Jammu & Kashmir High Court
Ashok Kumar And Ors. vs Addl.Dy. Commissioner, Jammu And Ors. on 2 November, 2017
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
OWP No. 1567/2017, MP No. 01/2017
Date of Order:- 02.11.2017
Ashok Kumar and ors. Vs. Addl. Dy. Commissioner, Jammu and ors.
Coram:
Hon'ble Mr Justice Sanjeev Kumar, Judge.
Appearance:
For the petitioner(s): Mr. Narinder Kr. Attri, Advocate
For the respondent(s): Mr. A.S Manhas, Advocate.
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1. The petitioners in this petition have inter-alia prayed for the following reliefs:-
a) Certiorari: may kindly be issued and the order impugned dated 15.09.2017 passed by Additional Deputy Commissioner vide which order of status quo passed by the Collector Agrarian Reforms ACT, Jammu dated 12.09.2017 in the petition under Section 28-A read with Section 27 of Agrarian Reforms Act titled Ashok Kumar and ors. V/s Ludri Ram and ors. stands stayed may kindly be quashed.
b) Further writ of Prohibition may kindly be issued thereby restraining the Additional Deputy Commissioner, Jammu for hearing the transfer petition titled Ram Rattan V/s Ashok Kumar and ors.
2. The petitioners have assailed the validity of the order dated 15.09.2017 passed by Additional Deputy Commissioner, Jammu (with the powers of Commissioner, Agrarian Reforms) primarily on two grounds viz.
(i) that the Additional Deputy Commissioner Jammu who has been conferred with the powers of Commissioner Agrarian Reforms under Section 18 of the Agrarian Reforms Act is not competent to transfer a case pending on the file of one Collector to the file of another Collector and, therefore, the proceedings initiated by the Additional Deputy Commissioner, Jammu (with the powers of Commissioner Agrarian Reforms) are without jurisdiction;
(ii) that the Additional Deputy Commissioner, Jammu being seized of only an application for transfer of a case could not have passed the interim directions staying the order passed by the Collector in a proceeding pending before him.
3. Elaborating his arguments, learned counsel for the petitioners submits that in terms of Section 18 of the Agrarian Reforms Act, the Government has been empowered to appoint the Commissioners Agrarian Reforms and to confer upon them such powers to be exercised within such jurisdiction as it may specify in the notification. The petitioners had placed reliance upon SRO 512 of 2014 dated 25.11.2014 and contended that all Additional Deputy Commissioners have been appointed as Commissioners within their respective jurisdictions only for the purpose of hearing appeals under the said Act and therefore, the Additional Deputy Commissioners are not empowered to have general superintendence and control over the officers subordinate to them. He, therefore, submits that the Additional Deputy Commissioner while exercising the power of Commissioner Agrarian Reforms has conferred upon him, had no jurisdiction to entertain the transfer application, and, therefore, the proceedings before the Additional Deputy Commissioner are without jurisdiction, thus, rendering order impugned null and void. He has further submitted that even if it assumed though the same is not permissible that the Additional Deputy Commissioner conferred with the power of Commissioner Agrarian Reforms has the powers of superintendence and power to entertain transfer application yet while being seized of the transfer application, he could not have passed the interim order thereby staying the operation of an interim order passed by the Collector in the proceedings under Section 27 read with Section 28-A of the Agrarian Reforms Act which were pending and were sought to be transferred by the Respondent.
4. Per contra, Mr. Manhas, learned counsel for the respondent stated that the Commissioner Agrarian Reforms (Additional Deputy Commissioner) has been conferred with the powers of Commissioner Agrarian Reforms had all the powers which are exercisable by the Commissioner under the provisions of the Act and such powers include the power of transfer of cases pending before one Collector to the another Collector within his jurisdiction. He also supported the order impugned by submitting that in view of the chequered history of the case and the manner in which the proceedings were being conducted by the Collector concerned, it was found equitable and in the interest of justice by the Additional Deputy Commissioner to stay the order of interim directions passed by the Collector, particularly, when the Collector being well aware that transfer application against him was pending adjudication before the Additional Deputy Commissioner, still he passed the order of status quo. Learned counsel submits that the order of status quo passed by the Collector after being made aware that a transfer application in the matter had already been filed, was totally unfair and suffered from grave impropriety.
