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2008 DIGILAW 1 (JK)

Balbadhar Singh v. Vishwa Mitter

2008-01-02

D.K.Kapoor

body2008
1. This is a reference in terms of Section 5(2) of the J&K Special Tribunal Act, 1988. Precisely stated, the facts giving rise to this reference are that Subedar Dharam Singh (now deceased) leased out land bearing khasra number 544/47, 48, 91/681/53 and 654/53, measuring 83 kanalas and situate in village Hakal Tehsil Jammu on `thekka' in the year 1964 to Hans Raj for a period of 20 years i.e. by way of a fixed term tenancy. This land was demised in favour of Rashtriya Milk Dairy through Hans Raj against an annual rental of Rs.1500/-, for the purpose of running a dairy farm, as can be gathered from the stipulations of the lease deed drawn between the said persons on 24th June 1964. The said lease for a fixed period of twenty years and after expiry of the said period the lessee was under a contractual obligation to surrender the vacant possession of this land to the real owner. Due to the promulgation of the J&K Agrarian Reforms Act, 1976, however, and as a consequence of the provisions of Ss.4, 7 & 8 & after the ownership rights of the erstwhile owner extinguished and the land escheated to the state in terms of Section 4 of the Agrarian Reforms Act,1976, Hans Raj (lessee) was declared as `Prospective owner'. Resultantly Mutation No.504 was attested by Tehsildar (Agrarian) Jammu on 26.3.1981. The Commissioner Agrarian Reforms, Jammu upheld the said mutation attested by Tehsildar (A) Jammu vide his order dated 03.02.1984 & dismissed the appeal filed by the owner. This Tribunal, however, in exercise of its revisional jurisdiction, moved by the aggrieved landowner, allowed the petition vide order dated 28.6.1986 holding that the said land was not covered under the provisions of the J&K Agrarian Reforms Act. Hans Raj lessee invoked the writ jurisdiction of the Hon'ble High Court & assailed this Tribunal's order therein. He had impleaded Smt. Krishna Devi in the WP as Subedar Dharam Singh (owner) breathed his last in the meantime. Hon'ble High Court (DB) upheld the order of this Special Tribunal & dismissed the WP No. 690/1986 vide order dated 15.5.1987.The litigation did not end here. Hans Raj lessee, however, filed an SLP (Civil Appeal No.4130/1989) before the Hon'ble Supreme Court. Hon'ble High Court (DB) upheld the order of this Special Tribunal & dismissed the WP No. 690/1986 vide order dated 15.5.1987.The litigation did not end here. Hans Raj lessee, however, filed an SLP (Civil Appeal No.4130/1989) before the Hon'ble Supreme Court. The Apex Court of the country set aside the order of this Tribunal as well as that of the Hon'ble High Court & remanded the case back to this Tribunal with the direction to decide the matter afresh in view of the observation made by the Hon'ble Apex Court in the said judgment. This is how the proceedings are before this Special Tribunal here once again. 2. Since the pendency of this litigation, it is worth noticing that Dharam Singh died and Smt. Krishna Devi was impleaded as his heir & on the death of Krishna Devi, Sh. Balbadhar Singh has been substituted in her place being her LR, on account of a will made by her (refer to Bench-II order dated 01.4.2005). Similarly, besides Vishwa Mitter, other legal heirs of Hans Raj have also been impleaded as respondent (supra). 3. This revision petition was assigned to Bench No. II and the then Presiding Officer, after hearing learned counsel for the parties, passed the following order & referred the case to Full Bench. Relevant excerpt from the order dated 25.11.1997 passed by learned member is as under: "Hon'ble Supreme Court has been pleased to order as under:- `We set aside the impugned orders of the Special Tribunal dated 28.6.1986 as also that of the High Court dated 15.5.1987 and effect a remand to the Special Tribunal to consider the question and give a detailed judgment thereon supported by reasons. It is made clear that nothing said by the High Court in its order now being upset shall bear any influence on the fresh decision to be made by the Tribunal. The appeal is allowed in these terms. Before parting with the judgment, we may notice that since the lease commenced in the year 1964 and was durated for twenty five (sic. twenty years?) years, the lease period had expired. Its effect would also have to be seen which the Tribunal shall have to bear in mind. It may require fresh computation of the excess lands. Since this is an old matter. Let the same be decided most expeditiously. twenty years?) years, the lease period had expired. Its effect would also have to