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2010 DIGILAW 412 (JK)

Sandhoor Singh v. Special Tribunal, J&K

2010-07-29

Mansoor Ahmad Mir

body2010
1. By the medium of this writ petition, petitioner has challenged the order dated 5th of February, 2008 passed by respondent No. 1, whereby revision petition No. STJ/302/05 filed by the writ petitioner came to be dismissed, on the grounds taken in the writ petition. 2. It appears that the parties are in lis right from 1981 and this is the third round of litigation before this Court. It is profitable to give a brief resume of the case, the womb of which has given birth to the instant writ petition. 3. Land measuring 19 kanals 8 marlas falling under Khasra No. 58 situated at Top Sherkhanian, Jammu was in possession of one Ghasitu Ram as tenant and after his death is in possession of respondents 2-5 as legal heirs-representatives of said Ghasitu. Mutation No. 2819 came to be passed under Section 4 of J&K Agrarian Reforms Act (hereinafter for short as Act) in favour of respondents 2-5 and came to be declared as prospective owners. Respondents accordingly deposited levy and mutation under Section 8 of the Act came to be passed in their favour. Petitioner-ex-landlord had filed application before Tehsildar on the prescribed form in terms of the provisions of the Act for resumption of land, came to be rejected by Tehsildar vide Order dated 10th of April, 1981 and accordingly mutation came to be passed in favour of respondents 2-5. 4. Feeling aggrieved, writ petitioner questioned the same before the Appellate Authority, came to be dismissed. Petitioner questioned the same by the medium of revision petition, came to be allowed and orders of appellate court as well as the Tehsildar came to be set-aside. 5. Feeling aggrieved respondents 2-5 filed writ petition before this court, came to be allowed and the order of Tribunal came to be quashed and Tehsildar was directed to conduct enquiry afresh. 6. Tehsildar allowed the resumption, came to be challenged by respondent No. 5 before the Joint Agrarian Reforms Commissioner, came to be allowed and the case was remanded back to the Tehsildar for passing fresh orders. 7. Writ petitioner questioned the said order by the medium of revision petition before respondent No.1, came to be dismissed vide order dated 28.3.2001. It is apt to reproduce the operative part of the judgment dated 28.3.2001 herein:- "From the order of Ld. 7. Writ petitioner questioned the said order by the medium of revision petition before respondent No.1, came to be dismissed vide order dated 28.3.2001. It is apt to reproduce the operative part of the judgment dated 28.3.2001 herein:- "From the order of Ld. Tehsildar it however transpires that on spot on 23.5.1998 when none from the respondents appeared the evidence of the petitioner was recorded exparte however ld. Tehsildar adjourned the case to 26.5.1998 for giving fresh opportunity to the respondents to submit their claims. Such fresh opportunity appears to have been given to the respondents without any fresh notice to them and as such was meaningless because they were not supposed to know about such opportunity. If in the opinion of Ld. Tehsildar fresh opportunity was needed to be given to the respondents then he ought to have also issued fresh notice to them. In this view of the matter the respondents can not be said to have had a fair chance of meeting the evidence of the petitioner. The appellate court was therefore right in remanding the case in its entirety." The parties accepted it and participated in the enquiry before the Tehsildar. 8. The short controversy which was to be determined by Tehsildar was whether the petitioner was entitled to resumption or otherwise. Tehsildar conducted the inquiry and rejected the resumption-form of the petitioner on the grounds that the writ petitioner was disqualified in terms of mandate of Section 7 (2) (e) of the Act vide order dated 29th of December, 2001. 9. Feeling aggrieved, petitioner challenged the said order before the Joint Agrarian Commissioner by the medium of appeal, came to be dismissed vide order dated 30th of September, 2005. Petitioner invoked the jurisdiction of respondent No.1 and questioned the orders of Tehsildar and Joint Agrarian Reforms Commissioner, came to be dismissed vide order dated 5th of February, 2008 which is subject matter of the writ petition. 10. Respondents 2 to 5 resisted the petition on the grounds taken in the objections. 11. Respondents have contended that the writ petitioner has admitted that respondents 2-5 are his tenants and thus is precluded from making a U-turn by raising a plea that the land in question was under mortgage. 