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J&K High Court · body

2013 DIGILAW 406 (JK)

Muhammad Subhan Lone v. Hafizullah Shah

2013-07-18

Zubair Ahmad Raza

body2013
1. The brief history of the case are that respondent No. 1 is an ex-owner of the land under various survey Nos. and mutation under section 4 has been attested as petitioners were the tenant of the land. After that, the respondent No. 1 has preferred an application form under section 7 of J&K Agrarian Reforms Act (for short as `the Act') for resumption of land on which the mutation No. 795 dated 23-11-1985 has been passed in ex-parte in contravention of the law. The petitioners are aggrieved of the said mutation as such, preferred an appeal before the Agrarian Reforms Commissioner (Addl. Deputy Commissioner), Kupwara (for short as the `appellate authority') on 30-01-1986 on the main ground that Tehsildar Kupwara was duty bound to allow the petitioners herein to participate in the resumption proceedings and allow opportunity of being heard but Tehsildar has started the resumption proceedings without seeking objection with regard to the limitation point and as per Tehsildar, resumption form filed by the respondent No. 1 got destroyed in the fire and Tehsildar has also given some reference to file No. 47 dated 19-07-1981 which reveals that respondent No. 1 has not applied for resumption under prescribed period of resumption for attestation of mutation under section 7 of the Act. No inquiry was conducted by the said Tehsildar. In appeal, the appellate authority has sit over the matter for 25 years but finally has passed the impugned order which is under challenge in the instant revision petition. 2. As per petitioners, appellate authority was duty bound to visit the spot under Rule 50 of Agrarian Reforms Rules and it is also his duty to locate the original resumption form and look into the law and further, ascertain the position whether appellant had participated in the resumption proceedings and it is also to be looked by the appellate authority whether mutation No. 795 was passed in accordance with the parameters as laid down under section 7 of the Act. Appellate authority was duty bound to return finding on the question of limitation but no application of condonation of delay was placed on file. Written argument of respondent No. 1 reveals that some of the appellants have died and some of them have entered into compromise with respondent No. 1, so they have no right to challenge the present mutation. Appellate authority was duty bound to return finding on the question of limitation but no application of condonation of delay was placed on file. Written argument of respondent No. 1 reveals that some of the appellants have died and some of them have entered into compromise with respondent No. 1, so they have no right to challenge the present mutation. This aspect was not at all adjudicated by the appellate authority and did not return any finding on the issue raised by the parties. The legal representatives have not been brought on record. When some of the appellants entered into agreement with respondent No. 1 and the court entertained the same, this procedure of the appellate authority is blatantly in violation of the Act because agreement does not fall within the ambit of section 12 of the Act and is illegal and without jurisdiction. The order of the court below does not fulfill requirement of Order XLI Rule 31 CPC because the facts given in the judgment are not complete. 3. Heard Ld. Counsel for the parties and I have carefully gone through the record of the case. 4. Ld. Counsel for the petitioners has argued that Tehsildar concerned had attested the mutating under section 7 of the Act without giving an opportunity of being heard to the petitioner. Moreover, alleged resumption form on which mutation No. 795 has been attested is missing. As per Tehsildar, it was burnt in the fire incident in Tehsil office and he has given some reference to file No. 47 of 1981 which reveals that respondent No. 1 has not applied for resumption under prescribed period of limitation as such, the basic application form is not available, so the application is hit by limitation. Ld. Appellate authority has not conducted the inquiry under Rule 50 of the Agrarian Reforms Rules, as such, appellants/petitioners had not participated in the resumption proceedings and as such, have been condemned unheard. Moreover, as the appeal is a time barred appeal, but the appellate authority has not given any finding on the question of limitation. Neither delay was condoned nor was any application for the said purpose filed. Moreover, as the appeal is a time barred appeal, but the appellate authority has not given any finding on the question of limitation. Neither delay was condoned nor was any application for the said purpose filed. Some of the appellants have entered into a compromise with respondent No. 1 so they have no right to challenge the present mutation but court below did not return any finding on the issue raised by the parties whether agreement is in accordance with the Act or not. The case has remained pending before the appellate authority for 25 years and some of the appellants and respondents have expired and their legal representatives have not been brought on record though the said fact was mentioned in the impugned order. The appellate authority was duty bound to bring legal representatives on record and after that appeal has to be heard on merits. The order of the appellate authority is confusing because of the fact that appeal was time barred and not maintainable and then how agreement was entered by some of the appellants with respondent No. 1 and how appellate authority entertained the same which is in clear violation of the Act and the Rules framed thereunder because any agreement which does to fall within the ambit of section 12 of the Act is illegal and without jurisdiction. In support of his contention, the Ld. Counsel has cited case law titled Ragvir Singh v. State reported in SLJ 2003 P.563 : 2003 (3) JKJ 56 [HC] and Satya Devi v. State reported in SLJ 2000 P.245 : JKJ Soft JKJ/8499. 