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2016 DIGILAW 35 (JK)

Kartar Chand v. J&K Special Tribunal

2016-02-11

BANSI LAL BHAT

body2016
JUDGMENT : Bansi Lal Bhat, J. 1. Parties to the aforesaid petitions and subject matter being common, same are taken for consideration together and shall be disposed of by a common judgment. Through the medium of afore-titled writ petitions, order/judgment dated 18.10.2013 passed by J & K Special Tribunal Jammu in File No. 470/2011 titled "Kartar Chand and Ors. v. Balkar Chand", by virtue whereof revision petition filed by the writ petitioners against order/judgment dated 06.04.2011 passed by Additional Deputy Commissioner Kathua has been dismissed as not maintainable, is assailed on the ground that the impugned order has been passed without affording an opportunity of hearing to the petitioners completely ignoring principles of natural justice and seriously affecting the rights of petitioners conferred on them vide mutation order dated 27.09.1989. 2. OWP No. 1711/2013: The extra-ordinary jurisdiction of this Court is sought to be invoked on the ground that petitioner-Kartar Chand, basically hailing from village Chak Dalma Tehsil Hiranagar had shifted to village Dangroli in the year 1970 and since then he has been in actual possession of land measuring 1 kanal 6 marlas falling under Khasra No. 351/281/37 and land measuring 2 kanals falling under Khasra No. 259/37 situated at village Dangroli (now within municipal limit of Ward No. 3 Hiranagar). In settlement, effected in year 1999, new Khasra Nos. 107 and 108 have been respectively assigned to the aforementioned Khasra numbers. It is averred in the petition that Mutation Order No. 150 under Section 4 and Mutation order No. 178 under Section 8 of Agrarian Reforms Act were attested in favour of petitioner vesting ownership rights in him. Petitioner also claimed to be in possession of 2 kanals of land falling under Khasra No. 259/36 (now assigned as Khasra No. 99) together with one Ram Nath in respect whereof also mutation orders were attested in favour of petitioner and Ram Nath. Petitioner further claimed to have raised construction of a residential house over a portion of Khasra No. 107 in accordance with the duly sanctioned construction plan. Petitioner further claimed to have raised construction of a residential house over a portion of Khasra No. 107 in accordance with the duly sanctioned construction plan. It is further averred that respondent No. 3 owning some land in the vicinity of petitioner's land had been interfering with petitioner's land which constrained the petitioner to launch proceedings before Assistant Commissioner (R), Collector Agrarian Reforms Kathua in which order dated 29.02.2008 was passed restraining respondent No. 3 - Balkar Chand from interfering with petitioner's possession and also restraining the revenue authorities from effecting any change in the revenue record. The proceedings are still pending before the said authority. Respondent No. 3 assailed the aforementioned mutation orders dated 27.02.1989 and 02.04.1991 after a lapse of seventeen years before respondent No. 2. It is further averred in the petition that the petitioner received a notice from respondent No. 2 for 22.12.2010 but he expressed his inability to attend on such date as he had to go for medical checkup. The matter was taken up by respondent No. 2 on 28.03.2011 and the appeal was clubbed with File No. 402/Adck. Without ensuring proper service upon petitioner, the impugned order dated 06.04.2011 came to be passed by respondent No. 2 setting aside the mutation orders passed under Section 4 and 8 of the Agrarian Reforms Act without affording an opportunity of hearing to petitioner. Revision preferred by the petitioner along with legal heirs of Ram Nath before respondent No. 1 came to be dismissed without appreciating the oral and written submissions made on behalf of petitioner. 