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2017 DIGILAW 244 (JK)

Rajinder Singh v. J&K Special Tribunal Jammu

2017-05-18

B.S.WALIA

body2017
JUDGMENT : B.S. Walia, J. 1. Writ petition has been filed seeking the following relief: (i) An appropriate writ, order, or direction in the nature of Writ of Certiorari whereby quashing the judgment/order dated 18.02.2010 passed by the respondent No. 1 in File No. STJ/323/04 having its title Abdul Aziz vs. Pawan Dev Singh and Others, being patently illegal, arbitrary and not based upon position of law governing the issue with prayer for setting aside the same and also for dismissal of Revision petition of respondent No. 2. (ii) Any other writ, order or direction befitting the occasion may please also be allowed in favour of the petitioners and against the respondents. 2. Brief facts of the case leading to the fling of the instant writ petition are: (i) That petitioner Nos. 1 and 2's father and grandfather of petitioner No. 3 i.e. Shri Teja Singh was in possession of 85 kanals of land in different khasra numbers as detailed in paragraph No. 1 of the writ petition since the year 1965. However, Shri Teja Singh was dispossessed of the entire land in November 1970 by respondent No. 2 as well as Noor Khan and Yousaf Khan sons of Uzar Khan and Aziz Khan son of Shukar Khan. (ii) That Shri Teja Singh filed a petition within limitation on 25.03.1971 u/s. 56 of the J & K Tenancy Act, Svt. 1980 before the Deputy Commissioner Jammu, who transferred the same to the Assistant Commissioner Jammu. The Assistant Commissioner Jammu vide his order dated 27.07.1973 dismissed the petition under Section 56 of J & K Tenancy Act against which appeal was filed by Shri Teja Singh before the Divisional Commissioner Jammu who vide his order dated 11.10.1975 remanded the matter to the Assistant Commissioner Jammu exercising the powers of Collector Jammu. The aforementioned petition was decided by the Assistant Commissioner exercising the powers of Collector Agrarian Reforms Jammu vide his order dated 23rd September 1994. It would be relevant to note here that as on 11th October 1975 i.e. the date on which the Divisional Commissioner Jammu remanded the matter to the Assistant Commissioner Jammu exercising the powers of Collector, the Agrarian Reforms Act had not come into force and the same came into force only on 13.07.1978. It would be relevant to note here that as on 11th October 1975 i.e. the date on which the Divisional Commissioner Jammu remanded the matter to the Assistant Commissioner Jammu exercising the powers of Collector, the Agrarian Reforms Act had not come into force and the same came into force only on 13.07.1978. On the coming into force of the Agrarian Reforms Act, J & K Tenancy Act was repealed and erstwhile Assistant Commissioner i.e. Collector Jammu was conferred powers of Collector Agrarian Reforms and consequently, was vested with powers to decide the petition under Section 56 of J & K Tenancy Act. The same was decided by the Collector Agrarian Reforms vide order dated 23.09.1994 in favour of the petitioners' predecessor i.e. Shri Teja Singh. 3. Learned counsel for the parties state that order Annexure B whereby decision was given in favour of the predecessor-in-interest of the petitioners was against Noor Khan, Yousaf Khan sons of Uzar Khan and Aziz Khan son of Shukar Khan. The aforementioned three persons namely Noor Khan, Yousaf Khan and Aziz Khan put up their defence before the Collector (Revenue) Jammu on the footing that they were equally owners in the 85 kanals of land. Pursuant to order Annexure B dated 23.09.1994 only one of three co owners of the 85 kanals of land i.e. Abdul Aziz filed an appeal before the Director Land Records exercising powers of Commissioner Agrarian Reforms Jammu. The said appeal was dismissed vide order dated 28.08.2004 and the order of the Assistant Commissioner, Collector Agrarian Reforms, Jammu was upheld. Thereafter, respondent No. 2 filed revision petition before the J & K Special