Jammu & Kashmir High Court
Zafar-Ullah Krypak vs The Union Territory Of Jammu And Kashmir on 20 July, 2024
Author: Rahul Bharti
Bench: Rahul Bharti
Serial No. 05
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Case:- WP(C) No. 2200/2022
CM No. 5942/2022
Zafar-Ullah Krypak, age 80 years son of late
Mohd. Aqil resident of Doda Tehsil and District
Doda. .....Petitioner(s)
Through: Mr. S. M. Choudhary, Advocate.
Vs
1. The Union Territory of Jammu and Kashmir
through Commissioner/Secretary,
Department of Revenue, Civil Secretariat,
Srinagar/Jammu.
2. The Additional Deputy Commissioner (with
the powers of Commissioner Agrarian
Reforms), Bhaderwah, District Doda.
3. The Tehsildar Bhaderwah, District Doda.
4. Sauda Begum wife of late Ghulam Nabi.
5. Irshad Ahmed.
6. Mukhtar Ahmed.
7. Attar Ahmed.
8. Mohd. Qasim, sons of late Ghulam Nabi.
9. Saima Ruqaiya.
10.Seema Ruqaiya daughters of late Ghulam
Nabi,
11.Kulsum Begum wife of late Jan Mohd.
12.Rashid Ahmed minor son of late Jan Mohd.
through his mother Kulsum Begum.
All resident of village Chakka, (Dandi) ..... Respondent(s)
Tehsil Bhaderwah, District Doda.
Through: Mrs. Monika Kohli, Sr. AAG for R-1 to 3
Mr. Ajaz Iqbal, Advocate for R-4 to 12.
Coram: HON'BLE MR. JUSTICE RAHUL BHARTI, JUDGE
ORDER
(20.07.2024)
1. Heard learned counsel for the parties.
2. The respondents No. 4 to 10 are the successors-in-interest (legal representatives) of one Ghulab Nabi, S/o Abdullah. Said Ghulab Nabi joined by 2 WP(C) No. 2200/2022 the respondent No. 11-Kulsum Begam and the respondent No. 12-Rashid Ahmed came to file an appeal under the provisions of the Agrarian Reforms Act, 1976 assailing khasra girdawari entries of kharif 1971 with respect to land measuring 7.8 kanals in khasra No. 261 of village Chakka, tehsil Bhaderwah, district Doda recording the nature of land to be an orchard. In the said appeal, the petitioner herein figured as a sole respondent.
3. The appeal was originally submitted before the Additional Deputy Commissioner (with the Powers of Commissioner Agrarian Reforms), Doda on file No. 893/CARD dated 23.07.2009 but later on, it came to be transferred to the Additional Deputy Commissioner (with the Powers of Commissioner Agrarian Reforms), Bhaderwah on file No. 12/RA bearing date of institution 18.01.2019.
4. Said appeal came to be decided by the Additional Deputy Commissioner (with the Powers of Commissioner Agrarian Reforms), Bhaderwah by virtue of an order dated 04.08.2022.
5. The appellate authority of the Additional Deputy Commissioner (with the Powers of Commissioner Agrarian Reforms), Bhaderwah came up with a purported finding that there was obtaining no orchard to be recorded as such in 1971 khasra girdawari record and that the petitioner herein, as respondent in the appeal, had neither acquired any personal cultivation nor adopted any residence in the village for the purpose of seeking resumption of the land under section 7 of the Agrarian Reforms Act, 1976 whereas father of the appellant No. 1- Ghulam Nabi was entered as a protected tenant qua the land in reference from 3 WP(C) No. 2200/2022 the year 1961 to 1968 who was continuously cultivating the land in reference on spot.
6. Thus, the appellate authority of the Additional Deputy Commissioner (with the Powers of Commissioner Agrarian Reforms), Bhaderwah literally censured the 1971 khasra girdawari entry which came to be questioned by the appellants obtaining in favour of the respondent/petitioner herein and remanded the matter to the Tehsildar Bhaderwah for correction of the girdawari after verifying the record and to proceed under the Agrarian Reforms Act, 1976.Thus, the entry challenged in the appeal by three appellants came to be upset and matter remanded.
7. In the memo of appeal, it came to be pleaded that the entry in favour of the petitioner with respect to 1971 was manipulated at the back of the appellants and, therefore there was no bar of limitation with respect to the right of the appellants to come in the appeal against the khasra girdawari entry.
8. Agrarian Reforms Act, 1976 when it provides an appellate remedy under section 21, then it means that an appeal is to be preferred against an order passed on the original side proceedings under the regime of Agrarian Reforms Act, 1976 by the agrarian reforms authorities/officials constituted under the very said Act.
