Jammu & Kashmir High Court - Srinagar Bench
Gh. Rasool Bhat vs J&K; Special Tribunal & Others on 11 October, 2018
Author: Alok Aradhe
Bench: Alok Aradhe
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
OWP No. 493/2007, along with connected IAs.
Date of order: 11.10.2018
Gh. Rasool Bhat vs. J&K Special Tribunal & others
Coram:
Hon'ble Mr. Justice Alok Aradhe, Judge
Appearing counsel:
For Petitioner/appellant(s) : Mr. G. A. Lone, Advocate.
For respondent (s) : Mr. N. H. Shah, AAG, for R-2.
Mr. J. H. Reshi, Advocate for R-3 to 8.
i/ Whether to be reported in Press/Media? : Yes/No ii/ Whether to be reported in Digest/Journal? : Yes/No 1) In this petition, the petitioner has assailed the validity of order dated
26.06.2007 passed by the J&K Special Tribunal, Srinagar, by which the revision preferred by the respondent Nos.3 to 8 has been allowed and the order dated 01.07.2003 passed by the Financial Commissioner (Revenue) with powers of Commissioner Agrarian Reforms, J&K and order dated 26.06.2002 passed by the Tehsildar, Srinagar, under Section 7 of the Jammu and Kashmir Agrarian Reforms Act, 1976 (hereinafter to be referred to as 'the Act') has been set aside and quashed. In order to appreciate the grievance of the petitioner few facts need mention, which are stated infra.
2) The petitioner claimed to be the owner of land admeasuring 6 Kanals 8 marlas forming part of survey No.1311 situate in village Tailbal, Srinagar. The aforesaid land was being cultivated by one Khaliq and Qadir sons of Gaffar Katoo, residents of village Tailbal, in equal shares as tenants. An order of mutation No.1375 dated 01.11.1981 under section 4 of the Act was attested in favour of tenants by which the rights of the OWP No. 493/2007 Page 1 of 9 petitioner in respect of the land in question were extinguished, as the petitioner was not personally cultivating the land in question in the year 1971. The ex-owner, namely, Sh. Ghulam Rasool Katoo presented an application for resumption of land in a form under Section 7 of the Act before the Naib Tehsildar, who subsequently transferred the same to the Tehsildar, Srinagar. The aforesaid application was rejected by an order dated 04.01.1982, inter alia, on the ground that the application was not presented before the appropriate forum, as the Naib Tehsildar was not competent to receive the application form. It was also held that application form was not signed by the petitioner and the petitioner failed to pursue the case before the Tehsildar. The order of Tehsildar, Srinagar, dated 04.01.1982 was assailed in an appeal before the Commissioner Agrarian Reforms, Srinagar, who vide order dated 14.05.1986 dismissed the appeal and upheld the order of the Tehsildar, Srinagar. The aforesaid order was subject matter of challenge in a revision before the J&K Special Tribunal, Srinagar. The Tribunal vide order dated 04.11.1992 upheld the order dated 14.05.1986 passed by the Commissioner Agrarian Reforms.
3) A writ petition was filed before this Court against the order dated 04.11.1992 passed by the Special Tribunal, which was dismissed. Thereafter the order of the Single Judge was assailed by way of Letters Patent Appeal, bearing LPA No.129/1997, before the Division Bench of this Court. However, vide order dated 20.02.2002 passed by the Division Bench, the LPA No.129/1997 was also dismissed as withdrawn with liberty to file a fresh application before the competent forum, if law so permits. In view of the liberty granted by the Division Bench of this Court vide order dated 20.02.2002, the petitioner filed a fresh application for resumption of land under Section 7 of the Act before the Tehsildar, Srinagar. The aforesaid application was allowed vide order dated 26.06.2002 and order of resumption of 3 kanals and 4 marlas of land was passed in favour of the OWP No. 493/2007 Page 2 of 9 petitioner. The respondent Nos.3 to 8 challenged the order dated 26.06.2002 passed by the Tehsildar, Srinagar, before the Financial Commissioner with powers of Commissioner Agrarian Reforms, J&K, who vide order dated 01.7.2003 upheld the order dated 26.06.2002 passed by the Tehsildar, Srinagar and dismissed the appeal filed by the respondent Nos.3 to 8. The respondent Nos.3 to 8 thereupon challenged the aforesaid order in revision before the J&K Special Tribunal, Srinagar.
4) The J&K Special Tribunal, Srinagar, by an order dated 25.06.2007, inter-
alia, held that the application submitted by the petitioner under Section 7(2)(a) read with Section 32 of the Act, was barred by limitation. It was further held that law does not permit the petitioner to file a fresh application for resumption of land after lapse of a period of more than 25 years. Accordingly, the impugned mutation No.1409 dated 26.06.2002 attested by the Tehsildar, Srinagar and the order dated 01.07.2003 passed by the Financial Commissioner, J&K, were set aside and the revision was allowed. The aforesaid order is subject matter of challenge in this writ petition.
