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2012 DIGILAW 153 (JK)

Baldev Raj v. Sardari Lal

2012-04-09

Sanjay Gupta

body2012
1. Petitioners have filed the present revision petition against the order of Joint Agrarian Reforms Commissioner dated 15.3.2007, by virtue of which their appeals filled against mutations attested under section 4 and 8 of agrarian Reform act has been disposed and matter has been remanded to Tehsildar for conducting fresh inquiry. 2. Petitioners have challenged the impugned order on the grounds that, order is without jurisdiction. That it is admitted position of law that, devolution of rights under Tenancy Act governing the succession of tenants with respect to land, is governed u/s 67 of act. Section 67 of Tenancy act envisaged that such rights devolves on male lineal descendants including widow of male lineal descendants till she re-marry or died. That contending respondents are husband and wife. Respondent no. 2 is daughter of deceased tenant and her status is as that of proforma respondents and so has no locus standi to prefer the appeal. 3. I have heard both the counsels at length. Records of Court below reveal that, eight appeals and cross appeals were filed by parties against each other before Court below. Four appeals were filed by petitioners herein,against the order passed in mutation no. 573 with regard to land measuring 3k 18m under survey no. 792, Mutation no. 542 with respect to land measuring 1k 17m under survey no. 681, mutation no.575 with respect to land measuring 1k 19 m under survey no. 792, mutation no. 327 dt. 5.4.1982 in respect of land measuring 2k 8m under survey no. 792 and 2k 3m under survey no. 681 and mutation no 327 with respect to land measuring 2k 8m under survey no. 792 attested under section 4 and 8 0f agrarian reform act of village Gajansoo Tehsil and District Jammu. Other appeals were filled by respondents. 4. All the appeals were clubbed together by court below on the grounds that subject matter and parties were similar. Court below by one common order on 15.3.2007 allowed appeals and set aside all mutations and remanded the case to Tehsildar concerned for denovo enquiry after setting aside all the mutations. 5. Counsel for petitioners has reiterated all grounds mentioned in memo of revision petition. He has also argued that concession given by counsel does not bind party and revision against remand order is maintainable. 5. Counsel for petitioners has reiterated all grounds mentioned in memo of revision petition. He has also argued that concession given by counsel does not bind party and revision against remand order is maintainable. In support of his contention he has relied upon AIR 2000 Supreme Court page 65 case titled Mammu v. Hari Mohan in which it has been held that revision against remand order is maintainable. He has also argued that order is against mandate of section 67 of tenancy act. 6. Whereas respondent has argued that order has been passed with consent of counsels for petitioners, so it is not revisable. He has also argued that, court below has not decided any final rights of parties and remand order is not revisable. 7. I have given my thought full consideration to whole aspects of matter. 8. Memo of appeal filed before the Court reveals that, mutations have been challenged by the petitioners on the grounds that, it has been attested in exparte and petitioners being male legal decedents of tenant were entitled for rights conferred under section 4 and 8 of Agrarian Reforms Act. The Court below after hearing the parties and request of counsels passed the order on 15-03-07. The concluding Para of order reads as under:- "Since, the orders impugned have been passed at the back of respective appellant, the delay in filling the appeal is condoned the time of section 5 of the limitation Act and the appeals are accepted. The order passed on mutation No:-327 dated:-05-04-1982 in respect of land under kh.No.792 (02k-8m0 and 681 (03K-03m). Mutation No:-573 dated:-27-03-1998 in respect of land under Kh.No:792 (03K-18M) under section 4 and mutation No;542 dated:-06-02-1996 in respect of land under Kh.No:792(16marlas) and 681 (01-10M). Mutation No:575 dated:-16-06-98 in respect of land under kh.No.792 (01-19m) and mutation No:538 dated:06-02-1996 in respect of land under Kh.No:792 (01K-12M) and 681 (03K-14M) of village Gagansoo Tehsil and District Jammu is set aside and the case is remanded to the Tehsildar concerned for denovo enquiry and fresh order. The stay orders issued are vacated. The file consigned to record after its due completion. Announced 15-03-07 Sd/- Joint Agrarian Reform Commissioner, Jammu This tribunal constituted under special tribunal act of 1988, derives power of revision under section 21 of agrarian reform act 1976. The stay orders issued are vacated. The file consigned to record after its due completion. Announced 15-03-07 Sd/- Joint Agrarian Reform Commissioner, Jammu This tribunal constituted under special tribunal act of 1988, derives power of revision under section 21 of agrarian reform act 1976. It reads as under:- (11) Any person aggrieved by a final order of a Collector or a Revenue Officer of a class lower than that of a Collector may prefer an appeal to the Commissioner having jurisdiction in the area to which the appeal relates. (12) The Revenue Minister may at any time call for the record of any case in which a Tehsildar or an Assistant Commissioner has passed orders in respect of evacuees land or State land or of any case in which Commissioner has passed final order and if he finds that a question of law or public interest is involved in the case, he may pass such orders thereon as he thinks fit; Provided that no order shall be passed against any party without affording that party an opportunity of being heard. 9. Bare perusal of this section, it is clear that revision jurisdiction of Special Tribunal is limited only to examine a matter involving question of law or of public importance, that too after final order is passed by appellate authority. Order arrived after appreciating facts emerging during the course of proceeding before court below cannot be re-appreciated, unless order is perverse in nature. 10. Question of law means application or interpretation of legal principle or statues. It involves the interpretation of principle that are potentially applicable to other case. It relates to determination of what is law, how it is applied to facts of case. It is purely legal in contention. 11. Bare perusal of perusal of order under challenged, it is apparent that, no final rights of any parties to litigation has been decided. Further perusal of page 3 of order, it is evident that, it is the counsels for parties who have prayed before court below for condoning the delay in filling of appeals and remanding the case to Tehsildar for denovo inquiry after accepting all the appeals. Court below thus has not given his finding on any legal issues raised by parties. 12. Further respondent no.1 and 2 also filled appeals against appellants herein before court below and same order have been passed in their appeals. Court below thus has not given his finding on any legal issues raised by parties. 12. Further respondent no.1 and 2 also filled appeals against appellants herein before court below and same order have been passed in their appeals. They have not chosen to file revision against order impugned. On the contrary they have supported the order. Counsel who represented the petitioner before appellant court is same, who has appeared before this court. Now, he cannot say that he gave wrong consent before court below. 13. In present case finding of court below is not perverse in nature and so, it does not amount to question of law or of public importance, which is sine quo for exercising Revisional jurisdiction in term of section 21 of agrarian reform act. The law cited by counsel for petitioner is not applicable, because order impugned is consent in nature and no any final right of any party has been decided. 14. By passing order, court below as discussed above, has not finally decided any legal right of any parties to litigation, as court below has not finally truncated the proceeding. Matter has been remanded and so it is still alive, any party aggrieved of order of remand court has remedy to approach higher forum under law. 15. In view of what has been discussed, the order impugned does not suffer from any legal defect. This revision petition accordingly is dismissed. Record of court below is sent back along with order. Remand court is directed to consider all legal aspect including provision of tenancy act, if applicable while deciding the matter. The file be consigned to records after due completion.