1. This is a revision petition against the order Agrarian Reforms Commissioner, J&K Srinagar dated 17-09-2008 passed in appeal file No. 390/FC/ARC/AP pertaining to land measuring 10 kanals 7 marlas under Khasra Nos. 129 and 130 situated at Village Kachadora Shopian. 2. The brief history of the case is that mutation No. 285 comprising of land under survey No. 129 measuring 10 kanals and 7 marlas situated at Village Kachdora Shopian was attested under section 4 of J&K Agrarian Reforms Act, 1976 (hereinafter for short `as the Act') on 25-09-1982 declaring Abdul Qudoos Ningroo as prospective owner. This mutation was challenged by the petitioner before the Commissioner Agrarian Reforms/ADC Pulwama who set aside the mutation in appeal on 22-06-2002 and directed the Tehsildar Shopian to hold denovo inquiry and pass appropriate order as per law after providing an opportunity of being heard to all the parties. The Tehsildar Shopian after conducting the denovo inquiry passed an order on 28-08-2006 and declared respondents 1 to 3 herein as prospective owners under section 4 of the Act. Aggrieved of this order of Tehsildar Shopian, the present petitioner preferred an appeal before the court of Agrarian Reforms Commissioner, J&K, Srinagar who upheld the order of Tehsildar vide order dated 17-09-2008 and declared the respondents 1 to 3 as prospective owners and upheld the mutations of section 4 of the Act. 3. The petitioner preferred a revision against the order of Agrarian Reforms Commissioner, J&K, Srinagar dated 17-09-2008 before this Tribunal on the grounds that late Abdul Qudoos Ningroo who was entrusted with the chowkidari of land at Kachadora managed to attest a mutation under section 4 of the Act in the year 1982 at their back and on hearing about this mutation, the petitioner preferred an appeal before Agrarian Reforms Commissioner/ADC, Pulwama and in the meantime, it has come to their knowledge that respondents have changed the nature of the suit land and converted it into orchard about which a certificate was received from Horticulture Officer which clearly indicates that the land is orchard from the year 1991. In appeal, an order of denovo inquiry has been passed by the appellate authority and remanded the case for fresh mutations. Finally, the Tehsildar vide its order dated 28-08-2006 restoring the mutation under section 4 and probably under section 8 without giving an adequate opportunity of being heard. In appeal, an order of denovo inquiry has been passed by the appellate authority and remanded the case for fresh mutations. Finally, the Tehsildar vide its order dated 28-08-2006 restoring the mutation under section 4 and probably under section 8 without giving an adequate opportunity of being heard. Aggrieved by the order of Tehsildar, the petitioner filed the appeal before the Agrarian Reforms Commissioner, J&K, Srinagar who upheld the order vide its order dated 17-09-2008. 4. The order dated 17-09-2008 has been assailed by the petitioner through the medium of instant revision petition on the grounds that adequate opportunity has not been provided to the petitioner and mutation under section 4 has been attested in 1982 and under section 8 in 1997 when the land was already an orchard in 1991. It is also admitted by the Tehsildar in the mutation that land is an orchard. "Under section 8(2) of the Act, the tiller of Kharif 1971 holding the land under him shall be vested with the ownership rights in such land after payment in full of such levy in such manner as is provided in Schedule-III, as such, the tiller should be holding the land under him at the time he is vested with ownership rights in such" land but in the instant case, he is holding full fledged orchard, therefore, the tiller cannot be vested with the ownership right under section 28 of the Act whereunder a prospective owner of the land eligible to acquire the ownership right in land under his personal cultivation shall be deemed to have all rights and subject to all liabilities as a tenant under J&K Tenancy Act, 1980 untill he is vested with the ownership rights. In the instant case, he is holding an orchard and not land which alone can be under his personal cultivation through which alone he can pay rent to the State, hence section 8(2) will not apply. Under section 8, 13 and 28, it is clear that a prospective owner can be bestowed with the ownership rights in law only if he is in personal cultivation of the same and if he is not in personal cultivation, he cannot be vested with. Under section 8, 13 and 28, it is clear that a prospective owner can be bestowed with the ownership rights in law only if he is in personal cultivation of the same and if he is not in personal cultivation, he cannot be vested with. Naturally if a tiller is converts the land into orchard, he ceases to personally cultivate the land, therefore, the position taken by the Agrarian Reforms Commissioner in the case is totally