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2012 DIGILAW 432 (JK)

Prem Nath v. Kulbir Singh

2012-07-18

Sanjay Gupta

body2012
1. This revision petition has been directed against the order of Addl. Dy. Commissioner udhampur, with powers of Commissioner Agrarian Reform Dt. 27.10.2010, by virtue of which two appeals filed by the respondents herein, against mutation no. 681 attested U/S 4 on 30.6.1995 and mutation no. 888 dated 22.12.1997 attested U/S 8 of Agrarian Reforms Act have been allowed, both mutations have been set-aside and matter has been remanded to Tehsildar for de-novo inquiry. 2. Petitioner has challenged the impugned order on the grounds that he is in peaceful cultivation possession of land under survey no. 525 min situated at Kotli Tehsil Udhampur. That prior to his coming in possession the land was being cultivated by his father Kirpu. That his father never abandoned possession of said land nor has surrendered the possession in favour of anybody. That after operation of Agrarian Reforms Act, land presumable nor under the personal cultivation of its owner. That since kirpu father of petitioner was a tenant in 1971, so he was having right of prospective ownership and thereafter full fledged ownership rights in terms of section 4 and section 8 of Agrarian Reform Act. That respondents have time and again involved the petitioner in a frivolous litigation and got the mutations attested in his favour cancelled. That matter was remanded to the Court of first instance Tehsildar for passing fresh order. That on said remand order enquiry was conducted and petitioner withstood the test of being tenant in Kharief 1971. That respondents did not rest, but again took the option of challenging the order in second round of litigation on flimsy ground. Again order has been set aside and case has been remanded for de novo inquiry. That order of court below is full of irregularities and is impropriate. Heard both the counsels at length and perused the record and the order impugned. From the records it appears that respondent no. 1 and predecessor of respondent no. 2 to 6 namely Gandrab Singh filed an appeal against petitioner and one Gurbachan Singh predecessor of respondent 7 to 11 with respect to mutation no. 681 attested on 14.1.1985 u/s 4 of Agr. Reforms Act in favour of Kirpu father of respondent therein, with regard to land measuring 21 kanals under survey no, 525 situated at Kotali udhampur.. 3. 2 to 6 namely Gandrab Singh filed an appeal against petitioner and one Gurbachan Singh predecessor of respondent 7 to 11 with respect to mutation no. 681 attested on 14.1.1985 u/s 4 of Agr. Reforms Act in favour of Kirpu father of respondent therein, with regard to land measuring 21 kanals under survey no, 525 situated at Kotali udhampur.. 3. Second appeal was filed by respondents 1 to 6 herein against the mutation no.888 dated 22.11.1997 attested U/S 8 of Agr. Reform, Act in favour of Prem nath. 4. The Court below by way of common has order set aside both the mutation and has remanded the case back to Tehsildar for de novo inquiry. The Court below remanded the case to Tehsildar on the grounds that mutations were not attested in presence of both the parties and standing order 23-A has been violated. 5. Agrarian Reforms Act is meant for providing land of landlord to tiller, who was cultivating the land in Kharif 1971. A tenant who was in cultivating possession of land and was paying rent to landlord would get benefit of section 4 and 8 of act. As per section 4 of Act rights, title and interest of land lord extinguishes to State, if he was not in cultivating possession of land in Kharif 1971. This follows, by conferring right as prospective owner on tenants, who were in cultivating possession of land in girdawari of Kharif 1971. In term of section 7 of act an owner of land can resume it for bonafide personal cultivation as per procedure laid in section. If land is not resumed then section 8 of act comes into operation. As per section 8 of act owner ship right is conferred upon prospective owner declared under section 4 of act. 6. For conferring rights under section 4 and 8 of agrarian reform on tiller, certain procedure and mandates have been provided, which every mutating officer has to follow in letter and spirit. Agrarian reforms Rules of 1977 have been framed in term of section 40 of act for carrying out purpose of act. Various statutory orders have been issued by competent authorities with this respect. Standing order no. 23-A has been made, which provide certain mandates, which revenue officers have to follow, while attesting mutation and preparing other revenue documents. Agrarian reforms Rules of 1977 have been framed in term of section 40 of act for carrying out purpose of act. Various statutory orders have been issued by competent authorities with this respect. Standing order no. 23-A has been made, which provide certain mandates, which revenue officers have to follow, while attesting mutation and preparing other revenue documents. Opportunity of being heard to interested persons or aggrieved persons has to provide by mutating officers while attesting mutations under agrarian reform act. Mutation is to attested on spot and interested persons have to be given due notices. 7. In present case court below has held that mutations have been attested not in presence of all parties and standing order no. 23-a has been violated. The order of court below is based on finding of facts, gathered by court below after appreciating the record. 8. This court derives power of revision in term of section 3 of special tribunal act 1988, which was previously exercised by revenue minister in term of section 21(2) of agrarian reform act. Section 21 of A. R. Act, 1976 deals with appeals and revisions. It reads as under:- 1. 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. 2. 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. This section mandate that revision is maintainable before this court only against final order of commissioner and that too, if question of law or public interest is involved. So in this way, a final order and existence of question of law or public interest are sine qua for exercising revisional jurisdiction U/S 21 (2) of Agrarian Reforms Act. Revisional authority has to record its findings with respect to these conditions. 10. So in this way, a final order and existence of question of law or public interest are sine qua for exercising revisional jurisdiction U/S 21 (2) of Agrarian Reforms Act. Revisional authority has to record its findings with respect to these conditions. 10. Final order is that order, which finally determines any legal right of parties. 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. Order based on finding of facts, cannot be set aside in revisional jurisdiction, unless it is found that, it is perverse in nature. 11. In present order of court below is based on finding of facts. Further Court below has only remanded the case to Tehsildar for de novo inquiry and so no any of final right of parties to litigation has been decided. Matter is still alive and any part, if aggrieved by the order of Tehsildar has remedy to approach higher forum. Impugned order is neither final order nor there appears any existence of question of law or public interest in impugned order 12. Hence revision petition is dismissed. Record of court below is sent back along with this order. File be consigned to records after due completion. Already much time has passed, so concern officer shall ensure that, whole inquiry shall be concluded without delay. File of this court shall be consigned to records after due compilation.