10. Respondents 2 to 5 resisted the petition on the grounds taken in the objections. 11. Respondents have contended that the writ petitioner has admitted that respondents 2-5 are his tenants and thus is precluded from making a U-turn by raising a plea that the land in question was under mortgage. Further it is contended that the writ petitioner has earned disqualification in terms of mandate of Section 7 (2) (e) of the Act because of the fact that he has sold land after the commencement of the Act. 12. While going through the record as well as the pleadings of the parties, it appears that the petitioner had questioned the mutation no. 2819 passed under Section 4 of the Act whereby Sh. Ghasitu came to be declared as a prospective owner and the writ petitioner came to be declared as ex-landlord, the appeal came to be dismissed thereafter the petitioner has not challenged the said finding thereby the said mutation has attained finality. Respondents 2 to 5 have deposited the levy after rejection of resumption form and mutation No. 2837 came to be passed under Section 8 of the Act in their favour. Writ petitioner has filed resumption form where it is recorded that respondents are tenants. 13. Respondents 2 to 5 had filed writ petition No. 577/87 before this court and petitioners-respondents 2-5 herein have specifically averred in Para 2 of the writ petition that they are the tenants of respondent No. 3-writ petitioner herein. It is apt to reproduce Para No. 2 of that writ petition herein:- "2. That land measuring 19 kanals 8 marlas underlying khasra No. 58 and 58 min situated in village Top Sherkhanian is owned by respondent No.3 and one Shri Hari Singh. The said land is under the protected tenancy of the petitioner for the last more than two decades." Respondent No.3-petitioner herein has filed objections to the said writ petition and para no. 2 has not been denied. It is apt to mention para no. 2 of the reply herein:- "2. Para No. 2 is not denied." 14. Thus, in the given circumstances, writ petitioner has admitted that Ghasitu was a tenant and thereafter his legal representatives are his tenants. 2 has not been denied. It is apt to mention para no. 2 of the reply herein:- "2. Para No. 2 is not denied." 14. Thus, in the given circumstances, writ petitioner has admitted that Ghasitu was a tenant and thereafter his legal representatives are his tenants. Thus the argument advanced by the learned counsel for the petitioner that land was under mortgage is virtually a U-turn which has been made for the first time and was never raised in the first two rounds of litigations. 15. It is apt to mention herein that it is recorded in the revenue record that Ghasitu and thereafter his legal representatives are paying rent in lump sum. ("Gair Maroosi-Lagan Nakdi-Bilmukta Rupees Fifty Saltaman") Provisions of The Jammu and Kashmir Tenancy Act, 1980 (hereinafter for short as Tenancy Act) and Standing Order 22 provide different types of tenants. A tenant may be paying one half of the produce as a rent, some tenants may be paying 1/4th of the rent and some may be paying in lump-sum. The entry recorded as Nakdi Hasi Parta Deh in the `Khasla Column’ means that those persons in whose favour such entry is recorded are tenants but they have not to pay the rent, i.e., share of the produce. Full Bench of this court in case titled as Ganpat Rai and anr. v. Abnash Chander and anr., reported in AIR 1973 JK, 74, laid down the same principle. 16. It is apt to reproduce relevant part of Rule 9 (a) of the Standing Order 22 herein:- "(a) Rent in cash.--Show whether rent in a lump sum or annual rates per Kanal or per acre have been based on measurements taken by stepping or by chain; if rate of rent is less or equal to land revenue and cesses, state reasons for the concession; in cases of temporary transfers for cultivation, states who pays the land revenue of each Khasra No. concerned and whether the rent is based on the kind of soil of the area held in cultivating possession." 17. Thus, as admitted by the writ petitioner as also in terms of the provisions of the Tenancy Act read with Standing Order 22 (supra), Ghasitu was paying rent in cash in lump sum and after his death, respondents 2 to 5 as legal representatives-heirs were paying rent in cash in lump sum thus are tenants and it cannot be said that land was under mortgage. 