misconceived which shows that ownership is earned by the prospective owner on the basis of personal cultivation in Kharif 1971 and interim period between section 4 and section 8 is provided to enable the payment of levy and complete other formalities. So the court below has mis-interpreted the law by saying that prospective owner earns his right of ownership simply being a tenant in Kharif 1971. Perhaps, he has lost sight of section 28 which clearly defines the prospective owner. So it is clear beyond any doubt that land has to be under his personal cultivation to acquire the right of ownership. The court below in the impugned order under revision rewarded the defaulter inspite of the fact that the prospective owner has violated the law by converting the land into orchard. The Agrarian Reforms Commissioner want to reward him for violation and conferring the ownership right in him. As regards the conversion of land into orchard, disputed land is deemed to be vested in the State under section 4 of the Act and the ownership has not been acquired by the State as the said land has been converted into orchard. How can this orchard be acquired by the State now. At that point in time the land vested in the State under section 4 of the Act and section 8 had not been mutated in favour of the tiller, as such, tiller committed a gross violation of law. Actually this land belongs to petitioner as owner and had not been acquired by the State under section 11 of the Act as no payment in lieu thereof had been determined and made in accordance with the provisions of Schedule-III. The petitioner has finally prayed for setting aside of the impugned order alongwith the mutations under section 4 and 8 of the Act and restoration of the disputed land in his favour as owner. 5. The petitioner has finally prayed for setting aside of the impugned order alongwith the mutations under section 4 and 8 of the Act and restoration of the disputed land in his favour as owner. 5. I have heard the petitioner in exparte and also perused the record of the case. 6. From the perusal of the record of the court below, it is clear that land measuring 10 kanals 7 marlas under Khasra Nos. 129 and 130 situated at village Kachadora Tehsil Shopian was mutated in the name of Abdul Qudoos Ningroo in the year 1982 (father of the respondents). The same was challenged before the Agrarian Reforms Commissioner/ADC Pulwama who remanded the case for denovo inquiry. In the meantime, land was converted by the tiller into an orchard in the year 1991, but there is no dispute with regard to the personal cultivation of tillers in the Kharif 1971 and also there is no prima facie evidence which shows that it was orchard in the year Kharif 1971. The petitioner is disputing that land was not in personal cultivation of the tillers when same was mutated in the year 1997 under section 8(2) of the Act. In denovo inquiry, Ld. Tehsildar concerned has rightly called both the parties on different dates and also perused the record and it is also mentioned in the order that land has been converted into orchard and certificate has also been issued by the Horticulture department in this regard but as per the record in the year Kharif 1971, this land was Abi Awal and it was being cultivated by deceased Abdul Qudoos Ningroo. Now the question whether Tehsildar has attested the mutation under section 4 of the Act in favour of the respondent is inconsonance with the Act. He has attested the mutation only under section 4 of the Act subject to payment of levy in the year 2006. That mutation is also under challenge and the petitioner has alleged in his revision that ownership rights have also been conferred to the respondent but from the record, it is clear that they have been declared only prospective owner under section 4 of the Act and no mutation has been attested in favour of the respondents under section 8 of the Act, therefore, in view of above, I think it is necessary to reproduce section 4(1) of the Act 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 interests 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." 7. As per this section, the ex-landlord who is not cultivating the land personally in Kharif 1971 shall be deemed to have extinguished and vested in the State. Accordingly, land has been vested to the State and the tenants/tillers were declared as prospective owners of the land. In the instant case, Tehsildar concerned has passed the mutation order after hearing both sides and perusing the record. As per record, land was Abi Awal in Kharif 1971 and it was in the cultivation of Abdul Qudoos. Tehsildar concerned has not passed any order under section 8(2) in favour of the respondent as owners of the land. So land is only vested with the State. No right of ownership has been conferred in the name of Abdul Qudoos. Section 8(2) is also reproduced hereunder:- "8. Vesting of ownership rights in land in prospective owner: (1) .............. (2) Notwithstanding anything contained in any law for the time being in force, but subject to the provisions of section 5 and 14, where an ex-owner/ex-intermediary does not or cannot resume any land, the tiller of Kharif, 1971 holding land under him shall be vested with ownership rights in such land after payment in full of such levy in such manner as is provided for in Schedule-III". 