Jammu & Kashmir High Court - Srinagar Bench
Ghulam Ahmad Mir vs State & Ors on 2 December, 2015
HIGH COURT OF JAMMU AND KASHMIR
SRINAGAR
Case No: LPA 19/2007 Dated : 02nd DEC. 2015
GHULAM AHMAD MIR VERSUS STATE & ORS
ORDER SHEET
CORAM:
HON'BLE MR. JUSTICE MUZAFFAR HUSSAIN ATTAR - JUDGE.
HON'BLE MR. JUSTICE ALI MOHAMMAD MAGREY - JUDGE
FOR THE APPELLANT/s : MR. M.A.QAYOOM
FOR THE RESPONDENT/s: MR. G.N.SHAHEEN
MUZAFFAR HUSSAIN ATTAR
1/ Human instinct of owning and possessing material
things is yet again reflected in these proceedings in their
full vigor. The litigation was initiated in the year 1968
by predecessor in interest of the Appellant (hereinafter
referred to as Appellant) against the predecessors in
interests of the private respondents (hereinafter referred
to as private respondents), by filing Application seeking
ejectment of private respondents from land measuring 24
kanals 9 marlas covered by Khasra NOs. 290, 295, 296
& 297 min, situated at village Baghat, Tehsil Sopore.
2/ The Assistant Commissioner, Baramulla, vide his
order dated 04th May, 1971, ordered for ejectment of
private respondents from the aforesaid land. The private
respondents filed an Appeal against
the order of ejectment before the Divisional
Commissioner, Kashmir, who, vide order dated 06th
September, 1978, declared that the Appeal and the order
challenged therein, have abated in view of the mandate
contained in sub section 2 of section 42 of the Jammu &
Kashmir Agrarian Reforms Act, 1976 (for short Act of
1976). The Divisional Commissioner, accordingly,
directed for returning of the file to Assistant
Commissioner, Baramulla. The aforesaid order has
not been challenged by the Appellant at any point of time
and has attained finality.
3/ When the record was sent back to the Court of
Assistant Commissioner, Baramulla, (Collector Agrarian
Reforms), it remained pending on its files for some
time, whereafter it was send to the Collector Agrarian
Reforms, Sopore, who, vide order dated 20 th July, 1982,
declared that the order dated 04th May, 1971, passed by
the Assistant Commissioner, Baramulla, whereunder he
had ordered for ejectment of the private respondents from
the land in question, is in operation and enforceable and
directed for its implementation in letter and spirit. This
order was challenged by the private respondents before
the Agrarian Reforms Commissioner, Kashmir, who,
vide order dated 19th August, 1983, dismissed the Appeal.
The private respondents challenged the said order before
the
J&K Special Tribunal (for short Tribunal). The Tribunal,
vide order dated 11th August, 1987, dismissed the
Revision Petition.
4/ The material placed on the Letters Patent Appeal
(LPA) and the documents produced at the time of hearing
of the case, would show that an order on mutation,
passed u/s 4 of the Act of 1976, was passed on 12 th
August, 1982 in favour of private respondents. Perusal of
the copy of order on mutation No. 256 would show that
the Patwari concerned had reported on 30 th July, 1982
that the Appellant had filed Application u/s 7 of the Act
of 1976 seeking resumption of land from the private
respondents.
5/ The documents produced at the time of hearing
would show that on 27th August, 1987, possession of land
in question was handed over to the Appellant and an
amount of Rs. 4,225/- was deposited by the Appellant in
the Treasury as cost assessed for the crop of kharief
1987. The material placed on the LPA, would also show
that in terms of order dated 29th August, 1987, passed in
mutation proceedings, which were initiated in terms of
section 7 of the Act of 1976 on the resumption
Application of the Appellant, the Applications were
dismissed at the request of Appellant and in view of
order passed by the Tribunal, in pursuance of which,
possession of the land was handed over to the Appellant
on 27th August, 1987.
6/ At paragraph (10) of the Appeal, it is pleaded by
the Appellant that the order of Tribunal, Srinagar, and
orders passed by the subordinate Revenue Authorities,
were challenged in a writ petition before this Court in
which Court directed the parties to maintain status quo,
but the private respondents forcibly dispossessed the
Appellant from the land in question. The Appellant has,
thus, admitted that the private respondents are in
possession of land. The issue, whether the Appellant was
forcibly dispossessed from the land in question, is a
question of fact, which cannot be determined in these
proceedings as there is no, legally admissible and
conclusive, material placed on record to arrive at such a
conclusion.
