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2003 DIGILAW 38 (JK)

Reshma Devi v. Special Tribunal, J&K

2003-03-07

S.K.GUPTA

body2003
Per : S.K. Gupta, J. The writ petitioners by means of this writ petition have invoked the writ jurisdiction of this Court in seeking to quash the order dated 16.10.2000 passed by the Jammu and Kashmir Special Tribunal, Jammu by virtue of which the mutation orders of Naib Tehsildar, Vijaypur and Tehsildar, Agrarian Reforms, Samba are set-aside. 2. The case of the petitioners as projected in the writ petition is that Shri Rasal Singh, the predecessor-in-interest of petitioner No. 1 was declared as tenant of the land aggregating 04 kanals and 04 marlas in village Gagore, Tehsil Samba by mutation No. 157 attested by the Naib Tehsildar, Vijaypur. Shri Rasal Singh was also conferred the ownership rights by the Tehsildar, Agrarian Reforms, Samba, vide mutation No. 161 attested under Section 8 of the Agrarian Reforms Act on 7.8.1986. In the like manner, mutation No. 172 dated 10.3.1998 was attested under Section 4 of the Agrarian Reforms Act, in declaring Shri Anant Singh as prospective owner of the land measuring 11 Kanals and 16 marlas situated in village Gagore, Tehsil Samba. Tehsildar, Agrarian Reforms, Samba, vide mutation No. 173 attested mutation on 10.5.1988 and conferred ownership rights on petitioner No. 2, Shri Anant Singh on the land measuring 11 kanals and 16 marlas in the said village. 3. Aggrieved by these mutations attested in favour of the petitioners by the Revenue Authorities, the respondents assailed their correctness before the Additional Deputy Commissioner, Agrarian Reforms (Appeal), Jammu on the grounds that there never existed relationship of tenant and landlord between the parties and the mutations, attested in their absence and without affording an opportunity of being heard, were bad in law, being violative of principles of natural justice. The Additional Deputy Commissioner, Agrarian Reforms, Jammu, however, dismissed the appeals, holding that there was no legal infirmity in the mutations and the propriety and legality of which was challenged in Revision before the Jammu and Kashmir Special Tribunal, Jammu. The order of the Additional Deputy Commissioner, Agrarian Reforms (Appeal), Jammu was set aside alongwith the mutation orders passed by the Revenue Authorities on the respective lands in favour of the petitioners, by the Jammu and Kashmir Special Tribunal on 16.10.2000 which became the subject-matter of challenge in this writ petition. 4. The order of the Additional Deputy Commissioner, Agrarian Reforms (Appeal), Jammu was set aside alongwith the mutation orders passed by the Revenue Authorities on the respective lands in favour of the petitioners, by the Jammu and Kashmir Special Tribunal on 16.10.2000 which became the subject-matter of challenge in this writ petition. 4. The stand of the respondents put across in their demurrer in reiterating their consistent pleas both before the Additional Deputy Commissioner, Agrarian Reforms (Appeal), Jammu and the Jammu & Kashmir Special Tribunal Jammu in Revision is that there existed no relationship of tenant and landlord but they happened to be the co-sharers. That the mutations have been attested without providing reasonable opportunity of being heard and the orders of mutations passed at their back are legally untenable being violative of principles of natural justice. It was further contended that co-sharers cannot take the benefits under section 4 of the Agrarian Reforms Act and, therefore, proprietary rights cannot be conferred on Shri Rasal Singh, who is the predecessor-in-interest of petitioner No. 1 and also on Shri Anant Singh, petitioner No. 2 as the property has not been partitioned and the parties are still continuing to be the co-sharers. 5. I have heard the learned counsel appearing for the respective parties in extenso and also perused the record available on file meticulously. 6. It may be pointed out at the first flush that there is nothing on record to suggest that there was ever partition of the land in question between the parties. This position has also not been disputed by Mr. R.S. Thakur, learned counsel appearing for the petitioners, during the course of arguments. It is also not borne out from the record to indicate that the respondents, at any point of time, were associated with the proceedings both before the Naib Tehsildar, Vijaypur and Tehsildar, Agrarian Reforms, Samba in mutations under Section 8 of the Agrarian Reforms Act, conferring the proprietary rights on the petitioners. Even the respondents were not summoned at the time of attesting the mutations and given an opportunity of being heard, which was also found by the Appellate Court after scanning the entire record. Even the respondents were not summoned at the time of attesting the mutations and given an opportunity of being heard, which was also found by the Appellate Court after scanning the entire record. The Additional Deputy Commissioner, Agrarian Reforms (Appeal) Jammu further found that in such circumstances the presumption of knowledge of proceedings could not be attributed to the respondents and, therefore, did not dis-believe the contention of the respondents, who have failed to file the appeal immediately after the orders of mutations came to be passed by the Naib Tehsildar, Vijaypur and Tehsildar, Agrarian Reforms, Samba. The plea of the respondents, therefore, merits acceptance with both Additional Deputy Commissioner, Agrarian Reforms, Jammu and the Jammu & Kashmir Special Tribunal in revision being based on facts. 7. What is, therefore, indisputably gatherable from the record is that when the respondents, who claim to be the co-sharers with the petitioners, have not been summoned and associated with the proceedings while passing the orders on mutations by the Naib Tehsildar, Vijaypur and Tehsildar, Agrarian Reforms, Samba and no opportunity has been given to them to rebut the entries made in the girdawari of Kharief 1971, there could be no presumption that the petitioners were cultivating the land in the capacity of tenants. That the respondents being the co-sharers have every right to rebut the girdawari entries and establish before the mutating officer that the petitioners cannot become their tenants, being the co-sharers. The orders passed by the Revenue Officers on mutations are without the participation of the respondents and giving them an opportunity of being heard, the orders of attestation of mutations both under sections 4 and 8 of the Agrarian Reforms Act have rightly been held illegal by the Jammu & Kashmir Special Tribunal, Jammu and the same have been admittedly attested at the back of the respondents and merely on an entry of rent in Kharief 1971 without taking note of the fact that the co-shares in the absence of participation cannot take the benefits of Agrarian Reforms Act as tenants. No opportunity has been given to the respondents to challenge these entries at any point of time till attestation of the mutations, and such orders of mutations passed by the Revenue Officers cannot be held to be valid. No opportunity has been given to the respondents to challenge these entries at any point of time till attestation of the mutations, and such orders of mutations passed by the Revenue Officers cannot be held to be valid. The admitted non-participation of the respondents in the proceedings and denial of opportunity of hearing and rebuttal, the girdawari entries of Kharief 1971 renders the mutation orders passed at their back illegal and untenable. 8. I do not find any infirmity in the impugned order passed by the Jammu & Kashmir Special Tribunal, Jammu in setting aside the mutations attested by the Naib Tehsildar, Vijaypur and Tehsildar, Agrarian Reforms, Samba. The case is, however, remanded to the Revenue Authorities appointed under the Agrarian Reforms Act to hold a fresh enquiry, afford an opportunity of being heard to the parties and taking note of their respective pleas, pass an order on mutations in accordance with the provisions of the Agrarian Reforms Act within reasonable dispatch. 9. With the aforesaid modification in the order propounded by the Jammu & Kashmir Special Tribunal, Jammu the writ petition is disposed of accordingly.