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2008 DIGILAW 353 (JK)

Gopal Dass v. State

2008-09-23

Vinod Gupta

body2008
1. Petitioners have filed this revision petition against the order dated 30.07.2005 passed by the Additional Deputy Commissioner with powers of Commissioner Agrarian Reforms/Settlement Officer, Udhampur, whereby the order dated 17.11.2002 passed by the Naib-Tehsildar, Reasi, rejecting the mutation No:1352 dated 17.11.2002 under Section 4 of the J&K Agrarian Reforms Act 1976, has been upheld. 2. The brief facts of the case are that one Nathu S/o Labha was in cultivating possession of land measuring 50 kanals 6 marlas comprising Khasra No:30(16 kanals 18 marlas) and Khasra No:32( 33 kanals 8 marals) situated in village Seela Tehsil Reasi during Kharif 2007 BK. The ownership right was conferred on said Shri Nathu in respect of this land vide mutation No:422 dated 22.11.2008 BK and mutation No:455 dated 21.11.2008 BK and Nathu remained in possession of the said land till his death. Nathu died in the year 1958 and this land devolved upon his son Mansa Ram and widow Mst. Ishri in equal shares and mutation No:600 dated 17.1.1959 was attested in their names. The legal heirs of late Nathu remained in possession of this land till Rabi 1968 and they sublet this land on rent in kind one forth of the produce to the petitioner Gopal Dass s/o Sarnu and Shivan , the father of the petitioners No:2 and 3. After the death of Shivan, petitioners No:2 and 3 came in possession of the said land and the petitioners are in equal physical possession of the said land till date. The Patwari Halqa entered the mutation No:1352 under Section 4 of the Agrarian Reforms Act 1976 stating that the petitioners are entitled to be declared as prospective owners. This mutation was presented before Naib-Tehsildar Reasi for attestation but Naib Tehsildar Reasi vide his order dated 17.11.2002 rejected the mutation on the ground that the land in question had been transferred to the owners under the provisions of Big Landed Estate Abolition Act, 2007 BK and as such they were not competent to sublet the same. He ordered to escheat the said land to the State under the provisions of Section 24 of the Big Landed Estate Abolition Act, 2007 BK. He ordered to escheat the said land to the State under the provisions of Section 24 of the Big Landed Estate Abolition Act, 2007 BK. Aggrieved by this order of Naib Tehsildar Reasi, the petitioners herein filed an appeal before the Additional Deputy Commissioner with powers of Commissioner Agrarian Reforms, Udhampur, which was dismissed vide order dated 30.7.2005 on the ground that the appeal was barred by the period of limitation and the necessary parties had not been arrayed as the party in appeal. Also under Section 24 of the Big Landed Estate Abolition Act, 2007 BK, the owners were not entitled to transfer the land by way of subletting. 3. The petitioners challenged the correctness of both these orders by way of this revision petition on the ground that the Naib Tehsildar Reasi was not competent to reject the mutation recorded by the Patwari concerned and Section 24 of the Big Landed Estate Abolition Act is not applicable to the present case. 4. I have heard the Learned counsel for the petitioners and have also considered the written arguments produced by both the parties. I have also perused the record of the Additional Deputy Commissioner, Udhampur. 5. As stated above the Additional Deputy Commissioner has dismissed the appeal of the petitioners herein on the ground that the same is barred by the period of limitation and necessary parties have not been arrayed in the appeal. Also under Section 24 of the Big Landed Estate Abolition Act, 2007 BK, the owners were not entitled to transfer the land by way of subletting. The Learned Deputy Commissioner has held that the petitioners herein were present at the time of attestation of the mutation in dispute and have signed the same as such they were having full knowledge about the passing of the order on mutation by the Naib Tehsildar Reasi and the appeal has been filed beyond the period of 60 days, the limitation period prescribed under Section 22 of the Agrarian Reforms Act. 6. It is pointed out here that in the memo of appeal the petitioners herein(appellants in the appeal) have categorically stated that this mutation was presented and attested at the back and without the knowledge of the petitioners. This assertion of the petitioners has also been supported by an affidavit. 6. It is pointed out here that in the memo of appeal the petitioners herein(appellants in the appeal) have categorically stated that this mutation was presented and attested at the back and without the knowledge of the petitioners. This assertion of the petitioners has also been supported by an affidavit. The Learned Appellate Court has not considered this fact nor has given any opportunity to the petitioners for proving the same. The Learned Appellate Authority has not decided this point as to whether the appellants therein, petitioners herein, were entitled to the condonation of delay in filing the appeal. Thus the Learned Appellate Authority has mis-conceived himself on this aspect. 7. It is a settled law that any mutation attested at the back of party is nonest in the eyes of law. The effected party can challenge the said mutation after getting knowledge of the same. Also the Courts should be liberal in their approach while condoning the delay in filing appeal and substantial justice shall not be defeated on technical ground. In the instant case, the Learned Deputy Commissioner did not decide the prayer of the appellants therein, petitioners herein, for condoning the delay and decided the appeal as barred by the period of limitation. Thus the Learned Deputy Commissioner was not correct in holding the same on flimsy ground. 