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2012 DIGILAW 755 (JK)

Sagar Chand and others v. State and others

2012-12-07

M.M.KUMAR, MOHAMMAD YAQOOB MIR

body2012
Yaqoob-J.:-- Whether the provisions of Agrarian Reforms Act, 1976 (hereinafter referred to as Act of 1976) apply to the land allotted under Cabinet order No. 578-C of 1954 to the persons displaced from Pak Occupied Kashmir in the year 1947 is a pivotal question for adjudication. 2. The land covered by Survey No. 276/17 (16 kanals), 279/19 (6 kanals) and 281/20 (14 kanals 16 marlas) situated in village Muthi Jagir, Tehsil and District Kathua admittedly has been under possession and cultivation of the appellants (writ petitioners) on the crucial date of Kharif 1971. Mutation No. 220 under Section 4 of the Agrarian Reforms Act has been attested on 25.07.1981 where-under rights of respondent No. 3 (Harbhajan Singh) have been extinguished and the appellants (tillers) have been declared as prospective owners. 3. Against the said mutation No. 220, respondent No. 3 (Harbhajan Singh) filed appeal before the appellate authority under Agrarian Reforms Act (Additional Deputy Commissioner Kathua with powers of Commissioner Agrarian Reforms) on 16.05.2002, which has been decided vide detailed judgment dated 25.10.2004 holding therein that the provisions of Agrarian Reforms Act are applicable to the land in question, thus Mutation attested is in accordance with the law. 4. Respondent No. 3 (Harbhajan Singh) preferred Revision Petition before the revisional authority, i.e., (J&K Special Tribunal), Jammu on 20.01.2005, which has been decided on 24.08.2007. Learned Tribunal while referring to Rule 6 of the Allotment of Land to Displaced Persons Rules, 1954 held that the provisions of Agrarian Reforms Act will not apply to the displaced persons from Pak Occupied Kashmir, who had been allotted the State land. Finally, it has been concluded that Mutation No. 220 to the extent it pertains to Harbhajan Singh-respondent No. 3's land is set aside along with Mutation No. 223 as well as the appellate Court order dated 25.10.2004. Further has directed that the possession of the disputed land be restored to said Harbhajan Singh. 5. Dissatisfied with that order of the Tribunal, appellants filed OWP No. 939/2007, which has been decided on 15.03.2012 where-under while dismissing the writ petition of the appellants, it has been held that the view taken by the Tribunal in annulling the Mutation attested in favour of the appellants cannot be faulted. 6. 5. Dissatisfied with that order of the Tribunal, appellants filed OWP No. 939/2007, which has been decided on 15.03.2012 where-under while dismissing the writ petition of the appellants, it has been held that the view taken by the Tribunal in annulling the Mutation attested in favour of the appellants cannot be faulted. 6. Learned Single Judge while referring to the position of respondent No. 3 being a displaced person of 1947 from Pak Occupied Kashmir then to the Cabinet decision No. 578-C of 1954 and conferment of ownership rights thereon vide Mutation No. 198 under Government Order No. 254-C of 1965 and then while referring to Section 4- A of the Jammu and Kashmir Agrarian Reforms Act held that any Mutation attested under Sections 4, 8 and 12 of the Jammu and Kashmir Agrarian Reforms Act for any land mentioned under Section 3 or Sub-Section (2) of Section 4 of the Agrarian Reforms Act would be void ab initio. Learned Single Judge concluded that the land in question falls in the category of land as defined in Section 4(2) (c) of the Act. 7. The main object of the Agrarian Reforms Act was to transfer the land to the tiller for its better utilisation subject to certain conditions as incorporated in the Act itself. 8. The crucial date for extinguishing rights of ex-owner who were not personally cultivating the land is Kharif 1971, position of the appellants being tillers cultivating the land on the crucial date of Kharif 1971 is not disputed. In the revenue records, father of the appellants is recorded as tenants at the rate of 1/3rd that is, 1/3rd of the produce payable as rent to the land owners and it is in view of the same position, Mutation has been attested under Section 4 of the Agrarian Reforms Act in favour of appellants. 9. Section 3 of the Act provides categories of land to which provisions of the Act shall not apply which include land described in Schedule-II. 10. Section 4(2)(c) also provides that the Act will not apply to the land mention in Schedule II allotted to a displaced person but same is controlled by its proviso i & ii. Section 4 of the Act is reproduced as under :- 4. Vesting in the State of rights in land not held in personal cultivation. 10. Section 4(2)(c) also provides that the Act will not apply to the land mention in Schedule II allotted to a displaced person but same is controlled by its proviso i & ii. Section 4 of the Act is reproduced as under :- 4. Vesting in the State of rights in land not 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 interesting 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. (2) Nothing in sub-section (1) shall apply to- (a) land held by gumpas of Ladakh District : Provided that the rights of tenants thereof shall be heritable according to the law of succession applicable to occupancy tenants and no tenant or his successor shall be subject to payment of rent exceeding the prevailing rent , whether in cash or in kind; (b) (i) unit of land not exceeding 182 Kanals including residential sites, bedzars and safedzars; and (ii) land held by such places of worship, Wakfs or Dharamshallas, as are recorded in the revenue records or notified by the Government from time to time or donated for purposes of Wakaf by any person professing Islam or used as a Wakaf property: Provided that the rights of a tenant thereof shall be heritable according to the law of succession applicable to occupancy tenants XXX (c) land mentioned in Schedule II allotted to a displaced person: Provided that: - (i) such land and evacuee's land, if any, allotted to the same displaced person, is situated in more than one village; and (ii) such displaced person cultivated personally the land in at least one village in Kharif. 