Research › Search › Judgment

J&K High Court · body

2008 DIGILAW 385 (JK)

Kishori Lal v. Krishan Lal

2008-10-14

Vinod Gupta

body2008
1. The petitioner has filed this revision petition against the order dated 24.09.2007 passed by the Additional Deputy Commissioner, with powers of Commissioner Agrarian Reforms, Doda in an appeal against the order of mutation No:2474 attested by Tehsildar, Bhaderwah. 2. The material facts giving rise to the filing of this revision petition is that the Tehsildar Bhaderwah attested mutation No:2474 under Section 4 of the Agrarian Reforms Act in respect of land comprising Khasra No:364 measuring 1 kanal 6 marlas situated at village Nagar, Bhaderwah in favour of petitioner on 22.05.1984. The respondent herein preferred an appeal before the Additional Deputy Commissioner with powers of Commissioner Agrarian Reforms, Doda. The Learned Additional Deputy Commissioner, remanded the case back to Tehsildar Bhaderwah. for denovo enquires and for passing afresh order on 24.09.2007. Both the parties have claimed their possession over the land in question. 3. Aggrieved by this order, the petitioner has assailed the impugned order through the medium of this revision petition before this Tribunal on the ground that the order is neither legal nor proper. 4. I have heard the Learned counsel for the parties and have perused the record on the file. 5. Mr. V.R. Wazir, Advocate appearing for the petitioner has contended that the father of the respondent herein was an owner of the land and he inducted the petitioner as his tenant. Respondent herein claims that he is tenant of his father which is not recognizable under law. He has further argued that there can be no tenancy without rent. He has further argued that the presumption is in favour of entry recorded in the revenue record and there is no substantial proof for rebuttal that entry recorded in Khasra Girdawari 1971, wherein petitioner has been shown as tenant was wrong. Mr. Razdan, Advocate appearing for the respondent, on the other hand, has argued that no revision is maintainable against the remand order and both the courts below have given concurrent findings regarding the possession of the respondent and the revisional court cannot change those findings of facts. He has further argued that this single mutation was attested by the Tehsildar in his office in absence of respondent and whole of the village, which is in violation of para 35 of the standing instructions issued under Section 33 of the Agrarian Reforms Act. He has further argued that this single mutation was attested by the Tehsildar in his office in absence of respondent and whole of the village, which is in violation of para 35 of the standing instructions issued under Section 33 of the Agrarian Reforms Act. He has further argued that fictious entry in favour of petitioner was made which was corrected by Tehsildar vide its order No:502 dated 01.07.1975 in favour of father of the respondent who was in cultivating possession of the land and subsequently the respondent being his son started cultivating the said land. This order was not adjudicated upon by the Tehsildar and attested the same on the ground that Act No:3 of 1975 i.e. Suspension of Agrarian Reforms Act, 1972 came into force. He has further argued that Tehsildar Bhaderwah attested one more fictious mutation whereby the land was escheated to the State after entry was changed which he could not had done because father of the respondent was the owner of land in question. 6. Under Section 21(2) of the Agrarian Reforms Act, this Tribunal can exercise revisional jurisdiction when any question of law or public interest is involved in the case. In the instant case, while passing impugned order the Learned Additional Deputy Commissioner, exercising the power of Commissioner Agrarian Reforms, Doda passed the remand order after noticing some factual position of the case which the Tehsildar Bhaderwah had ignored while attesting the mutation under Section 4 of the Agrarian Reforms Act,1976 in favour of the petitioner herein. Those facts are that the entry regarding the possession of the petitioner herein over the land in question was corrected by the Tehsildar in the name of father of the respondent herein vide order No:502 dated 01.07.1975. It was also alleged that the land in question was being cultivated first by the father of the respondent herein and after his old age the respondent alongwith his family used to cultivate the said land. The Tehsildar, Bhaderwah in utter violation and disregard of different provisions of Agrarian Reforms Act, 1976 has passed the mutation order without affording the opportunity of being heard to the respondent herein. It was mandatory for Tehsildar to issue notice to the real owner of the land to hear him before passing the impugned order. The Tehsildar, Bhaderwah in utter violation and disregard of different provisions of Agrarian Reforms Act, 1976 has passed the mutation order without affording the opportunity of being heard to the respondent herein. It was mandatory for Tehsildar to issue notice to the real owner of the land to hear him before passing the impugned order. Further the Tehsildar, Bhaderwah also passed an order attesting mutation No:4191 under Section 28 of the Agrarian Reforms Act,1976 on 20.10.1992 subsequently whereby the land in question has been escheated to State and respondent was declared as occupant till the allotment of land on payment of rent @ 40 times of land revenue alongwith cess. This order was also set aside by the Commissioner Agrarian Reforms, Doda in an appeal. It was also found that no proper enquiry was made by the Tehsildar and passed contradictory orders without affording any opportunity to the concerned parties and respectable persons of locality which was obligatory on the part of Tehsildar. In such circumstances, the Deputy Commissioner, with powers of Commissioner Agrarian Reforms, Doda set aside the order of attestation of mutation under Section 4 of the Agrarian Reforms Act, 1976 in respect of land in question by Tehsildar Bhaderwah. The order of Tehsildar was erroneous and perverse and also against the admitted facts. As stated above, the Learned Additional Deputy Commissioner also found that while attesting the mutation, the Tehsildar Bhaderwah has not followed the procedure and instructions from time to time besides proved and established facts . It is settled law that procedure is to be followed as enshrined in the different Rules while attesting mutation by the Authorities and Authorities are under obligation to avoid ex-party proceedings. It has to be reflected in the order that steps were taken to issue notices the persons against whom the proceedings have taken. 7. The contention of the Learned counsel for the petitioner that respondent cannot claim tenant of his father does not require any consideration because this plea was raised by respondent herein in the appeal, but was not accepted by the Additional Deputy Commissioner and did not held that son is the tenant of his father. 8. Under these circumstances, I would held that the remand order passed by the Additional Deputy Commissioner with power of Commissioner Agrarian Reforms, Doda is proper and legal and does not suffer from any infirmities. 8. Under these circumstances, I would held that the remand order passed by the Additional Deputy Commissioner with power of Commissioner Agrarian Reforms, Doda is proper and legal and does not suffer from any infirmities. He has not wrongly exercised his jurisdiction. No question of law or public interest is involved in the case. 9. The Learned counsel for the respondent raised the contention that no revision lies against the order of remand is no more a res-integra . This point has been finally settled by the Honble Supreme Court of India in case reported in AIR 2000 SC 650 , wherein it is held that if a remand order settles the rights of the parties finally, then revision petition lies and in other case no revision petition lies. 10. For the foregoing reasons, I would hold that in the instant case no question of law or public importance or interest are involved, as such, there is no merit in this revision petition for interference with the impugned order dated 24.09.2007 passed by the Additional Deputy Commissioner, with powers of Commissioner Agrarian Reforms, Doda. Accordingly, this revision petition is hereby dismissed. 11. Record of the court below be sent back and file of this Tribunal be consigned to record after due completion.