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2012 DIGILAW 277 (JK)

Sham Din v. Mohd. Hussain

2012-05-23

Sanjay Gupta

body2012
1. This Revision has been directed against the impugned order dated 14-03-2009 passed by respondent No. 11 by virtue of which, court below has remanded the case to collector agrarian for holding fresh inquiry. The concluding Para of order reads as under:- "In view of whatever discussed above, it is apparently clear that impugned mutation attested by Asst. Commissioner (Collector Agr. Ref) Jammu is violative of rule 14(2) of AGr. Ref Rules 1977 and principles of natural justices because the appellants have not been afforded opportunity of being heard by the mutating officer while attesting the impugned mutation. The impugned mutation is therefore bad in the eyes of law and the same cannot be allowed to sustain. The appeal is there fore partly accepted to the extent it affects the legitimate rights of the appellants over the land in question if any and the impugned mutation is set aside to that extent only. The appeal is rejected to the extent it affects the legitimate rights of respondents over the land in question if any and the impugned mutation is protected to the extent only. The case is remanded to Assistant Commissioner Rev (Collector Agr. Ref) Jammu for holding afresh enquiry and passed a lawful order in the presence of prominent persons of the locality and ex-owners after affording reasonable opportunities of being heard to both the parties and by taking into consideration the legal as well as factual aspects of the case with special reference to SRO 133 of 1989 to avoid further scope of litigation. It is further order that Assistant Commissioner Rev (Collector AGr. Ref) Jammu will give definite findings while passing lawful orders and will also ensure that legitimate rights of both the parties over the land in question if any shall not be disturbed in any manner whatsoever in the interest of Justice and fair play unless found contrary. The appeal case is accordingly disposed of. Interim orders if any shall stand vacated. No orders as to costs. The parties are directed to appear before the Assistant Commissioner Rev (Collector Agr. Ref) Jammu on 6-4-2009 along with documentary proof if any in support of their claims. A copy of the order shall go to Assistant Commissioner Rev (Collector Agr.Ref) Jammu for further lawful action in the matter as directed above. The file shall be consigned to records after due completion. Ref) Jammu on 6-4-2009 along with documentary proof if any in support of their claims. A copy of the order shall go to Assistant Commissioner Rev (Collector Agr.Ref) Jammu for further lawful action in the matter as directed above. The file shall be consigned to records after due completion. Order announced in the presence of both the parties. Dt: 14-3-09 Sd/- Director Land Record (with powers of commissioner Agr. Ref) Jammu 2. Petitioners have challenged the order impugned on the grounds that, observation of court below is not according to Agrarian Reforms Act 1976. That order is against facts, law and is not according to direction passed by Special Tribunal vide its order dated 12-05-08. That order passed by the court below is self contradictory and has been in very casual manner 3. Facts necessary for deciding the matter are that, Petitioners and Performa respondents herein, filed appeals before commissioner agrarian, against order of Agrarian Reforms collector (A.C.R), Jammu, who passed order of correction of Girdawari entry from 1971, with regard to land under Kh. 2407 min measuring 64 kanals situated at Village Kote Tehsil Jammu of 1993, through mutation no 3310 dated 30-10-1993, in favour of Mohammad Hussain, Mohammad Yusuf, Rehmat Ali and Ahmad Din Sons of Bhag Ali Gujjar Jammu. By virtue of this order right of prospective ownership of land were conferred. 4. Petitioners herein, being aggrieved of this mutation filed the appeal before Director Land Record Jammu (with power of agrarian reform commissioner) on 20-1-1999 on various grounds, including that they are in possession of land,along with one Bhag ali respondent in appeal,which is Banjer Kadim land. That,they were not heard and order has been passed in violation of rule 14A of agrarian reform act. An appeal against order of mutation no. 3921 dt. 22.3.1994 under section 8 of agrarian reform act was also filed. 5. DLR with power of agrarian reform commissioner dismissed the appeal on the ground that, it was time barred and it was totally misconceived and up held the order of Agrarian Reforms collector Jammu. This order was passed on 31-12-04. 6. 3921 dt. 22.3.1994 under section 8 of agrarian reform act was also filed. 