5) Learned counsel for the petitioner submitted that the J&K Special Tribunal has wrongly held that the application filed under Section 7 of the Act is barred by limitation. In this connection, the attention of this Court has been invited to the prayer made in the application for resumption of land. It is further submitted that the Tribunal ought to have appreciated that the period spent in prosecuting the proceedings by the petitioner was liable to be excluded under Section 14 of the Limitation Act and the provisions of the Act do not exclude the application of the provisions of J&K Limitation Act Svt., 1995.
6) On the other hand, learned counsel for the respondent Nos.3 to 8 submitted that an application for resumption of the land by a landlord in a prescribed OWP No. 493/2007 Page 3 of 9 form can be filed within a period of one year before the competent authority, which has admittedly not been done in the present case. Therefore, the petitioner has no right to agitate his grievance. It is further submitted that the Tehsildar as well as Commissioner Agrarian Reforms have misconstrued the judgment passed by the Division Bench in LPA No.129/1997 and they ought to have appreciated that a fresh application seeking resumption of land was not maintainable and the Tehsildar has no authority to condone the delay of 25 years in filing an application for resumption of land. It is also submitted that the provisions of the Limitation Act are excluded and cannot be applied to defeat the provisions of a special law. Learned counsel for the respondent Nos.3 to 8 has also invited attention of this Court to Section 32 of the Act, which provides that provisions of the Act shall over-ride other laws. It is also submitted that the impugned order does not suffer from infirmity warranting interference of this Court in exercise of supervisory jurisdiction of this Court.
7) I have considered the submissions made by the learned counsel for the parties and have perused the record. A pure question of law arises for consideration on admitted facts is with regard to the applicability of the provisions of the J&K Limitation Act, 1995 to the provisions of the J&K Agrarian Reforms Act, 1976. Section 7(2) read with Section 32 of the J&K Agrarian Reforms Act, 1976, which are relevant for the purposes of determining the controversy involved in this writ petition are reproduced below for the facility of reference:-
Section 7(2) "Resumption of land permitted by sub-section (1) shall be subject to the following conditions, namely:-
(a) the application for resumption shall be made in the prescribed manner within one year of the commencement of this Act;OWP No. 493/2007 Page 4 of 9
(b) the applicant for resumption, shall within six months from the date of resumption of land take up normal residence for the purpose of cultivating such land personally in the village in which the land sought to be resumed is situated or in an adjoining village (except in the case of-
(i) a person serving in defence force, who shall take up such normal residence for personal cultivation within six months of the date on which he ceases to serve in defence force; or
(ii) a widow or a person who is physically disabled or incapacitated by old age or infirmity)."
Section 32 "Act to over-ride other laws.- The provisions of this Act and the rules made and instructions issued thereunder shall have effect notwithstanding anything contained in any other law or any custom or usage or in any contract, express or implied, or in any instrument inconsistent with the provisions of this Act."
From perusal of Section 7(2) of the Act, it is evident that the application for resumption has to be made in the prescribed manner within one year of the commencement of this Act. The aforesaid provision does not expressly contain any provision of condonation of delay in making an application for resumption of the land. Section 32 of the Act contains a non-obstante laws.
8) In R. S. Raghunath v. State of Karnatak, AIR 1992 SC 81, the Supreme Court has held:-
"Even though the notwithstanding clause is very widely worded, its scope may be restricted by construction having regard to the intention of the Legislature gathered from the enacting clause or other related provisions in the Act. This may be particularly so when the notwithstanding clause "does not refer to any OWP No. 493/2007 Page 5 of 9 particular provision which it intends to over-ride but refers to the provisions of the statute generally"."
9) From close scrutiny of the provisions of the Act, it is evident that the aforesaid provision does not expressly exclude the provisions of Limitation Act. At this stage, it is appropriate to refer to the relevant extract of Section 29(2) of the Limitation Act Svt. 1995, which reads as under:-
"Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-
(a) the provisions contained in Section 4, Sections 9 to 18 and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law."
10) Thus, it is evident that in the absence of express exclusion, the Court can examine the extent of exclusion of the provisions of the Limitation Act by a special law based on the provisions on the nature of subject matter and scheme of the special law (See: CCE & Customs vs. Hongo India (P) Ltd., (2009) 5 SCC 791). In Patel Brothers v. State of Assam & others, (2017) 2 SCC 350, the Supreme Court while interpreting Section 29(2) of the Limitation Act 1963, which is pari-materia provision, has held that even if there exists no express exclusion in the special law, the Court has right to examine the provisions of special law to arrive at a conclusion as to whether the legislative intent was to exclude the operation of the Limitation Act.