9. In the present case, there was no such order be it by a Collector or a Revenue Officer of a class more than that of a Collector so as to give right to appeal in favour of the said three appellants to approach the Commissioner Agrarian Reforms with an appeal under section 21(1) of the Agrarian Reforms 4 WP(C) No. 2200/2022 Act, 1976 and this aspect was least bothered to be checked by the Additional Deputy Commissioner (with the Powers of Commissioner Agrarian Reforms), Bhaderwah who literally acted as a reviewing/revisional authority with respect to the 1971 entry its validity and legality. If such like review authority is to be conceded to an appellate authority under the Agrarian Reforms Act, 1976 then that would mean that at any given point of time and for all times to come so long as the Agrarian Reforms Act, 1976 stays on statute book then any person aggrieved by an entry of 1971 can find door open for coming up with an appeal in terms of section 21(1) of the Agrarian Reforms Act, 1976 and get the indulgence of the appellate authority. This would be nothing but short of opening up a pandora box without any legal sanction and this is what the Additional Deputy Commissioner (with the Powers of Commissioner Agrarian Reforms), Bhaderwah came to do.
10. Section 21(1) of the Agrarian Reforms Act, 1976 conceives of a final order by a Collector or order of a Revenue Officer below the rank of a Collector to be an appealable one. Word "Order" in the sense of being an appealable one conceives of a proceedings initiated by a party under the regime of Agrarian Reforms Act, 1976 agitating any point of fact or law in the context of his/her rights qua the land covered by the Agrarian Reforms Act, 1976 and then passing of an order by the authority/official approached and then rendering such an order appealable as a matter of remedy under the Agrarian Reforms Act, 1976.
11. Section 19 of the Agrarian Reforms Act, 1976 relates with the powers of the revenue officers by whom any function is to be discharged or any power is to be exercised as specified by or under the Agrarian Reforms Act, 1976 and 5 WP(C) No. 2200/2022 to that extent the Government is empowered by way of notification to determine the functions to be discharged or powers to be exercised under the Agrarian Reforms Act, 1976 by any given class of revenue officer.
12. In the context of the present case, the Government Order No. Rev.(LB) 133 of 1989 dated 26.05.1989 provides that correction of the girdawari entries of kharif 1971 in genuine cases alone shall be made by the an Assistant Commissioner that too after a proper enquiry and in no case such a correction to be made by the Tehsildar or the Naib Tehsildar henceforth.
13. This order further envisages a ceiling period for coming forward for seeking correction of khasra girdawari entry of 1971. Said Govt. Order is obtaining on the file No. 12/RA of the present case which was summoned by this Court, in terms of an order dated 19.04.2024.
14. This Court is not aware as to whether the Government has subsequently come up with any subsequent order in supersession or in modification qua said Govt. Order be but the fact remains that correction of the girdawari entry is to be sought by a purported aggrieved person by approaching the original authority i.e. Assistant Commissioner and thereafter, any order as may come to be passed by the Assistant Commissioner so authorized can become subject matter of an appeal under Section 21(1) of the Agrarian Reforms Act, 1976.
15. In the present case, it has happened contrary wise when the cart was put before the horse by the appellate authority of Additional Deputy Commissioner (with the Powers of Commissioner Agrarian Reforms), 6 WP(C) No. 2200/2022 Bhaderwah by assuming the functions of the Assistant Commissioner in terms of the Government Order No. Rev.(LB) 133 of 1989 dated 26.05.1989 while adjudicating an appeal and further over reaching the said Government Order by remanding the matter to the Tehsildar Bhaderwah who in terms of the Government Order is nobody to deal with the correction of khasra girdawari entries of 1971 with respect to any given land covered under the Agrarian Reforms Act, 1976.
16. In addition to the Govt. Order aforementioned, Rule 4 of the Agrarian Reforms Rules envisages settlement of disputes related to girdawari entries and also nominates the agrarian authority competent to deal with such disputes which definitely in the present case is not the Additional Deputy Commissioner (with the Powers of Commissioner Agrarian Reforms), Bhaderwah and that itself renders the appeal so filed by said three appellants not maintainable and the jurisdiction of the Additional Deputy Commissioner (with the Powers of Commissioner Agrarian Reforms), Bhaderwah as non existing.
17. In view of the aforesaid, the impugned order dated 04.08.2022 on file No. 12/RA passed by the Additional Deputy Commissioner (with the Powers of Commissioner Agrarian Reforms), Bhaderwah is set aside and the appeal filed by the appellant No. 1-Ghulam Nabi (now deceased) is also dismissed. The legal representatives of the appellant No. 1-Ghulam Nabi as well as the co appellants i.e. the respondents No. 11 & 12 herein are well within their right to invoke the appropriate remedy, if available, under the Agrarian Reforms Act, 1976 in the light of the Rule 4 of the Agrarian Reforms Rules as well as Government Order referred herein before and seek the settlement of the purported grievance 7 WP(C) No. 2200/2022 through that mode only. Revenue khasra girdawari entries of 1971 which came to be questioned are hereby restored.
18. Nothing observed herein shall be taken to be reflection/observation on the merits and demerits of the case of either side.
19. Disposed of.
(RAHUL BHARTI) JUDGE JAMMU 20.07.2024 Shivalee Whether the order is speaking :Yes/No Whether the order is reportable: Yes/No Shivalee Khajuria 2024.07.26 13:00 I attest to the accuracy and integrity of this document