5. On the other hand, Ld. Counsel for respondent No. 1 has argued that mutation No. 481 was attested under section 4 of the Act and the same has not been challenged. The said respondent has filed resumption form and validly mutation No. 795 has been attested in his favour for a portion of land. Against that order, appeal has been filed by the petitioners and the same has been rejected by the appellate authority by the impugned order which is under challenge in the instant revision. The revision can lie only when it is in accordance with section 21 (2) of the Act and if there is some substantial question of law or public importance involved. In the present case, no such question of law or public importance is involved. The revision can lie only when it is in accordance with section 21 (2) of the Act and if there is some substantial question of law or public importance involved. In the present case, no such question of law or public importance is involved. There is a concurrent finding of the court below as such, revision is not maintainable. There is no legal ground mentioned in the revision petition. While hearing the appeal, appellate authority has not complied with the Rule 50 because that rule is only with regard to the entries. None of the party has chosen to challenge the mutation attested under section 4 of the Act. So far as the contention of petitioners that Order 41 Rule 3-A was not complied, but that point has not been raised by them before the court below, as such, this point cannot be raised by them before this Tribunal. So far as another point raised by the petitioners that they have been condemned unheard by the Tehsildar is absolutely incorrect and has no basis at all as the petitioners have appeared before the Tehsildar and have participated in the proceedings and preferred the appeal against the mutation. In appeal, they have been heard and written arguments have been taken by the appellate authority, so chance of hearing has properly been provided by both the court belows. Mutation No. 795 is in accordance with the provision of section 7 of the Act and in consonance with all conditions laid down under the Act. Appellate authority has passed the order in accordance with law, rules and procedure and also Order 41 Rule 31 has very well been complied. So there is no question of violation of any provision of law by the appellate authority. So far as another ground of petitioners with regard to the death of some of appellants or respondents is absolutely shocking. Petitioners are bent upon to prove before the appellate authority that the appeal has abated and is not maintainable. As per petitioners, some appellants have compromised with the respondent No. 1. If anybody appeared before the appellate authority and admitted the claim of respondent, it is the duty to accept the same by the appellate authority, however, section 12 will come into play. Petitioners have not mentioned any ground which deal with the resumption and ex-owner can be disqualified on some ground mentioned in section 10. If anybody appeared before the appellate authority and admitted the claim of respondent, it is the duty to accept the same by the appellate authority, however, section 12 will come into play. Petitioners have not mentioned any ground which deal with the resumption and ex-owner can be disqualified on some ground mentioned in section 10. In support of his contention, he has cited the case law reported in KLJ 2003 P.516 : 2003 (2) JKJ 134 [HC], KLJ 2007 P.294 : 2007 (2) JKJ 546 [HC], SCC 2006 P.606 and KLJ 1999 P. 676 : JKJ Soft JKJ/11691. 6. This revision petition is pertaining to resumption under section 7 of the Act and on the perusal of court below file, it reveals that resumption form which was to be filed by the ex-owner is not available. As per order dated 21-12-1983 passed by Tehsildar Kupwara, it is mentioned that petitioner (respondent No. 1 herein) has filed the resumption form which has burnt in the fire incident in Tehsil office as such, destroyed and its copy is shown in another file No. 47 of 1981 in which mention was made about this form besides but the Tehsildar has not made any effort to locate the said file for record purposes. Tehsildar has issued the summons to some of the respondents who were not present and other who were present were asked to file the objections and the case was adjourned for the next date. After that, case was postponed for several dates for service of the respondents (petitioners herein) and some of them appeared and some of them have not been served. As per order dated 17-09-1985, petitioners herein were summoned through advertisement but copy of such advertisement is not on the file. Finally, on 23-11-1985, Tehsildar concerned has written the mutation under section 7 and some of the land has been ordered to be resumed in favour of the respondent herein. In the mutation, it has been mentioned that some of the respondents present have objected the mutation on the ground that ex-landlord has more than permitted land and he has also sold some land after 1971, though it was also mentioned that some private compromise has also been affected under section 12 of the Act. In the mutation, it has been mentioned that some of the respondents present have objected the mutation on the ground that ex-landlord has more than permitted land and he has also sold some land after 1971, though it was also mentioned that some private compromise has also been affected under section 12 of the Act. So finally, mutation under section 7 of the Act has been attested in favour of the respondent No. 1 by the Tehsildar against that appeal has been filed by some of the petitioners herein. During the pendency of the appeal, some of the appellants have preferred some compromise with the respondent No. 1. In terms of order