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2013 DIGILAW 346 (JK)

Garib Dass v. Tehsildar, Kathua

2013-05-30

DHIRAJ SINGH THAKUR, MOHAMMAD YAQOOB MIR

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Per Yaqoob, J. 1. Learned counsel for the parties stated, that the amicable settlement could not fructify. It being so, heard learned counsel for the parties. Perused the entire records, as available. 2. By medium of this Letters Patent Appeal, judgment dated 14.9.2001 dismissing OWP No. 566/2000 is assailed. 3. By virtue of the judgment impugned, learned Single Judge has up-held the order passed by the Revisional Authority (J&K Special Tribunal) by observing that in view of Section 4 (2) (c ) and the Schedule-II of the Agrarian Reforms Act (hereinafter referred to as "the Act"), land allotted to a displaced person is exempted from the operation of "the Act". 4. The admitted position as has emerged is that land covered by Survey No. 34 Min 4 kanal 12 marlas), Survey No. 35 ( 20 kanal 11 marlas) and Survey No. 47/1 (8 kanal 13 marlas) situated in village Jarai Tebsil mid District Kathua is recorded in ownership of deceased Dunni Singh who is survived by two sons namely, Darshan Singh and Babu Ram. Babu Ram has also died, therefore, said Dunni Singh is now survived by respondent No. 5 (son) and respondent Nos. 6 to 8 (grand-sons). 5. Dunni Singh was a displaced, person, being refugee of 1947, so an allottee of 1947. Mutation under Government Order No. 254-C has been attested conferring proprietary rights in his favour. After his death, Succession Mutation No. 178 has been attested in favour of his sons namely Darshan Singh and Babu Ram. 6. Mutation No. 190 under Section 4 of the Agrarian Reforms Act has been attested on 31st March, 1981 in favour of Baji Ram, father of the appellant, conferring upon him prospective ownership rights. The said Mutation was challenged before the Appellate Authority (Additional Deputy Commissioner) with the powers of Commissioner Agrarian Reforms, Kathua by Darshan Singh and Babu Ram, which has been allowed vide order dated 22.10.1998, wherein it has been concluded that the provisions of Agrarian Reforms Act are not, applicable to land allotted to and owned by a displaced person. The said Mutation as such has been set aside. 7. Dis-satisfied therewith, Revision under Section 21 of the "the Act" has been filed before the Revisional Authority (J&K Special Tribunal) by Garib Dass-appellant (son of Baji Ram). The said Mutation as such has been set aside. 7. Dis-satisfied therewith, Revision under Section 21 of the "the Act" has been filed before the Revisional Authority (J&K Special Tribunal) by Garib Dass-appellant (son of Baji Ram). It has been observed by the Revisional authority that the respondents (displaced persons) had been allotted State land in the year 1947 and even if they were not cultivating it personally still provisions of the Agrarian Reforms Act will not operate. The order of the Appellate authority has been maintained, revision petition dismissed vide order elated 19.6.2000. 8. Dis-satisfied with the order of the Revisional Authority, writ petition OWP No. 566/2000 has been filed with no success, hence the instant Letters Patent Appeal. 9. On consideration of the submissions of learned counsel for the parties, the first issue for determination is as to whether Section 4 (1) of the Agrarian Reforms Act is applicable to the land in dispute or not. Section 4 of "the Act" reads 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 interest 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. (2) Nothing in sub Section (1) shall apply to- (a) land held by gumpas of Ladakh District: Provided that the rights of tenants therefor 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 worships, Wakfs or Dharamshallas, as are recorded in the revenue records or notified by the Government from, time to time or donated for purpose 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. "(c) land mentioned in Schedule II allotted to a displaced person; Provided that:- (i) such land and evacuees' 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." 10. Section 4 (1) of the Agrarian Reforms Act provides that when a person is not cultivating the land personally in Kharif 1971, his rights, title and interest in the land shall be deemed to have been extinguished with effect from the first day of May, 1973. 11. Section 4 (2) of the Act provides that nothing in sub-section (1) shall apply to (a) (b) and (c), as quoted above, clause (c) is relevant as it is applicable to the present case. 12. Plain language of Section 4 (2) (c) would suggest that sub-section (1) of Section 4 of "the Act" will apply to the land mentioned in Schedule-II allotted to a displaced person, if the displaced person was not cultivating the land personally on the crucial dado of Kharif 1971 with one exception, i.e., in case displaced persons has been allotted land at two places situated in more than one village then at least he is required to be in personal cultivation of the loud at one place in Kharif, 1971. 