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2009 DIGILAW 575 (JK)

Som Dutt Sharma v. Jagdish Singh

2009-11-20

A.K.Shan

body2009
1. In this revision petition order dated 17.11.2006 passed by Joint Agrarian Reforms Commissioner (with powers of Commissioner Agrarian Reforms) Jammu (here-in-after the Commissioner) Mr. R.K. Bhagat has been assailed, by virtue of which three appeals filed before him by the petitioner and his brothers have been dismissed on merits by a common order. Prayer has been made for setting aside the impugned order on important question of law to which reference will be made at appropriate stage. 2. In order to settle the controversy between the parties, it will be appropriate to refer to the facts of the case. 3. Respondent Jagdish Singh and Dharu were the tenants of petitioner and his brothers. By the advent of Agrarian Reforms Act 1976 (here-in-after the Act) the land under Section 4 stood vested with the State and as per Section 7 the petitioner filed an application for resumption of land. 4. By virtue of mutation No. 473 dated 17th August 1998 attested by the then Naib-Tehsildar in respect of land of village Raipur Satwari Tehsil Jammu. The said application was dismissed and thereafter mutation under 801 and 802 dated 19.8.1998 under Section 8 of the said Act were attested by the same Naib-Tehsildar conferring the ownership rights upon the above said respondents. 5. As per the petitioner all the three mutations were attested at his back as well as that of his brothers and after acquiring knowledge of the same on 17.10.1998, they preferred three separate appeals before the Commissioner on 10.11.1998, along with application for condonation of delay. The Commissioner condoned the delay but dismissed the appeals on merit by a common order dated 17.11.2006. 6. The learned counsel for the parties have filed written arguments, which have been examined minutely along with the record. 7. It was pleaded before the appellate court that all the mutation were attested without summoning the petitioner and his brother. The mutations were also challenged on variety of grounds to which reference has been made by the appellate court in its order. The appellate court has discussed all the grounds except non summoning and non hearing of the appellant. In this revision petition non action on the part of the appellate court in dealing with the question of attestation of mutations without hearing the petitioner and his brother has been agitated besides other numerous grounds. The appellate court has discussed all the grounds except non summoning and non hearing of the appellant. In this revision petition non action on the part of the appellate court in dealing with the question of attestation of mutations without hearing the petitioner and his brother has been agitated besides other numerous grounds. This question does not involve only the question of law but is crucial for declaring the validity and legality of the impugned order. If the petitioner succeeds on this point of law, there is no necessity and requirement of discussing the other points agitated before the appellate court or this Tribunal. 8. Rule of natural justice is the backbone of the judicial or administrative action. The law does not permit to condemn any person unheard. The judicial or quasi-judicial Authorities have been created to lend audience and hearing to the effected persons. In this background the rule of natural justice which means right of hearing is to be followed strictly in the courts and the Tribunals besides the Authorities created for implementation of law or administration of justice. If this rule is followed in breach it will create lot of problem resulting in mis-carriage of justice. 9. So far the present case is concerned, the appellate court has failed to exercise its duty in finding out as to whether grievances of petitioner and his brother is correct that they have not been heard before passing the three mutations in question. The appellate court was to examine the proceedings of the attesting officer to find out this fact which has been apparently not done. This has surely resulted in denial of justice to the petitioner. Any order passed at the back of the party is treated in law as null and void as the party is deprived to submit his case which is very important for settling the dispute between the parties. It was the bounded duty of the Commissioner to decide the question of not affording opportunity to the petitioner of being heard by the attesting officer especially when such question was agitated before him. As noticed the appellate court being aware of this plea of the petitioner and his brothers, has chosen to remain silent in this respect, which has resulted in passing of illegal order. As noticed the appellate court being aware of this plea of the petitioner and his brothers, has chosen to remain silent in this respect, which has resulted in passing of illegal order. Once the impugned order can be set aside on this ground, there is no legal necessity of discussing the other grounds raised by the petitioner before the appellate court or in this Tribunal. I would have liked to find out the facts of granting or not granting the opportunity of hearing to the petitioner in his resumption form but legally I am prevented from discussing the facts while excercising revisional powers. I leave as such this exercise to be completed by the appellate court. 10. Accordingly the present revision petition is accepted and the impugned order is set aside and case is remanded back to the appellate court with direction to decide the question of not hearing of petitioner and his brother at the hands of the officers who attested the mutations in question. Parties through their counsel are directed to appear before the appellate court on 23.12.2009. 11. Record of the court below be sent back along with copy of this order and file of this Tribunal be consigned to record after due compilation.