dated 27-05-1992, some of the parties have preferred a compromise and appellate authority has accepted the same and copy of the compromise was sent to the Tehsildar with the direction to make necessary entry in the revenue record, as such, impugned mutation dated 23-11-1985 to the extent of compromise was set aside. As per another interim order, Subhan Najar and Mst. Farzi have also entered into private compromise and that has been also accepted by the appellate authority and mutation No. 795 was again set aside to the extent of the said compromise. There are some other compromise on record taken by the appellate authority and have been allowed particularly but finally, in terms of impugned order dated 23-08-2011, appellate authority has held that mutation No. 795 attested under section 7 of the Act is valid and there is no lacuna in the said mutation and as a whole, appeal has been dismissed and mutation upheld. 7. On perusal of the impugned order passed by the appellate authority, it is clear that as a whole appeal has been rejected and order of Tehsildar upheld, however, during the pendency of the appeal, appellate authority has set aside the mutation partially on different dates while taking on record compromise produced before it. There is nothing mentioned in the final impugned order about the said interlocutory orders passed in the appeal. Ld. Counsel for the petitioners have raised valuable question that when the resumption form is not available on the file by whom we can say that the respondent No. 1 is entitled for the resumption of the land from the petitioners. There is nothing mentioned in the final impugned order about the said interlocutory orders passed in the appeal. Ld. Counsel for the petitioners have raised valuable question that when the resumption form is not available on the file by whom we can say that the respondent No. 1 is entitled for the resumption of the land from the petitioners. It is not clear that whether resumption form has been filled up within the limitation period as prescribed in the Act. Before proceeding further, I think it is profitable to reproduce section 7 (2) of the Act as under:- "(2) Resumption of land permitted by sub-section (1) shall be subject to the following conditions, namely: (a) the application for resumption shall be made in the prescribed manner within one year of the commencement of this Act; (b) the applicant for resumption, shall within six months from the date of resumption of land take up normal residence for the purpose of cultivating such land personally in the village in which the land sought to be resumed is situated or in an adjoining village except in the case of- (i) a person serving in defence force, who shall take up such normal residence for personal cultivation within six months of the date on which he ceases to serve in defence force; or (ii) a widow or a person who is physically disabled or incapacitated by old age or infirmity: Provided that in the case of land situated in an un-inhabited village on or near the border, such residence shall be taken up within the period indicated above in the nearest inhabited village or in the adjoining village: Provided further that a displaced person, who has been allotted land in more than one village, shall take up such residence in any one of such villages or in the adjoining village: Provided also that a person who is minor or insane shall take up such residence within six months of the date on which he attains the majority or attains sanity. (c) Land held by a tiller paying rent at village rates (hasabpartadeh) with or without malikana or by a tiller, who is an occupancy tenant, shall not be resumed; (d) No person, who or any member of whose family, if any, is an income tax payer, shall be eligible to resume any land; (e) The person who has transferred land by sale or gift or bequest on or after first day of September, 1971 shall not be eligible to resume land if the land so transferred was personally cultivated by him prior to such transfer. (f) The extent of land that may be resumed shall, subject to the provisions of sub-section (3), be determined in the following manner, namely:- i. Where a person entitled, as according to records, to rent in kind, from the tiller during Kharif, 1971, the extent of land that may be resumed shall bear the same proportion to the total land comprising the tenancy as the rest in kind bears to the total produce; ii. Where a person was entitled, as according to records, to rent in cash during Kharif, 1971, the extent of land resumable by such person shall be regulated by the extent of rent in kind to which such rent in cash can be commuted in accordance with the provisions of sub-section (3) and (8) of section 9; " 8. In the instant case, resumption form is not available but as per the Ld. Counsel for the petitioners, respondent has not lead any evidence to prove that he has filled up the resumption form within time and he has no excess land in his possession. Tehsildar has given reference of file No. 47 in his proceedings which reveals that no form was before it at the time of attestation of mutation No. 795. There is a procedure mentioned in the Agrarian Reforms Rules with regard to the resumption and a chance of hearing is to be given to both the parties before recording the finding by the revenue officer. As per Rule 21 of the Agrarian Reforms Rules, it is well settled procedure for a revenue officer to conduct the inquiry and after determination of the issue, revenue officer has to identify the land to be resumed in prescribed manner having regard to the reasonable convenience of both the parties. As per Rule 21 of the Agrarian Reforms Rules, it is well settled procedure for a revenue officer to conduct the inquiry and after determination of the issue, revenue officer has to identify the land to be resumed in prescribed manner having regard to the reasonable convenience of both the parties. The provisions of the Act encourage land