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2007 DIGILAW 178 (JK)

Ashmi v. Assistant Commissioner

2007-09-07

MANSOOR AHMAD MIR

body2007
1. By the medium of this writ petition, petitioner has prayed for quashment of the orders dated 19th of May, 1994 passed by Joint Agrarian Commissioner-annexure P3 and order dated 30th December, 1996 passed by J&K Special Tribunal, Srinagar-annexure P4, on the grounds taken in the writ petition. 2. It is necessary to notice the brief facts of the case, as given by the petitioners in the writ petition herein: 3. It appears that one Assad Wani-tenant purchased a parcel of land measuring 3 kanals 14 marlas from one Subhan Bhat-landlord in terms of sale deed dated 31st March, 1958 registered on 13th of April, 1958. Ramzan Bhat pre-empted the sale deed by filing a suit. Ultimately suit came to be decreed by the court of first instant-First Appellate Court and this Court in Second Appeal. During pendency of the lis, Agrarian Reforms Act, 1976, for short the Act, came into force. Assad Wani filed an application under Section 19 of the Act before Collector-came to be rejected vide order dated 21st of January, 1989. Feeling aggrieved, Assad Wani preferred an appeal against the order dated 21st January, 1989 passed by Assistant Collector under the Act, Budgam. Joint Agrarian Commissioner after hearing the parties allowed the appeal vide order dated 19th of May, 1994 and set-aside the order of the Assistant Commissioner (Collector) dated 21st of January, 1989 and allowed the application of Assad Wani. It is profitable to reproduce the operative part of the judgment herein: "I have given thoughtful consideration to the arguments put forth by the Counsel for either side and perused the record available in the file. It is a fact that the Appellant is recorded as protected tenant as is apparent from the Revenue records right from 1957 Kharief to 1971 Kharief. It is a fact that the land in question was put on superdnama in the year 1968 and at this stage the Appellant is recorded as protected tenant. If at all the land should have not been put on Superdnama, then the land would have been in the possession and tenancy of the Appellant. My predecessor has in his judgment in case Mst. Sara V/s Hamid Ahmad dt: 21.8.89 very rightly held that section 25 of the Agr. Reforms Act 1975 bars the jurisdiction of Civil Courts in respect of land as is defined in Agr. Reforms Act. My predecessor has in his judgment in case Mst. Sara V/s Hamid Ahmad dt: 21.8.89 very rightly held that section 25 of the Agr. Reforms Act 1975 bars the jurisdiction of Civil Courts in respect of land as is defined in Agr. Reforms Act. Also the Honble High Court has held (JKLR 1989 page No.1124) Agrarian Reforms Act section 25(b) civil court has no jurisdiction to settle, Decide or deal with any question or to determine any matter arising under the said Act. The Honble High Court has decided the issue of right to prior purchase and not the tenancy. It is the only Agrarian Reforms Court who has the jurisdiction under the Agr. Reforms Act to decide such issue. In my opinion, who soever will be the owner of the land, the Appellant has the right to take the benefit U/S 4 and 8 of the Agr. Reforms Act being a protected tenant. I am fully convinced with the arguments put forth by the Counsel for Appellant. For the above discussions and reasons, the appeal is accepted to the extent of land appealed against and order under appeal is setaside. It is ordered that the Tehsildar concerned will corporate this order in the Revenue records and will take appropriate action under law." 4. Feeling aggrieved, petitioners assailed the order of Joint Commissioner before Special Tribunal-came to be dismissed vide order dated 30th of December, 1996. It is profitable to reproduce the operative part of the order herein, which reads as under:-- "While adverting the case at hand the title of the petitioners is not disputed, their title as owners of the land has been confirmed by the Munsiff in his decree and this decree was upheld even upto the High Court. This tribunal has to consider the order of JAC in terms of the admitted position of protected tenancy of the respondents. This tribunal therefore, cannot ignore the determination of question by the authorities specified under A.R.Act so far as the question of recording the land is concerned in favour of protected tenant holding it al-along. The learned J.C. has rightly held that the possession of the protracted tenant could not be disturbed and so he dismissed the appeal. This tribunal has not come across any ground for interference in the said order. The learned J.C. has rightly held that the possession of the protracted tenant could not be disturbed and so he dismissed the appeal. This tribunal has not come across any ground for interference in the said order. The petitioner no deoubt are the owners of the land but they have to respect the rights of protected tenant in terms of the A.R.Act. The revision is dismissed with these observations. Since the Civil Courts are closed for winter vacation, therefore, the operationof this order is stayed for one month." 5. Petitioners have, by the medium of this writ petition, sought quashment of both the orders on the grounds taken in the writ petition. 6. Respondents have resisted the petition on the grounds taken in the counter. 