3. Respondent No. 3, who is the only contesting respondent, filed objections contesting the petition on the ground that the subject matter of petition, recorded as Gair Mumkin Khad in the name of owners including respondent No. 3 in Jamabandi of 1971/72 was never in cultivating possession of petitioner who got the impugned mutation orders attested fraudulently in his favour. It was further pleaded that the petitioner was a revenue clerk in revenue Department and he manipulated the entry and subsequent mutation orders in contravention of law. Same plea is taken in regard to Ram Nath who was an employee in Government Treasury at Hiranagar. It is pleaded that the petitioners and heirs of Ram Nath have managed the attestation of the mutation orders taking advantage of their posting in Tehsil and Government Treasury. Same plea is taken in regard to Ram Nath who was an employee in Government Treasury at Hiranagar. It is pleaded that the petitioners and heirs of Ram Nath have managed the attestation of the mutation orders taking advantage of their posting in Tehsil and Government Treasury. It is pleaded that the petitioner was not in possession of the aforesaid land in Kharif 1971 and Agrarian Reforms Act was not applicable to the said land. 4. OWP No. 1500/2013: Controversy in this petition filed by legal representatives of deceased Ram Nath is confined to land measuring 2 kanals falling under Khasra No. 259/36 min of village Dangroli (subsequently assigned Khasra No. 99 in the settlement effected in the year 2006) mutation orders in respect whereof were attested in favour of deceased Ram Nath along with Kartar Chand - petitioner in OWP No. 1711/2013, in terms of the mutation orders subsequently set aside in appeal at the instance of respondent No. 2. The facts of the instant petition as also the pleas taken by the private respondent No. 2 are identical and pari materia with the pleadings of OWP No. 1711/2013. 5. Contempt (OWP) No. D-10/2014: Balkar Chand figuring as respondent No. 3 in OWP No. 1711/2013 and respondent No. 2 in OWP No. 1500/2013 has filed a motion for initiating contempt proceedings against petitioners in OWP No. 1500/2013 alleging breach of status quo order dated 25.10.2013 by cutting down green trees standing on the subject matter of the petition and also by erecting a shed thereon. 6. It is contended on behalf of petitioners in the twin writ petitions that a right had crystallized in favour of petitioners in terms of the impugned mutation order which could not be jeopardized in the brazen manner in which it has been done in terms of the impugned order dated 18.10.2013 passed by J & K Special Tribunal Jammu. It is further contended that the impugned order dated 06.04.2011 passed by Additional Deputy Commissioner, Kathua is unsustainable as the same has been passed after seventeen long years of the attestation of aforesaid mutation orders under Section 4 and 8 of Agrarian Reforms Act. It is further contended that Section 21 of Agrarian Reforms Act has been infringed in not affording opportunity of hearing to the petitioners. It is further contended that Section 21 of Agrarian Reforms Act has been infringed in not affording opportunity of hearing to the petitioners. Per contra, it is submitted on behalf of contesting respondent that the impugned order dated 18.10.2013 does not decide any right and in view of the same, the same is not amenable to the writ jurisdiction of this Court. 7. Heard learned counsel for the parties and considered the matter. 8. It emerges from record that mutation Order No. 150, dated 27.09.1989 and mutation Order No. 178, dated 02.04.1991 have been attested respectively under Section 4 and Section 8 of the Agrarian Reforms Act in respect of the subject matter of these writ petitions. Private-respondent Balkar Chand appears to have challenged these mutation orders after seventeen years of the attestation of mutation Order No. 178, dated 02.04.1991 under Section 8 of Agrarian Reforms Act only after petitioner Kartar Chand filed suit for permanent injunction against him and others seeking to restrain them from interfering with his peaceful possession of land measuring 2 kanals under Survey No. 108 of village Darangoli Tehsil Hiranagar. In terms of order dated 28.02.2008, Assistant Commissioner (R) Collector Agrarian Reforms Kathua appears to have restrained official respondents from causing any interference and effecting any correction in revenue record. The appeals filed by private respondent Balkar Chand appear to have been allowed in exparte after condoning delay in filing of appeals. The impugned mutation orders were set aside and the matter was remanded to Tehsildar Hiranagar for fresh inquiry. Revision preferred against the Appellate Court Order dated 06.04.2011 was dismissed by the Tribunal on the ground that in view of the impugned order passed by the Appellate Court being a remand order directing Tehsildar Hiranagar to hold a fresh inquiry and pass appropriate orders, the revision was not maintainable. 