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Jammu & Kashmir High Court - Srinagar Bench

Gh. Mohamamd Dar And Others vs State Of J&K; And Others on 2 March, 2018

Author: Mohammad Yaqoob Mir

Bench: Mohammad Yaqoob Mir

Serial No.10
Regular List

                     HIGH COURT OF JAMMU AND KASHMIR
                               AT SRINAGAR

   OWP No.720/2014
   MP No.1142/2014
                                                     Date of order:02.03.2018

   Gh. Mohammad Dar & ors.                 v.          State of J&K & ors.

   Coram:
         Hon'ble Mr Justice Mohammad Yaqoob Mir, Judge.

   Appearance:
   For the Petitioner(s):   Mr. M. Amin Khan, Adv.
   For the Respondent(s):   Mr. M. A. Wani, Sr. AAG-for R1 & R2.

None for R3.

   i)    Whether approved for reporting in                 Yes
         Law journals etc.:
   ii)   Whether approved for publication
         in press:                                        Yes/No

1. Petitioner seeks quashment of the order dated 25.04.2014, passed by the J&K Special Tribunal (revisional authority) under Agrarian Reforms Act (hereinafter referred to as the Act), in terms whereof order of the appellate authority dated 20.08.2008 as well as mutation orders passed under Section 4 and 8 of the Agrarian Reforms Act, in the year 1989 and 1992 respectively, have been set aside.

2. The dispute is regarding land measuring 16 marlas covered by Survey No.1281 situated in Village Surasyar Tehsil Chadoora District Budgam, which land, according to the owner (respondent No.3) was in his self cultivation before and after Kharif 1971 whereas petitioner claimed to be the tenant of the land, therefore, entitled to be conferred prospective OWP No.720/2014 Page 1 of 7 ownership rights and then ownership rights under Section 4 and 8 of the Act.

3. Mutation under Section 4 of the Act in respect of the land in question bearing No.1374 dated 19.07.1989 has been attested in favour of the petitioner on 19.07.1989. Thereafter, on deposit of levy, he has been conferred with ownership rights under Section 8 of the Act vide mutation No.1407 dated 16.01.1992. Both the mutations have been challenged by respondent No.3 by medium of two separate appeals before the Financial Commissioner Revenue with powers of Agrarian Reforms Commissioner (hereinafter referred to as the appellate authority). Learned appellate authority has noticed that the mutation under Section 4 has been challenged after a gap of 18 years whereas mutation under Section 8 has been challenged after a gap of 15 years. He has also noticed that in mutation under Section 4 reference is to some agreement between the parties attested by Notary as a result of which entries of 1971 have been changed so as to show the land under the cultivation of the tenant(petitioner). Learned appellate authority has noticed that after considering the records no ground is made for condoning the delay and has added that though the method adopted by the parties to change entry is questionable but justice would not demand setting aside of the mutation. Finally, has dismissed the appeals both on the point of delay and merit.

4. Dissatisfied with the order of the appellate authority dated 20.08.2008, the owner-respondent No.3 has filed revision petition under Section 21 of the Act before Jammu and Kashmir Special Tribunal, Srinagar (hereinafter referred to as the revisional authority). The OWP No.720/2014 Page 2 of 7 revisional authority has noticed that as per entries, prior to and after Kharif, 1971, the land was shown in personal cultivation of the owner. The mutating officer in collusion with so-called tenant (petitioner) has attested mutation under Section 4. He has also observed that the appellate authority was first to decide the application for condonation of delay and then appeal but the appellate authority has decided the application for condonation of delay along with main appeal, which was not permissible.

5. Agrarian Reforms Act has the object of vesting ownership of the land to the "tillers" who were cultivating the land on the crucial date of Kharif, 1971. As per Section 2 (17) of the Act, "tiller" means tenant cultivating land personally in Kharif, 1971. Section 4 of the Act provides for vesting in the State of rights in land not held in personal cultivation by the owner on the crucial date i.e. Kharif 1971 and to declare "tiller" thereof as prospective owner. Then after adhering to Section 7, if applicable, has to vest prospective owner/tiller with ownership rights under Section 8 of the Act.

6. While initiating proceedings under Section 4 of the Act, once attesting authority notices that there is dispute relating to Girdawari entry, then he has to resort to Rule 4 of the Agrarian Reforms Rules, 1977 (hereinafter after referred to as the Rules of 1977), which provides for correction of entries in Girdawari. Sub-rule (3) of Rule 4 of the Rules of 1977 provides that when an objection relating to personal cultivation is raised, enquiry shall be conducted by the Revenue Officer who shall also record reasons that any admission to correction of entry is not a device to defeat the provisions relating to restrictions on alienation of land, OWP No.720/2014 Page 3 of 7 provided by the Act. It is thereafter mutation under Section 4 of the Act has to be attested.

