: 09.02.2024

Madan Singh son of Sh. Rakha Singh
resident of village Devipur, Tehsil
AKhnoor, District Jammu


                                                        .....petitioner(s)

                        Through :- Mr D.R.Khajuria Advocate
                                   Mr. Abdul Qatar Khan Advocate

               V/s

1 J&K Special Tribunal, Jammu                         .....Respondent(s)
2. Commissioner, Agrarian Reforms,
Jammu
3. Tehsildar, Akhnoor
4. Booti Ram son of Sh Sadru resident of
Devipur, Tehsil Akhnoor
5. Bido Devi daughter of Sh. Sadru
resident of Muthi.
6. Giano Devi daughter of Sadru wd/o Bari
Ram resident of Nadd, Nai Basti, Akhnoor
7. Parkash 8. Rishi 9. Simru sons of
Churah residents of Nadd Nai Basti
Akhnoor
10 Jeeta son of Churah resident of Muthi
Sons of Mst Ambo Devi daughter of Sadru
Ram
11 Kapooro Devi daughter of Ambo Devi
wife of Mani Ram resident of Nadd, Tehsil
Akhnoor 12. Garo Devi daughter of Ambo
Devi wife of Bishan Lal resident of Purkhu
Garhi, Jammu
13. Rattano Devi daughter of Ambo Devi
wife of Prakash resident of Chak Kirpalpur
Tehsil Akhnoor
14. Chaman Lal son of Malla Ram grand
son of Ambo Devi resident of Muthi
Tehsil Akhnoor
                         Through :- None

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
                                     2




                          JUDGMENT

1 The petitioner calls in question an order dated 05.05.2003

['the impugned order]' passed by the J&K Special Tribunal, Jammu ['the

Tribunal'] in a revision petition titled 'Booti Ram and others vs. Madan

Singh' whereby the Tribunal has accepted the revision petition filed by

respondents No. 4 to 14 herein ['the private respondents'] and set aside an

order dated 21.12.1998 passed by the Commissioner, Agrarian Reforms

(ADC), Jammu.

2 The impugned order is assailed by the petitioner on multiple

grounds. However, before adverting to the ground of challenge urged by

Mr. D.R.Khajuria learned counsel appearing for the petitioner, it is

necessary to set out few facts as are gatherable from the material on record.

3 One Sadru, father of respondent No.4 and some other private

respondents was a tiller in the land measuring 12 kanals, 15 marlas under

khasra No. 76 in village Devipur ['the subject land'] in kharif, 1971. Since

the owner of the subject land was not in personal cultivation during kharif

1971, as such, by operation of Section 4 of the J&K Agrarian Reforms Act,

1976 ['the 1976, Act'], the land vested in the State and Mr. Sadru was

declared as prospective owner. Accordingly, mutation No. 311 dated

25.12.1981 under Section 4 of the 1976 Act came to be attested in this

regard.

4 Mr. Sadru reportedly died in the year 1984. Respondent No.4,

the son of late Sadru along with his sisters came to be conferred ownership

rights under Section 8 of the 1976, Act. Accordingly, mutation No. 405

dated 27.02.1990 came to be attested in favour of all the legal heirs of

Sadru i.e son and daughters in equal shares. Respondent No.4 entered into

an agreement to sell 4 kanals and 06 marlas of land ['land in question']out

of the subject land in favour of the writ petitioner and reportedly executed

two Agreements to Sell on 21.12.1989 and 08.02.1990 respectively.

Simultaneously, respondent No.4 also executed a Lease Deed in respect of

land in question letting out the said land to the petitioner for 99 years after

receiving the entire sale consideration. The petitioner claims that he was

also put in possession of the land simultaneously with the execution of the

lease deed.

5 Mutation dated 27.02.1990 attested under Section 8 of the 1976,

Act by the Tehsildar Akhnoor and an order dated 14.12.1995 holding the

girdwari entries made in the name of the petitioner as meaningless were

challenged by the petitioner in two appeals filed before the Commissioner,

Agrarian Reforms, Jammu ['the appellate Authority']. The appeals were

accepted and both the impugned orders were set aside by the Appellate

Authority vide its order dated 26.08.1997. The matter was remanded to the

Tehsildar Akhnoor for de novo enquiry and passing fresh orders.