7/ The private respondents, feeling aggrieved of the
orders of the Tribunal, Collector Agrarian Reforms,
Sopore and Agrarian Reforms Commissioner, Kashmir,
challenged these orders in OWP 779/1987. The learned
writ Court allowed the writ petition vide decision dated
08th December, 2006 and quashed the orders, which were
impugned in the writ petition. The parties were, however,
given liberty to seek appropriate remedy before
appropriate Forum, if available. It is this judgement,
which is called in question in this LPA.
8/ Mr. M.A.Qayoom, learned counsel, appearing for
the Appellant, submitted that the judgement, impugned
in this Appeal, is illegal, inter alia, on the grounds ; that
order dated 04th May, 1971, passed by the Assistant
Commissioner, Baramulla, in terms of section 86 of the
Tenancy Act, 1980 (1923 AD) (for short Act of 1980),
was to be challenged in an Appeal before the High
Court ; the Appellant, though had filed Application
before the writ Court for permitting him to file Reply
Affidavit, yet, without taking decision on the
Application, writ petition was finally decided ; that the
provisions of the Act of 1976 would not affect the order
dated 04th May, 1971 passed by Assistant Commissioner,
Baramulla, and the said order would not abate in terms of
sub section 2 of section 42 of the Act of 1976 ; that the
Divisional Commissioner, Kashmir, having no
jurisdiction to entertain the Appeal against order dated
04th May, 1971, passed by Assistant Commissioner,
Baramulla, the order dated 06th September, 1978, passed
by Divisional Commissioner, Kashmir, being without
jurisdiction, is inconsequential in law and has to be
ignored ; that the writ Court formulated questions but did
not decide the same. Learned counsel, accordingly,
prayed for setting aside of the judgement and dismissal of
the writ petition filed by the private respondents.
9/ Mr. G.N.Shaheen, learned counsel appearing for
the private respondents, submitted that the Appeal before
the Divisional Commissioner, Kashmir, against order
dated 04th May, 1971, passed by Assistant Commissioner,
Baramulla, was competent in law. He further submitted
that the order on mutation, passed u/s 4 of the Act of
1976, in favour of the private respondents, having not
been challenged by the Appellant, precludes him from
insisting on their (private respondents') ejectment from
the land in question.
10/ Learned counsel for the parties referred to sections
44, 46, 47, 48, 84, 85 & 86 of the Jammu & Kashmir
Tenancy Act of 1980 and section 42 of the Agrarian
Reforms Act of 1976 and sought to place interpretation
on these provisions, which would suit claims of their
respective clients.
11/ In order to appreciate the issues raised in this
Appeal, aforementioned sections are taken note of :
"The Jammu & Kashmir Tenancy
Act of 1980
..........................................
44.Grounds of ejectment of tenants.
(1) No tenant shall be liable to be ejected from his tenancy except on any of the following grounds, namely:-
(a) that he has used the land comprised in the tenancy in a manner which renders it unfit for the purpose for which it was let;
(b) when rent is payable in kind, that he has without sufficient cause, failed to cultivate the land in the manner or to the extent customary in the locality in which the land is situate;
(c) that a decree for arrears of rent in respect of the tenancy has been passed against him and remains unsatisfied without sufficient cause;
(d) that being a tenant other than an occupancy tenant or a tenant for fixed term, he has sub-let the land [x x x x x];
(e) that the landlord requires the land for his personal cultivation.
(2) Nothing contained in clause (e) of sub-section (1) shall render liable to ejectment an occupancy tenant or a tenant for a fixed term before the expiry of the term for which the land was let to him. (3) Notwithstanding anything contained in sub-
section (1) a tenant holding for a fixed term under a contract or a decree or an order of competent authority shall be liable to ejectment at the expiration of the terms or before expiration thereof on any ground which would justify ejectment under the contract, decree or order.
Explanation.---Personal cultivation shall include cultivation by any of the members of the family of the landlord.] .......................................
