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2010 DIGILAW 74 (JK)

Ab. Aziz v. Pawan Dev Singh

2010-02-18

A.K.Shan

body2010
1. By the medium of this revision, order dated 28.8.2004 passed by Director Land Records Jammu by exercising powers of Commissioner Agrarian Reforms has been assailed on very important questions of law. 2. The brief facts of case are:- On 25.3.1971, father of respondents filed an application under Section 56 of Tenancy Act, before the then Deputy Commissioner, Jammu, alleging therein that being tenant of land detailed in the revision petition, he had been dispossessed in Maghor 2027 corresponding to October-November 1970, by the owners of land, which be restored to him. The application was marked to Assistant Commissioner Jammu for disposal, who dismissed the same on 27.7.1973. 3. This order was challenged by father of respondents by way of appeal before the Divisional Commissioner, Jammu, on 25.9.1973. This appeal was allowed on 11.10.1975 by setting aside the order dated 27.7.1973 and case remanded to Assistant Commissioner, Jammu herein after ACR, who by that time had been vested with the powers of Collector, for deciding two issues. The 1st issue is as to whether relationship of landlord and tenant existed between the paties.2nd issue is as to whether application was time barred. 4. On remand the ACR took up the case for further proceedings on 19.11.1975 and decided same after about 19 years on 23.9.1994. During this period, the father of respondents expired, so they were brought on record. This time the ACR allowed the application by deciding the two issues in favour of respondents herein and directed the ejectment of petitioners herein from the disputed land. 5. The order of ACR was challenged by petitioner by filing an appeal before the Director Land Records, who by the order dated 28.8.2004 dismissed, same on question of limitations as well as on merits. It is against this order; the petitioner is before this Tribunal. 6. The learned counsel for parties has submitted written arguments, which have been perused along with the record. 7. It has been highlighted in the written arguments filed on behalf of petitioner that Agrarian Reforms Act 1972 remained suspended till the Act of 1976 came into force, as such ACR had no powers of Collector, to decide the case. 6. The learned counsel for parties has submitted written arguments, which have been perused along with the record. 7. It has been highlighted in the written arguments filed on behalf of petitioner that Agrarian Reforms Act 1972 remained suspended till the Act of 1976 came into force, as such ACR had no powers of Collector, to decide the case. Even under the Act of 1976, powers of Collector were conferred upon Deputy Commissioner Jammu who was District Collector so it was the Deputy Commissioner, Jammu who alone had the power to decide the case or transfer same to Assistant Commissioner (Revenue) under Section 18 of the Act of 1976. As per this Act, all cases pending before the Revenue Officers including the cases of Tenancy Act were required to be transferred to Collector. 8. It is next stated in the written arguments that the Director Land Record had no jurisdiction to decide the appeal, under the Agrarian Reforms Act, because as per SRO 132 of 1st April 1991, Deputy Commissioner, Jammu had been conferred the powers of Collector under Agrarian Reforms Act to hear the appeals. 9. It is next stated that once the appellate court was of the opinion that appeal is time barred then merits of the case should have not been touched. 10. On merits of the case it is stated that in fact Hussain s/o Dillu, Dillu s/o Alaf Din, Faji s/o Sain and Karim Beg s/o Sitar Beg had allegedly evicted the father of respondents, but these persons were not arrayed as respondents in the court below, as such appeal filed by father of respondent was itself not maintainable. 11. It is further stated that ACR did not went to spot but passed the order on the basis of report of Patwari. 12. So for appeal being time barred is concerned it has been mentioned in the revision petition, that appellate court has not given any finding as to whether delay in filing the appeal has been condoned or not. 13. On the other hand in the written arguments submitted on behalf of respondents, it is stated that in the month of Maghor 2027 when father of respondents had prepared the land for sowing wheat crop for Rabi 1971, the owner of land with the help of persons mentioned here-in-above, dispossessed the father of respondents. 14. 13. On the other hand in the written arguments submitted on behalf of respondents, it is stated that in the month of Maghor 2027 when father of respondents had prepared the land for sowing wheat crop for Rabi 1971, the owner of land with the help of persons mentioned here-in-above, dispossessed the father of respondents. 14. It is further stated that petitioner was fully aware about the order of dismissal of appeal, as he was represented by a counsel and cousin brother Noor Khan who was his attorney holder and one of the party before appellate court, but preferred appeal after about 5 years, which has been rightly dismissed as time barred. 