Jammu & Kashmir High Court
Devinder Singh vs State And Others on 14 January, 2020
Equivalent citations: AIRONLINE 2020 J AND K 4
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
Sr. No. 10
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
OW104 No. 83/2013
Reserved on:- 26.12.2019
Pronounced on: 14.01.2020
Devinder Singh . ...Petitioner(s)
Through:- Mr. V. Bhat, Advocate
v/s
State and others ...Respondent (s)
Through :-Mr. S.S Nanda, Sr.AAG for R-1
to 5.
Mr. O.P Thakur, Advocate for R-6
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
::: : JUDGMENT
1. The petitioner is aggrieved and challenges an order dated 31.07.2013 passed by the Financial Commissioner (Revenue), J&K in file No. 264/FC-AP, whereby the revision petition filed by respondent Nos. 5 & 6 against an order of Settlement Commissioner, Jammu dated 26.08.2005 has been accepted.
2. The facts leading to the filing of this petition purportedly filed under Section 104 of the Constitution of J&K read with Article 226 of the Constitution of India, as are relevant for its disposal need to be noticed first.
3. The petitioner claims to be adopted son of one Devki Devi alias Dadwal, resident of Talab Tillo, Jammu, who owned a piece of vacant land measuring 5 Kanals 10 Marlas comprised in Khasra No. 267 min recorded as „Warhal Awal‟ in the revenue records. The land was situated in village Toph Sherkhanian. On 30.04.1970, the said land was leased out by Smt. Devki Devi in favour of one Sh. Kirti Kumar, a partner of respondent No. 5 for a period of 20 years. In the aforesaid lease deed, apart from other covenants 2 OW104 No. 83/2013 and stipulations, it was clearly indicated that the said land had been under the use of brick kiln for more than 15 years and had never been put to agricultural use and that the lease had been granted to the lessee for industrial purpose, i.e. construction of a factory. This lease deed, it may be noted, has been accepted by the parties and never assailed before any competent forum. Although, the lease deed executed on 30.04.1970 was envisaged for a period of 20 years but in the year, 1977, the parties, i.e. Smt. Devki Devi, lessor and Sh. Kirti Kumar, the lessee decided to execute fresh lease deed in supersession of the earlier one. Accordingly, on 04.01.1977 a fresh lease for a period of 90 years was executed. The later lease deed was obviously in supersession of the earlier lease deed executed on 30.04.1970. The lease was to commence w.e.f 01.09.1976. In the fresh lease also, the parties reiterated that the lease of the land was for construction of a factory.
4. A careful perusal of the lease deed would indicate beyond any pale of doubt that the same was intended to be the sale of property, for, the lessor received the total sale consideration of the property at the time of execution of the lease deed. There are other terms and conditions in the lease deed, a perusal whereof would indicate that the lease deed was executed in lieu of sale deed for some legal and technical reasons. Acting under the stipulations contained in the lease agreement, respondent No. 5 transferred his leasehold rights in favour of respondent No. 6 by executing a lease deed dated 24.12.1988. The lease deeds in question were never challenged by Smt. Devki Devi during her lifetime. She, however, expired in the year, 1988 and the petitioner claimably succeeded to her estate as an adopted son. In the year, 2002, to be exact, on 22.03.2002, the petitioner approached respondent No. 4-Collector (Deputy Commissioner), Jammu by way of an application for eviction of respondent Nos. 5 & 6 from the subject land. The 3 OW104 No. 83/2013 application was purportedly filed under the provisions of J&K Alienation of Land Act, SVT. 1995 (for short "the Act"). The petitioner also claimed a sum of Rs. 50,000/- by way of compensation for unauthorized occupation of the subject land. The application of the petitioner was dismissed by the Deputy Commissioner, Jammu vide his order dated 26.08.2005 on the ground that the subject land had been recorded as „Brick Kiln‟ Gair Mumkin, Tal Lakri in Girdwari records and had, thus, ceased to be „land‟ as defined under the J&K Alienation of Land Act, SVT. 1995. This order was assailed by the petitioner before the Settlement Commissioner by way of an appeal. The appeal was accepted by the Settlement Commissioner vide his order dated 08.01.2007 and the order of the Deputy Commissioner, Jammu was set aside. A direction was issued for restoration of the subject land in favour of the petitioner. The Settlement Commissioner, the appellate authority, held the provisions of the Act applicable to the subject land.