be seen which the Tribunal shall have to bear in mind. It may require fresh computation of the excess lands. Since this is an old matter. Let the same be decided most expeditiously. Ordered accordingly" The question formulated by the Hon'ble Apex Court runs thus: "Whether the land set apart on lease for dairy farming is outside the scope of the Jammu and Kashmir Agrarian Reforms Act, 1976 on the sole premises that dairy farming is not agriculture". "In view of the important question of law and of public interest the matter is required to be considered by the full bench. Therefore the file be placed before the Hon'ble Chairman for orders for constituting full bench so that the direction of the Hon'ble Apex Court is complied with most expeditiously". This is how the case is before the Full Bench. 4. We have heard learned counsel for the parties at a considerable length of time & gone through the record on file. Mr. Thakur learned advocate for the petitioner has argued that the land had been leased out to Hans Raj by Dharam Singh owner for the sole purpose to use the same for `dairy farming', which is not covered under the tenets of "agriculture" & the respondents cannot take the benefit of the Agrarian Reforms Act,1976 (hereinafter `the Act'). According to learned advocate for the petitioner land being used for dairy farming cannot, by stretch of imagination, be said to be used `for agriculture purpose or purposes subservient to agriculture', as defined in section 2(9) of the Act'. His further submission is that the provision referred to herein above requires to be given a harmonious construction & should not be narrowly interpreted as it is tantamount to doing violence with the language of the provision, which course is neither lawfully acknowledged nor recognized. Learned advocate submits that terms & conditions stipulated in the lease deed, cumulatively read would show that the dominant intent behind leasing out the land was only for dairy farming, which is distinct from agricultural pursuits or purposes subservient to the agriculture, hence the lease made in favour of the respondent is outside the scope of Agrarian Reforms act 1976. Learned advocate submits that terms & conditions stipulated in the lease deed, cumulatively read would show that the dominant intent behind leasing out the land was only for dairy farming, which is distinct from agricultural pursuits or purposes subservient to the agriculture, hence the lease made in favour of the respondent is outside the scope of Agrarian Reforms act 1976. On the other hand Shania Gupta learned advocate appearing for the respondents has vehemently submitted that the land was demised in favour of Hans Raj by Dharam Singh for agricultural purposes & the intention of the parties can be conveniently gathered from the fact that the land is 84 kanals & cannot be used for dairy farming solely; that the diary run by the respondents is a very small dairy & it is not a business concern like Amul Dairy etc so that it could be said that the lease deed was executed for commercial purpose & not for agriculture or purposes ancillary to agriculture. Mr. Gupta persuaded us to believe that the intention between the parties at the time of executing the lease deed is crystal clear that the land was leased out for dairy farming as well as for agriculture; therefore, the provisions of the Agrarian Reforms Act, 1976 certainly apply to this land. 5. The point of reference before us (Full Bench) is to determine as to whether the land leased out to the respondent for dairy farming is "out of the scope of the Agrarian Reforms Act " on the sole premise that `Dairy Farming' is not `agriculture'. Under such circumstances, it is necessary to understand the definition of "land" under the provisions of Agrarian Reforms Act. Section 2(9) defines "land" to mean `land' which was kept for or let for agricultural purpose or for the purpose subservient to agriculture or posture in Kharif 1971 and including a, b, c & d; but does not include an orchard or site of the building or structure within the municipal area, town area, notified area or village Abadi or any land appurtenant to such building or structure. Obviously, therefore, "land" to come within the folds of the Agrarian Reforms Act, 1976 must be the `land', which is "occupied" or shown to have been let for agricultural purpose or for the purpose subservient to the agricultural in Kharif 1971. Obviously, therefore, "land" to come within the folds of the Agrarian Reforms Act, 1976 must be the `land', which is "occupied" or shown to have been let for agricultural purpose or for the purpose subservient to the