Jammu & Kashmir High Court
High Court Of Jammu & Kashmir And Ladakh vs Ut Of J&K Th on 28 October, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C ) No. 853/2023
.....Petitioner(s)
1 Baljeet Kour wife of late
S. Jaspinder Singh
2. Tasvinder Kour daughter of
S. Jaspinder Singh.
3. Suman Preet Kour daughter of
late S. Jaspinder Singh.
4. Charan Preet Kour daughter of
late S. Jaspinder Singh.
5. Tanjeet Kour daughter of late
S. Jaspinder Singh, all residents of
House No. 16-B Sector 14 Nanak
Nagar Jammu
Through: Mr.Rajinder Jamwal Advocate
Vs
1. UT of J&K th ..... Respondent(s)
Commissioner/Secretary Department
of Revenue
2. Deputy Commissioner Jammu
3. Sub Divisional Magistrate Jammu
North
4. Tehsildar Jammu North, Jammu
5. Ashok Kumar son of Sh. Kali
Dass
6. Ganesh son of late Kali Dass
7. Romesh Kumar son of late Sh.
Kali Dass
8. Jagat Ram son of late Sh. Guchhu
Ram
9. Vijay Kumar son of late Sh. Bansi
Lal
10. Arjun son of late Sh. Bansi Lal
all residents of Gajay Singh Pura
Machhlian, Nagbani Jammu.
Through: Ms Aparna Gupta Advocate
vice
Ms Monika Kohli Sr. AAG for
R-1 to 4.
Mr. Ajaz Chowdhary
Advocate for R 5 to 10.
2
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT(ORAL)
1 The original petitioner, namely S. Jaspinder Singh, through the
medium of present petition, has challenged order dated 10.12.2022 passed
by the Sub-Divisional Magistrate, Jammu North with the powers of
Collector under J&K Land Revenue Act/Agrarian Reforms Act
(hereinafter referred to as 'the Collector'). During pendency of the writ
petition, the original petitioner passed away and in his place, his legal
heirs were brought on record.
2 As per the case of the petitioners, their predecessors-in-interest
were displaced persons of POJK and allotment of a parcel of land situated
at village Gajey Singh Pura Tehsil and District Jammu was made in their
favour. It has been contended that, out of the total allotted land, land
measuring 19 kanals, 13 marlas comprised in khasras No.206/2, 208/3 and
203/1 came to be mutated under Sections 4 and 8 of J&K Agrarian
Reforms Act in favour of one Guchhu, the predecessor-in-interest of the
private respondents by virtue of mutations No.154 and 234. The said
mutation orders came to be challenged by the predecessors-in-interest of
the petitioners before the Joint Agrarian Reforms Commissioner, with the
powers of Commissioner Agrarian Reforms, Jammu. Vide order dated
15.04.2005 passed by the Commissioner, Agrarian Reforms, Jammu,
mutations No. 154 and 234 were set aside and the matter was remanded to
the Tehsildar, Jammu with a direction to hold a fresh enquiry.
3 It seems that order dated 15.04.2005 passed by the Commissioner
Agrarian Reforms, Jammu was challenged by the private respondents by
way of a revision petition before Jammu and Kashmir Special Tribunal
(hereinafter referred to as the 'Tribunal'). The learned Tribunal upheld the
order of the Commissioner Agrarian Reforms, Jammu to the extent of
setting aside of mutations attested under Sections 4 and 8 of the J&K
Agrarian Reforms Act in respect of land measuring 16 kanals situated at
village Gajey Singh Pura, Tehsil and District Jammu. The observation of
the Joint Commissioner, Agrarian Reforms, Jammu that land in dispute is
State land, was quashed and the Tehsildar, Jammu was directed to hold a
de novo enquiry.
4 The judgment of learned Tribunal dated 04.01.2006 attained
finality and the Tehsildar Agrarian Reforms, Jammu disposed of the
remand proceedings in terms of order dated 05.09.2013 by holding that the
land in question is State land and, as such, beyond the purview of J&K
Agrarian Reforms Act.
5 Order dated 05.09.2013, passed by the Tehsildar Agrarian
Reforms, Jammu was challenged by the private respondents by way of an
appeal before the Additional Deputy Commissioner with powers of
Commissioner Agrarian Reforms, Jammu, who, vide order dated
20.10.2021 allowed the appeal and set aside order dated 05.09.2013
passed by the Tehsildar and remanded the case to SDM Jammu North for
de novo enquiry.