46. Ejectment of tenant at will.
[(1)] Notwithstanding anything contained in sub- section (1) of section 44, a tenant other than an occupancy, protected or fixed term tenant may be ejected at the time specified in Appendix B of this Act.] [(2) (i) Where a tenant-at-will contends that he is a protected tenant but has erroneously been recorded not as such, the Revenue Officer shall enquire in to it and, if he is satisfied that the tenant is a protected tenant, declare him to be so.
(ii) A declaration made under clause (i) shall be deemed to be declaration under section 15-B.]
47. Restriction on ejectment.
(1) A tenant shall not be ejected otherwise than in execution of a decree for ejectment except
--
(a) where a decree for an arrear of rent in respect of his tenancy has been passed against him and remains unsatisfied; or
(b) where he is liable to be ejected under section 46 of this Act; or
(c) where on an application by the landlord for resumption of land for personal cultivation an order has been passed under section 49 of the Act.
(2) All suits for ejectment pending on the date of the commencement of the Jammu and Kashmir Tenancy (Amendment) Act, 1955, against occupancy, protected or fixed-term tenants on any of the grounds other than those specified in clauses (a), (b), (c) and
(d) of sub-section (1) of section 44 shall abate and the plaintiffs in such suits shall, on an application to the Collector, be entitled to a refund of court fee paid by them on the plaint filed in such suits. Explanation.----Suits shall include execution application and appeals arising out of such suits.
(3) No suit shall lie for the ejectment of a tenant by the landlord for resumption of land for personal cultivation and all such suits pending on the day of commencement of the Jammu and Kashmir Tenancy (Amendment Act, 1965, shall abate.]
48. Ejectment for failure to satisfy decree for arrear of rent.
(1) (a) In any such case as is mentioned in clause (a) of sub-section (1) of section 47, the landlord may apply to a Revenue Officer for ejectment of the tenant.
(b) On receiving such application the Revenue Officer shall, after such inquiry with respect to the existence of the arrear as he may deem necessary, cause a notice to be served on the tenant, stating the date of the decree and the amount due thereunder and informing him that if he does not pay that amount to the Revenue Officer within 30 days from receipt of the notice, he will be ejected from the land.
(c) If the amount is not so paid, the Revenue Officer shall, subject to the provisions of this Act with respect to the payment of compensation, order the ejectment of the tenant, unless good cause is shown to the contrary.
(2) (a) In any such case as is mentioned in clause (b) of sub-section (1) of section 47, the landlord may apply to a Revenue Officer for ejectment of the tenant.
(b) On receiving such application, the Revenue Officer, if he, after such enquiry as is considered sufficient, finds that the tenant is liable to ejectment shall, subject to the provisions of this Act with respect to the payment of the compensation, order the ejectment of the tenant.] ............................................
84. Applications and proceedings cognizable by Revenue Officers.
(1) The following applications and proceedings shall be disposed of by Revenue Officers as such, and no Court shall take cognizance of the matters with respect to which any applications or proceedings might be instituted.
First Group
(a) Applications by a landlord or a tenant for declaration of a right of occupancy under section 7-A (1) and (3);
[(a-1) applications by a tenant under section 15-B for declaration and entry of a right of protected tenancy, or by a landlord to prove that a tenant has not such a right;]
(b) Proceedings under section 32 or 33 for adjustment of cash rents;
(c) Proceedings relating to the remission and suspension of rent under section 36;
[(c-1) application under section 45-A;] [(d) applications under sections 48, 49 or 68-A;]
(e) applications by a tenant under section 79;
[(f) applications to proceedings under sections 56, 57-A, 57-B;]
(g) application under section 60 (1) for permission to transfer a right of occupancy and all proceedings under that section;
Second Group
(h) proceedings under Chapter VII with respect to the award of compensation for improvement or disturbance;
(i)applications under section 62 for extinction of right of mortgagee on extinction of tenancy.
(j) applications or proceedings under section 69 for definition of a right of occupancy;
(k) applications by a landlord under section 70 for permission to make an improvement on a tenancy;
(l) applications under section 22 with respect to the division or appraisement of produce;
(m) applications under section 55 for the determination -
(i) of the rent payable for land occupied by crops uncut or ungathered at the time of an order being made for the ejectment of a tenant, or
(ii) of the value of such crops or of the sum payable to the tenant for labor and capital expended by him in preparing land for sowing;
[(mm) applications or proceedings under sections 19-A, 19-B or 45-A;] Third Group
(n) applications under section 37 by tenants to deposit rent;
(o) applications under section 41 for service of notice of relinquishment.
