Jammu & Kashmir High Court
High Court Of Jammu & Kashmir And Ladakh vs Ut Of J&K Th on 28 October, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C ) No. 853/2023
.....Petitioner(s)
1 Baljeet Kour wife of late
S. Jaspinder Singh
2. Tasvinder Kour daughter of
S. Jaspinder Singh.
3. Suman Preet Kour daughter of
late S. Jaspinder Singh.
4. Charan Preet Kour daughter of
late S. Jaspinder Singh.
5. Tanjeet Kour daughter of late
S. Jaspinder Singh, all residents of
House No. 16-B Sector 14 Nanak
Nagar Jammu
Through: Mr.Rajinder Jamwal Advocate
Vs
1. UT of J&K th ..... Respondent(s)
Commissioner/Secretary Department
of Revenue
2. Deputy Commissioner Jammu
3. Sub Divisional Magistrate Jammu
North
4. Tehsildar Jammu North, Jammu
5. Ashok Kumar son of Sh. Kali
Dass
6. Ganesh son of late Kali Dass
7. Romesh Kumar son of late Sh.
Kali Dass
8. Jagat Ram son of late Sh. Guchhu
Ram
9. Vijay Kumar son of late Sh. Bansi
Lal
10. Arjun son of late Sh. Bansi Lal
all residents of Gajay Singh Pura
Machhlian, Nagbani Jammu.
Through: Ms Aparna Gupta Advocate
vice
Ms Monika Kohli Sr. AAG for
R-1 to 4.
Mr. Ajaz Chowdhary
Advocate for R 5 to 10.
2
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT(ORAL)
1 The original petitioner, namely S. Jaspinder Singh, through the medium of present petition, has challenged order dated 10.12.2022 passed by the Sub-Divisional Magistrate, Jammu North with the powers of Collector under J&K Land Revenue Act/Agrarian Reforms Act (hereinafter referred to as 'the Collector'). During pendency of the writ petition, the original petitioner passed away and in his place, his legal heirs were brought on record.
2 As per the case of the petitioners, their predecessors-in-interest were displaced persons of POJK and allotment of a parcel of land situated at village Gajey Singh Pura Tehsil and District Jammu was made in their favour. It has been contended that, out of the total allotted land, land measuring 19 kanals, 13 marlas comprised in khasras No.206/2, 208/3 and 203/1 came to be mutated under Sections 4 and 8 of J&K Agrarian Reforms Act in favour of one Guchhu, the predecessor-in-interest of the private respondents by virtue of mutations No.154 and 234. The said mutation orders came to be challenged by the predecessors-in-interest of the petitioners before the Joint Agrarian Reforms Commissioner, with the powers of Commissioner Agrarian Reforms, Jammu. Vide order dated 15.04.2005 passed by the Commissioner, Agrarian Reforms, Jammu, mutations No. 154 and 234 were set aside and the matter was remanded to the Tehsildar, Jammu with a direction to hold a fresh enquiry. 3 It seems that order dated 15.04.2005 passed by the Commissioner Agrarian Reforms, Jammu was challenged by the private respondents by 3 way of a revision petition before Jammu and Kashmir Special Tribunal (hereinafter referred to as the 'Tribunal'). The learned Tribunal upheld the order of the Commissioner Agrarian Reforms, Jammu to the extent of setting aside of mutations attested under Sections 4 and 8 of the J&K Agrarian Reforms Act in respect of land measuring 16 kanals situated at village Gajey Singh Pura, Tehsil and District Jammu. The observation of the Joint Commissioner, Agrarian Reforms, Jammu that land in dispute is State land, was quashed and the Tehsildar, Jammu was directed to hold a de novo enquiry.
4 The judgment of learned Tribunal dated 04.01.2006 attained finality and the Tehsildar Agrarian Reforms, Jammu disposed of the remand proceedings in terms of order dated 05.09.2013 by holding that the land in question is State land and, as such, beyond the purview of J&K Agrarian Reforms Act.
5 Order dated 05.09.2013, passed by the Tehsildar Agrarian Reforms, Jammu was challenged by the private respondents by way of an appeal before the Additional Deputy Commissioner with powers of Commissioner Agrarian Reforms, Jammu, who, vide order dated 20.10.2021 allowed the appeal and set aside order dated 05.09.2013 passed by the Tehsildar and remanded the case to SDM Jammu North for de novo enquiry.