5. Aggrieved, the respondent Nos. 5 and 6 filed revision petition before the Financial Commissioner, Revenue, which has been disposed of by the Financial Commissioner by the judgment impugned. The order of the Settlement Commissioner has been set aside. Taking note of the entries of the subject land in the revenue records from time to time and failure of the petitioner to take corrective measures as provided under the Jammu and Kashmir Land Revenue Act, 1996, the Financial Commissioner, Revenue concurred with the findings of the fact returned by the Deputy Commissioner, Jammu that the subject land had ceased to be „land‟ as defined under the "J&K Alienation of Land Act, SVT. 1995" and, therefore, was not amenable to be restored in favour of the petitioner by operation of Sections 4 & 13 of the Act. It is this order of the Financial Commissioner, 4 OW104 No. 83/2013 which is assailed by the petitioner in this petition, inter-alia, on the following grounds:-
(i) That the Financial Commissioner has fallen in an error by holding that the subject land had ceased to be „land‟ as defined under "J&K Alienation of Land Act, SVT. 1995"
long back and, therefore, not amenable to the provisions thereof. The entry in Jamabandi 1993-94 Bikrami with regard to the subject land classified the kind of land as "Warhal Awal" and the said entry had not been corrected by any competent authority by attestation of a proper mutation or otherwise and subsequent entries reflected in the revenue record were without any authority of law and, therefore, could not be relied upon by the Revenue Authorities.
(ii) That the lease deed in question is null and void, for, the same has been executed in favour of the non State subject and for a non-agricultural purpose. It is submitted that conversion of agricultural land to a non-agricultural use or purpose would require permission in writing from the Revenue Minister of the State under Section 133-A of the Land Revenue Act, 1996. The contravention of the aforesaid provision is penal and the property is liable to be reverted to its original condition.
(iii) That the land recorded as "Gair Mumkin" does not cease to be an agricultural land as is evident from the provisions of Government order No. 487 of 1961 dated 20.11.1961.5 OW104 No. 83/2013
(iv) That the lease of the agricultural land in terms of the provisions of the Act even if valid in law, cannot exceed 21 years and thereafter, the land is required to be restored to the owner. This aspect has not been considered in proper perspective either by the Deputy Commissioner or the Financial Commissioner and, therefore, both the forums have fallen in a serious error rendering the orders passed by them erroneous in fact and law.
(v) That the impugned order passed by respondent No. 3 also suffers from grave error of law inasmuch as the respondent No. 2 has erroneously concluded that the order passed by the Settlement Commissioner (Respondent No. 3) was without jurisdiction as the Settlement Commissioner was vested with the appellate powers only on 28.12.2012 in terms of SRO No. 417 of 2012.
6. Learned counsel appearing for the petitioner Mr. Varinder Bhat strenuously argues that for the aforementioned grounds, the order impugned is not sustainable in law and, therefore, deserves to be quashed. He elaborates his submissions by making a reference to the specific provisions of the Act, particularly, Sections 4 & 13 thereof. He places strong reliance upon the provisions of Section 133-A of the Land Revenue Act, 1996 and submits that the lease granted by predecessor-in-interest of the petitioner in favour of respondent No. 5 was contrary to the mandatory provisions of the Act and violated Section 133-A of the Land Revenue Act, 1996. He, therefore, submits that the subject land was liable to be restored in favour of 6 OW104 No. 83/2013 the petitioner. He vehemently defends the order passed by the Settlement Commissioner.