13. In the case in hand, the land allotted to the displaced person is situated at one place and in case he is not found to be in possession, i.e., in personal cultivation on the crucial date of Kharif 1971, then Section 4 (1) of "the Act" will apply. 14. Schedule-II of "the Act" provides for State land (including that allotted to a displaced person and subsequently transferred to him in owner ship under Government Order No. 254 of 1965) or held under various orders as mentioned therein. In the instant case, the land has been allotted and transferred to Dunni Singh in ownership under Government Order No. 254 of 1965. Section 3 of the Act provides that the provisions of "The act" shall not apply to the categories of land specified in Column-1. For the purpose of this case, Clause (b) (ii) of column (1) is relevant to be quoted as under:- 1 2 (b) ............... ; (i) .................. (ii) land described in Schedule II" Sections 26, 38 and 39 15. For the purpose of this case, Clause (b) (ii) of column (1) is relevant to be quoted as under:- 1 2 (b) ............... ; (i) .................. (ii) land described in Schedule II" Sections 26, 38 and 39 15. Exception to applicability is the position covered by Section 26, 38 and 39 of the Act. It is clear that the provisions of the Act will not apply to the land described in Schedule-II. But the position of the land described in Schedule-II as also referred to in Section 3, clause (b) of Column 1 is controlled by the provisions of Section 4 which provides that notwithstanding contained in any law for the time being in force, but subject to the provisions of the Chapter II (i.e., Section 4 to 7 providing for "Restriction on Rights in Land"), all rights, title and interest in land of any person, not cultivating it personally in Kharif 1971, shall be deemed to have been extinguished. Section 4 (2) of the Act provides that sub-section (1) shall not apply to the land as covered under Section 4 sub-section (2) (a), (b) und (c). The position as covered by clause (c) as quoted above in para 9 requires determination in this case. 16. The position as would emerge is that the land allotted to a displaced person and conferred with ownership rights also falls within the ambit of Section 4 of the Act subject to the condition as is incorporated in Section 4 (2)(c) of the Act. The said position is also supported by Section 7 (1)(c) of the Act. Section 7 provides for resumption for bona fide personal cultivation by ex-landlord. Sub-section (1)(c) is relevant to be quoted herein.:- "7 (1) (c). a displaced person allotted evacuees' land or land included in Schedule II, who is not cultivating such land personally. May resume such land for bona fide personal cultivation." 17. If Section 4 (1) of the Act would not be totally applicable then there could be no question of providing resumption in favour of displaced person under Section 7 (c) of the Act, as quoted above. 18. Conjoint reading of Section 3 clause (b)(ii) Column 1 of the table, Schedule II, Section 4(2)(c) and Section 7 (1) (c) of "the Act" makes the-position clear , i.e., the operation of the Section 4 (1) of "the Act" is not totally excluded. 19. 18. Conjoint reading of Section 3 clause (b)(ii) Column 1 of the table, Schedule II, Section 4(2)(c) and Section 7 (1) (c) of "the Act" makes the-position clear , i.e., the operation of the Section 4 (1) of "the Act" is not totally excluded. 19. In case, the allottee is conferred with ownership rights, as prescribed in Schedule-II of "the Act" is not cultivating the land in the year Kharif 1971 but is cultivated by the Tiller on the crucial date of Kharif 1971 then Section 4 (1) of "the Act" will apply. However, in case displaced person is allotted land, i.e., the land mentioned in Schedule-II or Evacuees' land situated in more than one village in that case for deeming him to be in personal cultivation, he is required to have been cultivating the land personally at least in one village in Kharif 1971 which is not the case here because the displaced person Dunni Singh was allotted and conferred ownership rights of the land in dispute in one village, therefore, is required to have personally cultivated it in Kharif 1971 as is the requirement for excluding operation of Section 4 (1) in terms of Section 4 (2) ( c ) of "the Act". Section 4 of the Act even otherwise will not operate if person(s) in possession was not in possession on the crucial date of Kharif 1971, i.e., in such case person (s) in possession shall not be entitled to be conferred with prospective ownership rights under Section 4(1) of "the Act". 