agricultural in Kharif 1971. Clauses (a) to clause (d) are also included in the definition, but they are not useful for our purpose. Indeed, the definition closes with a negation when it states "but does not include an orchard or site of a building ------" meaning thereby certain categories of the land or sites etc. have been excluded from the definition of the "land" used in Section 2(9) of the Agrarian Reforms Act. A bare perusal of the definition reproduced hereinabove would show that until a land was occupied for agriculture purpose or for the purpose subservient by a person or it is proved that the same "was let out" for the said purpose and it has been so used in Kharif 1971, does not cover under the provisions of the Agrarian Reforms Act. The Act was promulgated and came into force on 1.6.1978 (w.e.f. 13.7.1978) and its preamble can render a great assistance in arriving at the conclusion with respect to the definition of "land" as used in the Enactment. The preamble says that "the Act to provide for transfer of land to the tillers there of subject to certain conditions and for better utilization of land in the State of J&K." The words "transfer of land to Tillers there of" are meaningful and serve a beacon light for understanding the ambit and scope of the Legislation. In this context, it would be necessary to have a look at the definition of the "Tiller" used in the preamble and in various provisions of the Act. The word "Tiller" is defined in Sub-section `17' of Section 2 of the Act and it means "tenant cultivating the land personally" and shall mean to include a person who was tiller in Kharif 1971 or his legal heirs or his transferees in the case of any valid transfer of land made between 1.9.1971 & 1.5.1973, subject to the competent Revenue Officer being satisfied about the existence of bonafide transfer to this effect. Then an Explanation is appended to this section which is not useful for the purpose of appreciation of point of law raised herein. Then an Explanation is appended to this section which is not useful for the purpose of appreciation of point of law raised herein. The learned Advocate for the respondent has emphasized the word "tenant" used in the definition clause and has persuaded us to believe that by virtue of Deed of Lease entered into between Dharam Singh and Hans Raj, the intention of the parties can be gathered with respect to 83 kanals of land and the stipulation in the lease deed, "party shall be entitled to get the land cultivated, enjoy the usufructs during the lease period", does mean that it was agreed upon between the parties to the said lease deed dated 24.6.1964 that the main purpose of letting the land on lease in favour of the respondent Hans Raj by Dharam Singh, was to let the land for cultivation and he had reserved a rent of Rs.1500/- per annum in lieu of the same. According to the learned Advocate, the land was let out by virtue of the said lease deed in favour of Hans Raj in the year 1964, when Agrarian Reforms Act, 1971 or 1976 were not in operation and as such the intention of the parties that the land was let for agricultural purposes which continued even in Kharif 1971 and continues even till today, makes it clear that the land was let for agriculture purpose, though the dairy farming was a part of it. Therefore, there it comes within the definition of "land" and as such the points of reference should accordingly be decided in favour of the respondent. Mr. Thakur, learned Advocate, for the petitioner has also drawn our attention on the aforementioned stipulation in the lease deed dated 24.6.1964 and has read out further to the clause read by Sh. Therefore, there it comes within the definition of "land" and as such the points of reference should accordingly be decided in favour of the respondent. Mr. Thakur, learned Advocate, for the petitioner has also drawn our attention on the aforementioned stipulation in the lease deed dated 24.6.1964 and has read out further to the clause read by Sh. Anil Mahajan, Advocate that it further envisages that "authorized to raise construction of any kind in the land for the purpose of running a Dairy Farm on his own expenses" and has vehemently submitted that the intention of the parties is very much clear on the very outset that the land was leased out in favour of Hans Raj in his capacity as owner of the Farmer Rashtriya Dairy Farm, Jammu and read with the above referred stipulation conclusively establishes that the sole purpose of letting the land in favour of Hans Raj in the year 1964, was to allow him to run a Dairy Farm and which cannot be cannot said to be an `an agricultural act', rather dairy farming is simply a trade only a trade which is quite distinguishable from the agriculture. 