7. Per contra, Mr. O.P Thakur, learned counsel appearing for respondent Nos. 5 & 6 supports the judgment impugned passed by the Financial Commissioner, Revenue. He contends that the petitioner cannot be allowed to take the benefit of his own wrong, even if it is to be assumed that the lease deed executed by his predecessor-in-interest, was contrary to the provisions of law. Relying upon the several judgments of the Supreme Court, Mr. Thakur urges that the party to a written instrument cannot accept the terms of such instruments, which are beneficial to him and avoid others, which may not be advantageous to him. The party to an instrument or document is bound to accept the same as a whole and cannot be permitted to wriggle out of the covenants, which he feels are not profitable to him. He further submits that the predecessor-in-interest of the petitioner namely, Smt. Devki Devi, who was signatory to both the lease deeds executed in the year, 1970 and 1977 never assailed the lease deeds before any forum and rather accepted the same with all sincerity. Not only, she accepted the entire consideration of the subject land but also agreed to execute the sale deed as and when requested and became permissible in law. He further claims that from bare reading the lease deeds of 1970 and 1977, it is abundantly clear that late Devki Devi always intended to transfer the property in question permanently but because of certain legal complication decided to execute the lease deed for 90 years instead.
8. Having heard learned counsel for the parties and perused the record, I am of the view that the petitioner, even if had any right to reclaim the subject land has lost such right by his conduct or the conduct of his predecessor-in-interest.
7 OW104 No. 83/2013
9. The petitioner cannot be permitted to approbate and reprobate. It is not in dispute that the subject land was recorded as "Warhal Awal" in the Jamabandi of 1993-94 Bikrami and, therefore, was a „land‟ meant for agricultural use. The user of land, thereafter, changed from time to time, may be, in violation of the provisions of the Land Revenue Act, 1996. In the Jamabandi of the year, 2001-02, (1945 A.D), the land came to be recorded as "Gair Mumkin Batha" (Brick Kiln). The revenue record from the year, 1972 onwards shows the entry of "Pencil Factory" on the subject land. In this backdrop, even if this Court were to accept the contention of the petitioner that the change in the kind of soil was reflected in the revenue record illegally and without any authority of law, yet the fact remains that the subject land, which was initially "Warhal Awal" now stands converted into a commercial land. The petitioner does not deny that on the subject land, a pencil factory constructed by respondent No. 6, has come up. The conversion of the agricultural land to commercial use is with the consent and at the instance of the petitioner‟s predecessor-in-interest. If there has been any violation of the provisions of the Act, or the provisions of the Land Revenue Act, 1996, the predecessor -in-interest of the petitioner is equally responsible therefor. Not only, she has transferred the land in question in favour of respondent No. 5 by executing a written instrument but has also received consideration, which is equivalent to the value of the land. By directing restoration of the property in her favour, the petitioner cannot be allowed to be unjustly enriched. In the given facts and circumstances, the doctrine of "Waiver and Estoppel" would be clearly attracted. In terms of Section 13 of the Act, a member of agricultural class is entitled to make a lease of his land for any term not exceeding 21 years and if any such lease is made for a longer term than 21 years, it shall be deemed to be a lease for a 8 OW104 No. 83/2013 period of 21 years. In the instant case, Smt. Devki Devi executed his lease deed on 30.04.1970 and irrespective of the period of lease indicated in the lease deed, by operation of Section 13, this lease deed would have expired on 30.04.1991. If the petitioner were to invoke the provisions of Section 15 of the Act for restoration of possession of his land, he was supposed to approach the Deputy Commissioner concerned immediately on the expiry of 21 years, i.e. immediately after 30.04.1991. He did not do so, rather, permitted respondent Nos. 5 and 6 to enjoy the user of the land without any protest or objection. He approached the Deputy Commissioner, Jammu for the first time in the year, 2002, i.e. after a lapse of 11 years. For the huge delay on the part of the petitioner to make his grievance and his failure to raise any finger or objection on the first available opportunity, the petitioner shall be deemed to be have abandoned his right to seek recovery of possession, even if the same is assumed to have vested in the petitioner.
