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2011 DIGILAW 464 (JK)

Jabbar Lone v. J&K Special Tribunal & Anr.

2011-09-02

MANSOOR AHMAD MIR

body2011
1. By this medium of this writ petition, petitioner has questioned order dated 26.05.1997 passed by J&K Special Tribunal, Srinagar in a revision, titled as Mst. Mukhti vs. Jabar Lone (for short, impugned order), on the grounds taken in the memo of petition. 2. It is averred that writ petitioner became owner of the land measuring 6 Kanals 12 Marias falling under survey no. 799 bearing Khewat No. 90 situate at Estate Darakis, Tehsil Tangmarg (Gulmarg) by virtue of a registered sale deed dated 02.06.1972 which was executed by Mst. Khatji and Mst. Saida, daughters of Ahad Lone and, thus, petitioner is in possession of the same. The said land was part of joint holding owned by Khatji, Saida and Fata daughters of Ahad Lone and Mukhti daughter of Mohd. Lone. It is averred that the petitioner had also filed a civil suit and obtained a decree, but during the pendency of said suit, respondent No. 3-Mst. Mukhti had made an application before the Tehsildar Tangmarg (Gulmarg) and became subject matter of various litigations before the revenue agency. Ultimately mutations came to be passed in favour of respondent No. 3, was questioned by writ petitioner by the medium of appeals before the Joint Agrarian Reforms Commissioner, Srinagar, who accepted the appeals and set aside the impugned mutations vide order dated 09.10.1995. Feeling aggrieved respondent No. 3 herein questioned the same before the J&K Special Tribunal, Srinagar, came to be allowed vide order dated 26.05.1997 and the order passed by Joint Agrarian Reforms Commissioner was set aside and Mutation Nos. 219 and 253 attested by Tehsildar Agrarian Reforms, Tangmarg were upheld. It is this order which is subject matter of present writ petition. 3. Petitioner has specifically averred that he is in exclusive possession of the land in question. It is not his case that he is not in possession exclusively. He has prayed for quashing of the impugned order and to command respondents not to interfere with his possession; with a further direction to respondent No. 2 to restore back the possession of entire land falling under Survey No. 799. 4. It appears that Mukhti-respon-dent No. 3, who is daughter of Mohd. Lone, had moved an application before Tehsildar Agrarian Reforms, Tangmarg who directed Naib Tehsildar Tangmarg to conduct inquiry. 4. It appears that Mukhti-respon-dent No. 3, who is daughter of Mohd. Lone, had moved an application before Tehsildar Agrarian Reforms, Tangmarg who directed Naib Tehsildar Tangmarg to conduct inquiry. Accordingly, Nabi Tehsildar made a report to Tehsildar to the effect that Mukhti was enjoying possession of the land in question continuously even before 1971 and on the basis of inquiry held by Naib Tehsildar, Tehsildar Agrarian Reforms, Tangmarg ordered correction of girdawari entries in respect of the disputed land in favour of Mukhti-respondent No. 3 as tenant with effect from Kharif 1971. The said order was passed on 15.10.1981 in file No. 69. It also appears that the proceedings and inquiry conducted by Naib Tehsildar and order passed by Tehsildar Tangmarg have never been questioned by the writ petitioner and mutation Nos. 219 and 253 came to be attested on the basis of said order of Tehsildar. Writ petitioner questioned both the mutations by the medium of appeal before the Joint Agrarian Reforms Commissioner, Srinagar, but did not question the basic order-order of correction of girdawari passed by Tehsildar Agrarian Reforms Tangmarg. Joint Agrarian Reforms Commissioner-appellate authority while setting aside the mutations has overlooked the said fact. 5. Respondents No. 3 has filed reply. Official respondents have not filed the reply. Even petitioner has not filed rejoinder. 6. The stand of respondent No. 3 was that she was in possession of the land in question prior to 1971 and has also taken the same stand before the Tribunal as well as in this writ petition. It is not the case of writ petitioner of respondent No. 3 that the entire property is joint and they are cultivating the land jointly. The petitioner has also pleaded that he is in exclusive possession of the land measuring 6 Kanals 12 Marias and has prayed that the respondents be directed not to cause any interference. The findings returned by the Tehsildar Agrarian Reforms in terms of Rule 4 of Agrarian Reforms Rules are still in force and in place and was neither questioned by the writ petitioner nor is subject matter of any proceedings, thus the writ petition on this count merits to be dismissed. 7. The findings returned by the Tehsildar Agrarian Reforms in terms of Rule 4 of Agrarian Reforms Rules are still in force and in place and was neither questioned by the writ petitioner nor is subject matter of any proceedings, thus the writ petition on this count merits to be dismissed. 