6. As we have seen that the controversy between the parties arose on coming into operation of the Agrarian Reforms Act, 1976 which conferred right of ownership under Sections 4 & 8 of the Act, in the tillers who were in cultivating possession of the land in Kharif 1971 for which the mutations were attested in favour of the respondent herein which were assailed and the matter was taken up even up to Hon'ble Apex Court of the country. The entire case is based upon the lease deed dated 24.6.1964 and it is profitable to understand the intention of the parties at the time of entering into said lease deed. There is no denying the fact that Hans Raj had been running a Dairy Farm and he acquired this land on lease from Dharam Singh, owner, obviously for the purpose of running his dairy and for getting fodder for the milking cattle reared by him. There is no denying the fact that Hans Raj had been running a Dairy Farm and he acquired this land on lease from Dharam Singh, owner, obviously for the purpose of running his dairy and for getting fodder for the milking cattle reared by him. Dairy farming cannot by any stretch of interpretation be termed as an agricultural or pursuit subservient to agriculture as it is common knowledge that the dairy farming is only a trade, business or calling and cannot be included in the definition of "land" used as agricultural land or for the purpose subservient to the agriculture. The land was let in favour of the respondent in the year 1964 only in order to facilitate better prospects facilitating the cattle rearing and not in the capacity of a `tiller' of the land of Hans Raj. These two acts are mutually exclusive and have diagonally converse meaning. It may also be added that Hans Raj did not belong to the Agriculturist class, rather he hailed from the business community. Therefore, it could not be the intention of the parties that the land was being acquired or let for agricultural purpose. 7. The term "agriculture" is no where defined in the Act; but reading the definition of "land" under Sub-section (12) of Section 2 of the Act and that of "tiller" under Sub-section (17) conjointly shows that the cultivable land which was used for agricultural purpose etc. in Kharif 1971, is the land which is covered under the Agrarian Reforms Act and means "agricultural land". It may be under the cultivation of a tenant at the relevant time. Sub-section (vi) after the definition of "personal cultivation" shows that "where the land has been mortgaged with possession before or during Kharif 1971 and the mortgage has not been redeemed before the commencement of this Act, the mortgagor shall subject to the provisions of Section10, be deemed to have been in personal cultivation of such land in Kharif 1971." This provision serves a further guide to ascertain the intention between the parties. This provision unambiguously prescribes that although the land was in possession of the mortgagee in Kharif 1971 and the same was not redeemed before the commencement of Agrarian Reforms Act, still the mortgagor is deemed to have been in personal cultivation of such land in Kharif 1971. This provision unambiguously prescribes that although the land was in possession of the mortgagee in Kharif 1971 and the same was not redeemed before the commencement of Agrarian Reforms Act, still the mortgagor is deemed to have been in personal cultivation of such land in Kharif 1971. Naturally, therefore, where a piece of land has, in this context, was let out in 1964 for the purpose of running a Dairy Farm and of course, for getting fodder etc. from the said land and the lessee continues to be in possession of the said land for the sole purpose for which it was leased out to him, the Act prescribes that the owner shall be deemed to be in personal cultivation of such land even in Kharif 1971. 8. Much emphasis has been laid on the definition of "land" as per Section 2(9) of the Act and it has been submitted that the Dairy Farm is not included in the explanation clause which includes an Orchard or site of the building etc. Therefore, the Dairy Farming should be treated as subservient to agriculture. We are afraid such a wide interpretation is not permissible in order to unduly stretch the meaning of the term "land", for the benefit of a person whose vocation was running a Dairy Farm and who had acquired the land for the said purpose solely. It is the cardinal law that in case a property is let on lease by its owner, the ownership nonetheless remains with the owner/landlord .For this purpose, I seek the