lord and tenant to enter into private agreement with regard to the payment of levy and apportionment of land between themselves in order to save themselves from expenses and prolong litigation, but the said private agreement has binding force only when the same has been reduced into writing and duly registered and authenticated by revenue officer as envisaged by section 12 of the Act, otherwise agreement shall be devoid of any legal force. As per Rule 21 of the Agrarian Reforms Rules, the said procedure is laid down by the Legislature which is reproduced hereunder:- "21. Procedure (1) The petition for resumption shall be presented to the Revenue Officer, who shall thereupon cause to be written up a mutation of resumption in the mutation register of the village where the land sought to be resumed is situated. Surat-i-sabiq of this mutation shall conform to the entries approved by orders passed on the mutations sanctioned under rules 12 and 13 and Surat Jadid side shall be kept blank. (2) The Revenue Officer shall conduct enquiry on such mutation itself and shall, after giving an opportunity of being heard to the parties; give his finding- i. whether land is resumable from the respondent or, where there are more than one respondent, from each respondent' ii. as to the extent of land resumable by each petitioner under clause (f) of sub-section (2) of section 7; iii. as to the extent of land resumable from the respondent or where there are more than one respondent, from each such respondent under clause (f) of sub-section (2) of section 7; and iv. as to the extent of land that the petitioner can be permitted to resume from each respondent, having regard to the provisions of sub-section (3) of section 7. as to the extent of land that the petitioner can be permitted to resume from each respondent, having regard to the provisions of sub-section (3) of section 7. (3) Thereupon the Revenue Officer shall identify the land for resumption in accordance with the provisions of this chapter and for this purpose the Revenue Officer shall, of his own motion, partition the tenancy holding where such respondent holds land jointly with someone else whose land cannot be resumed by the petitioner. (4) The Revenue Officer shall, after giving the parties an opportunity of being heard, record his finding as to the amount, if any, payable to the respondent under sub-section (4) of section 7 and shall call upon the petitioner to make the payment to the respondent. (5) The Revenue Officer shall as soon as may be after the payment by the petitioner has been made to the respondent, direct that the petitioner be recorded as owner of the land permitted to be resumed and shall put him, or cause him to be put, in possession of such land. Where, however, any crop be standing on such land, the Revenue Officer shall put the petitioner in possession of the resumed land-after adequate opportunity is given to the respondent to remove the crop. (6) If the petitioner has succeeded in resuming the entire resumable land from the respondent, the mutation order shall also direct that land left with the respondent, after such resumption, be entered in his ownership rights without payment of any levy. (7) If the land actually permitted to be resumed falls short, in standard measure, of the resumable land, the mutation order shall further direct that the respondent be recorded as owner without payment of levy, for land which should have remained with him, if the entire resumable land had been resumed and he shall identify such land in accordance with the provisions of this Chapter. For the remaining land the respondent shall continue to be recorded as prospective owner and the Revenue Officer shall record his finding as to the extent of levy payable by him for such land". 9. In the instant case, some of the tenants entered into compromise during the pendency of the appeal and appellate authority has accepted the said compromise without seeking authentication of the agreement. 9. In the instant case, some of the tenants entered into compromise during the pendency of the appeal and appellate authority has accepted the said compromise without seeking authentication of the agreement. These agreements have not been registered or authenticated by any of the officers but appellate authority has accepted and set aside the mutation though to the extent of compromise only which is unknown under the Act. As per Rules, revenue officer had to conduct an inquiry of such mutation of resumption. He has to give full opportunity of being heard. He must afford ex-landlord opportunity to prove by oral or documentary evidence that he is in need of the said land for his bonafide self cultivation and as such, is eligible to resume the land. The tenant must be given an opportunity to rebut the same evidence. Any denial of such opportunity will vitiate the said inquiry on the ground of principles of natural justice. After inquiry, a revenue officer has to satisfy whether ex-landlord is not tax payer and to what extent, land is resumed by the ex-land and to what extent from each respondent is resumable but in the instant case, Tehsildar concerned has not given an opportunity of being heard to them. Agreements, if any, must be within the purport of section 12. It must be duly registered under J&K Registration Act or authenticated by a revenue officer. An agreement must acknowledge the receipt of payment of the agreed amount. Such agreement relieves the State from obligation to make payment of levy and also relieve the prospective owner of his liability to pay levy to the State. The High court observed in a case that authentication means to make valid and authentication proof of attestation or by any other formality recognized under law. In the case where parties enter into compromise during the pendency of appeal before the appellate authority who directed the Tehsildar to make sure that compromise does not contravene any of the provisions of the Act. Hon'ble