7. The stand of petitioner all along is that he is in possession of the said land which is not correct for the reason that Tehsildar Agrarian Reforms which exercising powers in terms of Rule 4 has held that Mukhti is in possession since Kharif 1971. Thus it cannot be the case of petitioner that Mukhti is co-owner/co-sharer and her possession includes possession of other co-sharers including the writ petitioner. It is also to be taken in view that section 4 of Agrarian Reforms Act, 1976 (for short, Act) provides that a person who was not cultivating the land personally in Kharif 1971, his all rights, title and interest in the land shall get automatically extinguished and vested in the State, Agrarian Reforms Act is a revolutionary Act. All the laws which were in force on the date J&K Agrarian Reforms Act, 1976 (for short, Act) came into force lose their significance. It is appropriate to reproduce relevant part of section 4 herein: "4. Vesting in the State of rights in land nor held in personal cultivation: (1) Notwithstanding contained in any law for the time being in force, but subject to the provisions of this Chapter, all rights, title and interest in land of any person, not cultivating it personally in Kharif 1971, shall be deemed to have extinguished and vested in the State, free from encumbrances, with effect from the first day of May, 1973." 8. While going through the mandate of law, it is crystal clear that a person who was not cultivating the land in Kharif 1971, his rights shall be deemed to have been extinguished and vested in the State. It does not provide for any exception, even it does not talk about joint possession or that possession of ojie co-sharer is possession of others also. 9. Agrarian Reforms Act defines personal cultivation. It does not provide for any exception, even it does not talk about joint possession or that possession of ojie co-sharer is possession of others also. 9. Agrarian Reforms Act defines personal cultivation. It is apt to reproduce section 2(12) herein: "(12) "Personal Cultivation" by a person shall mean cultivation- (a) by the person himself; or (b) by any member of the family, if any, to which he belongs; or (c) by a khana-nishin daughter or khana-damad or a parent of the person; or (d) by a son, adopted son or pisarparwardah, not included in the family, if, if any, to which the said person belongs; or (e) by brother or sister of the person; or (f) in the case of such religious or charitable institutions of public nature as are notified by the Government, by a member of the management or, on behalf of the management, by a servant or hired labourer on payment of wages otherwise than as are of crop; or (g) in the case of a person, who is minor, insane, physically disabled or incapacitated by old age or infirmity, widow or serving in defence force, or a detention or prison, by a servant or hired labourer under the personal supervision of the guardian or any agent of such person; provided that such servant or hired labourer or guardian or agent does not bear the risk or cost of cultivation nor receives wages or remuneration as a share of crop." 10. It is not provided by the Act that a co-owner/co-sharer's cultivation/ possession shall be deemed to be personal cultivation/possession of other co-sharers. It does not include a co-owner. 11. It is also profitable to reproduce definition of family given in section 6 of the Act herein: "(6) "family" means husband, his wife and their children excluding: (a) a married daughter; and (b) a major son separated from his father on or before the first day of September, 1971 and holding land separately in his name." 12. Co-owner/co-sharer is not included in the family as per the definition given hereinabove. 13. While going through the entire provisions of the Act and Rules, the concept that possession of one co-owner is possession of other co-owners is not provided and recognized by the aim, object and scope of the Act. It deals with absentee landlord. Co-owner/co-sharer is not included in the family as per the definition given hereinabove. 13. While going through the entire provisions of the Act and Rules, the concept that possession of one co-owner is possession of other co-owners is not provided and recognized by the aim, object and scope of the Act. It deals with absentee landlord. The absentee landlord is declared as an ex-owner and entitled to levy from the State and is finally divested of all rights in the land. 14. The impugned order was made on 26.05.1997, but petitioner has not taken steps to question the same till 07.10.2003, though he was already before the Tribunal but has not chosen to question the same for more than six years. Thus the petition is caught by delay and latches. The remedy sought is afterthought. Further, at the cost of repetition, the petitioner has not questioned the findings returned by the Tehsildar Agrarian Reforms in terms of Rule 4 of Agrarian Reforms Rule. 15. In the given circumstances this writ petition merits to be dismissed. Accordingly the writ petition is dismissed along with all CMPs.