6 The aforesaid Authority, after holding the requisite enquiry,
passed the impugned order dated 10.12.2022 in terms whereof, while
setting aside mutation orders No. 154 and 234, the private respondents
have been held eligible to allotment of subject land in terms of
Government order No. S-432 of 1966.
7 The main contention of the petitioners for challenging the
impugned order is that the Collector has exceeded his brief by making an
observation that the private respondents are eligible for
ownership/allotment of land as per Government Order No. S-432 of 1966.
It has been contended that the Collector was only required to determine
the legality of order dated 05.09.2013 passed by the Tehsildar Jammu and
once he had come to a conclusion that the said order is in accordance with
law, there was no occasion for the Collector to record findings in respect
of a matter which was not in issue before him. It has also been contended
that the SDM, while passing the impugned order has not adhered to the
directions passed by the Additional Deputy Commissioner vide order
dated 20.10.2021.
8 The private respondents in their reply to the writ petition have
contended that no land was allotted in favour of the predecessors-in-
interest of the petitioners at village Gajey Singh Pura. It has been
contended that the land, which was allotted to the predecessors-in-interest
of the petitioners is located in villages Rakh Nagbani and Machhlian
regarding which the predecessors-in-interest of the petitioners had
engaged Guchhu, the predecessor-in-interest of the private respondents as
a hired labourer. According to the private respondents, this fact has been
intentionally suppressed by the petitioners. It has been further contended
that the predecessor-in-interest of the private respondents, namely Guchhu
and his successors have consistently been in cultivating possession of the
land in question and, as such, they are entitled to allotment of the said land
in their favour. It has been contended that the Collector (SDM), while
passing the impugned order, was justified in entertaining the claim of the
private respondents as the petitioners have no right over the land in
question. It has also been submitted that the present petitioners, as per
their own showing, are not in possession of the land in question and it is
for this reason that they have sought relief for the retrieval of possession
of the land in question in their writ petition..
9 I have heard learned counsel for the parties and perused record
of the case.
10 It is clear from the pleadings of the parties that the dispute
between them relates to attestation of mutation No. 154 dated 26.12.1980
under Section 4 of the Agrarian Reforms Act in favour of Guchhu, the
predecessor-in-interest of the private respondents and Mutation No. 234
dated 10.04.1993 attested in his favour under Section 8 of the Agrarian
Reforms Act. In the first round of litigation between the parties, the
aforesaid mutation orders were set aside initially by the Commissioner
Agrarian Reforms, Jammu vide order dated 15.04.2005 and the said order
came to be upheld by the learned Tribunal in a revision petition. The
matter was remanded to the concerned Tehsildar for de novo enquiry after
setting aside of the aforesaid mutation orders. The Tehsildar, in terms of
order dated 05.09.2013, concluded that the mutations attested under
Section 4 and 8 in favour of Guchhu, the predecessor-in- interest of the
private respondents are not correct and that the same are nullity in the eyes
of law because no mutation under Sections 4 and 8 of the Agrarian
Reforms Act can be attested in respect of State land. The said order passed
by the Tehsildar was challenged by the private respondents by way of an
appeal before Additional Deputy Commissioner with the powers of
Commissioner Agrarian Reforms, Jammu who, vide order dated
20.10.2021 set aside order added 05.09.2013 passed by the Tehsildar,
Jammu and remanded the matter to SDM, Jammu North/Collector with a
direction to him to conduct de novo enquiry on the following issues:
(i) To examine the entire record i.e Record of Rights and
Jamabandi of Village Gajay Singh Pura, Tehsil Jammu and to
verify and cross check the entries made in the column No.3
and 4 of the mutation order numbers 154 and 234 of village
Gajay Singh Pura and found that if there is any discrepancy
and mismatch.
(ii) Ascertain the reasons and the circumstance under which the
Part Sarkar of Mutaiton No. 154 of village Gajay Singh Pura
dated 26.12.1980 was lost/missing and fix the responsibility
of official in the loss/misplacement of Part Sarkar of the said
mutation.
(iii)Crosscheck the record of the subject land in the office of
Custodian General J&K and find out the status of the land as
per the record position available in the Custodian General
Office.
(iv) Sub-Divisional Magistrate, Jammu North to organize an
enquiry camp at the village Gajay Singh Pura, Tehsil Jammu
with minimum of 50 prominent citizens as also Lambardar
and Chowkidar of village and record their statements to
ascertain the actual status of Sh. Guchhan, status of Kirpal
Singh and also their legal heirs upon the subject land to clear
the confusion.