6 On remand, the Tehsildar passed an order on 18.10.1997

upholding mutation No. 405 dated 27.02.1990 (mutation under Section 8

of the 1976, Act) upholding conferment of proprietary rights upon

respondent No.4 and his three sisters. The Tehsildar issued another order

on 10.12.1997 directing restoration of possession of the land from the

petitioner to the respondent No.4. Both these orders were called in question

by the petitioner before the Commissioner, Agrarian Reforms, Jammu by

filing two separate appeals. Vide order dated 21.12.1998, the

Commissioner decided both the appeals holding respondent No.4 having

transferred possession of land by executing three agreements for

consideration violative of the 1976, Act. The land was held to have been

escheated to the State under Section 28-A(2) of 1976 Act.

7 Feeling aggrieved, respondent No.4 filed a revision petition

before the Tribunal in which the petitioner raised an argument that he was a

bona fide purchaser of land for consideration and, therefore, could not have

been ordered to be evicted by the Commissioner, Agrarian Reforms. The

single revision petition filed against the composite order dated 21.12.1998

passed by the Commissioner, Agrarian Reforms was disposed by the

Tribunal ['the Revisional Authority'] vide order impugned dated

05.05.2003 whereby the revision petition filed by respondent No.4 and his

sisters was accepted and the impugned order dated 21.12.1998 passed by

the Commissioner, Agrarian Reforms was set aside. The Revisional

Authority also provided that the position as was existing at the time of

attestation of mutation under Section 8 of the 1976 Act shall be restored

and all subsequent proceedings shall be set at naught. It is this order which

is called in question in this petition.

8 Hearing heard learned counsel for the parties and perused the

material on record, I am of the considered opinion that the petitioner has

failed to make out any case for interference with the well reasoned

judgment passed by the Tribunal.

9 The facts are not much in dispute. The predecessor of the

private respondents was admittedly a tiller in respect of the subject land in

kharif 1971. Since the original owners were not in personal cultivation in

kharif 1971, as such, by operation of Section 4 of the 1976 Act, the subject

land was to vest in the State. Accordingly, the Tehsildar Akhnoor vide its

order dated 25.12.1981 attested mutation under Section 4 of the 1976 Act

and vested the entire land in State. Sadru, the tiller, was declared as

prospective owner. Before a mutation under Section 8 could be attested,

Sadru died in the year 1984. He was survived by respondent No.4 and three

daughters. The Tehsildar Akhnoor vide mutation No. 405 attested on

27.02.1990 conferred ownership rights in the subject land on respondent

No.4 and her three sisters, namely Ambo Devi, Bido Devi and Gyano Devi

under Section 8 of the 1976 Act.

10 It appears that before attestation of Section 8 mutation,

respondent No.4 had entered into an agreement to sell a part of the subject

land in favour of the petitioner. He executed two Agreements to Sell and a

Lease deed for a period of 99 years in favour of the petitioner and

consequently, the petitioner entered into possession of a part of the subject

land measuring 4 kanals and 06 marlas for a period of 99 years.

Respondent No.4 and his sisters feeling aggrieved of an entry of cultivation

made in favour of the petitioner filed an application under Section 27 of the

1976 Act before the Tehsidlar, Agrarian Reforms Akhnoor. The application

was allowed on 14.12.1995 and the impugned girdwari entry was set aside

and the eviction of the petitioner was ordered from the land in question.

11 On 18.10.1997, fresh mutation order No. 405 (shamil intekal)

was made to give effect to the aforesaid order of the Tehsildar. This was

challenged by the petitioner by filing two appeals. Both the appeals were

accepted and the mutations impugned were set aside. The matter was

remanded to the Tehsildar Akhnoor for de novo enquiry. It is also not in

dispute that on de novo enquiry conducted pursuant to the remand order,

the Tehsildar upheld the earlier mutation i.e mutation No. 405 attested

under Section 8 on 14.12.1995. The Commissioner Agrarian Reforms also

did not find fault with the order of Tehsildar dated 10.12.1997, but

concluded that by selling the land to the petitioner herein, respondent No.4

had committed contravention of Section 28-A of the 1976 Act and,

therefore, the land was liable to be escheated to the State. This brought the

private respondents herein before the Tribunal by way of a revision petition

titled 'Booti Ram and others vs Madan Singh'.