(2) A Collector may dispose of any of the applications and proceedings mentioned in sub- section (1).
[(2-a) An Assistant Collector of the Ist Class not below the rank of Assistant Commissioner or an Assistant Settlement Officer may dispose of such of the applications and proceedings under clauses (a), (a-1), [(c-1), (d) and (g) mentioned in the First Group of sub-section (1) as may be transferred to him by the Collector.] [(2-b) Notwithstanding anything contained in sub- section (2) the Revenue Minister may by general or special order empower any Revenue Officer or class of Revenue Officers to dispose of applications and proceedings mentioned in clause
(f) of the First Group of sub-section (1).] (3) An Assistant Collector of the first class may dispose of any of the applications and proceedings mentioned in the second and third groups of that sub-section; [x x x] (4) An Assistant Collector of the second class may dispose of any of the applications mentioned in the third group of that sub-section [and also application under section 19-B; provided the value of the subject matter does not exceed Rs.
100.]
85. Revenue Courts and Suits cognizable by them. (1) When a Revenue Officer is exercising jurisdiction with respect to any such suit as is described in sub- section (3) of this section or with respect to an appeal or other proceedings arising out of any such suit, he shall be called a Revenue Court.
(2) There shall be the same classes of Revenue Courts as of Revenue Officers under this Act, and in the absence of any order of the Government to the contrary, a Revenue Officer of any class having jurisdiction within any local limits, under this Act, shall be Revenue Court of the same having jurisdiction within the same local limits.
(3) The following suits shall be instituted in, and heard and determined by, Revenue Courts, and no other Court shall take cognizance of any dispute or matter with respect to which any such suit might be instituted:---
First Group
(a) suits by a tenant under section 7-A (1) or otherwise, to establish a right of occupancy, or by landlord to prove that a tenant has not such a right;
[(a-1) omitted;
(b) suits between landlord and tenant for enhancement or reduction of rent under sections 27, 28 or 29;
(c) suits by landlord or tenant to set aside a lease or agreement under section 34 ( and suits relating to the rent to be paid under a mortgage made in accordance with form (c) as prescribed by section 8 of the Jammu and Kashmir Alienation of Land Act);
(d) suits by landlord to eject the tenant;
(e) omitted;]
(f) suits by a landlord under section 66
to set aside a transfer made of a right of occupancy, or to dispossess a person to whom such a transfer has been made, or for both purposes;
(g) any other suit between landlord and tenant arising out of the lease or conditions on which a tenancy is held [ or for declaration regarding the size of a holding under section 17-B;]
(h) suits for sums payable on account of village cesses or village expenses;
(i) suits by a co-sharer in an estate, holding or tenancy for a share of the profits thereof or for a settlement of accounts;
(j) suits for the recovery of over- payment of rent, of land revenue, or of any other demand for which a suit lies in a Revenue Court under this sub-section;
(k) suits relating to the emoluments of {x x] village-officers;
Second Group
(l) suit [x x x] for sums recoverable under section 18;
(m)suits by a land-owner to recover moneys claimed as due for the enjoyment of rights in or over land or in water including rights of irrigation, rights over fisheries, rights of pasturage and forest rights;
(n) suits for sums payable on account of land revenue or of any other demand recoverable as an arrear of land revenue under any enactment for the time being in force, and by a superior land-owner for other sums due to him as such. (4) A Collector may hear and determine any of the suits mentioned in sub-section(3).
[(4-a) An Assistant Collector of the first class not below the rank of Assistant Commissioner or an Assistant Settlement Officer may dispose of such of the suits under clauses (a) and (d) mentioned in First Group of sub-section (3) as may be transferred to him by the Collector.] (5) An Assistant Collector of the first class may hear and determine any of the suits mentioned in the second group of that sub-section; provided that the value of the subject matter does not exceed Rs. 500.
(6) An Assistant Collector of the second class may hear and determine any of the suits mentioned in the second group of that sub-section; provided that the value of the subject matter does not exceed Rs. 1000.] [85-A. Conferment of powers of Revenue Officer.