10. Hon‟ble Supreme Court of India, in the case of Provash Chandra Dalui and another Vs. Biswanath Banerjee; AIR 1989 SC 1834 considered the concepts "Estoppel, Waiver, Acquiesance or Res Judicata"
and in paragraph Nos. 20, 21 & 22 held thus:-
20. The next question is that of waiver, estoppel and res judicata. The appellants urged that there were two previous proceedings namely Misc. Execution case No. 126 of 1953 (Thika) and Misc. Judicial case No. 74 of 1958 (Thika) under the Act before the Controller. Except the implication that the proceedings having been before the Controller the respondents treated the appellants as thika tenants, no particular order finally conferring that status has been shown to us. By the order of this Court dated 10th March, 1980 in Special Leave Petition (Civil) 1363 of 1980 which was from the judgment and order dated 16.9.1979 of the High Court of Calcutta in E.A. No. 458 of 1978 the petition was dismissed "without going into the question whether the Thika Tenancy Act was applicable or not." Misc. (J) case No. 74 of 1958 wherein the first respondent prayed for being added as petitioner No. 2 ended in a compromise. No status could, however, be said to have been determined.
21. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a known 9 OW104 No. 83/2013 right or such conduct as warrants the inference of the relinquishment of such right. It means the forsaking the assertion of a right at the proper opportunity. The first respondent filed suit at the proper opportunity after the land was transferred to him, and no covenant to treat the appellants as Thika tenants could be shown to have run with the land. Waiver is distinct from estoppel in that in waiver the essential element is actual intent to abandon or surrender right, while in estoppel such intent is immaterial.
The necessary condition is the detriment of the other party by the conduct of the one estopped. An estoppel may result though the party estopped did not intend to lose any existing right. Thus voluntary choice is the essence of waiver for which there must have existed an opportunity for a choice between the relinquishment and the conferment of the right in question. Nothing of the kind could be proved in this case to estopp the first respondent.
22. In Shanti Devi v. A.K. Banerjee, [1981] 2 SCC 199, it was held that parties could not by their pleadings alter the intrinsic character of the lease or bring about a change of the rights and obligations flowing therefrom. The Court would only look into the terms of the lease irrespective of the averments in the pleadings. In the instant case as we have already held the lease to have been for twenty years, its character could not have been changed by the pleadings, if any, in the above cases. Nor could the respondents be held to have waived their rights under the lease. We do not find any infirmity in the impugned High Court order on this count also.
11. In the subsequent judgment rendered by the Supreme Court in the case of Dr. Karan Singh Vs. State of J&K; 2004 5 SCC 698;, the law of „Waiver‟ and „Estoppel‟ was reinstated. Hon‟ble Supreme Court in the judgment of Karan Singh (supra) relied upon the earlier judgments of the Court in the case of Dhiyan Singh & Anr. v. Jugal Kishore & Anr; 1952 SCR 478 and Gyarsi Bai & Ors. v. Dhansukh Lal & Ors.; (1965) 2 SCR 154 and culled out the following principles for attracting the doctrine of Estoppel:-
(i) there must be representation by a person to another,
(ii) the other person shall have acted upon the said representation, and
(iii) such action shall have been detrimental to the interests of the person to whom the representation has been made.".10 OW104 No. 83/2013
12. With regard to „Abandonment‟, Hon‟ble Supreme Court referred to its judgment rendered in the case of Sha Mulchand & Co. Ltd. Vs. Jawahar Mills Ltd.; 1953 SCR 351, in which case, the Supreme Court has held thus:-
"Two things are thus clear, namely, (1) that abandonment of right is much more than mere waiver, acquiescence or laches and is something akin to estoppel if not estoppel itself, and (2) that mere waiver, acquiescence or laches which is short of abandonment of right or estoppel does not disentitle the holder of shares who has a vested interest in the shares from challenging the validity of the purported forfeiture of those shares."