8. Right of ownership is earned by the prospective owner on the basis of personal cultivation in Kharif 1971 and interim period between section 4 and 8 is provided to enable the payment of levy and complete other formalities. But in the present case, neither any levy has been determined by the State nor any levy has been paid or formalities completed, as such, no mutation has been passed in favour of the prospective owners as owners of the land. 9. But in the present case, neither any levy has been determined by the State nor any levy has been paid or formalities completed, as such, no mutation has been passed in favour of the prospective owners as owners of the land. 9. The petitioner's contention that no levy has been determined or paid to him, as such, he has a claim of restoring his possession of Kharif 1971 because he is ex-landlord and his right of levy has not been determined, as such, under section 11 of the Act, he is entitled for restoration of the land as an owner. So it is profitable to reproduce section 11 of the Act as under:- "11. Payment in lieu of extinguishment of rights in land: Subject to the other provisions of this Chapter, land and rights therein taken away or abridged by section 4 or section 5 or section 6 shall be deemed to have been acquired by the State with effect from the date such land or rights are vested in it and payment in lieu thereof shall be determined and made in accordance with the provisions of Schedule III: Provided that where an ex-landlord resumes land, he shall not be entitled to any payment in lieu of extinguishment of his rights in the land, remaining after resumption with the tiller, except for the area of land, if any, by which the area actually allowed to be resumed under sub-section (3) of section 7 falls short of the area that was resumable under clause (f) of sub-section (2) of section 7 and the right of such ex-landlord to recover rent under section 9 shall cease, except to the extent indicated above, as soon as he is given possession of resumed land: Provided further that where any land is held by a person in personal cultivation he shall be entitled to compensation for his rights in any portion of such land, as is within the ceiling area applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, at the market value thereof." 10. From the perusal of this section, it shows that right of ex-owners of the land were taken away by attestation of mutation under section 4 of the Act whereby land has been deemed to have been acquired by the State with effect from the date such right has been vested in it. No doubt, payment in lieu thereof shall be determined made in accordance with the provisions. To my view, when he is not personally cultivating in Kharif 1971, his right has been vested with the State and is only entitled for the payment of levy. I think it is the duty of the State to determine the levy in accordance with the provision, but he is not entitled for restoration of land in his name. I think this is the scheme of the Act. 11. Another important point which is in controversy whether tillers/respondents who were personally cultivating the land in Kharif 1971 are entitled to acquire the ownership right on the land for which they have changed the nature of the land from agriculture land or orchard. Under section 13(3) of the Act, it is clear that if anybody utilize the land in contravention of the provision and change the nature of the land, he is liable to action and land will vest in the State. So in the present case, it is established that prospective owners have unauthorizedly changed the land use from agriculture to orchard subsequent to earlier valid section 4 of the Act, as such, I do not find any illegality or irregularity in the order of mutation of the Tehsildar passed on 28-08-2006 conferring the right of prospective owner on respondents 1 to 3 as their father was in personal cultivation of the land in the year Kharif 1971 but they have changed the use of the land as such, are not entitled to have the right of ownership under section 8 of the Act, so far as the ex-landlord who was not shown in personal cultivation in the year 1971, his right has been extinguished for restoration of the land but he is entitled for levy alongwith interest under the provisions of the Act. 12. For the reason stated hereinabove, the revision is dismissed having no merit. Record alongwith the copy of this order be sent to the court below. File of this Tribunal shall be consigned to records after its due completion.