8. The Learned Appellate Authority has also dismissed the appeal on the ground that necessary parties have not been arrayed in the appeal. According to him, the original owners to whom the ownership rights were granted under Section 5 of the Big Landed Estate Abolition Act, 2007 BK were necessary party in the case. It may be pointed out here that originally the ownership rights were granted in the name of Nathu under Section 5 of the Act and he died in the year 1958 and his legal heirs were recorded as owners for the land in question. It is further pointed out that the Naib Tehsildar did not make any enquiry in the matter nor he summoned the successors-in-interest of Nathu Ram in whose name the land stood as owners and made enquiry from them or their statements were recorded. It is further pointed out that the Naib Tehsildar did not make any enquiry in the matter nor he summoned the successors-in-interest of Nathu Ram in whose name the land stood as owners and made enquiry from them or their statements were recorded. Since the successors in interest of Late Nathu Ram, the original owners, were not associated at the time of attestation of mutation, as such the Learned Appellate Authority was not right in holding that they are necessary party in the appeal. 9. The Naib Tehsildar held that the owners to whom the land was transferred under the provisions of Section 5 of the Big Landed Estates Abolition Act 2007 BK have transferred the said land by way of subletting to the petitioners herein as such their right of ownerships stand extinguished under Section 24 of the Act. This order has been passed by him while attesting the mutation under Section 4 of the Agrarian Reforms Act 1976. He had no jurisdiction to attest any mutation under Sections 4 and 8 of the Agrarian Reforms Act 1976. There is nothing on the record to show that he is specially empowered to attest any such mutation. There are specific instructions and the provisions of the Act also provide that such mutation shall not be attested by any officer below the rank of Tehsildar. Thus the Naib Tehsildar Reasi has no jurisdiction to attest such mutation. 10. While passing the order of extinguishing the rights of ownerships of the successors-in-interest of Late Nathu Ram, the Naib Tehsildar did not make any proper enquiry. It is the settled prohibition that subletting does not automatically escheat land in favour of the State. A proper enquiry is required to be made in this respect before attesting any mutation regarding escheating of land in favour of State by extinguishing the ownerships right of the concerned in the land granted to him under the provisions of Section 5 of the Act. Further also the prohibition made under Section 24 of the Big Landed Estates Abolition Act, 2007 BK regarding transfer of such land to any other persons in contravention in the provisions of the Act is upon the original proprietor or owners to whom the such rights were granted under Section 5 of the Act. The scheme of Section 24 clearly shows this proposition . The scheme of Section 24 clearly shows this proposition . The plain reading of Section 24 clearly shows that such prohibition is upon the original grantee and not on his successors-in-interest. This fact has been further made cleared under the instructions issued by the Government for settlement in the year 1956 when settlement was started in the Districts of Baramulla and Poonch. Under the instructions issued by the Hidyat Bando bast No:2, it is clear that this prohibition is on the original grantee and not on the successors in interest of such grantee. 11. For the fore-going reasons, I would held that the Naib Tehsildar was not right in holding that the owners to whom the ownership rights have been granted in respect of land in question under the provisions of Section 5 of the Big Landed Estates Abolition Act, 2007 BK have transferred the said land by way of subletting as such the land in question has escheated in favour of the State and the rights of the owners stand extinguished. 12. Also under Standing Order No:23-A the Government has issued instructions for recording and attestation of mutation. Under para 42 of these instructions, it is incumbent upon the officer attesting mutation to record parties present before him besides identifying parties before starting enquiry and should carefully write the entries and report the parties present there. He should also record the point in controversy and resume of evidence witnesses produced. In the instant case Naib Tehsildar has not recorded this in his order and started the order directly. Since the proper procedure has not been followed by the Naib Tehsildar at the time of attestation of mutation thus the proceedings are not proper. 13. Under para 29 of the above said standing order and also under the provisions of the Agrarian Reforms Act, the Tehsildars only are empowered to attest any disputed mutation. Also any other officer under the Tehsildar can also do so if he is specially empowered for the same. In the instant case, there is nothing on record to show that the Naib Tehsildar was specially empowered to attest mutation in the case. Thus the Naib Tehsildar, Reasi has exceeded his jurisdiction in rejecting the mutation recorded by the Patwari under the provisions of the Agrarian Reform Act,1976. He was neither competent nor had any jurisdiction to pass such order. 14. Thus the Naib Tehsildar, Reasi has exceeded his jurisdiction in rejecting the mutation recorded by the Patwari under the provisions of the Agrarian Reform Act,1976. He was neither competent nor had any jurisdiction to pass such order. 14. For the foregoing reasons, I would held that the orders dated 17.11.2002 passed by Naib Tehsildar for rejecting the mutation No:1352 under Section 4 of the Agrarian Reforms Act 1976 pertaining to land measuring 50 kanals 6 marlas comprising Khasra Nos:30 & 32 situated at village Seela Tehsil Reasi and order dated 30.7.2005 passed by Additional Deputy Commissioner with powers of Commissioner Agrarian Reforms, Udhampur in appeal, are illegal and against public interest and are hereby set aside. The case is remanded back to Tehsildar, Reasi to make proper enquiry and pass the appropriate order in the matter. 15. Record of the court below be sent back and file of this Tribunal be consigned to record after due completion.