5. Heard learned counsels for the parties and perused the record.
6. With a view to appreciate the contentions raised by the rival parties, it would be appropriate to produce the provisions of Section 18 of the Agrarian Reforms Act which reproduced thus:-
[(1) There shall be following class of officers for the purposes of this Act who shall be appointed by the Government, by notification in the Government Gazette, namely:-
a) Commissioner Agrarian Reforms and Joint Commissioner Agrarian Reforms;
b) Collector;
c) Assistant Commissioner;
d) Tehsildar; and
e) Naib-Tehsildar.
Every officer appointed by the Government under this sub-section shall be deemed to be a Revenue Officer within the meaning of section 6 of the Jammu and Kashmir Land Revenue Act, Samvat 1996 and shall exercise such powers within such jurisdiction as the Government may, by notification in the Government gazette, specify].
(2) The general superintendence and control over such Revenue Officers shall vest with the Government.
(3) Subject to the control of the Government, the Collectors, Assistant Commissioners, Tehsildars and Naib-
Tehsildars shall be subordinate to and under the control of the Commissioner.
(4) Subject as aforesaid and to the control of the Commissioner, the Assistant Commissioner, the Tehsildar and Naib-
Tehsildar shall be subordinate to and under the control of the Collector.
(5) Subject as aforesaid and to the control of the Collector, the Tehsildars and Naib-
Tehsildars shall be subordinate to and under the control of the Assistant Commissioner.
(6) Subject as aforesaid and to the control of Assistant Commissioner, the Naib-
Tehsildar shall be subordinate to and under the control of the Tehsildar.
7. From the perusal of Section 18, it is abundantly clear that the Commissioner Agrarian Reforms and a Joint Commissioner, Agrarian Reforms are to be appointed by the Government by a notification in the Government Gazette and would exercise such powers within such jurisdiction as the Government may by notification specify. This is so, provided in Sub-Section (1) of Section 18. However, in terms of Sub-Section (3) of Section 18, it is further provided that subject to control of the Government, the Collectors, Assistant Commissioners, Tehsildars and Naib- Tehsildars shall be subordinate to and under the control of the Commissioner. Undoubtedly, the term "Commissioner" as used in Sub-Section (3), is referable to Commissioner Agrarian Reforms as may be appointed under Section 18. Reading Sub-Section (1) of Section 18 with Sub-Section (3), it is abundantly clear that a Commissioner appointed under Sub-Section (1) of Section 18 besides having powers as may be conferred upon him by notification shall have control over the Collectors, Assistant Commissioners, Tehsildars and Naib-Tehsildars and therefore, by way of natural corollary shall have powers to transfer a petition pending adjudication before one Collector to the another Collector or from one Tehsildar to another as the case may be.
8. In view of the clear provisions of Section 18 of the Agrarian Reforms Act, the contention of the petitioners that Additional Deputy Commissioner is only conferred with the power of Commissioner Agrarian Reforms for the purpose of hearing appeals under the Act is not tenable and rejected, however, I find force in the submissions made by learned counsel for the petitioners that the Additional Deputy Commissioner being seized of an application for transfer could not have passed the interim order as has been passed by him vide order impugned. The contention of the learned counsel for the respondents that such power is inherent in the authority hearing the transfer application cannot be accepted.
9. Needless to say that in a transfer application, the authority hearing such application shall only have the jurisdiction to decide as to whether the matter pending before the subordinate officer ought to be transferred or not and with a view to protect the lis, the authority hearing the transfer application may stay the further proceedings before the officers subordinate to him. Passing of an order of the nature impugned in this petition, is therefore, not permissible and beyond the jurisdiction of authority hearing the transfer application. Having held so, this petition deserves to be allowed on the aforesaid score.
10.The petition is accordingly allowed.
11.The order impugned is set aside. Additional Deputy Commissioner, Jammu (with the power of Commissioner, Agrarian Reforms) shall consider the transfer application filed by the petitioners and disposed of the same within two weeks from the date the parties appear before him.
12.Let the parties cause their appearance before the Additional Deputy Commissioner, Jammu (Commissioner Agrarian Reforms) on 09.11.2017.
(Sanjeev Kumar) Judge Jammu 02.11.2017 Tarun