18. Now the question arises whether the petitioner has earned disqualification in view of the fact that he has sold the land, the mention of which is made in the order dated 30th September, 2005, whereby the appeal filed by the petitioner came to be dismissed by Joint Agrarian Commissioner and thereafter also the revision petition filed by the writ petitioner came to be dismissed. It is apt to reproduce Section 7 (2) (e) of the Act herein:- "7(2)(e) The person who has transferred land by sale or gift or bequest on or after first day of September, 1971 shall not be eligible to resume land if the land so transferred was personally cultivated by him prior to such transfer." 19. While going through the provision, it is crystal clear that if a landlord has sold his land which was in his personal cultivation after 1971 he cannot resume the same. The Tehsildar, Joint Agrarian Commissioner-appellate court after conducting enquiry and marshalling out facts of the case came to the conclusion that the writ petitioner has sold the land after the Act came into force and thereby is not entitled to resume the same in terms of the mandate of Section 7 (2) (e) of the Act. It is apt to reproduce the operative part of the judgment dated 30.9.2005 passed by the appellate court herein:- "I have gone through the record available on the file including the directions and orders of various Courts in this case, have examined the written arguments advanced by the Counsel for the parties and have given my due consideration to the law point involved in the case. The arguments of the counsel for the appellant that on 29.12.2001, Tehsildar Jammu was trapped in militant’s attack along with Deputy Commissioner, Jammu at Pargwal Tehsil Akhnoor and that he has not conducted any enquiry or passed any order on 29.12.2001 is incorrect and baseless. The arguments of the counsel for the appellant that on 29.12.2001, Tehsildar Jammu was trapped in militant’s attack along with Deputy Commissioner, Jammu at Pargwal Tehsil Akhnoor and that he has not conducted any enquiry or passed any order on 29.12.2001 is incorrect and baseless. It is, so, in view of the copies of the revenue record viz copies of "Fard Partal", Roznamcha Waqate, Diary Karguzari of revenue record of Sh. R. C. Misri, Tehsildar Jammu and the summon duly served to the appellant. Moreover, Pargwal falls in Tehsil Akhnoor and Tehsildar Jammu has nothing to do there. It appears that the appellant and his Counsel have been misled by unauthenticated and misquoted news item appearing in Daily Excelsior dated 30.12.2001. So more raising any argument on the basis of unconfirmed facts amounts to misleading the Court. Otherwise also this Court is in agreement with the ruling in AIR-1969 SC Page 1201D (1220), AIR-1988 SC Page 1274 (1290) and A.C.J. 1978 Page 26 and cannot take judicial notice of the unconfirmed facts stated in a news item. Secondly, the appellant has admitted the sale of land under Khasra No. 923,73,921, but said that the land so sold was banjar. But the perusal of the record of Khasra Girdawari, Jamabandi and the mutation itself reveal that the kinds of soil of the land so sold was "Waryal Awal" and "Nehri" respectively in Kharief 1971 and even thereafter. This land has been in the personal cultivation of the appellant in Kharief 1971 and thereafter the soil of the land may have been changed by the Parwari Halqa to "Banjar" in Khasra No. 923 to enable the appellant get the sale deed registered, but the Patwari was not competent to change the soil. Moreover, the appellant has sold the land in other Khasra Nos also which is not "Banjar", so, the appellant has definitely violated the provisions contained in Section 7(e) which disentitle him from resuming the land from the tenant" 20. Thus the appellate court has upheld the findings returned by the Tehsildar. The Tribunal held that petitioner has earned disqualification in terms of Section 7 (2) (e) of the Act. Thus the appellate court has upheld the findings returned by the Tehsildar. The Tribunal held that petitioner has earned disqualification in terms of Section 7 (2) (e) of the Act. It is also apt to reproduce relevant portion of the order herein:- "So in order to disentitle an ex-landlord from resumption of land he must be proved to have (i) transferred some land; (ii) such transfer should be made by him by way of sale, gift or bequest (will); such transfer of land must be shown to have been made by him on or after first day of September 1971 & (i) that such land must have been in his personal cultivation prior to such transfer. It is therefore, amply clear that the restrictions will not apply if the land sold was not `in his personal cultivation’, it had been sold prior to first day of September 1971 & the same was transferred by any mode of alienation other than sale, gift or bequest. This restriction will also not apply on land which was owned by him but it was not under his personal cultivation. With this unambiguous legal position of the matter, the