9. A bare look at the order dated 6th April, 2011 passed by Additional Deputy Commissioner (Commissioner Agrarian Reforms), Kathua brings it to fore that the mutation orders in question were assailed by the private respondent around seventeen years after passing of mutation order under Section 8 of the Agrarian Reforms Act. Indisputably, the appeals preferred were barred by limitation The appeals were allowed after setting the writ petitioners ex parte and condoning delay without even making reference to any reasons assigned for huge delay of seventeen years in preferring the appeals. Indisputably, the appeals preferred were barred by limitation The appeals were allowed after setting the writ petitioners ex parte and condoning delay without even making reference to any reasons assigned for huge delay of seventeen years in preferring the appeals. If the notice was issued in condonation of delay applications, it was impermissible and inappropriate for the Commissioner Agrarian Reforms Kathua to dispose of appeals without putting the petitioners on notice in appeals after allowing condonation of delay. The appeal could not have been taken on board without first addressing the issue of condonation of delay. The order setting aside the mutation orders which had conferred ownership rights on petitioners was a final order passed on the merits of the case without affording opportunity to petitioners of being heard. On the very face of it, impugned order dated 06.04.2011 suffers from patent illegality and deserves to be quashed. It is shocking that the Revisional Court, i.e. J & K Special Tribunal failed to notice the same and dismissed the revision without applying its mind to the facts and circumstances of the case. It erroneously held that the revision was not maintainable which has resulted in grave miscarriage of justice. 10. It is not disputed that J & K Special Tribunal is vested with revisional jurisdiction qua final orders passed by Commissioner Agrarian Reforms. Section 21(2) of Agrarian Reforms Act, 1976 empowers the Tribunal to pass appropriate orders, if it finds that a question of law or public interest is involved in the case. However, no such order can be passed against any party without affording such party of an opportunity of being heard. There is considerable force in the contention raised on behalf of petitioners that a revision petition would lie against the final order disposing of the appeal and an order of remand in which the matter is remanded to the subordinate revenue officer for holding inquiry and passing fresh orders in accordance with law cannot be termed as an interlocutory order as the appeal stands finally disposed of by such order. The contention raised is supported by the ratio of judgment rendered by the Hon'ble Apex Court in "Mammu v. Hari Mohan" reported in 2000 (1) Supreme 86 on interpretation of Section 103 of Kerala Land Reform Act. The contention raised is supported by the ratio of judgment rendered by the Hon'ble Apex Court in "Mammu v. Hari Mohan" reported in 2000 (1) Supreme 86 on interpretation of Section 103 of Kerala Land Reform Act. In view of this authoritative pronouncement of Hon'ble Apex Court, the impugned order dated 18.10.2013 passed by J & K Special Tribunal holding that the impugned order passed by Commissioner Agrarian Reforms is only a remand order and not amenable to revisional jurisdiction of the Special Tribunal cannot be supported. Same deserves to be quashed. 11. In view of the foregoing discussion the impugned order dated 18.10.2013 passed by the J & K Special Tribunal and the impugned order dated 06.04.2011 passed by Additional Deputy Commissioner (Commissioner Agrarian Reforms) Kathua are quashed. The matter is remanded back to Additional Deputy Commissioner (Commissioner Agrarian Reforms) Kathua for deciding the appeals filed by private respondent afresh after putting the parties on notice and addressing the issue of condonation of delay in the first instance. In case, he finds that the huge delay of seventeen long years in preferring the appeals is properly explained, he shall dispose of the appeals after providing opportunity of hearing to the parties. In view of the allowing of twin writ petitions, proceedings in the contempt petition are dropped. Contempt (OWP) No. D-10/2014 is accordingly disposed of.