20. Now, the important question for determination is as to whether appellant or the respondents were in possession of the land in dispute on the crucial date of Kharif 1971, which is the factual issue which requires enquiry. The records such as Extract of Girdawari of the year 1971 available on the file would suggest that the land was recorded in self cultivation of Dunni Singh but in the year 1971, entry has been changed and name of Baji Ram father of appellant has been recorded as Tiller paying rent at the rate of half of the produce. How that has been done. When that has been done, is not clear. How that has been done. When that has been done, is not clear. That apart, same is shown to have been done by Circle Officer in breach of Rule 4 of the Agrarian Rules (hereinafter for short "the Rules"), i.e., Circle Officer (Naib Tehsildar) was not competent to change the entry that too at the back of owner recorded in self cultivation. 21. Photo copies of the two documents available on the writ records, one `Kabuliat Nama' (acceptance memo) executed on 18th October, 1972 by Baji Ram, father of the appellant would suggest that 32 kanal of land owned and possessed by Dunni Singh is taken over for cultivation by said Baji for a period commencing 18th October 1972 to ending May 1973, i.e., for a period of six months on payment of lump sum 15 monds of wheat, with a further stipulation that said Baji will hand over the possession without any hesitation and will not raise any construction on the said land. Then again, an agreement has been executed by the said Baji father of the appellant on 30th April, 1973 which would suggest that said Baji father of the appellant has admitted that he had taken over the land measuring 34 kanal for cultivation of Rabi Crop 1973 for a period of six months, therefore, he has no concern with the land. Owner can cultivate it himself or get it cultivated to which he has no objection. 22. The said documents coupled with the entries in the records have not been looked into by the officer, who had attested the Mutation under Section 4 (1) of "the Act", nor by the Appellate Authority and the Revisional Authority. Same is the position when the matter was considered by the learned Single Judge as it was not found required to be gone into in view of the opinion that the provisions of Section 4(1) of the Act will not apply to such land. But now the position as has emerged warrants determination of the said issue, i.e., as to who was cultivating the land on the crucial date of Kharif 1971. Therefore, the same position is required to be enquired into. 23. For aforestated reasons, all the four orders, i.e., order attesting Mutation under Section 4 of the Act, Appellate order, Revisional order and the order passed by the learned Single Judge dated 14.09.2001 are set aside. 24. Therefore, the same position is required to be enquired into. 23. For aforestated reasons, all the four orders, i.e., order attesting Mutation under Section 4 of the Act, Appellate order, Revisional order and the order passed by the learned Single Judge dated 14.09.2001 are set aside. 24. The case is remanded to the Collector, (ACR), Kathua who shall hear both the parties and conduct the enquiry which may include on spot enquiry and shall also consider the documents as referred above, on conclusion of enquiry:- (a) In case land is not found to be in cultivating possession of Baji, the father of the appellant or his son the appellant-Garib Dass as Tiller on the crucial date of Kharif 1971, them Section 4(1) of the Act will not apply. The possession of the appellant in that eventuality shall be un-authorized; so shall be restored to the owner displaced person (respondents). The application for eviction as is stated to have been filed by the respondent and pending before Collector (ACR) shall be considered accordingly. (b) In case the appellant or his father was found to be in cultivating possession on the crucial date of Kharif 1971, in that eventuality, he shall be conferred with prospective ownership rights under Section 4 (1) of "the Act". Thereafter, application for resumption, if any, filed by the owner (respondents), shall be decided in accordance with Section 7 of the Act and then Mutation under Section 8 of the Act shall also be attested. (c) In case, the parties cuter into compromise, in that eventuality, matter shall be settled in accordance with Section 12 of the Act. 25. Since the parties have been litigating for considerable period of time, the Collector (ACR), Kathua shall ensure that the enquiry as directed is conducted and concluded in the light of the above observations within a period of two months. The parties shall ensure production of witnesses, production of documents, as they may have in support of their rival claims without any fail before the Collector (ACR) Kathua as and when they shall be so directed by the Collector. The parties in person or through authorized agent or otherwise shall appear before the Collector (ACR), Kathua on 15.06.2013. 26. The appeal succeeds and shall stand disposed of on aforestated terms. 27. Copy of the judgment be sent to the Collector (ACR), Kathua for information and compliance.