High court has observed that it was the legal obligation of the Commissioner to first ascertain and certify that the compromise did not contravene any provision of the Act. The Act does not provide such delegation of appellate power and as such, the Commissioner should not have acted upon such agreement. Hon'ble High court has observed that it was the legal obligation of the Commissioner to first ascertain and certify that the compromise did not contravene any provision of the Act. The Act does not provide such delegation of appellate power and as such, the Commissioner should not have acted upon such agreement. It has been observed in a case Ramzan Bhat v. State reported in KLJ 1999 P. 801. As such, the agreement admitted during the pendency of the appeal by the Ld. appellate authority is not inconsonance with section 12 of the Act and appellate authority should not have acted upon the agreement. 10. On the perusal of the impugned order, it is a fact that there is nothing mentioned about the condonation of delay, but mutation has been attested on 23-11-1985 and appeal has been preferred on 30-01-1986. From the perusal of the certified copy of the mutation No. 795, it is revealed that petitioners have applied on 09-12-1985 for the copy of the same which was provided to them on 10-01-1986, so the appeal is within time. I do not think there is any force in the contention of the Ld. Counsel for the Petitioner that appellate authority is duty bound to visit the spot under Rule 50 because that is with regard to the dispute of entries but here is no such contention. 11. In appeal, appellant has raised some important points with regard to the entitlement of the respondent No. 1 for resumption of the land, but in the impugned order, Ld. appellate authority remained silent on this aspect. He has not given any reasons with regard to the dismissing of the appeal but simply written that order of the Tehsildar is as per provision of law. Under Order 41 Rule 31 CPC, the appellate authority is duty bound to give reasons about the decision and there must be determination of points which has been raised by the appellant but appellate authority has remained silent with regard to the points raised by the appellants in the appeal. First and foremost point raised by the appellants that they have not been given proper opportunity of being heard which is also verified from the impugned mutations attested by the Tehsildar as some of the appellants/petitioners have not been properly summoned. First and foremost point raised by the appellants that they have not been given proper opportunity of being heard which is also verified from the impugned mutations attested by the Tehsildar as some of the appellants/petitioners have not been properly summoned. No objection has been sought from them and the land has not been properly identified and to what extent from which side is to be resumed in favour of the ex-landlord. Appellate authority has entertained the agreements which are not as per section 12 of the Act but appellate authority has acted upon the same. Moreover, as per these agreements, appeal has been accepted partially by various interim orders whereas, finally, the whole appeal has been dismissed which is not inconsonance with law. 12. Ld. Counsel for the respondent has raised a plea that there is no substantial question of law or public importance is involved, as such, revision is not maintainable under section 21 (2) of the Act. Here in the instant case, in the basic mutations, a proper opportunity of being heard has not been provided properly to the petitioners and the appellate authority has also not dealt with the case as per the Act because he has accepted the compromise which is not as per Section 12 of the Act. Moreover, during the pendency of appeal, some of the petitioners and respondents have expired which the appellate authority has also mentioned in the impugned order but no steps have been taken by it to brought legal representatives of the said deceased persons on record. I think this is a substantial question of law and apparently, the order of the appellate authority is not as per Order XLI Rule 31 CPC. To my view, these law points of determination might have been properly adjudicated by the appellate authority. In revisional powers, court has to see the legality and proprietary of the order whether it is as per provision of law or not. Even un-appreciation of material available it has come to the knowledge of the authority that it has not been properly recorded. Revisional court can always interfere as it has been held by our Hon'ble Division Bench in case titled Satya Devi v. State. Even un-appreciation of material available it has come to the knowledge of the authority that it has not been properly recorded. Revisional court can always interfere as it has been held by our Hon'ble Division Bench in case titled Satya Devi v. State. Relevant para 12 of the said judgment is reproduced hereunder:- "Therefore, it is concluded that the J&K Special Tribunal exercising power under section 21 (2) of the Act can examine a finding recorded by the subordinate authority and if on appreciation of material available on the record it comes to the conclusion that it has not been properly recorded, then it can always interfere. If this be the position then both the arguments raised by the learned counsel for the appellant deserve to be rejected". 13. For the reasons stated hereinabove, the revision is accepted and the impugned order dated 23-08-2011 is set aside and the case is remanded back to the appellate authority with the direction to dispose of the appeal within four months from the date of receipt of this judgment in accordance with law and in light of the observations made hereinabove after hearing both the parties. The parties are directed to appear before the appellate court on 01-08-2013. The revision petition is disposed of accordingly and shall be consigned to records after its due completion.