Jammu & Kashmir High Court - Srinagar Bench
Mohammad Bhat And Others vs State Of J&K; And Others on 21 February, 2018
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
Serial No.04
Regular List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
OWP No.1580/2014
MP No.2602/2014
Date of order:21.02.2018
Mohammad Bhat & ors v. J&K Special Tribunal & ors.
Coram:
Hon'ble Mr Justice Mohammad Yaqoob Mir, Judge.
Appearance:
For the Petitioner(s): Mr. I. Sofi, Adv..
For the Respondent(s): None for R1, R3 & R4
Mr. I. M. Nehvi, Adv-for R2.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
(ORAL)
1. Order dated 16.10.2014, passed by Revisional Authority (J&K Special Tribunal) under Agrarian Reforms Act, is sought to be interfered with.
2. Claim of the petitioners is that firstly their ancestors and thereafter they have been in possession of land covered by survey Nos.40, 41, 48, 73, 83, 90 and 1999 situated in Village Darwaishpora, Gulmarg. Mutations under Section 4 and 8 of the Agrarian Reforms Act have been attested in their favour in the year1982. The said mutation orders were challenged by medium of an appeal before the Commissioner Agrarian Reforms (Financial Commissioner) successfully as the mutations were set aside. Aggrieved thereof, in the first round, revision petition was filed before the Revisional Authority (J&K Special OWP No.1580/2014 Page 1 of 4 Tribunal), Srinagar, in terms of Section 21 of the Agrarian Reforms Act. Same has been allowed vide judgment dated 29.05.2003 and the case has been remanded back to the Joint Agrarian Reforms Commissioner with a direction to decide the application seeking condonation of delay in filing the appeal, in case delay is condoned, then a preliminary objection regarding maintainability of the appeal shall be decided.
3. The Joint Agrarian Reforms Commissioner, Srinagar, vide his detailed order dated 30th March, 2009, has dismissed the application seeking condonation of delay by observing that after a gap of 17 years appeals have been filed. No plausible explanation has been tendered, as a result whereof appeal has been dismissed as barred by limitation.
4. Aggrieved by the said order dated 30 th March, 2009, passed by Joint Agrarian Reforms Commissioner, Srinagar, revision has been filed by the respondent No.2 before the Revisional Authority under Agrarian Reforms Act, which has been disposed of vide detailed judgment dated 16.10.2014, in terms whereof, Revisional Authority has set aside the order of the Appellate Authority dated 30.03.2009 as well as two mutation orders and has remanded the case to the Tehsildar for de novo enquiry, aggrieved whereof instant petition has been filed.
5. The short submission of learned counsel for the petitioners is that the learned Tribunal has not appreciated the law and the fact in its right perspective, instead in a slipshod manner has set aside the orders whereas, in opposition, learned counsel for respondent No.1 would submit that by remanding case for de novo enquiry, none of the rights of the petitioners are getting infringed.
6. Rule 52 of the Agrarian Reforms Rules, 1977, envisages that in case appeal fails on the ground of limitation, the appellate authority shall, if he be of OWP No.1580/2014 Page 2 of 4 the opinion that the order appealed from is one which should be revised, submit the case through proper channel to the revisional authority with a report why the order appealed from needs to be revised. On receipt of the report, the revisional authority shall act as if an application for revision under the Act has been made to him.
7. It appears that the appellate authority has not looked into the matter in that perspective Rule 50 of the Agrarian Rules has escaped his attention. Rule 50, for facility of reference, is relevant to be quoted:
"50. Place of hearing.--The officer competent to hear appeal may, as far as practicable, hear such appeal at the headquarters of the district or tehsil to which it relates :
Provided that where correctness of an entry relating to personal cultivation of land is in dispute, the objection may, as far as practicable be disposed of at site in presence of the general village body and no costs for serving notice on the villagers to attend shall be demanded from any party."
8. In the instant case, admittedly, prior to 1971, the entry recorded in the cultivation column is as "in self cultivation". In Rabi 1971, entry has been changed reflecting the name of the tenants. How and when that entry has been made has not been looked into. The claim of the landlord is that he has been in self cultivation of the land. When such is the contention, then proviso to Rule 50, as quoted above, was required to be followed i.e. the learned appellate authority was to disposed of such matter at site in presence of the general village body which has not been done.
9. Presumption of truth is in favour of entries but rebuttable. For such rebuttal, recourse to Rule 4 of the Agrarian Reforms Rules was a remedy OWP No.1580/2014 Page 3 of 4 available. That Rule too has not been followed. The revisional authority has also ignored to look into the aforesaid aspects of the case.
10. The order passed by the revisional authority dated 16.10.2014 as well as order passed by the learned appellate authority dated 30 th March, 2009 are set aside. Learned counsel for the parties stated that presently power of appeal under Agrarian Reforms Act, vis-à-vis District Baramulla, have been conferred to the Additional Deputy Commissioner, Baramulla, therefore, the case is remanded to the appellate authority who, while hearing the appeal, shall visit the spot in accordance with Rule 50 of the Agrarian Reforms rules and thereafter first decide the application for condonation of delay and in case appeal fails on the ground of limitation but finds merit in the contention of „self cultivation‟ after visiting the spot, then shall have recourse to Rule 52 of the Agrarian Reforms rules.
11. Learned counsel for the parties shall ensure presence of the parties before the appellate authority on 12th March, 2018.
12. Petition succeeds, shall, accordingly, stand disposed of.
13. Record received from the J&K Special Tribunal, Srinagar, be sent back along with copy of this order (Mohammad Yaqoob Mir) Judge Srinagar 21 .02.2018 "Bhat Altaf, PS"
OWP No.1580/2014 Page 4 of 4