6 The aforesaid Authority, after holding the requisite enquiry, passed the impugned order dated 10.12.2022 in terms whereof, while setting aside mutation orders No. 154 and 234, the private respondents have been held eligible to allotment of subject land in terms of 4 Government order No. S-432 of 1966.
7 The main contention of the petitioners for challenging the impugned order is that the Collector has exceeded his brief by making an observation that the private respondents are eligible for ownership/allotment of land as per Government Order No. S-432 of 1966. It has been contended that the Collector was only required to determine the legality of order dated 05.09.2013 passed by the Tehsildar Jammu and once he had come to a conclusion that the said order is in accordance with law, there was no occasion for the Collector to record findings in respect of a matter which was not in issue before him. It has also been contended that the SDM, while passing the impugned order has not adhered to the directions passed by the Additional Deputy Commissioner vide order dated 20.10.2021.
8 The private respondents in their reply to the writ petition have contended that no land was allotted in favour of the predecessors-in- interest of the petitioners at village Gajey Singh Pura. It has been contended that the land, which was allotted to the predecessors-in-interest of the petitioners is located in villages Rakh Nagbani and Machhlian regarding which the predecessors-in-interest of the petitioners had engaged Guchhu, the predecessor-in-interest of the private respondents as a hired labourer. According to the private respondents, this fact has been intentionally suppressed by the petitioners. It has been further contended that the predecessor-in-interest of the private respondents, namely Guchhu and his successors have consistently been in cultivating possession of the land in question and, as such, they are entitled to allotment of the said land in their favour. It has been contended that the Collector (SDM), while 5 passing the impugned order, was justified in entertaining the claim of the private respondents as the petitioners have no right over the land in question. It has also been submitted that the present petitioners, as per their own showing, are not in possession of the land in question and it is for this reason that they have sought relief for the retrieval of possession of the land in question in their writ petition..
9 I have heard learned counsel for the parties and perused record of the case.
10 It is clear from the pleadings of the parties that the dispute between them relates to attestation of mutation No. 154 dated 26.12.1980 under Section 4 of the Agrarian Reforms Act in favour of Guchhu, the predecessor-in-interest of the private respondents and Mutation No. 234 dated 10.04.1993 attested in his favour under Section 8 of the Agrarian Reforms Act. In the first round of litigation between the parties, the aforesaid mutation orders were set aside initially by the Commissioner Agrarian Reforms, Jammu vide order dated 15.04.2005 and the said order came to be upheld by the learned Tribunal in a revision petition. The matter was remanded to the concerned Tehsildar for de novo enquiry after setting aside of the aforesaid mutation orders. The Tehsildar, in terms of order dated 05.09.2013, concluded that the mutations attested under Section 4 and 8 in favour of Guchhu, the predecessor-in- interest of the private respondents are not correct and that the same are nullity in the eyes of law because no mutation under Sections 4 and 8 of the Agrarian Reforms Act can be attested in respect of State land. The said order passed by the Tehsildar was challenged by the private respondents by way of an appeal before Additional Deputy Commissioner with the powers of 6 Commissioner Agrarian Reforms, Jammu who, vide order dated 20.10.2021 set aside order added 05.09.2013 passed by the Tehsildar, Jammu and remanded the matter to SDM, Jammu North/Collector with a direction to him to conduct de novo enquiry on the following issues:
(i) To examine the entire record i.e Record of Rights and Jamabandi of Village Gajay Singh Pura, Tehsil Jammu and to verify and cross check the entries made in the column No.3 and 4 of the mutation order numbers 154 and 234 of village Gajay Singh Pura and found that if there is any discrepancy and mismatch.
(ii) Ascertain the reasons and the circumstance under which the Part Sarkar of Mutaiton No. 154 of village Gajay Singh Pura dated 26.12.1980 was lost/missing and fix the responsibility of official in the loss/misplacement of Part Sarkar of the said mutation.
(iii)Crosscheck the record of the subject land in the office of Custodian General J&K and find out the status of the land as per the record position available in the Custodian General Office.
(iv) Sub-Divisional Magistrate, Jammu North to organize an enquiry camp at the village Gajay Singh Pura, Tehsil Jammu with minimum of 50 prominent citizens as also Lambardar and Chowkidar of village and record their statements to ascertain the actual status of Sh. Guchhan, status of Kirpal Singh and also their legal heirs upon the subject land to clear the confusion.