However, with regard to „Waiver‟, Hon‟ble Supreme Court placed reliance on the judgment rendered in the case of Municipal Corporation of Greater Bomba Vs. Dr. Hakimwadi Tenants Association; 1988 Supp. SCC 55, in which elaborating the concept of Waiver, the Supreme Court has held as under:-
"In order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case."
13. On the touchstone of the principles laid down by the Supreme Court in the fore mentioned judgments, when this Court examines the facts of the instant case, it is clearly seen that there was complete waiver of rights by the petitioner. In the first place, the violation of which the petitioner wants to seek advantage of, was committed by the petitioner or his predecessor-in-interest by transferring the agricultural land for commercial purpose in violation of the provisions of the Act and the Land Revenue Act, 1996. Even if one were to assume that the lease deed executed by the predecessor-in-interest of the petitioner was legally valid, the same was to expire after 21 years of its execution by operation of Section 13. This period 11 OW104 No. 83/2013 of lease expired in the year, 1991 and had the petitioner any grievance and wanted to exercise his right to have the suit land restored in his favour by applying to the Deputy Commissioner under Section 15, the year 1991 was the first opportunity available to him. He did not exercise this right for a decade and from such conduct of the petitioner, it is reasonable to infer that he had voluntarily abandoned his right to recover the property under the Act.
14. It is not in dispute that it is on the representation of Devki Devi that the subject land was already in commercial use and that there was no prohibition on its alienation, the respondent No. 5 aggrieved to take the land on lease on payment of consideration which does not represent the premium or the rental of the land but is in essence, the whole sale consideration of the suit land. It is also not disputed before this Court that respondent No. 5, in the exercise of authority vested in him by virtue of lease of 1977, transferred the land by way of lease in favour of respondent No. 6. Respondent No. 6 has constructed a pencil factory after investing huge amount and has acted to his detriment.
15. In the given facts and circumstances, the doctrine of Estoppel is clearly attracted. Since the case in hand is a case of abandonment of rights by the petitioner, if at all there were any. The voluntary relinquishment of rights in the given circumstances also amounts to „Waiver‟ in the eyes of law‟. The instant case reflects a perfect example of blowing hot and cold in the same breath. The Courts have always deprecated the conduct of a litigant who approbates and reprobates. The conduct of the petitioner and his predecessor-in-interest does not, by any stretch of reasoning, justify their plea that for violation of the provisions of the Act and the Land Revenue Act, 1996, the land which they leased out in favour of respondent Nos. 5 and 6 for construction should be restored in their favour. Even if one were to 12 OW104 No. 83/2013 assume that execution of the lease deeds by the petitioner‟s predecessor-in- interest in favour of respondent No. 5 were in violation of the provisions of the Act and the Land Revenue Act, 1996, yet the petitioner cannot be rewarded for committing such violation. On this score only, the petition filed by the petitioner deserves dismissal.
16. However, the parties raised an interesting case of jurisdiction also, which I think, needs to be addressed to serve as guidance in future. Admittedly, in terms of Section 15 of the Act, an application for restoration of possession on expiry of lease under Section 13 lies before the Deputy Commissioner, who is vested with the authority to either act on his own motion or on an application of the person entitled to possession and eject the lessee and place the person so entitled in possession. For quick reference, Section 15 is reproduced hereunder:-
15. Ejectment of mortgage, lessee or farmer remaining in possession after term.
If a mortgagee, lessee or farmer holding possession under mortgage made under Section 13 or under a mortgage, lease or farm made under section 14 remains in possession after the expiry of the term for which he is entitled to hold under his mortgage, lease or farm [Deputy Commissioner] may, of his own motion and shall, on the application of the person entitled to possession, eject such mortgagee, lessee or farmer and place the person so entitled in possession.
