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2013 DIGILAW 309 (JK)

Harminder Singh v. J&K Special Tribunal & Ors.

2013-05-15

MUZAFFAR HUSSAIN ATTAR

body2013
1. Tehsildar, Agrarian Reforms, Ramban passed an order on mutation no. 403 under Section 4 of the Agrarian Reforms Act, 1976 (for short the Act of 1976) on 3rd October, 1985, in respect of land measuring 8 Kanals covered by Survey no. 292/212/38 situated at village Tringla, Batote, District Ramban. Consequent to the order on mutation passed under Section 4, the order on mutation no. 407 under Section 8 of the Act of 1976 was passed on 15th October, 1985 declaring the petitioner to be the owner of the land in question. 2. Respondent nos. 2 & 3 filed statutory appeal against these orders, which were heard and decided by the Additional Deputy Commissioner, Ramban, who was having the power of Commissioner Agrarian Reforms, Ramban. 3. The Appellate Authority vide order dated 5th June, 2002 while setting-aside the impugned mutation orders, remanded the matter to Tehsildar, directing him to pass fresh orders after conducting enquiry on spot. The Appellate Authority while referring to the material on record made specific reference to extracts of Khasra Girdwari of Kharief 1971 in which respondent nos. 2 & 3 were recorded to be in self cultivation of the land in question. Other record showed petitioner to be in possession. In order to ascertain the actual facts, the matter was ordered to be remanded to Tehsildar, who was directed to conduct de novo enquiry on spot and pass the orders in accordance with law. 4. Feeling aggrieved of the said order, petitioner challenged the same before the J&K Special Tribunal in Revision Petition, which has been dismissed vide order dated 13th December, 2012. Petitioner feeling aggrieved of the said order, has challenged the same in this writ petition. 5. Learned counsel for the petitioner extensively referred to the Xerox copy of documents placed on record to indicate that respondent nos. 2 & 3 had admitted that the petitioner/their predecessor-in-interest are/were tenant of the land in question, which documents have been executed on 16th April, 1967. Learned counsel also referred to the extracts of Khasra Girdwari to substantiate the claim of his client that he was recorded as tenant in Kharief 1971 and submitted that the order on mutations passed under. Section 4 and 8 of the Act of 1976 were rightly passed. 6. Learned counsel also referred to the extracts of Khasra Girdwari to substantiate the claim of his client that he was recorded as tenant in Kharief 1971 and submitted that the order on mutations passed under. Section 4 and 8 of the Act of 1976 were rightly passed. 6. Learned counsel further submitted that the Tribunal instead of dismissing the Revision Petition had to consider all the issues itself and return findings in respect of actual cultivating possession of the land in question in Kharief 1971. Learned counsel further submitted that the remand order passed by the Tribunal and the Appellate Authority is bad in law and in support of his contention referred to and relied upon the judgments of Hon'ble the Supreme Court reported in "AIR 1976 Supreme Court 866, AIR 1991 Supreme Court 909" and "AIR 2000 Supreme Court 650" and prayed for allowing of the writ petition. 7. Mr. Bhat learned counsel for respondent nos. 2 & 3 submitted that the orders on mutation under Sections 4 and 8 of the Act of 1976 have been passed without issuing notice to the said respondents. Learned counsel further submitted that when Tehsildar passed the order on mutation no. 403, he failed to apply his mind to the entries recorded on the mutation sheet itself, wherein it was shown that respondent nos. 2 & 3 were in possession of the land in question. Learned counsel further submitted that the writ petition is not maintainable as the Appellate Authority and the Tribunal have only remanded the case to the Tehsildar for conducting of fresh enquiry. 8. The Act of 1976 and the Agrarian Reforms Rules, 1977 (for short the Rules 1977) provide complete mechanism and procedure for passing orders in terms of Sections 4, 7, 8 and 12 of the Act of 1976. Primarily the aim and object of the Act of 1976 is to extinguish the relationship, between the landlord and the tenant. The provisions of the Act of 1976 and the Rules 1977 would not be applicable in their entirety where the owner is in self cultivating possession of the land. Primarily the aim and object of the Act of 1976 is to extinguish the relationship, between the landlord and the tenant. The provisions of the Act of 1976 and the Rules 1977 would not be applicable in their entirety where the owner is in self cultivating possession of the land. The orders on mutations under Sections 4 and 8 of the Act of 1976 are being passed by the Competent Authority only to extinguish relationship of landlord and the tenant and to achieve the purpose that a person in whose possession the land is, shall be declared to be owner thereof. The crucial date fixed by the statute to determine the relationship of landlord and the tenant and about possession is kharief 1971. The complete procedure is provided in the Rules of 1977 for passing orders on mutation under Sections 4 and 8 of the Act of 1976. Chapter II of the Rules 1977 provide procedure for making records. Rule 3 of the Rules 1977 refers to record of personal cultivation and provides 'that subject to provisions of Rule 4, entries in Khasra Girdwari, including those verified or amended and authenticated under the earlier Rules, shall be record of the personal cultivation/possession of the land. Rule 4 refers to disputes relating to Khasra Girdwari entries. 9. As already stated Rule 3 provides that entries in Khasra Girdwari shall be record of the personal cultivation/possession of the land. This rule, however, is made subject to the provisions of Rule 4.. which provides that in course of attestation of mutation under Chapter IV if any party objects to the entries in Khasra Girdwari then the officer not below the rank of Tehsildar shall subject to the provisions of Sub Rule 2 (2),(3) & (4) after giving opportunity of being heard to all the concerned, conduct enquiry on spot in respect of such possession and give his findings thereof either conforming the impugned entries or indicating what entry should be made. 10. In this case, admittedly at the time of passing of order on mutation no. 403, no notice was issued to respondent nos. 2 & 3. The issuance of notice to the said respondents was imperative in the facts of this case as the respondent nos. 2 & 3 were recorded as owners in self cultivation of the land. 10. In this case, admittedly at the time of passing of order on mutation no. 403, no notice was issued to respondent nos. 2 & 3. The issuance of notice to the said respondents was imperative in the facts of this case as the respondent nos. 2 & 3 were recorded as owners in self cultivation of the land. Nothing is said in the impugned mutation order, as to how the petitioner was declared to be the tenant of the said land. Even reference is not made to the documents which are placed on record and which show that the land was given in tenancy of the petitioner. Further material placed on writ record would show that the petitioner was recorded as tenant of the land in question in Kharief 1971. In this conflicting and hazy factual scenario, it would become necessary to get the matter settled by the concerned Tehsildar in accordance with provisions of the Act of 1976 and the Rules of 1977. 11. The judgments referred to by learned counsel for the petitioner proceed on their own facts which are not similar to the facts of this case. 12. For the above stated reasons this petition is held to be meritless and is, accordingly, dismissed along with connected CMA.