support from the law laid down by the Hon'ble Apex Court of the country in the case titled "State of U.P Vs. Nand Kumar Aggarwal and others" reported in AIR 1998 SC 473 , where in almost similar facts & circumstances of the case, Hon'ble Apex Court of the country while describing that "Bhatta" (brick kiln) does not fall within the definition of `agriculture' , has very succinctly, while discussing the word "agriculture" under the explanation to Section 2(O) of the Urban Land (Ceiling and Regulation) Act, (33 of 1976), held that where the land was used for operating a brick kiln, the same cannot be said to be used for agricultural purpose. Hon'ble Apex Court, however, maintained that such land would not be agricultural land merely because it has been entered in the revenue record as "agricultural land" and also so shown in the Master Plan. No doubt the land in question has been entered in the revenue record as agricultural land; but the purpose for which the same was let out to Hans Raj by Dharam Singh, is not "agricultural " by any means. Indeed, the land measures 83 kanals and this could be said that the Dairy Farm was not existing to such a vast piece of land and as such the entire land could not said to have been used for the Dairy Farming, which is a non-agricultural pursuit. Therefore, rest of the land which was in the occupation of the respondent in Kharif 1971 was "agricultural land" and was used for the said purpose. This cannot also be admitted as correct position on the spot as almost all the entries in Khasra Girdawri would show that the crop of Bersen (Chhatala) which is in the nature of fodder was grown in the entire land and which further strengthens the belief that the land had been used for the Dairy Farming and for producing fodder for the cattle. It was necrr cultivated by the respondent or used for agricultural purposes or purposes subservient thereto. In para 6 of the aforementioned judgment, the Hon'ble Apex Court of the country has held as under.- "Urban Land (Ceiling and Regulation) Act (33 of 1976), Section 2(o), Explanation. - LAND - Urban Land - Exclusion of agricultural land - Land used for operating brick kiln - Not used for agricultural purpose -Such land would not be agricultural land merely because it has been entered in revenue record as agricultural land and also so shown in Master Plan.(Emphasis supplied) Agriculture under the Explanation to Section 2(o) has limited meaning. It includes horticulture but does not include cultivation of every type of vegetation or rearing of animals or birds. Operating of a brick kiln (Bhatta) cannot be an agriculture purpose. It cannot be said that since Explanation to Clause (o) shows as what is not included in agriculture and since Bhatta is not one of the entries therein it would mean that operating Bhatta would be an agriculture purpose. Operating of a brick kiln (Bhatta) cannot be an agriculture purpose. It cannot be said that since Explanation to Clause (o) shows as what is not included in agriculture and since Bhatta is not one of the entries therein it would mean that operating Bhatta would be an agriculture purpose. It is no doubt true that the land in question which was used as Brick kiln has been entered in revenue record as agricultural land and even the master plan shows the land as agricultural. But merely because of those entries the land cannot be held to be used mainly for the purpose of agriculture, when the land in question was being used as brick kiln.(W.P. No. 1242 of 1986, D/- 20-10-1989 (All), Reversed." 9. In our quest, we have endeavoured to rummage through various Supreme Court judgments passed under different states Ceiling Laws etc & we have invariably come across definitions of "land" & "agricultural land", where, among other "dairy farm" is expressly excluded from the definition of agricultural land. Under such circumstances and in view of law laid down by the Hon'ble Apex Court of the country and after going through the terms and conditions of the lease deed dated 24.6.1964, in order to gather the intention of the parties, this Bench is of the considered opinion that the land leased out by Dharam Singh in favour of Hans Raj by virtue of a lease deed dated 24.6.1964 measuring 83 kanals situated in village Hakal, Tehsil Jammu, was let in favour of the latter for the purpose of a Dairy Farm which is outside the scope of the Agrarian Reforms Act,1976. Hence, the reference is accordingly answered. 10. File be duly completed and sent back to Bench No.2 for passing appropriate orders on merits. The parities through their Advocates are directed to appear before the said court on 27.1.2008.