7. In the instant case, admittedly, in Girdawari prior to Rabi 1971, in the cultivation column, "owner" is shown in "self cultivation". In Rabi, 1971, entry has been changed by showing Ghulam Ahmad (father of the petitioners) in possession as tenant. How and when this entry has been changed, has not been enquired into. Here Rule 4 of the Rules of 1977 should have been taken recourse to which has not been done. Same has escaped the attention of both attesting officer, appellate authority and also the revisional authority.

8. Mutation No.1374 attested under Section 4 of the Act on 19.07.1989, allegedly has been attested at the back of owner when matter required enquiry in presence of the parties. Now an important question is that the owner has challenged the mutation under Section 4 and 8 respectively after a gap of 17 and 15 years, could such a delay be condoned. Answer lies in Rule 52 of the Rules of 1977, which provides that where appeal fails on the ground of limitation, the appellate authority, if he be of the opinion that the order appealed from is one which requires to be reversed, he shall submit the case through proper channel to the revisional authority with a report as to why the order appealed from needs to be revised and what the revised order should be, means the appellate authority was within its competence to look into the merit of the case also, as has been done. The appellate authority has come to the conclusion that the appeals are barred by limitation. Then while examining the merit has observed that there is no merit. That perhaps has been done in-keeping with the object of Rule 52 of the Rules of 1977.

9. Now the moot question which arises for consideration is as to whether land was under cultivation of the father of the petitioners and thereafter petitioners were/are in possession of the property as tenant right from 1971. Learned appellate authority has observed that there has been some agreement based on which entry has been changed, whether that agreement was permissible under law was also a question to be looked into while conducting enquiry under Rule 4 of the Rules of 1977. Even otherwise also, appellate authority could have resorted to Rule 50 of the Rules of 1977 to dispose of the objection regarding personal cultivation at site in presence of general village body. Rule 50 and Rule 52 of the Rules of 1977, for facility of reference, are quoted here-under:

"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.

52. Case where appeal fails on ground of limitation.--Where the appeal is dismissed on the ground of limitation, the appellate authority shall, if he be of 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 appealed from needs being revised and what the revised order should OWP No.720/2014 Page 5 of 7 be. On receipt of this report, the revisional authority shall act as if an application for revision under the Act had been made to him."

10. So in any case, question of self cultivation was an issue to be addressed right on spot. Neither Tehsildar who attested mutation under Section 4 nor the appellate authority have done so and it has also escaped the attention of revisional authority.

11. For the stated reasons, the issue of self cultivation or otherwise has to be settled on spot in presence of village body as is the mandate of Rule 4 of the Agrarian Reforms Rules. That being so, mutation No. 1374 dated 19.07.1989, mutation No.1407 dated 16.01.1992, order of appellate authority dated 20.08.2008 and the order passed by revisional authority dated 25.04.2014 are found to be unsustainable, therefore, set aside. Case is remanded to Collector (Assistant Commissioner, Revenue), Budgam, who shall visit the spot and hold enquiry in presence of village body and in presence of the parties regarding entry of self cultivation in the year 1971 and to ascertain as to who actually was in possession of the land in the year 1971 and thereafter. Dependent upon conclusion of the enquiry under Rule 4 of the Agrarian Reforms Rules, mandate of other provisions, such as Section 4, Section 7, Section 8 and Section 12 of the Agrarian Reforms Act has to follow.

12. Since the parties have been litigating for quite long time, the Collector (Assistant Commissioner, Revenue), Budgam, shall finalize the proceedings i.e. to pass orders under Rule 4 of the Agrarian Reforms Rules, 1977, in case land is found to be in cultivation of the tenant from OWP No.720/2014 Page 6 of 7 1971, then mutation under Section 4 and 8 of the Act be attested within a period of one month from the date copy of the order is served upon him.

13. Learned counsel for the parties shall ensure presence of the parties before the Collector (Assistant Commissioner, Revenue), Budgam, on 15th March, 2018.

14. Petition succeeds, shall stand disposed of as above along with connected MP.

(Mohammad Yaqoob Mir) Judge Srinagar 02.03.2018 "Bhat Altaf, PS"