1971. (Emphasis supplied) 11. Plain language of the aforesaid Section provides that rights, title and interest in land of any person, not cultivating it personally in Kharif 1971 shall be deemed to have been extinguished and vested with the State w.e.f. year 1971. Sub-section (2) clearly provides that whatever is contained in Sub-section (1) shall not apply to the land as mentioned in clause (a), (b) and (c). 12. Sub-section (2) clearly provides that whatever is contained in Sub-section (1) shall not apply to the land as mentioned in clause (a), (b) and (c). 12. For the purpose of instant case, proviso (ii) to clause (c) is applicable, where-under it is clearly indicated that the land mentioned in Schedule II allotted to a displaced person must have been cultivated personally by such person at least in one village in Kharif, 1971. 13. In Schedule-II of the Act, it is clearly prescribed that the Agrarian Reforms Act will not apply to land allotted to a displaced person and subsequently transferred to him as owner under Govt. Order No. 254 of 1965 held under any of the orders, which include Govt. Order No. 578-C of 1954 but the aforesaid position of Schedule II is controlled by proviso to clause (c) of sub section 2 of Section 4 of the Act. 14. Reading provisions of Sections 3, 4 and scheduled conjointly what would emerge is that Sub Section (1) of Section 4 will apply if a displaced person has not cultivated the land personally in Kharif, 1971 which respondent No. 3 (Harbhajan Singh) admittedly was not cultivating personally in Kharif 1971. 15. Reliance placed on Rule 6, wrongly referred to as Cabinet decision No. 578-C of 1954, which in fact is Rule 6 of Allotment of Land to Displaced Persons Rules 1954, would provide eligibility of displaced families to be rehabilitated, the unit of land for displaced family, then liability of persons other than displaced persons to ejectment from land in excess of the unit and exemptions. 16. Rule 5 of said Rules would provide for cultivation of the allotted land personally, consequences of failure to do so is that if the displaced family will not bring such land allotted to it under personal cultivation within six months of the date of delivery of possession of allotment or the date of the order as the case may be, such family shall forfeit its rights to occupy such land and on such forfeiture, the land has to be re-allotted to other displaced family. 17. It is in the context of Rule 5 of the said Rules 'exception' has been prescribed as against forfeiture as ordained by Rule 6, i.e. Rule 5 will not apply to the persons employed in Defence Forces of the Indian Union or the State Militia. 18. 17. It is in the context of Rule 5 of the said Rules 'exception' has been prescribed as against forfeiture as ordained by Rule 6, i.e. Rule 5 will not apply to the persons employed in Defence Forces of the Indian Union or the State Militia. 18. Said exception from 'personal cultivation' has been pressed into service so as to hold that respondent No. 3 working in defence force was not to cultivate the land personally as required under Agrarian Reforms Act. 19. The words employed in sub section (1) of Section 4 i.e. "notwithstanding anything contained in other law for the time being in force" would clearly show that Section 4 has overriding effect when it is so in terms of proviso (ii) to clause (c) of sub section (2) of the Section 4, for non-applicability of Section (1) of Section 4 requirement was that a displaced person should have been cultivating the land personally on the crucial date of Kharif 1971, which respondent No. 3 admittedly was not 20. Land allotted to a displaced person is saved from the operation of Agrarian Reforms Act subject to exception. In the instant case "exception" is provision (ii) to clause c of sub-section (2) of Section 4, which exception is not satisfied by the respondent No. 3. The appellate authority under Agrarian Reforms Act has correctly appreciated the applicability of the provisions of Agrarian Reforms Act whereas the learned Tribunal has not correctly appreciated the scope of Section 4(2)(c) as well Scheduled-II and Section 3 of the Agrarian Reforms Act. It appears that opinion has been swayed by sub rule 6 of Allotment of Land to Displaced Persons Rules, 1954. 21. Learned Single Judge while holding that land falls in the category of land as defined in Section 4(2)(c) of the Act has not considered the position of proviso (ii) to clause c of sub-section (2) of Section 4 in keeping with the object of Agrarian Reforms Act. 22. Personal cultivation is defined under Section 2(12) of the Agrarian Reforms Act, same does not provide for deeming the land to be in personal cultivation of the person working in defence force. 22. Personal cultivation is defined under Section 2(12) of the Agrarian Reforms Act, same does not provide for deeming the land to be in personal cultivation of the person working in defence force. Under Section 7 of the Agrarian Reforms Act, some concessions are available to the defence personal, who are working in Army, provided they have applied for resumption of land to the extent of their entitlement, which admittedly respondent No. 3 has not. Again before attesting Mutation under Section 8, levy has to be deposited more than what is otherwise permissible to other ex-landlords which in turn would show that the land owned by an Army Personnel cannot be deemed to be in his personal cultivation. 23. Cumulative effect of the aforesaid discussions leads us to an irresistible conclusion that judgment passed by the Tribunal dated 24.08.2007 and the judgment passed by the learned Single Judge dated 15.03.2012 are not sustainable. Both the judgments are set aside. Order passed by the appellate authority is maintained. 24. Disposed of as above along with CMA No. 35/2012. ___________