Jammu & Kashmir High Court
The vs . on 18 March, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
26
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
OWP No. 1356/2018
IA No. 1/2018
1. Tej Ram S/o late Atma Ram,
R/o Viollage Guddwal, Tehsil
Vijaypure District Samba
aged 79 years.
2. Kuldeep Raj Gupta S/o Sh.
Amar Nath R/o Ward No. 3,
Vijaypur, Tehsil Samba,
through Ashok Kumar S/o
late Bishan Dass R/o Gudwal
Tehsil Vijaypure District
Samba, age 54 years.
Through: Mr. Virender Bhat, Advocate
Vs.
1. State of J&K through
Commissioner Secretary Revenue.
2. Additional Deputy Commissioner
with powers of Commissioner
Agrarian Reforms, Samba.
3. Tehsildar Settlement Vijaypur.
Through: Mrs. Monika Kohli, Sr. AAG
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER (ORAL
17
18.03.2024
01. The petitioners have challenged order dated 05.01.2013 passed by
respondent No. 2, directing initiation of action under Section 13 (2) of the
2
OWP No. 1356/2018
J&K Agrarian Reforms Act, 1976 against the petitioners for having sold/leased out the land in violation of the provisions of the Agrarian Reforms Act.
02. According to the petitioners, Geeta Devi and Shanti Devi daughters of Dhani Ram filed an appeal against the mutation under Sections 4 and 8 of the J&K Agrarian Reforms Act attested in favour of the predecessor-in-interest of the petitioners. Mutation under Section 4 was attested vide No. 316 dated 24.10 1982, whereas mutation under Section 8 was attested vide No. 321 dated 07.02.1983. It has been submitted that a portion of the land, which is subject matter of these mutations, was transferred on lease hold basis vide lease deed dated 15.02.1989. Another co-owner had sold a part of the land vide sale deeds dated 23.02.1989/27.02.1989.
03. Respondent No. 2, after hearing the appeal filed by daughters of Dhani Ram, who claimed to be the tenants of the land in question, concluded that a part of the land, which is subject matter of the impugned mutations, has been transferred by virtue of lease deed and sale deed in violation of the provisions contained in Section 28-A of the J&K Agrarian Reforms Act, as such, action is required to be taken in terms of the said provision.
04. The petitioners have contended that the impugned order passed by the learned Commissioner, Agrarian Reforms, Samba is not sustainable in law, inasmuch as, transfer of the land, which was subject matter of the impugned mutations, has taken place prior to the insertion of Section 28-A into the J&K 3 OWP No. 1356/2018 Agrarian Reforms Act. Therefore, the very basis of the impugned order passed by the learned Commissioner is flawed.
05. Reply on behalf of the respondents stands filed. In the reply, it has been submitted that Gian Chand, Prabh Dayal and Nanak Chand were declared prospective owners of the land measuring 90 kanals and 19 marlas in Khasra No. 120 situated at village Gudwal, Tehsil Vijaypur under mutation No. 316 under Section 4 of the Agrarian Reforms Act and they were vested with ownership rights in respect of the said land vide mutation No. 321 under Section 8 of the Agrarian Reforms Act. It has been submitted that Ms. Suman D/o Prabh Dayal sold land measuring 4 kanals under khasra No. 131 min to Hameed Ahmad Bhat and mutation No. 392 dated 10.09.1988 was attested in favour of the vendee. It has also been submitted that Hameed Ahmad Bhat, vendee further sold the land to Kuldeep Raj Gupta, (petitioner No. 2) Madan Lal Gupta, Sodagar Chand Gupta, Sunil Kumar Gupta, Janak Raj, Sham Saroop Mahajan, Tej Ram (petitioner No.1) Tara Chand, Rounak Ram, Satish Sharma, Rajesh Kumar and Arvind Bakshi and mutation No. 411 dated 22.05.1989 came to be attested in favour of the vendees. It has been further submitted that Gian Chand and Nanak Chand sublet the land measuring 52 kanals 19 marlas on lease for a period of 99 years to petitioner No. 2 and others and lease deed was registered on 17.02.1989, whereafter mutation No. 417 dated 22.05.1989 came to be attested in favour of the lessors.
06. It has been further submitted by the respondents that Geeta Devi and Shanti Devi daughters of Dhani Ram filed appeal against the mutations 4 OWP No. 1356/2018 attested under Sections 4 and 8 of the Agrarian Reforms Act and also mutation relating to the sale deed and lease deed before the Commissioner Agrarian Reforms, Samba on 17.06.2008 and the impugned order came to be passed in the said appeal. According to the respondents, even as per section 13 of the J&K Alienation of Land Act, it was not open to lease out the agricultural land for more than 21 years. On the basis of these submissions, the respondents have contended that the petition deserves to the dismissed.
07. Heard and considered.
08. Admitted facts, which emerge from the pleadings of the parties are that mutation under Sections 4 and 8 of the J&K Agrarian Reforms Act came to be attested in respect of the land, which is subject matter of the writ petition, in favour of the predecessor-in-interest of the petitioners, who are beneficiaries of a portion of the land, which is subject matter of the aforesaid mutation orders under two documents, one is sale deed executed in the year 1988 and the other is lease deed executed on 17.02.1989. It appears that Geeta Devi and Shanti Devi challenged not only the mutation under Sections 4 and 8 of the Agrarian Reforms Act attested in favour of the predecessor-in-interest of the petitioners, but they also challenged the mutations attested in favour of the petitioners on the basis of the sale deed and the lease deed.
09. Learned Agrarian Reforms Commissioner has set aside the mutations on the ground that it was not open to the predecessor-in-interest of the petitioners to sell/lease out any portion of the land obtained by them under the provisions of the J&K Agrarian Reforms Act. In this regard, Section 28-A of 5 OWP No. 1356/2018 the Act has been pressed into service by the learned Agrarian Reforms Commissioner. The said provision reads as under:
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 the 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 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 accordance with the provisions of section 15.
10. From a perusal of the aforesaid provision, it is clear that a person who has been vested with ownership right in land under this Act cannot transfer such land or rights therein in any manner, whatsoever and consequences of transfer of the land in violation of, sub section (1) of Section 28-A is that it shall vest with the State. The aforesaid provision has been incorporated in the J&K Agrarian Reforms Act by way of amendment Act No. IV of 1989, which has come into force on 10.04.1989.
11. Both the transactions i.e sale deed and lease deed have taken place prior to 10.04.1989. There is no provision in Act No. IV of 1989, which provides for retrospective application of Section 28-A of the Act. It is a settled principle of interpretation that all amendments, unless otherwise provided for, are to have prospective application. Therefore, provisions of 28- 6 OWP No. 1356/2018 A of the Agrarian Reforms Act have no applicability to transactions that have taken place prior to 10.04.1989.
12. In the instant case, both the sale deed as well as the lease deed of the land acquired by the predecessor-in-interest of the petitioners under Sections 4 and 8 of the Agrarian Reforms Act are prior to the coming into force of the amendment Act of IV of 1989 by virtue of which Section 28-A has been inserted in the principal Act. Thus, the said provision does not have any applicability to the present case. Therefore, the impugned order passed by the Commissioner Agrarian Reforms, Samba is unsustainable in law.
13. For the foregoing reasons, the writ petition is allowed and the impugned order passed by the Commissioner Agrarian Reforms, Samba is set aside.
(SANJAY DHAR) JUDGE Jammu 18.03.2024 Karam Chand/Secy.
Whether the order is speaking: Yes
Whether the order is reportable: Yes