12 The Tribunal concurred with the view of the Commissioner,

Agrarian Reforms that in so far as challenge to mutation under Section 8

was concerned, the petitioner had no locus standi to challenge the said

mutation. The Commissioner, however, held that since title of land in

question had not passed to the petitioner by virtue of agreement to sell, as

such, there was no justification to proceed against the private respondents

herein under Section 28-A(2) of the 1976 Act and escheat the land to

State.

13 I have given my thoughtful consideration to the arguments

made by Mr. Khajuria, learned counsel appearing for the petitioner. The

petitioner was not in picture at any point of time, either at the time of

attestation of the mutation under Section 4 or attestation of mutation under

Section 8 of the 1976 Act. The grievance of the petitioner that mutation

under Section 8 of the 1976 Act could not have been attested in favour of

the daughters of deceased tiller, is an argument which is not available to

the petitioner. The petitioner is neither a legal heir of the original owners

nor is he, in any manner, related to the deceased tiller Sadru. Whether or

not, the Tehsildar concerned could have attested mutation under section 8

of the 1976 Act in favour of daughters of the deceased tiller is not open to

challenge by the petitioner. If at all, anybody could be aggrieved of

mutation of under section 8 in favour of daughters of the deceased Sadru,

it is respondent No.4, the son of tiller Sadru alone. He has chosen not to

raise any challenge. The petitioner, who has got into cultivating possession

of land in question by virtue of some lease agreement cannot be said to be a

person aggrieved and, therefore, entitled in law to challenge the mutation

under section 8 before the Appellate Authority. The petitioner is not a

person who would stand to gain even an inch of land if the mutation under

section 8 which is attested in favour of respondent No.4 and his three

sisters is set aside and instead the same is attested exclusively in favour of

respondent No.4.

14 Viewed thus, I am in full agreement with the Tribunal that the

petitioner cannot be termed as a 'person aggrieved' who could challenge

the mutation under section 8 of the Act attested in favour of private

respondents. The challenge of the petitioner to the mutation attested under

Section of the 1976, Act has already been turned down by both the Forums

below i.e the Commissioner, Agrarian Reforms and the Tribunal.

15 Insofar as the other aspect of controversy is concerned, the

Commissioner has rightly found that by entering into sale agreements and

lease agreement, respondent No.,4 created a fresh tenancy and put the

petitioner in cultivation of the land in question in contravention of

provisions of Section 28-A of the 1976 Act. The consequences of such

contravention are clearly provided under Section 28 A (2) of the 1976 Act

i.e forfeiture of land to the State. The Commissioner has correctly

appreciated this aspect and has, while upholding the order of Tehsildar

Akhnoor, issued a direction to him to take necessary action so as to vest the

land in question in the State having been escheated under Section 28 A (2)

of the Act. Although, this part of the order passed by the Commissioner

which clearly goes against the petitioner was not challenged by the

petitioner by filing any revision petition, however, the Tribunal, in the

exercise of its revisional jurisdiction, has set aside this part of the order of

the Commissioner also and held that no action was liable to be initiated for

escheating the land in question to the State under Section 28-A of the 1976

Act. The Tribunal has gone absolutely wrong on this aspect.

16 Section 28-A of the 1976 Act reads thus:

"28-A Prohibition on transfer of certain lands:

(1) no person who is vested with ownership rights in land under this Act shall transfer such land or rights therein in any manner whatsoever to any person other than Government of Jammu and Kashmir :

Provided that such owner shall have the right to transfer land in the form of simple mortgage subject to the provisions of the Alienation of Land Act, Samvat 1995 for securing loan for purposes of improvement of the land. :

(2) Any transfer of land or rights therein made in contravention of sub-section (1) shall be null and void. The person who has contravened the provisions of subsection (1) shall after being given an opportunity of being heard, be dispossessed of such land by a Revenue Officer not below the rank of Tehsildar and the land shall vest in the State and shall be disposed of in the manner with the provisions of Section 15".

17 From a reading of subsection (1) of Section 28-A, it is evident

that a person who is vested with ownership rights in land under 1976, Act

is not permitted to transfer such land or rights therein in any manner

whatsoever to any person other than the Government of Jammu and

Kashmir, The transfer of land or rights therein in any manner whatsoever

would obviously include transfer of such land or rights therein by way of a

lease deed. Subsection (2) of Section 28A provides for the consequences of

the contravention. It states that any transfer of land or rights therein made

in contravention of subsection (1) shall be null and void and the person

who has contravened the provisions of subsection (1) shall after being

given an opportunity of being heard, be dispossessed from such land and

the land shall vest in the State.

