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2009 DIGILAW 352 (JK)

Gian Chand v. Dev Raj Abrol

2009-07-22

A.K.Shan

body2009
1. The jurisdiction of the then Deputy Commissioner (Collector) Kathua in deciding an appeal preferred before him by the father of respondents against the petitioners No:8 and father of respondents 1 to 7. 2. This case has a chequered history as is evident from the following acts but involves a very intercede question of law regarding the jurisdiction of this Tribunal to hear the revision petition filed by the petitioners. 3. As per record Nikku the predecessor-in-interest of petitioners 1 to 7 and petitioner No:8 Munshi were the occupancy tenants of the father of the respondents, Late Ram Chand in respect of land comprising Khasra Nos:917, 938, 1007, 1014, 1016, 1235, 961, 971, 977, 1005 and 1006 situated in village Kothi Tehsil Basohli. They were recorded as such in Khasra Girdawari pertaining to Kharif 1971. Under Agrarian Reforms Act 1972 (here-in-after called as old `Act') the then Naib-Tehsildar Basolhi in the capacity of Circle Officer appointed under the said Act verifying the entries for Kharif 1971 on 29th September 1973 under Rule 7 of Agrarian Reforms Rules, 1973. 4. Aggrieved by the verification made by the Circle Officer, the ex-owner Ram Chand preferred an appeal before Deputy Commissioner (Collector) Kathua who decided the same on 6.12.1973 by setting aside the order of verification. The tenants Nikku and Munshi had given statement before the Deputy Commissioner, Kathua that they have given up the cultivation of land prior to Kharif 1971 and the same was in possession of owner Ram Chand. 5. The tenants had also sworn affidavit admitting this fact. Based on the admission made by the tenants the Deputy Commissioner Kathua directing the field staff to make entries in the Girdawari for Kharif 1971 in the name of owner Ram Chand. 6. Although the appeal before Deputy Commissioner Kathua was decided on account of the admission made by the tenants but one of them Nikku preferred an appeal against the order of Deputy Commissioner, Kathua, before Divisional Commissioner Jammu by arraying his co-tenants as proforma respondents. 7. During the pendency of the appeal an application was filed on 30.7.1996 before the Ld. Divisional Commissioner to decide the question of jurisdiction on the ground that the Commissioner under Agrarian Reforms Rule 1976 (here-in-after the new `Act') had the jurisdiction to hear the appeal. 8. 7. During the pendency of the appeal an application was filed on 30.7.1996 before the Ld. Divisional Commissioner to decide the question of jurisdiction on the ground that the Commissioner under Agrarian Reforms Rule 1976 (here-in-after the new `Act') had the jurisdiction to hear the appeal. 8. The record of the Divisional Commissioner, Jammu reveals that the above said application was not decided and rather a transfer application was filed before this Tribunal which was decided on 13.5.1996 by passing the following order:- "Through the medium of this revision petition the petitioners have prayed for transfer of appeals from the file of Learned Divisional Commissioner, Jammu to any officer competent to entertain the case arising out of J&K Agrarian Reforms Act. Strictly speaking the revision petition under Section 21 of sub section (2) of J&K Agrarian Reforms Act,1976, is not maintainable at this stage and since the learned Divisional Commissioner has entertained the appeals, the parties should agitate the matter with regard to the jurisdiction before him. Accordingly the parties are directed to appear before the learned Divisional Commissioner, Jammu on 21.5.1996 for further proceedings". 9. Finally the Divisional Commissioner disposed of the appeal on 28.5.1998 and dismissed the same by holding that he had no jurisdiction to hear the appeal. He however, permitted the appellants Nikku and Munshi to agitate the matter before the proper forum. 10. In the light of the judgment of the Ld. Divisional Commissioner the tenants Nikku and Munshi filed the present revision petition against the order of Deputy Commissioner, Kathua dated 6.12.1973 on the grounds that the said officer had no jurisdiction to entertain the appeal. The jurisdiction of Deputy Commissioner has been challenged in the light of Government Order No:Rev(LR) 361 of 1973 dated 27.7.1973. 11. According to which under the old Act the appeal powers vested with the Deputy Commissioner of a particular district under the old Act were taken away and conferred on Sub-Divisional Officer( SDO) appointed under the old Act. As per SRO 584 dated 21.11.1973 upon appointing of SDO the respective Deputy Commissioner had to transfer the appeal pending before them to such SDO. 12. According to the petitioners the appeal was decided by Deputy Commissioner Kathua on 6.12.1973 when by that time post of SDO was created vide Government Order No:1715-GD of 1973 dated 21.6.1973 and as such the Deputy Commissioner had no jurisdiction to hear the appeal. 