15. It is next stated that ACR had decided the matter on remand order passed by Divisional Commissioner and as such it cannot be said he had no jurisdiction in the matter. 16. In respect of appellate court it is stated that despite dismissing appeal as time barred, merits of case were discussed in the interest of justice. 17. It is further stated that ACR and appellate court have recorded concurrent findings that application for restoration of land was filed by father of respondent well within time and thus call for no interference at this stage. It is further stated that no question of law or public importance is involved in the present revision, which is liable to be dismissed. 18. Lastly it has been stated that although it is alleged that ACR had no jurisdiction, as he had not been invested with the powers of appellate court under Agrarian Reforms Act,1972, but order of Divisional Commissioner was not challenged by the petitioner, so it has attained finality. 19. I have given my thoughtful consideration to arguments advanced on behalf f the parties. 20. Admittedly application for restoration of land was filed under Tenancy Act. At that time Agrarian Reforms Act had not yet been legislated. Agrarian Reforms Act came into existence only in 1972, which was suspended till the enforcement of new Act in 1976. By Section 19 of the new Act proceeding under Section 56 of Tenancy Act were required to be decided by Collector Agrarian and not by Collector under Land Revenue Act. Agrarian Reforms Act came into existence only in 1972, which was suspended till the enforcement of new Act in 1976. By Section 19 of the new Act proceeding under Section 56 of Tenancy Act were required to be decided by Collector Agrarian and not by Collector under Land Revenue Act. By virtue of sub-section 4 of Section 19, such proceedings pending before a Revenue Officer Subordinate to a Collector under Land Revenue Act were required to be transferred to the concerned Collector under Agrarian Reforms Act,1976. 21. As per Section 56 of Tenancy Act, a tenant ejected by landlord otherwise than in due course of law is required to file an application for restoration of land before a Revenue Officer, within six months of dispossession. As per Section 2 of the said Act word Revenue Officer has the meaning assigned to such word in Land Revenue Act, 1980. 22. As per Section 2 of Land Revenue Act, 1980, Revenue Officer means a Revenue Officer having authority under said Act, to discharge the function of Revenue Officer under this provision. Section 6 defines class of Revenue Officer which is as under:- 1. The Financial Commissioner 2. The Divisional Commissioner 3. The Collector 4. The Assistant Collector of 1st Class 5. The Assistant Collector of 2nd class. 23. As per Section 6(2), an Assistant Commissioner shall be an Assistant Collector of 1st class. 24. In the present case the father of respondents had rightly filed application for restoration of possession before the Deputy Commissioner having powers of Collector, who transferred the same to Assistant Commissioner who had powers of Assistant Collector of 1st class. This was done prior to coming into force of Agrarian Reforms Act 1972. The application was rejected on 22.7.1973. An appeal preferred against this order was allowed by Divisional Commissioner on 11.10.1975 and case remanded back to ACR who had been invested by then with the powers of Collector under Land Revenue Act. 25. When the matter was pending before ACR, Agrarian Reforms Act 1976 came into force. 26. Vide SRO 397 dated 17.7.1978, all Assistant Commissioner (Revenue) were appointed as Collector Agrarian for their respective Districts. This process was again repeated vide SRO 211 dated 2.4.1979. 25. When the matter was pending before ACR, Agrarian Reforms Act 1976 came into force. 26. Vide SRO 397 dated 17.7.1978, all Assistant Commissioner (Revenue) were appointed as Collector Agrarian for their respective Districts. This process was again repeated vide SRO 211 dated 2.4.1979. This SRO was partially modified by another SRO 127 dated 12.3.1980 and ACR(R ) Jammu appointed as Collector Agrarian for Tehsil R.S.Pura and Samba, whereas Collector Land Acquisition Jammu was made Collector Agrarian for Jammu and Akhnoor Tehsil. Vide SRO 547 dated 11.x.1980 in partial modification of SRO 211 dated 2.4.1979 the Government in exercise of powers under Section 18 (1) of Agrarian Reforms Act,1976, appointed every Deputy Commissioner as Collector for the District for purposes of the said Act, which was again superseded by SRO 583 dated 29.12.1981. Before passing SRO 583, the Government by an SRO 581 dated 27.10.1981, had directed that Assistant Commissioner (R) and Sub-Divisional Magistrate shall exercise power of Collector under Agrarian Reforms Act in respect of such cases as may be transferred to them by the respective Collectors. 27. Vide SRO 583 dated 29.12.1981, the Government in supersession of SRO 211 dated 2.4.1979 and SRO 547 dated 11.10.1980, appointed every Deputy Commissioner of the District as Collector within their jurisdiction for the purposes of Agrarian Reforms Act. SRO 583 was again superseded but powers of every Deputy Commissioner as Collector to deal with matters under the Agrarian Reforms Act as Collector were maintained. This SRO remained in force upto 30.11.1985, when it was superseded by SRO 484, but powers of every Deputy Commissioner as Collector Agrarian were kept intact. 