7. The crucial point involved in this writ petition is, what was the status of Assad Wani when the Act came into operation on 21st August, 1976? The crucial date of determining tenancy is Kharif 1971. It is profitable to reproduce definition of `land and `tiller as given in Section 2 of the Act, here as under:- "Land" means land which was occupied, or was let, for agricultural purposes or for purposes subservient to agriculture or for pasture in Kharif, 1971 and includes-- (a) structures on such land used for purposes connected with agrulture; (b) areas covered by, or fields floating over, water; (c) forest lands and wooded wastes; (d) trees standing on land [but does not include an orchard or] site of a building or a structure within municipal area, town area, notified area or village abadi or any land appurtenant to such building or structure; Tiller means tenant cultivating land personally and shall mean and include a person who was tiller in Kharif, 1971 or his legal heirs or his transferee in the case of any valid transfer of land made between 1st September, 1971 and 1st May, 1973, subject to the competent Revenue Officer being satisfied about the existence of a bona fide transfer to this effect:" The definitions of `land and `tiller also make reference to Kharif 1971. Tiller means a person who was a tenant cultivating land and also includes a person who was `tiller in Kharif 1971. 8. While going through the record, both the courts below have specifically held that Assad Wani was tiller in Kharif 1971 and his status was as a protected tenant. Tiller means a person who was a tenant cultivating land and also includes a person who was `tiller in Kharif 1971. 8. While going through the record, both the courts below have specifically held that Assad Wani was tiller in Kharif 1971 and his status was as a protected tenant. This fact is not disputed by the otherside but the case of the respondents is that after purchasing land Assad Wani became owner and has lost the status of tenant. Both the authorities under the Act i.e. the Joint Agrarian Reforms Commissioner and the Special Tribunal have specifically held that Assad Wani was cultivating land personally in Kharif 1971 and was holding a status of protected tenant. Further they have held that in terms of Section 25 of the Act Civil Court is not having jurisdiction to settle, decide or deal with any question or determine any matter arising out of the Act. 9. The point involved came to be determined by the said authorities under the Act and held that Assad Wani was a tiller in Kharif 1971. In terms of the mandate of Section 25 of the Act this question could not have been decided by any other authority and thus any finding returned by the Civil Court cannot be taken into consideration. The law of merger has no application. 10. Section 25(b) of the Act specifically provides that any order passed by any officer or authority under the Act or the rules cannot be called in question before any civil court. 11. Pre-empting a sale deed means instead of Assad Wani, Ramzan became the owner and by no stretch of imagination, it can be said or held that Assad Wani who was a protected tenant has lost his tenancy rights because of the sale deed which came to be pre-empted. The right of pre-emption is not a right to the thing sold but a right to be the offer of a thing about to be sold. At the best it is a right of substitution and the pre-emptor steps into the shoes of original vendee. It is profitable to reproduce para-6 of the Full Bench Judgment of this Court titled Ghulam Ahmad v. Ahad, reported as AIR 1970 J&K 118 herein: "6. At the best it is a right of substitution and the pre-emptor steps into the shoes of original vendee. It is profitable to reproduce para-6 of the Full Bench Judgment of this Court titled Ghulam Ahmad v. Ahad, reported as AIR 1970 J&K 118 herein: "6. In AIR 1958 SC 838 their Lordships of the Supreme Court while considering the nature and incidents of the right of pre-emption summarized the legal position thus:-- "To summarize (1) The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. (2) The pre-emptor has a secondary right or a remedial right to follow the thing sold. (3) It is a right of substitution but not of a re-purchase, i.e., the pre-emptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) Preference being essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. (6) The right being a very weak methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place." Similarly in a later case in Amir Singh v. Ram Singh, (1963)3 SCR 884, 891, their Lordships of the Supreme Court held as follows:-- "It is, however, urged that the law of pre-emption requires that the pre-emptor must possess the right to pre-empt at the date of the sale, at the date of the suit and at the date of the decree. This position cannot be disputed."" 12. Applying the test laid down by the Apex Court, the pre-emptor stepped into the shoes of original vendee and became the owner by way of substitution. But keeping in view the peculiar facts and circumstances of the case it could not be held and said that the original vendee who was protected tenant before the execution of sale deed lost his right/status. 13. But keeping in view the peculiar facts and circumstances of the case it could not be held and said that the original vendee who was protected tenant before the execution of sale deed lost his right/status. 13. Respondents have specifically averred in the reply/counter that mutation No.277 dated 25th of May, 1994 under Section 4 of the Act and 299 dated 10th of February, 1992 under Section 8 of the Act came to be passed whereby and whereunder Assad Wani came to be declared as prospective owner and after depositing the levy came to be declared as owner in terms of the mutation attested under Section 8 of the Act. Neither respondents have challenged the mutations right from the date of orders nor they have even challenged the same even from the dates reply/counter came to be filed. Thus, in the given circumstances, this writ petition merits to be dismissed. In view of the above discussion, I am of the considered view that authorities under the Act have passed the impugned orders with competence, power and jurisdiction vested in them and are not illegal in any way. The petitioners have not been able to carve out a case for for invoking the jurisdiction of this Court for issuance of writ of certiorari. Accordingly, the writ petition is dismissed along with all connected CMP(s).