12. According to the petitioners the appeal was decided by Deputy Commissioner Kathua on 6.12.1973 when by that time post of SDO was created vide Government Order No:1715-GD of 1973 dated 21.6.1973 and as such the Deputy Commissioner had no jurisdiction to hear the appeal. 13. I am referring to the legal question involved in the present case touching the merits of the case here and there, to decide such legal question. 14. I have only heard the Ld. Counsel for the petitioners and examined the record because respondents are ex-parte. 15. Although Ld. Counsel for the petitioners has challenged the jurisdiction of Deputy Commissioner Kathua but the question arises as to whether this Tribunal has also jurisdiction to hear the revision petition or not. Under the old Act Financial Commissioner has jurisdiction to hear the appeal against the order passed in appeal filed before the Deputy Commissioner (Collector) who had jurisdiction to hear the appeal passed by Subordinate Authority under the old Act. This legal position has been highlighted by the Divisional Commissioner in his order dated 28.5.1998. It is pertinent to mention here that after coming into force of new Act Commissioner including Joint Commissioner appointed under Section 18 have jurisdiction to hear the appeal against the order passed by Collector. 16. In the present case Circle Officer had authenticated the entries of Kharif 1971 under the old Act. As such appeal was required to be preferred before the Deputy Commissioner Kathua who under the old Act was the appellate court. Similarly under the old Act it was the Financial Commissioner who had jurisdiction to hear the appeal against the order passed by Deputy Commissioner. By no stretch of imagination the provision of new Act can be pressed into service in the present case. Under Section 43 of the new Act anything duly done or suffer under repelate old Act has been kept intact. In this background the appeal against the order of Deputy Commissioner, Jammu was required to be filed by tenants before the Financial Commissioner Jammu. Instead they have preferred the revision petition before this Tribunal. 17. Under Section 21 of the new Act this Tribunal can hear revision petition against the order passed by Tehsildar or Assistant Commissioner in respect of Evacuee's Land or State land besides a final order passed by Commissioner Agrarian Reforms. 18. Instead they have preferred the revision petition before this Tribunal. 17. Under Section 21 of the new Act this Tribunal can hear revision petition against the order passed by Tehsildar or Assistant Commissioner in respect of Evacuee's Land or State land besides a final order passed by Commissioner Agrarian Reforms. 18. Similarly as per this Section Commissioner, Agrarian Reforms has jurisdiction to hear appeal against the final order passed by Collector or a Revenue Officer of a class lower then that of Collector. 19. The bare reading of Section 21 of the new Act points out that this Tribunal can exercise revisional powers against the order passed by officer/authority mentioned therein. 20. The present revision petition apparently is not against the order passed by such officer/authority. The impugned order has been passed by Collector against which appeal lies before the Commissioner Agrarian Reforms. 21. Even otherwise when the impugned order is appealable revision is not maintainable. The petitioners being well aware of the forum to entertain the appeal i.e. Financial Commissioner Jammu has chosen a wrong forum i.e this Tribunal by filing a revision petition, as the Circle Officer and the Deputy Commissioner has exercised their powers under the old Act. The new Act is not retrospective in nature and cannot be stretched to include Acts duly done under the old Act. 22. Presuming that a new Act is applicable to the present case still the revision petition is not maintainable because the same is not directed against the final order passed by the Commissioner Agrarian Reforms or final order passed by Tehsildar or Assistant Commissioner in respect of evacuee or state land. 23. Moreover the petitioners have not explained their conduct in preferring the appeal against the order of Deputy Commissioner Kathua for about 20 years. 24. Accordingly this revision petition is dismissed as not maintainable before this Tribunal. 25. Record of the court below be sent back and file of this Tribunal be consigned to record after due compilation.