18 A plain reading of Section 28-A of the 1976 Act would

suggest and make it abundantly clearly that transfer of land vested in a

person under section 8 of the Act, in any manner whatsoever, and by

whatever means, is prohibited. Section 28-A needs to be interpreted and

understood in the light of the object for which the legislation i.e 1976 Act

was brought into force. The 1976 Act, as is apparent from reading of its

preamble, was enacted to provide for transfer of land to tillers thereof

subject to certain conditions as also for better utilization of the land in the

State of Jammu and Kashmir. All land owners, who were not in cultivating

possession of their land in kharif 1971, were divested of their rights and the

land was vested in the State (See: Section 4). While vesting the land in

State under Section 4 of the Act, a way was paved for conferment of rights

on the tillers i.e the tenants who were cultivating the land personally for

and on behalf of the landlords. The idea was to give land to the tillers for

cultivation and making their livelihood and to deprive the owners who did

not require it for personal cultivation. Section 8 mutations were attesting in

favour of such tillers to confer ownership rights qua the land which was

under their personal cultivation in kharief 71 as tillers thereof. It was made

obligatory on such owners to continue to hold the land under personal

cultivation and not to transfer his rights in such land by sale, gift, exchange,

mortgage, will or by any other means, providing further that any transfer of

such rights made after the first day of May, 1973 shall be null and void and

such rights shall vest in the State. So much so, it was also laid down that

no document purporting to effect transfer by a prospective owner of his

rights in land shall be admitted to registration except in respect of transfers

effected by way of a simple mortgage for securing loan to liquidate the

amount of levy payable under the 1976, Act. (See: Section 28).

19 A conjoint reading of Section 28 and 28-A of the 1976 Act as

it stood prior to promulgation of J&K Reorganization Act, 2019, it is

abundantly clear that transfer of the land in question by respondent No.4 by

way of a 99 years' lease to the petitioner and putting him in cultivating

possession thereof was in contravention of Section 28-A of the 1976 Act

and, therefore, the necessary consequence of escheating of the land to the

State was inevitable. The Commissioner Agrarian Reforms had committed

no illegality in upholding the order passed by the Tehsildar Akhnoor and

calling upon the later to evict the petitioner and take charge of the land

having vested in the State. The Tribunal, without any authority of law and

without there being any revision petition directed against such order,

interfered with the order of the Tehsildar and, thus, committed grave

illegality in law.

20 For these reasons as also in view of clear legal position

emerging from various provisions of 1976 Act, the order of the Tribunal

cannot be sustained in entirety. The order passed by the Tribunal insofar as

it pertains to upholding the mutation attested under Section 8 of the 1976,

Act is perfectly legal and is, thus, upheld. However, the view of the

Tribunal that Section 28-A was not attracted in the case is legally

unsustainable and is set aside. However, before I conclude, I deem it

necessary to refer to an argument made by Mr.Khajuria learned counsel for

the petitioner. The argument of Mr. Khajuria is that after coming into force

of Jammu and Kashmir Reorganization Act, 2019, the Government has

retained 1976, Act with certain modifications. In terms of S.O No. 3808 (E)

of 2020 dated 26.10.2020, the Government of India has issued Union

Territory of Jammu and Kashmir Reorganization (Adaption of State

Laws) Fifth Order, 2020. ['Fifth Order, 2020']. It is submitted that as per

aforesaid order, Section 28-A has been substituted and as per the provisions

of Section 28-A of the 1976 Act applicable w.e.f 26.10.2020, transfer of

land, ownership whereof, has been vested in favour of prospective owners

under section 8 after expiry of 15 years from the date such land has been

vested in the State under Section 4 of the Act is not prohibited. The grant of

lease of land under the provisions of Jammu and Kashmir Land Revenue

Act, Samvat, 1996 is also not prohibited. He, therefore, submits that the

land transferred by respondent No.4 in favour of the petitioner after 15

years from the date the said land was vested in the State under section 4

can be saved.