OWP No. 493/2007 Page 6 of 911) In the backdrop of the aforesaid well settled legal proposition, even though the J&K Agrarian Reforms Act, 1976 does not expressly provide for exclusion of provisions of Limitation Act, 1995, I may now examine the provisions of the Act to ascertain whether by necessary implication the provisions of the Act have been excluded. The J&K Agrarian Reforms Act, 1976 is an Act to provide for transfer of land to tiller, subject to certain conditions contained therein, for better utilization of the land in the State of Jammu and Kashmir. Section 4 of the Act provides "vesting in the State of rights in land not held in personal cultivation". Section 8 of the Act makes a provision for conferment of ownership rights in land on person who is in actual cultivating possession. Section 7 of the Act restricts the right of vesting of the ownership in the land on the tiller of the land and provides that within a period of one year of the commencement of the Act, ex-landlord may make an application for resumption of the land. The Section 7(2) also contains a provision that a person who is minor or insane can take a provision of resumption of land within six months from the date of which he attains the majority or attains sanity. Section 25 of the Act bars the jurisdiction of the Civil Court. Section 28-A of the Act contains prohibition on transfer of certain lands. Section 32 of the Act contains non- obstante laws and provide that the provisions of Act and rules made under the Act shall not contain any custom or usage or in any contract, express or implied, or in any instrument inconsistent with the provisions of this Act. Section 35 of the Act provides that any transfer made to defeat the provisions of this Act shall be deemed to have been retained by the person who held such land immediately before such transfer for the purposes of calculating the area retainable under this Act by him. Section 42 of the Act, which is relevant for the purposes of determination of the controversy OWP No. 493/2007 Page 7 of 9 involved in this petition, provides inapplicability of certain provisions. The relevant extract of Section 42(1) of the Act reads as under:-
"42. Inapplicability.- (1) With effect from the commencement of this Act, the provisions of-
(a) The Jammu and Kashmir Tenancy Act, Samvat 1980;
(b) The Jammu and Kashmir Alienation of Land Act, Samvat 1995;
(c) The Jammu and Kashmir Land Revenue Act, Samvat 1996;
(d) The Jammu and Kashmir Big Landed Estates Abolition Act, Samvat 2007;
(e) The Jammu and Kashmir Consolidation of Holdings Act, 1962; and
(f) The Jammu and Kashmir Tenancy (Stay of Ejectment Proceedings) Act, 1996;
and the rules, standing orders and instructions issued thereunder shall, so far as they are inconsistent with the provisions of this Act and the rules framed and instructions issued thereunder, cease to apply to the land to which this Act applies."
Thus, from close scrutiny of Section 42(1) of the Act, it is evident that had the intention of legislature would have to exclude the provisions of J&K Limitation Act, 1995, it would have mentioned the provisions of the Limitation Act. Since the legislature has not expressly mentioned about the J&K Limitation Act, 1995 in Section 42(1) of the Act, therefore, the legislature's intention is to make applicable the provisions of Limitation Act, 1995, to the provisions of the J&K Agrarian Reforms Act, in the absence of express exclusion.
12) In view of the preceding analysis, the provisions of Limitation Act apply to the provisions of proceedings under J&K Agrarian Reforms Act. However, the aforesaid aspect of the matter has not been considered by the J&K OWP No. 493/2007 Page 8 of 9 Special Tribunal, Srinagar, while passing the impugned order. The impugned order passed by the J&K Special Tribunal Srinagar, is, therefore, not sustainable. Accordingly, the order dated 26.06.2007 passed by the J&K Special Tribunal, Srinagar, by which the revision preferred by the respondent Nos.3 to 8 has been allowed as well as order dated 01.07.2003 passed by the Financial Commissioner (Revenue) with powers of Commissioner Agrarian Reforms, J&K and order dated 26.06.2002 passed by the Tehsildar, Srinagar, under Section 7 of the Act are quashed and set aside. The Tehsildar, Srinagar, is directed to first decide the application preferred by the petitioner under Section 5 of the Limitation Act, 1995, by a speaking order, within a period of one month from the date of receipt of a certified copy of the order passed today, after affording opportunity of hearing to the parties. In case the Tehsildar comes to the conclusion that the petitioner has been able to make out sufficient cause for condoning delay, the Tehsildar shall proceed to adjudicate the application under Section 7 of the Act within a period of three months thereafter. It is made clear that this Court has not expressed any opinion on the merits of the case.
With the aforesaid directions, the petition is disposed of accordingly, along with connected IAs.
(Alok Aradhe) Judge Srinagar 11.10.2018 Surinder OWP No. 493/2007 Page 9 of 9