5. DLR with power of agrarian reform commissioner dismissed the appeal on the ground that, it was time barred and it was totally misconceived and up held the order of Agrarian Reforms collector Jammu. This order was passed on 31-12-04. 6. Appellants -petitioners being aggrieved of this order, filed a revision before Special Tribunal J&K, Jammu and Special Tribunal Jammu on 12-05-08,set aside the order of appellate court Director Land Record and remanded the case back to him for passing a fresh order on each point of law as well as facts and comes out with definite finding with special reference to Govt. Order4 RevLD113/1989 dated 26-6-1989. 7. It appears that DLR with power of Agrarian Commissioner Jammu in compliance to this order on 14-3-09, comes to conclusion that, impugned mutation attested by Collector Agrarian Reform, so far it pertains to right of appellants, is violative of rule 14(2) of Agrarian Reforms rule 1997 and principle of natural justice. Accordingly appeal was partly allowed. 8. In the memo of revision petition, it has been stated that, order impugned is not according to direction passed by this court because appellate court was required to give all finding on law and facts itself. By remanding the case back to Collector Agrarian, Court has committed illegality and order is so bad. That court below has not properly followed the direction of this court. 9. I have given my thoughtful consideration to all aspects of the matter. 10. Bare reading of impugned order it evident that appellate court has given a specific finding that certain facts are required to be determined. These are as to whether parties are co shares, if so, has property land falling under Kh. No. 2407 min situated at Village Kote Tehsil Jammu has been divided, if not, have parties filed any petition in civil court to this effect and finally as to whether A.C.R. has altered girdawari entry under the garb of mutation. Now it is the Collector who has to gather these facts after calling parties and collecting the evidence. 11. This tribunal constituted under special tribunal act 1988, derives power of revision under section 21(2) of agrarian reform act 1976. Section 21 of A. R. Act, 1976 deals with appeals and revisions. Now it is the Collector who has to gather these facts after calling parties and collecting the evidence. 11. This tribunal constituted under special tribunal act 1988, derives power of revision under section 21(2) of agrarian reform act 1976. Section 21 of A. R. Act, 1976 deals with appeals and revisions. It reads as under:- (7) 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. (8) 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. 12. Bare perusal of this section, it is evident that, this court can adjudicate upon revision only against final order passed in appeal by commissioner of agrarian reform, that too, in case question of law or of public interest is involved. So these two conditions are sine quo for entertaining revision 13. 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. 14. Public interest means question which is required to decide pertains to welfare for public at large. It should not confine for welfare for individual but it should be for general public also. 15. Law with regard to revision is also well settled that, finding of facts cannot be disturbed and it lies only when some final legal rights of parties have been decided in one way or other. 16. Perusal of order impugned, it is apparent that, court below has only remanded the case to collector agrarian for holding of fresh inquiry. 15. Law with regard to revision is also well settled that, finding of facts cannot be disturbed and it lies only when some final legal rights of parties have been decided in one way or other. 16. Perusal of order impugned, it is apparent that, court below has only remanded the case to collector agrarian for holding of fresh inquiry. It has also been directed that collector shall pass the order, in presence of prominent persons and ex owners and after providing opportunity of being heard to both the parties. So in this way no final right of parties has been decided. Any order, which does not decide any final legal right of parties, is not revisable. 17. No question of law or of public interest is involved in present case, which is required to be decided in present set of circumstances. Parties to this case have remedy to challenge the order passed by remand court, if any one is aggrieved of that order. In view of what has been discussed the order impugned does not suffer from any legal defect. This revision accordingly is dismissed. Record of court below is sent back along with order. File of this court be consigned to record.