21 Before appreciating the argument made by Mr. Khajuria, it is

necessary to set out Section 28-A as substituted vide Fifth Order, 2020:

"28-A Prohibition on transfer of certain lands.--

(1) Save as otherwise provided in this section, no person who is vested with ownership rights in land under this Act shall transfer such land or rights therein in any manner whatsoever to any person other than Government or its agencies and instrumentalities;

Provided that nothing in this sub-section shall prohibit:

(a) transfer of such land ownership whereof has been vested in a prospective owner under section 8 after the expiry of fifteen years from the date such land has been vested in the State under section 4 of the Act subject to the provisions of sections 133-H, 133-I, 133-J, 133-K and 133-L of the Jammu and Kashmir Land Revenue Act, Samvat, 1996 (Act No. XII of Samvat 1996;

(b) grant of lease of land under the provisions of the Jammu and Kashmir Land Revenue Act, Samvat, 1996 (Act No. XII of Samvat 1996);

(c) entering into Contract Farming under the provisions of Land Revenue Act, Samvat, 1996 (Act No. XII of Samvat 1996);

(d) transfer of land in the form of simple mortgage for securing loan for purposes of improvement of the land.

(2) Any transfer of land or rights therein made in contravention of subsection (1) shall be null and void. The person who has contravened the provisions of sub-section (1) shall after being given an opportunity of being heard, be dispossessed of such land by a Revenue Officer not below the rank of Tehsildar and the land shall vest in the State and shall be disposed of in the manner as may be prescribed."

22 From a reading of Section 28-A as substituted by Fifth Order,

2020, it is evident that with the coming into force of the substituted

provisions i.e w.e.f 26.10.2020, it is competent now to transfer the land by

the prospective owner who was vested its ownership under section 8, after

the expiry of 15 years from the date such land has vested in the State under

section 4 of the Act. It is equally true that under Section 4, the land not

under personal cultivation of the owner in kharif 1971 shall be deemed to

have vested in the State w.e.f 01.05.1973. Admittedly, in the instant case,

the transfer of land in question took place after 15 years of vesting of the

land in the State under section 4 of the 1976 Act. However, the question

that needs determination is whether the provisions of Section 28-A as

substituted by Fifth Order, 2020 can be applied retrospectively to find out

and determine the legality or otherwise of the transactions which have

taken place before its substitution.

23 From a plain reading of substituted Section 28-A, it is crystal

clear that the legislature has not intended to apply it retrospectively so as to

reopen the transactions and the orders passed by the competent Courts and

the Authorities which have since attained finality. It only provides for

transfer of ownership rights conferred upon and vested in prospective

owners under Section 8 of the Act, either by way of sale or lease, provided

such transaction of transfer takes place after 26.10.2020 i.e the date when

section 28-A was substituted in terms of Fifth Order. The Section does not

save or validate the transactions of transfer of property which were illegal

and null and void at the time when these were conducted. Needless to say

that a statutory provision or a legislative enactment shall be deemed to be

prospective, unless it is specifically or by necessary implication made

retrospective. Viewed from any angle, it is not permissible in law to save

the lease deed by virtue of which the petitioner got the cultivating

possession of the land from respondent No.4. Learned counsel appearing

for the petitioner submits that in view of the changed legal position and the

substitution of Section 28-A, the parties are in the process of amicably

settling the matter and there could be a fresh sale deed or lease deed

executed by respondent No. 4 and her sisters in favour of the petitioner. I

do not wish to say anything on this aspect of the matter, for, such option is,

of course, available to the parties.

24 Viewed thus, this petition is disposed of by providing as

under:

(ii) the impugned order of the Tribunal insofar as it upholds the mutation attested in favour of the private respondents under Section 8 of the 1976 Act is upheld ;

(ii) the impugned order of the Tribunal to the extent it holds that section 28-A of the 1976, Act is not attracted to the transfer of land in question and rights thereof by respondent No.4 in favour of the petitioner by way of a lease deed is held bad in law and as a consequence, the land in question shall escheat to the State. The Tehsildar concerned shall take requisite steps to take over possession of the land and dispose of the same in accordance with provisions of Section 15 of the 1976, Act. Resultantly, the order of the Tribunal in respect of non-applicability of Section 28-A to the case of the petitioner is set aside and the view taken by the Commissioner, Agrarian Reforms in this regard is upheld.

25 It is, however, made clear that nothing said hereinabove in the

judgment shall come in the way of the parties to amicably settle the matter

in the wake of substitution of Section 28-A of the 1976 Act by Fifth Order,

2020.

(SANJEEV KUMAR) JUDGE Jammug 09 .02.2024 Sanjeev

Whether the order is speaking : Yes Whether the order is reportable :Yes