(1) Notwithstanding anything contained in the Land Revenue Act, 1996, the Government may by notification in the Government Gazette confer on any person----
(a) All or any of the powers of a
Collector under this Act, or
(b) All or any of the powers with
which an Assistant Collector of either class is, or may be, invested there under, and may, by notification in the Government Gazette, withdraw any powers so conferred.
(2) A person on whom powers are conferred under sub-section (1) shall exercise those powers within such local limits and in such classes of cases as the Revenue Minster may direct and, except as otherwise directed by the Revenue Minister, shall for all purposes connected with the exercise thereof be deemed a Collector or Assistant Collector, as the case may be.
(3) The Government may direct [three or more persons including the Chairman] in any place to sit together as a Board, and may by an order invest such Board with any of the powers conferred or conferrable by or under this Act on a Collector or an Assistant Collector of the first or second class and direct it to exercise such cases, or such classes of cases only and within such local limits, as the Revenue Minister thinks fit.
(4) (a) The Chairman of a Board established under sub-section (3) shall preside over the sittings of the Board and shall be responsible for the conduct of its work. All orders made and summons, notices and other processes issued on behalf of the Board shall be signed by him.
(b)The quorum of the Board shall be two or such larger number as the Revenue Minister may by a general or special order direct.
(c) When the chairman and the members of a Board are not unanimous, the opinion of the majority shall prevail, and if the Board is equally divided, the Chairman shall have a casting vote.
(5) Any order passed by a person of Board empowered under sub-section (1) shall, for all purposes be deemed to be the order of a Revenue Officer or Revenue Court, as the case may be, having the same powers as are conferred on such person or Board.] Administrative Control, Appeal, Review and Revision.
86. Administrative control appeal, review and revision.
In regard to all matters relating to----
(a) the general superintendence and control of Revenue Officers;
(b) power to distribute business under this Act, and to withdraw cases pending before a Revenue Officer or Revenue Court;
(c) appeals from the order or decree of a Revenue Officer or a Revenue Court;
(d) limitation of such appeals;
(e) review by a Revenue Officer or Revenue court of an order passed by himself or itself or predecessors in office; and
(f) revision of proceedings, order or decree of a Revenue Officer or Revenue Court;
the provisions [x x x] of the Jammu and Kashmir Land Revenue Act, 1996, [shall apply to the proceedings, decrees or orders of Revenue Officers, whether exercising jurisdiction as such or as Revenue Courts under this Act:] [Provided that, appeal from an original or appellate order or decree of the Collector in suits mentioned in section 85 shall lie to the High Court and shall be heard by a Single Judge and any further appeal if maintainable under the provisions of the Code of Civil Procedure, 1977, shall be heard by a Division Bench of the High Court on a point of law only.] ............................................... The Agrarian Reforms Act of 1976 ...........................
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, Samvat1996;
(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, orders and instructions issued there under shall, so far as they are inconsistent with the provisions of this Act and the rules framed and instructions issued there under, cease to apply to the land to which this Act applies. (2) All applications, suits and proceedings, pending before any Revenue Officer, Civil or Revenue Court, any authority acting under the Jammu and Kashmir Consolidation of Holdings Act, 1962 or the Government on the date the commencement of this Act under any of the provisions of the Acts mentioned in sub- section (1) shall, so far as these are inconsistent with the provisions of this Act, abate.
(3) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall be deemed to effect the previous operation of the Acts mentioned in sub-section (1) or anything done or any action or proceeding taken there under which thing, action or proceeding has finally concluded under any of said Acts prior to the commencement of this Act."
12/ Section 44 falls under the Chapter "Ejectment". It further provides for "liability to ejectment". It provides statutory grounds for ejectment of tenants. Section 46 provides for ejectment of a tenant at will. Section 47 deals with restriction on ejectment. Section 48 deals with ejectment for failure to satisfy decree for arrears of land etc. Section 84 falls under Chapter VIII. The said Chapter provides for jurisdiction and procedure. In the jurisdiction part of this Chapter, section 83 delineates the class of Revenue Officers and it is provided that the officers under the Act of 1980 shall be the same class of Revenue Officers as are under the J&K Land Revenue Act, 1996 (for short Act of 1996).