(v) Sub-Divisional Magistrate, Jammu North to prepare a chart of
the status of the occupation of the subject land during the last
50 years and ascertain the present occupation status of the
subject land as to who has remained in the occupation of the
subject land especially during the crucial period of Kharief
1971.
(vi) Sub Divisional Magistrate, Jammu North while conducting
enquiry shall also ascertain as to who was in cultivating
possession of the subject land during the year 1980, 1981,
1982 and also to verify as to whether Guchhan was
cultivating the land as a hired labourer of Sh. Kirpal Singh or
he was cultivating the land in some other capacity and what
was the need of signing an agreement on his behalf in favour
of Kirpal Singh on 11.07.1981 immediately after attestation
of mutation under Section 4 on the Act on 26.12.1980.
(vii) Sub Divisional Magistrate, Jammu North while
conducting the spot enquiry shall hear properly and afford
reasonable opportunity of being heard to the both the parties,
their legal heirs as also representatives/management of Sh.
Maharaja Hari Singh Collegiate Nagbani and pass fresh and
appropriate orders strictly accordance with the provisions of
Jammu and Kashmir Agrarian Reforms Act, 1976,
observations of the JK&K Special Tribunal, Joint
Commissioner, J&K Agrarian Reforms within a period of 02
months of date of receipt of this order by the SDM.
11 From a perusal of the aforesaid order, it is clear that the
mandate of SDM, Jammu North was to conduct an enquiry on the
aforesaid issues. The SDM, Jammu North (Collector), in terms of the
impugned order, while giving his findings on the issues formulated by the
Commissioner Agrarian Reforms/Appellate Authority has come to the
conclusion that the order setting aside mutation Nos. 154 and 234 attested
under Sections 4 and 8 of the Agrarian Reforms Act in favour of Guchhu
is in accordance with law, but has proceeded to hold that the private
respondents are eligible for ownership/allotment of land as per
Government Order No. S-432 of 1966.
12 The Appellate Authority had nowhere asked the Collector to go
into the question as to whether the private respondents are entitled to
allotment of land in question. The Collector was only required to go into
the question of occupation in respect of the land in question and also with
regard to the legality and validity of mutations No. 154 and 234 of village
Gajey Singh Pura. The issue, whether occupation of land by the private
respondents would entitle them to allotment of the said land under any
provision of law or order, was not subject matter of discussion and
deliberation before the Collector. The observation of the Collector, that the
private respondents are entitled to allotment of land in question in terms of
Government Order No. S-432 of 1966 is, therefore, not tenable in law. If
at all, the continuous possession of the private respondents over the land in
question has given rise to any right of allotment in their favour under any
law, it is for them to approach the competent Authority for the said
purpose, but they cannot be conferred the allotment rights over the land in
question in a proceeding where the said issue was not the subject matter of
adjudication before the Collector.
13 Apart from the above, the Collector(SDM), in terms of order of
remand dated 20.10.2021 passed by the Additional Deputy Commissioner,
was required to examine the record of rights/Jamabandi of village Gajay
Singh Pura to crosscheck the entries made in columns No. 3 and 4 of
mutation Nos. 154 and 234 of said village, ascertain the reason for
misplacement of Parat Sarkar of Mutation No. 154 and to crosscheck the
record of subject land in the office of Custodian General to find the status
of the land in question. The Collector(SDM), without conducting the
aforesaid exercise, has proceeded to arrive at conclusion about the status
of land in question, thereby ignoring the direction of the Additional
Deputy Commissioner. On this ground also, the impugned order passed by
the Collector (SDM) is not sustainable in law.
14 For the foregoing reasons, the writ petition is allowed and the
findings and observations made by the Collector (SDM) in the impugned
order regarding status of the land in question as also the observation that
the private respondents are eligible for ownership/allotment of the land in
question in terms of Government Order No. S-432 of 1996 are set aside.
The Collector (SDM North) Jammu is directed to hold a fresh enquiry into
the matter, strictly in accordance with the directions passed by the
Additional Deputy Commissioner (Commissioner Agrarian Reforms),
Jammu extended vide order dated 20.10.2021 and pass a fresh order
within a period of two months from the date a copy of this order is made
available to the said Authority.
(SANJAY DHAR)
JUDGE
Jammu
28.10.2024
Sanjeev
Whether approved for reporting? Yes/No
