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2002 DIGILAW 330 (JK)

Karam Chand v. Sushil Kour

2002-10-11

B.L.BHAT, V.K.JHANJI

body2002
Per B.L.Bhat J. Considered. Admit. 1. With the consent of the learned Counsel for the parties, this LPA which is directed against the judgement dated 31-12-2001 recorded by the learned Single Judge in OWP No. 285/99 is taken up final disposal. 2. The incontrovertable facts leading up to the filing of this appeal are that one Tirath Singh son of Ganga Singh, the predecessor-in-interest of respondents NO1 to 4 herein being a Displaced person from Pak Occupied Kashmir area of Tehsil uri District Muzzafarbad was rehabilitated by the Govt. of Jammu & Kashmir by alloting him land as displaced person in two villages : land measuring about 3 kanal and 9 marlas comprising of Rh. No.43-min located at village Marh Bagh and land measuring about 5 kanals 3 marlas comprising of Kh.No. 62 located at Channi Mawalian in Tehsil Jammu was allotted to him. Said Tirath Singh being a Displaced person was put in possession of these lands by virtue of annexure-a dated 24th Asoj 2011 Bk. Consequent upon delivery of possession, the lands were muted in his name as allottee. Out of this, the lands measuring 5 kanals 9 marlas located at Channi Mawalian Comprising Kh.No. 62-min which as per said Tirath Singh was in his personal cultivation but came to be entered by the Revenue Authorities in the name of appellant™s father namely, Maggar Singh in his cultivating possession in the Khasra Girdawari maintained for the said village. In this behalf, Tirath Singh came to file an application for correction of this entry in the Khasra Girdawari before the Tehsildar Agrarian Reforms Jammu, on the ground that said entry has been made at his back and there exists no relationship of landlord and tenant between him and said Maggar Singh father of the appellant. The Tehsildar Agrarian Reforms came to reject this application, against this order appeal was filed before the Joint Financial Commissioner with the powers of Commissioner under the Agrarian Reforms Act (herein after referred to as the Commissioner) by the said Tirath Singh the displaced person, who came to dismiss the same by virtue of his order dated 30-11-1987. The Tehsildar Agrarian Reforms came to reject this application, against this order appeal was filed before the Joint Financial Commissioner with the powers of Commissioner under the Agrarian Reforms Act (herein after referred to as the Commissioner) by the said Tirath Singh the displaced person, who came to dismiss the same by virtue of his order dated 30-11-1987. This order came to be challenged in revision by Tirath Singh before the special Tribunal (Tribunal in Short) Jammu who by virtue of order dated 30-04-1990 came to allow motion of revision and came to remand the case for disposal to the Tehsildar Agrarian Reforms, Jammu with the following observations:- ................an important question of law has been ignored. Section 4 of the Agrarian Reforms Act in clear terms provides that the provisions of sub-section (1) regarding extinguishment of all rights, title and interest in land of any person not cultivating it personally in Kharif 1971 and vesting these rights in the state does not apply to the land mentioned in schedule-II alloted to a displaced person. As a necessary corrolary it follows that no tenant can become prospective owner of such land. Here, it needs to be emphasized that according to proviso (i) and (ii) to clause (c) of sub section (2) of section 4, if the land alloted to a displaced person is situated in two villages and he cultivated personally the land in at least on village in Kharif 1971, he shall be deemed to be personally cultivating the land in the other village as well, even if he does not actually do so. It was in pursuance of this provision that the then Circle Officer had recorded in the Khasra Girdawari that the petitioner is deemed to be personally cultivating the land in question as he personally cultivated the land situated in village Marh Bagh which had been alloted to him in addition to the land in S.No. 62-min situated in village Channi Mawalian, the disputed land herein. This important aspect does not seem to have been considered either by the Tehsildar or the Commissioner, Agrarian Reforms.� 3. This important aspect does not seem to have been considered either by the Tehsildar or the Commissioner, Agrarian Reforms.� 3. On receipt of file back after remand by the Tehsildar Agrarian Reforms by virtue of his order dated 06-05-1991, came to reject the application of Tirath Singh displaced person for correction of Khasra Girdawari and came to attest mutation in favour of appellant-respondent No.2, in this behalf mutation No. 260 came to be attested. This order came to be challenged before the commissioner, Agrarian Reforms in second round of litgation who came to dismiss the same by virtue of an order dated 25-02-1993. This order of the commissioner again came to be challenged in revision before the tribunal, Jammu who came to accept the revision after holding that the Tehsildar and Commissioner has side tracked the findings of this Tribunal and have went in different lines while passing the order. Finally after remand, Tehsildar Agrarian Reforms came to record order impugned in the writ petition whereby he come to reject the application of Tirath Singh for correction of entry in Khasra Girdawari. This order came to be challenged by said Tirath Singh before the writ Court, where in he inter-alia sought quashing of said order with further direction to correct the entry of Khasra Girdwar with respect to the land in question. During the pendency of the writ petition, said Tirath Singh expired and his Lrs the respondents 1 to 4 who happen to be his widow and children respectively came to be brought on record. The learned writ Court on completion of the pleading in the writ petition after hearing the learned counsel for the parties came to allow the petitioners entitled to the relief with the direction to revenue record. It is this order of the learned Single Judge which is impugned in this appeal. 