Jammu & Kashmir High Court - Srinagar Bench
Azum Affandi & Anr. vs State Of J&K; & Ors. on 26 May, 2017
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
Page 1 of 14
HIGH COURT OF JAMMU & KASHMIR
AT SRINAGAR
OWP No.1005/2015
MP Nos.01/2015 & 01/2017
Date of order:23-05-2017
Azum Affandi & anr. Vs. State of J&K & Ors.
Coram:
Mr. Justice Mohammad Yaqoob Mir, Judge
Appearing counsel:
For the Petitioner(s): Mr. R. A. Jan, Sr. Adv. with Ms. Amani Syed.
For the Respondent(s): Mrs. Moksha Kazmi, AAG vice Mr. M. A.
Rathore, AAG-for R1 to R3.
Mr. Hakim Suhail Ishtiyaq-for R4 to R8. Ms. Jasiya Ali-for R9.
i) Whether to be reported
in Digest/Journal: YES
ii) Whether to be reported
in Press/Media: OPTIONAL
1) Respondents No.4 to 8 had filed a petition for
restitution of mortgaged property i.e. land covered by survey Nos.548, 554, 550, 562. situated at Ichgam under Restitution of Mortgaged Properties Act, 1976, before Assistant Commissioner, Revenue, Budgam.
2) Late Mohammad Akram Afandi, father of petitioner No.1, 2 and respondent No.9, who was then alive and impleaded as non-applicant, had filed the objections projecting therein that the Assistant Commissioner has no jurisdiction to OWP No.1005/2015 MP Nos.01/2015 & 01/2017 Page 2 of 14 hear the matter under the Restitution of Mortgaged Properties Act, 1976. In terms of Section 4 of the said Act, the Collector has to be empowered by the Government as Chairman of Debt Conciliation Board under the Jammu and Kashmir Debtors Relief Act, 1976 or a Judicial Officer not below the rank of Subordinate Judge to act as Tribunal under the Act.
3) In view of the objection to jurisdiction, Collector Agrarian Reforms(Assistant Commissioner Revenue), Budgam, while taking up the matter for consideration on 09.05.2011 has observed that since it is pleaded that the Debt Conciliation Board appointed under the J&K Debtors Relief Act, 1976, is not in place, the petitioners cannot be deprived of justice, therefore, under Section 10 of the Agrarian Reforms Act, 1976, matter can be considered, as such, has directed the petitioners to re-draft the application under Section 10 of Agrarian Reforms Act, 1976 for restitution of mortgaged land.
OWP No.1005/2015 MP Nos.01/2015 & 01/2017 Page 3 of 14
4) Respondents No.4 to 8 (petitioners therein) filed fresh application under Section 10 of the Agrarian Reforms Act seeking restitution of mortgage property i.e. land measuring 4 kanals 2 marlas under survey No.550 situated at Ichgam Budgam. Late Mohammad Akram Afandi, who was then alive, filed objections stating therein that Agrarian Reforms Act, 1976 is not applicable to the land as the same has neither been brought under Section 4, Section 5 or Section 6 of the said Act nor mortgage was subsisting on the date Agrarian Reforms Act came into force, therefore, Collector has no jurisdiction to hear the matter under Agrarian Reforms Act.
5) Collector Agrarian Reforms(Assistant Commissioner Revenue), Budgam, vide order dated 13.11.2013, while recording factual position, has stated that the land measuring 4 kanals and 2 marlas covered by Survey No.550 of estate Ichgam Tehsil Budgam is recorded in the name of petitioners therein (respondents No.4 to 8 herein) which was mortgaged in favour of OWP No.1005/2015 MP Nos.01/2015 & 01/2017 Page 4 of 14 respondent therein (Mohammad Akram Afandi) vide mutation No.634 on 28th Bhadun 1994. The land including some other land covered by various survey Nos. owned or possessed by Shri Ab. Rehman Afandi was recorded in the name of State through Custodian Department owing to his declaration as persona non grata. The land was later restored to its original owner i.e. petitioners therein (respondents No.4 to 8 herein) so as to be recorded as such in the ownership column.
6) The Collector has opined that the land in question has been mortgaged in favour of respondent (Mohammad Akram Afandi) prior to 28th Bhadun, 1994 i.e. prior to 1938 in lieu of a consideration of Rs.940(rupees nine hundred forty). A period of more than 75 years has passed obviously the mortgagee has received more than one and a half times returns out of the mortgaged land. It has also been observed that the mortgage of land in question subsisted at the time of enforcement of Agrarian Reforms Act, 1976 and is subsisting till date. It has further been observed that the land in OWP No.1005/2015 MP Nos.01/2015 & 01/2017 Page 5 of 14 question is recorded as "Abi Awal" in Kharif 1971, as such, is agricultural land. Finally, has ordered that the said land is redeemed and restored in favour of land owners-petitioners (respondents No.4 to 8 herein) with possession. Tehsildar, Budgam, has been directed to restore possession of the land in favour of the petitioners (respondents No.4 to 8 herein).