13/ Section 84 provides for application and proceedings cognizable by Revenue Officers. Sub section 1 of section 84 provides that the Applications, nature of which is summarized in the said section, shall be taken cognizance of and the proceedings shall be disposed of by the Revenue Officers and no Court shall take cognizance of the matters with respect of which any Application or proceedings might be instituted. Sub section 1 of section 84 further prescribes three groups of proceedings. Clause (d) of the first group of section 84 of the Act of 1980 provides for filing of Application u/s 48, 49 or 68-A. 14/ Perusal of the order of Assistant Commissioner, Baramulla, dated 04th May, 1971, would show that the Appellant had filed Application for ejectment of private respondents under sub section 1 of section 46, sub section 1(b) of section 47 & sub section 2(a) of section
48. As already stated section 46 provides for ejectment of tenant at will. Section 47(1) (b) provides for procedure where tenant is liable to be ejected u/s 46 of the Act of 1980. Section 48 (2)(b) provides that on receiving Application, if the authority, after such enquiry, as is considered sufficient, finds that the tenant is liable for ejectment, shall, subject to the provisions of the Act of 1980, with respect to payment of compensation, order ejectment of the tenant.
15/ Admittedly, in terms of order dated 04 th May, 1971, the Appellant filed Application for ejectment of private respondents from the land. He had, thus, filed Application in terms of clause (d) of first group of section 84 for ejectment of private respondents. The Appellant, in the facts of this case, had not filed a Suit for ejectment of land lord in terms of clause (d) of first group of section 85.
15/ In view of the mandate contained in section 83, the class of Revenue Officers, under the Act of 1980, are same as is provided under the J&K Land Revenue Act, 1996.
16/ Section 86 of the Act of 1980 provides for Administrative Control, Appeal, Review & Revision.
Clause (c) of section 86 provides for Appeals from the orders or decrees of Revenue Officers or Revenue Court.
Section 86 itself prescribes that the provisions of J&K Land Revenue Act, 1996, shall apply to the proceedings, decrees or orders of Revenue Officers, whether exercising jurisdiction as such or as Revenue Courts under the Act of 1980. The proviso appended to section 86, however, provides that Appeal from the original or appellate order or decree of Collector in Suits mentioned in section 85, shall lie to the High Court and shall be heard by a Single Judge and any further Appeal, if maintainable under the provisions of Code of Civil Procedure 1977, shall be heard by a Division Bench of High Court on any point of law only.
17/ As already stated, the Appellant, on his own showing and in view of order dated 04th May, 1971, passed by Assistant Commissioner, Baramulla, on which reliance is placed by him, filed an Application for ejectment of private respondents, which Application was, admittedly, filed under clause (d) of first group of section 84 of the Act of 1980. The Appellant, admittedly, had not filed Suit to eject the private respondents in terms of clause (d) of first group of section 85 of the Act of 1980.
Section 11 of Land Revenue Act, 1996 (1939 AD) provides for Appeals. Clause (b) of section 11 provides that Appeal would lie from the original or appellate order of a Revenue Officer to the Divisional Commissioner, when order is made by a Collector.
18/ In the aforesaid factual and legal position obtaining in this case, the Application for ejectment, having been filed in terms of section 46(1) section 47(1)
(b) and section 48(2)(a), the Appeal in terms of section 86 of the Act of 1980 was competent and maintainable before the Divisional Commissioner.
19/ The Divisional Commissioner, vide order dated 06th September, 1978, declared that in terms of sub section 2 of section 42 of the Act of 1976, the Appeal proceedings as also the order, impugned in the Appeal, shall abate. The record along with copy of the aforesaid order was ordered to be send back. The order of Divisional Commissioner, in view of the discussion made hereinabove, was, thus, within jurisdiction. The Appellant has not challenged order dated 06 th September, 1978. The said order has attained finality.
After passing of the said order, in law, it would be deemed that the order dated 04th May, 1971, passed by Assistant Commissioner, Baramulla, abated and could not be, in law, executed. The proceedings, which were carried forward thereafter by the Collector, Agrarian Reforms, Sopore and who, vide order dated 20 July, 1982, had held that order of Assistant Commissioner, Baramulla, dated 04th May, 1971, is in operation and is enforceable, is rendered illegal, without jurisdiction and nullity in law. The consequent orders, passed by Agrarian Reforms Commissioner, Srinagar and J&K Special Tribunal, in the aforesaid legal situation, are also rendered without jurisdiction and nullity in law and have been, rightly, set aside by the learned writ Court.