4. Heard the learned Senior counsel appearing for the parties and have also given thoughtful consideration to the relevant provisions of law. The Legislation in its Supreme wisdom in order to mitigate further sufferings of the displaced persons have carved out in the Agrarian Reforms Act (herein after referred to as the ˜Act™ )Section 3-A and Section 4, (2) clause (c) (i) (ii) in the Act, 1976. The Legislation in its Supreme wisdom in order to mitigate further sufferings of the displaced persons have carved out in the Agrarian Reforms Act (herein after referred to as the ˜Act™ )Section 3-A and Section 4, (2) clause (c) (i) (ii) in the Act, 1976. For convenience sake said sections are reproduced herein below :- 3-A Notwithstanding anything to the contrary contained in this or any other law for the time being in force, displaced persons cultivating evacuees lands personally shall in respect thereof be deemed to be occupancy tenants and recorded as such. They shall be liable to pay rent equal to the amount of land revenue and cases assessed thereon .............. 4. Vesting in the State of rights in land not held in personal cultivation- (1) Notwithstanding anything contained in any law for the time being in force, but subject to the provisions of this chapter, all rights, title and interest in land of any person, not cultivating it personally in Kharif, 1971, shall be deemed to have extinguished and vested in the state, free from all encumbrances, with effect from the first day of May, 1973 ............... (2) Nothing in Sub Section (1) Shall apply to ..................................... .................................................... (C) land mentioned in Schedule II alloted to a displaced person : Provided that ;- (i) Such land and evacuees land, if any, alloted to the same displaced person, is situated in, more than one village; and (ii) Such displaced person cultivated personally the land in at least one village in Kharif , 1971.� 5. From the persual of the afore-extracted provisions, it is manifestry clear that if a displaced person cultivates evacuees land personally, he shall be deemed to the occupancy tenant of such land s. The provisions of Section (4) Sub rule (1) of the Act regarding the extinguishment of the rights, titles and interest in land of any person not cultivating it personally in Kharif, 1971 and vesting of these rights in the State does not apply to the land mentioned in schedule-II appended to the Act alloted to a displaced person. This being so, it follows that no tenant can become prospective owner of such land, alloted to a displaced person. This being so, it follows that no tenant can become prospective owner of such land, alloted to a displaced person. It further provides that if such land alloted to a displaced person is located in two different villages and he personally cultivates the land in one village, he shall be by fiction of law deemed to be cultivating the land alloted to him in another village as well, even if he does not do so. This is the only interpretation which can be given to the extract provisions, any other meaning will amount to causing violence with these provisions. 6. Having regard to this law, on persual of the record it is proved that predecessor in interest of the respondents 1 to 4 namely, Tirath Singh was a displaced person from Pak Occupied Kashmir, he was alloted land in two villages, namely, Marh Bagh and Channi Mawalian, land measuring about 3 kanals 9 marla at village Marh Bagh comprising Survey No. 62 situated at Channi Mawalian both in Tehsil Jammu. It is not disputed that in Kharif 1971, predecessor in interest of respondents 1 to 4 was in personal cultivation of land alloted to him situated at village Marh Bagh. The land in question is an evacuee land and stands alloted to the predecessor in interest of respondents No. 1 to 4 presumably under Govt. Order no. 578-C of 1954, the order which finds place in Schedule-II appended to the act and mutation no. 243 in this behalf stands attested by the competent revenue officer in his favour. Therefore, tirath Singh predecessor in interest and thereafter his L/Rs respondents 1 to 4 shall be deemed to be in personal cultivation of the land in question measuring about 5 kanals 9 marlas comprising of survey No. 62 located at Channi Mawalian and their right of being occupancy tenant of this land cannot get extinguished u/s 4 (1) of the Act and they have the right to retain said land. As such Khasra Girdawari in respect of this land is liable to be corrected by showing respondents 1 to 4 in its cultivating possession as occupancy tenants. Therefore, the order recorded by the Tehsildar Agrarian Reforms, Jammu impungned in the writ petition is sketchy, cryptic and erroneous. As such Khasra Girdawari in respect of this land is liable to be corrected by showing respondents 1 to 4 in its cultivating possession as occupancy tenants. Therefore, the order recorded by the Tehsildar Agrarian Reforms, Jammu impungned in the writ petition is sketchy, cryptic and erroneous. It does not reveal as to what was the origin and nature of the tenancy and under what circumstances, tenancy between Tirath singh, predecessor in-interest and Maggar Singh father of the appellant with respect to the land in question came into existence under the afore-discussed provisions of law. Applicant cannot claim any benefit in respect of the land in question. This error is apparent on the face of order which was impugned in the writ petition and the same is liable to be quashed. True, it is that the respondents 1 to 4 have an alternatively remedy available under law by challenging the order impugned in the writ petition in appeal or in revision before the appropriate forum but if it is found that the availing of remedy will be conducive to delay and it has been passed by the inferior court without any Jurisdiction, The writ court shall be within its province to invoke its writ Jurisdiction. In the case in hand it is borne out by the record that the petitioner Tirath Singh during his life time and after his death his LRs have been agitating their claim before the Revenue Courts for the last more than two decades and the impugned order in the writ petition finally came to be passed because of the Jurisdictional error by the Tehsildar Agrarian, Jammu, therefore alternate remedy cannot be said to be a bar to approach the writ court. The learned single judge appears to have considered this aspect of the case. 7. Viewed thus, there is no illegality or infirmity in the impugned judgement and the same is in no manner erroneous. 8. Therefore, the appeal in hand is liable to be dismissed and is accordingly dismissed. Parties to bear their own costs ordered accordingly.