7) Dissatisfied with the order of Collector, petitioners herein filed a revision petition under Section 21 of the Agrarian Reforms Act before the Revisional Authority i.e. Jammu and Kashmir Special Tribunal, Srinagar, and the learned Tribunal dismissed the revision petition vide its detailed order dated 29.05.2015. Dissatisfied therewith, instant writ petition has been filed by the petitioners.
8) Shorn of details, the background of the case as emerge from the records is that Shri Ab. Rehman Afandi (predecessor-in-interest of the petitioners) vide Govt. order No.AE-283/4-P dated 01.03.1948 OWP No.1005/2015 MP Nos.01/2015 & 01/2017 Page 6 of 14 was declared as an enemy agent, his property in the State of Jammu and Kashmir which include the land in question measuring 4 kanals 2 marlas covered by survey No.550 was confiscated and forfeited to the Government in pursuance of Ordinance No.XXIV of 2004. Then vide Cabinet order No.1375-C of 1950 dated 18.11.1950, the property confiscated which was under the control of Custodian was disposed of.
9) Under Cabinet order No.2023-C of 1956 dated 08.11.1956, enemy agent's property was transferred to Evacuee Property Department for purposes of administration and management. The orchards and buildings were taken over by the Evacuee Property Department whereas land transferred to the Revenue Department could not be taken over in view of Abolition of Big Landed Estates Act.
10) Shri Mohammad Akram Afandi S/o Ab. Rehman Afandi (enemy agent) filed a petition before the Custodian Evacuee Property, Kashmir, which has OWP No.1005/2015 MP Nos.01/2015 & 01/2017 Page 7 of 14 been disposed of vide order dated 06.12.1977. While referring to the details, the Custodian has observed that Shri Mohammad Akram Afandi is the only son (legal heir) in the State of Jammu and Kashmir, which position was also supported by an affidavit sworn in and produced by divorced wife of Ab. Rehman Afandi. She did not object to the restoration of entire property of Late Ab. Rehman Afandi in favour of his son Mohammad Akram Afandi.
11) Custodian in pursuance of Govt. order No.EP-19 of 1976 dated 21.01.1976 ordered restoration of the property which include land measuring 4 kanals 2 marlas covered by survey No.550 situated at village Ichgam on furnishing indemnity bond to the effect that the restoration shall be without prejudice to the rights, if any, of any person or other legal heir of the deceased.
12) Respondents No.4 to 8 have laid claim over the land measuring 4 kanals 2 marlas covered by survey No.550 situated at Ichgam on the ground OWP No.1005/2015 MP Nos.01/2015 & 01/2017 Page 8 of 14 that they are the owners (mortgagors) whereas Shri Ab. Rehman Afandi was the mortgagee which fact is supported by mutation No.634 dated 28th Bhadun, 1994 corresponding to AD 1937-38 for a consideration of Rs.940 (rupees nine hundred forty).
13) The first contention raised by the learned counsel for the petitioners is that the non-applicant Mohammad Akram Afandi before the Collector, died during the proceedings on 12.08.2012, which is not disputed. The legal representatives were not brought on record. Thus Collector had passed order dated 13.11.2013 against a dead person, therefore, order is a nullity, same has not been properly appreciated either by the Collector or by the Revisional Authority (J&K Special Tribunal).
14) The Collector in the order dated 13.11.2013 has mentioned the submissions of the counsel for the respondents therein (petitioners herein) that the relationship of mortgagor and mortgagee has OWP No.1005/2015 MP Nos.01/2015 & 01/2017 Page 9 of 14 come to an end, as such, his legal representatives are not to be brought on record.
15) The learned Collector has not recorded finding on the issue but the Revisional Court (Tribunal) has specifically dealt with the issue in Para 8 of the order dated 29.05.2015 wherein it has been observed that on the death of Mohammad Akram Afandi, an application had been filed for bringing on record legal representatives and the legal representatives (petitioners) have participated in the proceedings but as a matter of fact, the Collector did not pass any order on the application for bringing on record legal representatives. After referring to Order 22 Rule 4 of the Code of Civil Procedure and while relying on the judgment titled Sat Pal Sahani and Ors. Vs. Ved Paul & Ors. reported in 2007 (1) S.L.J. 44, learned Tribunal has concluded that the inaction on the part of Court to pass a formal order in legal representative application cannot prejudice the parties, particularly when the legal representatives appeared and duly participated in OWP No.1005/2015 MP Nos.01/2015 & 01/2017 Page 10 of 14 the proceedings. The learned Revisional Court has also observed that the application for bringing on record the legal representatives has been filed 15 days after the death of Mohammad Akram Afandi, so well within the period of limitation.