17. The Act does not provide for any appeal against the order of the Deputy Commissioner passed under Section 15. However, by virtue of Section 23 of the Act, the provisions of Chapter II of the Land Revenue Act, 1996 have been made applicable to the proceedings of the Revenue Officer under the Act, as far as they are applicable. Chapter II of the Land Revenue Act, 1996 classifies the revenue officers in five different classes, i.e. (a) The Financial Commissioner; (b) The Divisional Commissioner; (c) The Collector; (d) Assistant Collector of the first class; (e) the Assistant Collector of the second class. Strictly speaking, the Deputy Commissioner is 13 OW104 No. 83/2013 not a revenue officer though he is ex-officio the Collector. Assistant Commissioner and Tehsildar are ex-officio Assistant Collector of first class, whereas, Naib Tehsildar is an ex-officio Assistant Collector of second class. The order of the Deputy Commissioner passed by him in his capacity as Collector under the Land Revenue Act, 1996 is appealable before the Divisional Commissioner in terms of Section 11 of the Land Revenue Act, 1996. The orders of Collector are also revisable by the Divisional Commissioner and the Financial Commissioner in terms of Section 15 of the Land Revenue Act, 1996. From plain reading of the provisions of the Act along with provisions of Chapter II of the Land Revenue Act, 1996, it is abundantly clear that the orders passed by the Deputy Commissioner under Section 15 of the Act is neither appealable nor revisable before the Divisional Commissioner. The appeal filed by the petitioner against the order of Deputy Commissioner purportedly passed under Section 15 of the Act was, thus, not maintainable. It is true that the Settlement Officer exercises the powers of the Divisional Commissioner with regard to the tracts under settlement. Similarly, the Settlement Officer, in such situation, exercises the powers of Collector. This is so clearly provided in Section 6 (6) of the Land Revenue Act, 1996. It is, thus, abundantly clear that the legislature has conferred the powers to direct ejectment of mortgagee or lessee or farmer remaining in possession after expiry of term, on the Deputy Commissioner under Section 15 and not the Collector. The Deputy Commissioner, who may be ex-officio, a Collector under the Land Revenue Act, 1996 does not act as Collector, when he proceeds under Section 15 of the Act. The order of the Deputy Commissioner is, thus, neither amenable to appeal before the Divisional Commissioner nor the same can be made 14 OW104 No. 83/2013 subject matter of revision under Section 15 of the Land Revenue Act, 1996 before the Divisional Commissioner or the Financial Commissioner.
18. As a matter of fact, there is no specific remedy provided against the order of the Deputy Commissioner passed under Section 15 of the Act. Having held thus, both the orders; one passed by the Settlement Commissioner and the other passed by the Financial Commissioner are without jurisdiction and deserves to be set aside. The only order, which is passed by the Deputy Commissioner, does not suffer from jurisdictional error. Since the petitioner has invoked extra ordinary writ jurisdiction of this Court, as such, I have, in the exercise of such jurisdiction, examined the order of the Deputy Commissioner in the light of settled legal position adumbrated hereinabove and find that the order of the Deputy Commissioner is perfectly legal and sustainable though not for the reasons indicated therein but for the reasons I have explained hereinabove.
19. In the result, the order of the Divisional Commissioner as also the Financial Commissioner, which are impugned in this petition are set aside and quashed. However, the order of the Deputy Commissioner is upheld though on the grounds indicated above and different from those contained in the order of the Deputy Commissioner.
20. The writ petition is, accordingly, disposed of.
(Sanjeev Kumar) Judge Jammu 14.01.2020 Tarun Whether the order is speaking? Yes Whether the order is reportable? Yes .
TARUN KUMAR GUPTA 2020.01.15 11:05 I attest to the accuracy and integrity of this document