20/ In view of the discussion made in this judgement, the Appeal against order dated 04th May, 1971, before the Divisional Commissioner, Kashmir, was competent and maintainable in law in terms of Act of 1980. After coming into force of the Act of 1976, in view of section 42, sub section 1, the provisions of the Act of 1980 ceased to apply to the land being covered by the Act of 1976.
21/ The Act of 1976 is heavily loaded in favor of tenants. There is no provision for ejectment of tenant.
The underlying purpose of the Act of 1976 was to extinguish the relationship of landlord and tenant, and to ensure that the person in possession, who tills the land, shall be declared to be owner of the land, subject, however, to other provisions of the Act of 1976.
However, a land lord, on the terms and conditions contained in section 7 thereof, can seek resumption of land for personal cultivation. The Act of 1980, which provided for ejectment of tenant on variety of grounds, is inconsistent with the Act of 1976. In terms of sub section 2 of section 42 of the Act of 1976, all the Applications, Suits and proceedings, pending before any Revenue Officer, Civil or Revenue Court, any revenue Authority acting under the J&K Tenancy Act, J&K Consolidation of Holdings Act, 1962 or the Government on the date of commencement of the Act or under any of the provisions of the Acts mentioned in sub section 1, so far they were inconsistent with the Act of 1976, abated. In view of the language, in which sub section 2 of section 42 of the Act of 1976, is couched, the proceedings would abate by operation of Statute itself and there was no requirement of passing of order by the authorities/Courts. Sub section 3 of section 42 of the Act of 1976 would not be attracted to the facts of the case, in as much as, the order dated 04 th May, 1971 had not become final but was subject matter of an Appeal.
22/ An Appeal, in law, is continuation of original proceedings. Until such time, the Appeal would be decided, order dated 04th May, 1971 cannot be said to have become final. The proceedings, which were initiated on the ejectment Application of the Appellant, were pending in an Appeal before the Divisional Commissioner, Kashmir. When the Act of 1976 came into force, the proceedings were not finally concluded.
Sub section 3 of section 42 of the Act of 1976 could not be, thus, attracted to the facts of this case.
23/ This Appeal, in these circumstances, would require to be dismissed. However, this Court is dutybound to administer justice to the parties. The justice has to be administered in accordance with law. The potential and power of justice has been, to some extent, analyzed and defined in the following judgements of this Court:
"1/ J&K BOPEE and Ors vs. Sunanadni Sharma and Ors. reported in AIR 2014. J&K
45. Relevant para is taken note of :-
".... The Constitutional Court is duty bound to uphold the merit of a meritorious candidate and is further duty bound to ensure that justice is meted out and wrong done is remedied. True, it is that justice is to be done in accordance with the law. The justice, however, in itself is a supreme law and cannot become subservient to an interpretation of a law which may result meeting out harsh injustice to a person..."
(Emphasis supplied) 2/ Joginder Kour Vs. Union of India and Ors. reported in 2012 (4) JKJ 1131, the Hon'ble Court has observed as under:-
"Amongst others, in beauty, and hazard of human life, lies its unpredictability . Sometimes, the human life projects and poses most complex problems for their solution. In the scheme of nature, it is the human life, which occupies the central position. Through the evolutionary process, besides other things which are available in this universe, the human life has to be shaped up so as to enable it to illuminate its surroundings. With the progress of time, civil societies have come into existence which is governed by rule of law. The laws whether fundamental, primary or subordinate legislations, are all brought into existence for the welfare of the human being. The laws are, thus, to be interpreted in a manner, which work for the advantage of the human being. Everything which one faces in the life, cannot be foreseen. The life, when it poses some complex problems for which no existing solution is available, then, an honest effort has to be made to retrieve a person from such a situation. The life, at times, becomes unpredictable and the laws for such a situation, thus, would not be available on the statute book.
The case on hand is one such rare and exceptional case where the laws, as they are, have created more problems than solving the same for the appellant. This court is duty bound to meet out justice to the appellant. Justice, however, has to be done in accordance with the laws. When the consequences of an action based on existing laws are bound to produce harsh results, then the concept 'justice according to the laws', has to be tailored and fashioned in a manner which would produce most equitable and just results..."