(v) Sub-Divisional Magistrate, Jammu North to prepare a chart of the status of the occupation of the subject land during the last 50 years and ascertain the present occupation status of the subject land as to who has remained in the occupation of the subject land especially during the crucial period of Kharief 1971.
(vi) Sub Divisional Magistrate, Jammu North while conducting enquiry shall also ascertain as to who was in cultivating possession of the subject land during the year 1980, 1981, 1982 and also to verify as to whether Guchhan was cultivating the land as a hired labourer of Sh. Kirpal Singh or he was cultivating the land in some other capacity and what was the need of signing an agreement on his behalf in favour of Kirpal Singh on 11.07.1981 immediately after attestation of mutation under Section 4 on the Act on 26.12.1980.
(vii) Sub Divisional Magistrate, Jammu North while conducting the spot enquiry shall hear properly and afford reasonable opportunity of being heard to the both the parties, their legal heirs as also representatives/management of Sh. 7 Maharaja Hari Singh Collegiate Nagbani and pass fresh and appropriate orders strictly accordance with the provisions of Jammu and Kashmir Agrarian Reforms Act, 1976, observations of the JK&K Special Tribunal, Joint Commissioner, J&K Agrarian Reforms within a period of 02 months of date of receipt of this order by the SDM.
11 From a perusal of the aforesaid order, it is clear that the mandate of SDM, Jammu North was to conduct an enquiry on the aforesaid issues. The SDM, Jammu North (Collector), in terms of the impugned order, while giving his findings on the issues formulated by the Commissioner Agrarian Reforms/Appellate Authority has come to the conclusion that the order setting aside mutation Nos. 154 and 234 attested under Sections 4 and 8 of the Agrarian Reforms Act in favour of Guchhu is in accordance with law, but has proceeded to hold that the private respondents are eligible for ownership/allotment of land as per Government Order No. S-432 of 1966.
12 The Appellate Authority had nowhere asked the Collector to go into the question as to whether the private respondents are entitled to allotment of land in question. The Collector was only required to go into the question of occupation in respect of the land in question and also with regard to the legality and validity of mutations No. 154 and 234 of village Gajey Singh Pura. The issue, whether occupation of land by the private respondents would entitle them to allotment of the said land under any provision of law or order, was not subject matter of discussion and deliberation before the Collector. The observation of the Collector, that the private respondents are entitled to allotment of land in question in terms of Government Order No. S-432 of 1966 is, therefore, not tenable in law. If at all, the continuous possession of the private respondents over the land in 8 question has given rise to any right of allotment in their favour under any law, it is for them to approach the competent Authority for the said purpose, but they cannot be conferred the allotment rights over the land in question in a proceeding where the said issue was not the subject matter of adjudication before the Collector.
13 Apart from the above, the Collector(SDM), in terms of order of remand dated 20.10.2021 passed by the Additional Deputy Commissioner, was required to examine the record of rights/Jamabandi of village Gajay Singh Pura to crosscheck the entries made in columns No. 3 and 4 of mutation Nos. 154 and 234 of said village, ascertain the reason for misplacement of Parat Sarkar of Mutation No. 154 and to crosscheck the record of subject land in the office of Custodian General to find the status of the land in question. The Collector(SDM), without conducting the aforesaid exercise, has proceeded to arrive at conclusion about the status of land in question, thereby ignoring the direction of the Additional Deputy Commissioner. On this ground also, the impugned order passed by the Collector (SDM) is not sustainable in law.
14 For the foregoing reasons, the writ petition is allowed and the findings and observations made by the Collector (SDM) in the impugned order regarding status of the land in question as also the observation that the private respondents are eligible for ownership/allotment of the land in question in terms of Government Order No. S-432 of 1996 are set aside. The Collector (SDM North) Jammu is directed to hold a fresh enquiry into the matter, strictly in accordance with the directions passed by the Additional Deputy Commissioner (Commissioner Agrarian Reforms), Jammu extended vide order dated 20.10.2021 and pass a fresh order 9 within a period of two months from the date a copy of this order is made available to the said Authority.
(SANJAY DHAR) JUDGE Jammu 28.10.2024 Sanjeev Whether approved for reporting? Yes/No 10 Sanjeev Kumar 2024.10.30 16:30 I attest to the accuracy and integrity of this document