16) The view taken by the learned Revisional Court is quite apposite. There is no denial to the fact that the legal representatives of Mohammad Akram Afandi participated in the proceedings before the Collector. They were properly represented by an advocate who was also heard. It is also a fact that the application had been filed for substitution well in time. The Collector has not passed any order on such application, that can be a default committed by the Collector for which parties cannot be penalized. The object of substitution, in effect, has been achieved. This contention is, accordingly, repelled.
17) Next contention of the learned counsel for the petitioners is that the land is not an agricultural land, furthermore has not vested in the State OWP No.1005/2015 MP Nos.01/2015 & 01/2017 Page 11 of 14 under Section 4, Section 5 or Section 6therefore, Section 10 of the Agrarian Reforms Act is inapplicable. This contention has to be out rightly rejected. What the land means, for the purposes of Agrarian Reforms Act, is defined in Section 2(9) of the Act which reads as under:
"land" means land which was occupied, or was let, for agricultural purposes or for purposes subservient to agriculture or for pasture in Kharif, 1971 and includes--
(a) structures on such land used for purposes connected with agriculture;
(b) areas covered by, or fields floating over, water;
(c) forest lands and wooded wastes;
(d) trees standing on land; and
(e) but does not include an orchard or site of a building or a structure within municipal area, town area, notified area or village abadi or any land appurtenant to such building or structure".
18) The land has to be agricultural land on the crucial date of Kharif 1971. The extract of Girdawari for the years Kharif 1970 to 1975 as placed on record clearly show that in the year Kharif 1971 land under Survey No.550, in the column "kind of land" is recorded as under:
3 kanals 17 marlas Abi Awal 5 marlas Banjri Qadeem OWP No.1005/2015 MP Nos.01/2015 & 01/2017 Page 12 of 14 Nothing contrary to the said entries has been brought to the notice of the Court. The land in question being agricultural land falls within the definition of 'land' under Agrarian Reforms Act attracts applicability of the Jammu and Kashmir Agrarian Reforms Act. Land was subject to mortgage with possession, therefore, it is Section 10(2) which applies not Section 10(1) because vesting of land in the State under Sections 4, 5 or 6 may apply where mortgage is without possession.
19) Contention of the petitioners that the land is their proprietary which they have inherited, is negative by the records. Mutation No.634 has been attested on 28th Bhadun, 1994 regarding land which include land in question measuring 4 kanals 2 marlas covered by survey No.550 wherein Shri Sardar Ab. Rehman Khan S/o Sardar Mohammad Qasim Khan has been shown as mortgagee. The said order passed on the mutation No.634 has not been challenged till date anywhere, therefore, position of Late Sardar Ab. OWP No.1005/2015 MP Nos.01/2015 & 01/2017 Page 13 of 14 Rehman Khan (predecessor-in-interest of the petitioners) and then the petitioners continued to be as a mortgagee which fact is borne by the extract of Girdawari for the year 2015, as has been placed on record. The position of Sardar Ab. Rehman Khan being mortgagee has remained to be challenged despite its clear entry all along in the revenue record. Therefore, contention to the effect that the petitioners have inherited property from their forefathers being proprietary land, is without substance. In fact, land in question has been under mortgage and in same capacity petitioners have stepped into the shoes of their forefather Sardar Ab. Rehman Khan. Subsistence of the mortgage, as such, cannot be denied, as has been rightly opined by the learned Revisional Court(the Tribunal). Same view is also supported by the judgment of this Court relied upon by the Revisional Court i.e. Hoshnak Vs. J&K Special Tribunal and others, reported in 2007(1) S.L.J, wherein a similar situation arose for consideration. In Para 10 of the reported OWP No.1005/2015 MP Nos.01/2015 & 01/2017 Page 14 of 14 judgment it has been made clear that the petitioner therein had entered into the possession of the land as a mortgagee so cannot be permitted to turn around and question the very document and transaction pursuant to which he has enjoyed usufruct of the land as a mortgagee. Same position has been rightly appreciated along with all other aspects by the learned Revisional Court its right perspective.
20) For the aforementioned reasons and circumstances, there is no scope for interference with the order impugned passed by the Revisional Court dated 29.05.2015. Thus the writ petition being devoid of merit is dismissed along with connected MPs.
21) No order as to costs.
(Mohammad Yaqoob Mir) Judge Srinagar 23.05.2017 "Bhat Altaf"
OWP No.1005/2015
MP Nos.01/2015 & 01/2017