(Emphasis supplied) 3/ Owais Mehmood vs. State and Ors. passed in LPA. No. 09/2015 decided on 3rd July, 2015, the contours and powers of the justice are spelt out as under :
"....Justice is overawing, over imposing and overwhelming feature of life. Justice transcends all manmade barriers. It denudes injustice of all its lethal effect. Justice essentially is an all pervasive legal force; its administration is guided by rules of nature, and is tempered with compassion..."
(E mphasis supplied) 24/ Admittedly, the Appellant had filed Application u/s 7 of the Act of 1976 seeking resumption of land for personal cultivation. The Appellant, in view of order dated 27th August, 1987, was handed over possession of land in question after the Revision petition of the private respondents was dismissed by the Tribunal. As already stated, the Appellant had already deposited an amount of Rs.4,225/- as approximate cost of crop of Kharief 1987.
As already detailed out in this judgement, while giving brief narration of the sequences of events, which have taken place in this case, on 29th August, 1987, the Appellant did not pursue the proceedings, which were initiated on his Application filed u/s 7 of the Act of 1976, seeking resumption of land and the said Application was dismissed. After the possession was handed over to the Appellant, which, in the memorandum of Appeal, the Appellant has stated that he was forcibly dispossessed, there was no requirement for him to prosecute the Application for seeking resumption of land. It is also admitted that till date, order on mutation u/s 8 of the Act of 1976, has not been passed by the Competent Authority in favour of the private respondents. The order on mutation can be passed only after decision is taken on the resumption Application filed by the ex land lord u/s 7 of the Act of 1976.
25/ In the peculiar facts of this case, the Appellant, after possession of land was handed over to him by Tehsildar concerned on 27th August, 1987, was not required, both in fact and law, to pursue the proceedings initiated by the competent Revenue Officer on his Application seeking resumption of land u/s 7 of Act of 1976. Thus, proceedings were, accordingly, abandoned by the Appellant.
26/ The Appellant cannot be now rendered remedyless.
He, voluntarily, did not choose to abandon the proceedings, which were initiated on his Application for resumption of land u/s 7 of the Act of 1976. These, proceedings were rendered inconsequential and no order would require to be passed by the Competent Authority in view of handing over of land in question by the competent Revenue Officer to the Appellant on 27th August, 1987, which possession was handed over to him in pursuance of order dated 04th May, 1971 passed by Assistant Commissioner, Baramulla. In this factual background, the proceedings initiated by the Appellant by filing Application u/s 7 of the Act of 1976 for resumption of land, would be deemed to be surviving, notwithstanding , passing of order dated 29th August, 1987 on those proceedings by Tehsildar, Sopore.
27/ In order to do justice in this case, the proceedings, initiated by the Appellant by filing Application u/s 7 of the Act of 1976, shall have to revive and the competent Revenue Officer would be under statutory obligation to take the proceedings, which were dismissed on 29 th August, 1987 to its logical conclusion in accordance with law.
28/ In view of our aforesaid discussion and the reasons recorded in this decision, the Appeal is disposed of along with connected IAs in the following manner :
"a/ The judgement of writ Court, impugned in this Appeal, is maintained ;
b/ Tehsildar, Sopore, or any other competent Revenue Officer, is directed to carry the proceedings, which were initiated on the Application filed by the Appellant u/s 7 of the Jammu & Kashmir Agrarian Reforms Act, 1976 and which was disposed of on 29 th August, 1987, to its logical conclusion by passing appropriate orders, in accordance with law, after affording opportunity of hearing to both the parties and order dated 29th August, 1987 shall be deemed to be non-existent and not surviving ;
c/ The said proceedings be concluded, preferably, within two months from the date copy of this order is served on him. It is made clear that in case record of the proceedings u/s 7 of the Agrarian Reforms Act, 1976 will not be available in the Office of Tehsildar, then, within one month from today, the Appellant shall file fresh Application(s) and the competent Revenue Officer/Tehsildar, Sopore, shall decide the same in accordance with law, treating them to have been filed within the time prescribed by J&K Agrarian Reforms Act, 1976 ;
d/ No order as to costs."
(ALI MOHAMMAD MAGREY) (MUZAFFAR HUSSAIN ATTAR) JUDGE JUDGE Tariq MOTA SRINAGAR.
02-12-2015