land sold by the petitioner Sandoor Singh comprises in Khasra no. 923 (1 kanal/ waryal awwal) & Khasra no. 37 min (1 kanal-12 marlas/ nehri) to Pt. Radha Krishan & Surinder Kumar Jalali respectively. The record of Khasra girdawri shows that Sandoor had been in possession of this land & cultivated the same personally. There is no rebuttal to this documentary evidence of record which has presumption of truthfulness. The findings returned by Tehsildar Jammu dated 29.12.2001 and confirmed by the Joint Agrarian Commissioner Jammu dated 30.9.2005 are unexceptional & this Tribunal does not find any legal lacuna to interfere with same.." 21. The first court, appellate court and the revisional court, i.e., all the Revenue Authorities have held that the petitioner has sold the land and earned disqualification. 22. The writ court cannot interfere with the said findings unless it is perverse, illegal or came to be passed without jurisdiction or inquiry is based on no evidence or is against the basic principles of law. 23. 22. The writ court cannot interfere with the said findings unless it is perverse, illegal or came to be passed without jurisdiction or inquiry is based on no evidence or is against the basic principles of law. 23. Apex Court in a case titled Jugal Kishore v. State of Maharashtra and others, reported in AIR 1989 SC 159 , has held that it is only the revenue authority who has to determine whether the sale of land or transfer made by the landlord was bonafide or was to defeat the tenancy Act in order to give a goby to ceiling limit. It is profitable to reproduce Para 8 of the said judgment herein:- "8. It is, therefore, submitted on behalf of the petitioner that determination of the question of tenancy by the Ceiling Authorities was without jurisdiction. The High Court held that in the facts of this case it was not. The Ceiling Authority had to determine the land holdings of the petitioner. Incidentally, where a transfer is made by the landholder creating a tenancy there whether the transfer was made bonafide or made in anticipation to defeat the provisions of the Ceiling Act is a question which falls for determination squarely by the Ceiling Authorities to give effect to or implement the Ceiling Act. In that adjudication it was an issue to decide whether tenancy right was acquired by the tenant of the petitioner. But here before the Ceiling Authorities the adjudication was whether the transfer to the tenant, assuming that such transfer was there, was bona fide or made in anticipation to defeat the provisions of the Ceiling Act. This latter question can only be gone into in appropriate proceedings by the Ceiling Authorities. Unless the Acts, with the intention of implementing various socio-economic plans, are read in such complimentary manner, the operation of the different Acts in the same field would create contradiction and would become impossible. It is, therefore, necessary to take a constructive attitude in interpreting provisions of these types and determine the main aim of the particular Act in question for adjudication before the Court." 24. While going through the orders passed by the Tehsildar, appellate court and the revisional court, one comes to an inescapable conclusion that the petitioner has sold the land after 1971. Even otherwise it appears that revenue authorities, i.e,. While going through the orders passed by the Tehsildar, appellate court and the revisional court, one comes to an inescapable conclusion that the petitioner has sold the land after 1971. Even otherwise it appears that revenue authorities, i.e,. Tehsildar, Appellate Court and Revisional Court have not committed any illegality and were having the jurisdiction to determine the issue involved. Thus the writ petition is not maintainable. 25. The Apex Court in cases titled State of Orissa v. S. Mohanty and others, reported in AIR 2000 SC 3494 and State of Haryana and others v. Manoj Kumar, reported in 2010 AIR S.C 1990 has laid down the same principle. 26. Learned counsel for the petitioner argued that Section 7 (2) (e) of the Act is violative of provisions of the Constitution. The argument is devoid of force and stands already replied by the Apex Court in a case titled Prem Nath Raina and others v. State of J&K and others, reported in AIR 1983 SC 920 . 27. This court also in a case titled Ghulam Ahmad Dev v. State of J&K and others, reported in 1985 KLJ 36 has laid down the same principle. 28. Having glance of the above discussion, I am of the considered view that the writ petition is not maintainable and merits to be dismissed. Accordingly, it is dismissed along with all CMPs. Interim direction, if any shall stand vacated.