28. SRO 484 supra was also superseded by SRO 442 dated 17.7.1986, but powers of every Deputy Commissioner as Collector Agrarian were not changed. By SRO 248 dated 26.6.1989, Deputy Commissioner of Kupwara, Doda and Pooch were appointed as Commissioner Agrarian Reforms. 29. Vide SRO 132 dated 1.4.1991, some changes were brought in SRO 442 dated 17.7.1986 and SRO 248 dated 26.6.1989, in respect of certain Revenue Officers, but powers of every Deputy Commissioner as Collector Agrarian were maintained. 30. By SRO 33 dated 17.2.1993,Additional Deputy Commissioner Srinagar/Jammu were appointed as Collector Agrarian within their territorial jurisdiction to hear cases arising out of Section 19 of Agrarian Reforms Act,1976, as may be transferred to them by the respective District Collector. 30. By SRO 33 dated 17.2.1993,Additional Deputy Commissioner Srinagar/Jammu were appointed as Collector Agrarian within their territorial jurisdiction to hear cases arising out of Section 19 of Agrarian Reforms Act,1976, as may be transferred to them by the respective District Collector. This SRO was replaced by another SRO 59 dated 3.2.1997 which needs not to be taken note of as the Assistant Commissioner had decided the application in question on 23.9.1994, when SRO 33 dated 17.2.1993 was in force. 31. After taking note of all the SROs referred here-in-above, it is manifests that vide SRO 397 dated 12.7.1978 and SRO 211 dated 2.4.1979, ACR Jammu was Collector Agrarian. Before 1978, no revenue officer had been designated as Collector Agrarian, so ACR already appointed as Collector under Land Revenue Act, was competent to hear the application under Section 56 of the Tenancy Act and thereafter as Collector Agrarian under the above two SROs. But under SRO 127 dated 12.3.1980 he was appointed as Collector Agrarian for Tehsils R.S.Pura and Samba. It was Collector Land Acquisition who was appointed as Collector Agrarian for Tehsil Jammu and Akhnoor. 32. Thus after coming into force of SRO 127 supra ACR Jammu had ceased to exercise powers of Collector Agrarian w.e.f. 12.3.1980 for Tehsil Jammu. He was required to transfer the case to Collector Land Acquisition Jammu who had been appointed Collectors Agrarian for Jammu Tehsil in which the land in dispute is admittedly situated. 33. The sequence of SROs reveals that by SRO 547 dated 11.x.1980, SRO 211 was modified and Deputy Commissioner of every District appointed as Collectors Agrarian for his respective District. These powers ever remained with such Deputy Commissioner by various SROs noticed here-in-above till last SRO 132 dated 1.4.1991 was in force till its supersession by SRO 59 dated 3.2.1997. 34. In the light of above observations it is clear that ACR Jammu had lost his powers as Collector Agrarian after coming into force of SRO 127 dated 12.3.1980, till he decided the application in question on 23.9.1994. Instead of transferring the proceedings to the competent Collector Agrarian, he carried out such proceeding and decided the matter ultimately. All the proceedings carried out by him after SRO 127 dated 12.3.1980 are without jurisdiction and decision returned by him in the matter is null and void abinitio. 35. Instead of transferring the proceedings to the competent Collector Agrarian, he carried out such proceeding and decided the matter ultimately. All the proceedings carried out by him after SRO 127 dated 12.3.1980 are without jurisdiction and decision returned by him in the matter is null and void abinitio. 35. The appellate court failed to take note of the question of jurisdiction exercised by ACR Jammu and has returned verdict which cannot stand in the eyes of law. He has upheld the order passed by ACR Jammu, which is illegal on the face of it. The appellate court has not exercised its jurisdiction properly which has resulted in grave miscarriage of justice. It is worth to mention that the appellate court had jurisdiction to hear the appeal. So challenge thrown to his jurisdiction is not sustainable. Of course the procedure adopted by the appellate court in touching the merit of the case after finding the appeal time barred is not in accordance to law. The question arises that if the appeal has been dismissed as time barred will this fact preclude this court from passing any appropriate order. Once the ACR had exercised the jurisdiction not vested in him his all the proceedings and the verdict becomes null and void. For such order there is no question of application of law of limitation. An illegal order is always an illegal order. 36. The net result is, the order dated 23.9.1994 passed by ACR Jammu as well as the impugned order dated 28.8.2004, are set aside. The record summoned from the office of the court below and that of ACR Jammu, be sent back along with copy of this order. The ACR shall pass appropriate order in the light of the observation made here-in-above, where the parties shall appear on 25.3.2010. 37. File of this Tribunal shall be consigned to record after due compilation.