Tribunal Jammu i.e. respondent No. 1 which was decided vide order Annexure D dated 18.02.2010 setting aside the order which had been passed by the Assistant Commissioner (R) with powers of Collector Agrarian Reforms, Jammu i.e. Annexure B dated 23.09.1994 and order Annexure C dated 28.08.2004 passed by the Director Land Records exercising powers of Commissioner, Agrarian Reforms Act solely on the ground that the Assistant Commissioner with powers of Collector Agrarian Reforms, Jammu who had passed order Annexure B dated 23.09.1994 had no jurisdiction to pass order in question in view of SRO 33, dated 17.02.1993. 4. 4. Thus, the only point for consideration is as to whether the Assistant Commissioner (R) with powers of Collector Agrarian Reforms, Jammu was having powers under the provisions of Agrarian Reforms Act and the SROs issued in respect thereto to adjudicate the dispute or not. 5. Learned counsel has placed on record copy of order no. ADMN/93-101, dated 11.05.1994 issued by the Deputy Commissioner Jammu distributing work amongst Additional Deputy Commissioners (Rural and Urban) and Assistant Commissioners (Revenue and General). The Assistant Commissioner (Revenue) Jammu who passed order Annexure-B dated 23.09.1994 was one Shri Ganga Dutt Bhagat. Relevant extract of the aforementioned order distributing work amongst various officers is reproduced hereunder: "In partial modification of previous order, the distribution of work among the Additional Dy. Commissioner's (Rural and Urban) and Assistant Commissioners (Revenue and General) is hereby made as under: S. No. Name of Officer Particulars of work allotted 1. Siraj Din Wani Addl. Dy. Commissioner, Jammu 1. PRCs of Samba Tehsil and Kashmiri Migrants. 2. Food and supplies. 3. Relief under Natural Calamities and payment of ex-gratia to Kashmiri Migrants. 4. Appeals and Land acquisition cases which are transferred by the District Collector. 5 Misc. Section. (i) Celebration of Republic day, independence day. (ii) Celebration of Mel's (iii) Cases under the publication Act. 6. Selection of Haj Pilgrims. 7. Work pertaining to Exercise of Magisterial powers and law and order. 8. Task force and all kind of encroachment. 9. Monitoring of the Agrarian Reforms and Settlement work in District Jammu and submission of Special reports on the progress to Dy. Commissioner. 10. Examination of all cases under Cinematograph Act, explosive Act Arms Act and Excise Act for onward submission to District Magistrate. 11. All work related to the welfare and rehabilitation of DPs of 1947, 1965 and 1971. 2. S.S. Jamwal Addl. Dy. Commissioners Jammu 1. Drawing and disbursing powers of D.C. office establishment. 2. Office administration. 3. All matters pertaining to land acquisition/requisition of army cases and other matters connected with the Army. 4. Appeals under Land Revenue Act, cases under Agrarian Reforms Act and Land Acquisition cases which are transferred by the Dy. Commissioner. 5. PRC's cases of Jammu Tehsil except old city and examination of all PRC cases and Land acquisition cases of Dy. Commissioner/District Collector. 6. All type of complaints received for either from vigilance or from other. 7. 4. Appeals under Land Revenue Act, cases under Agrarian Reforms Act and Land Acquisition cases which are transferred by the Dy. Commissioner. 5. PRC's cases of Jammu Tehsil except old city and examination of all PRC cases and Land acquisition cases of Dy. Commissioner/District Collector. 6. All type of complaints received for either from vigilance or from other. 7. Coordination relating to holding of meeting of committee of collectors. 8. Progress of recovery of land revenue and other misc. recoveries. 9. Examination of PSA cases and writ petitions appeals cases in various courts for onward submission to DM/Dy. Commissioner. 10. JNV-Nud and Sainik School Nagrota. 3. Ganga Dutt Bhagat Assistant Commissioner (R) Jammu 1. Drawing and disbursing powers of Agrarian Reforms Office establishment. 2. Collector Agrarian reforms for Tehsil Jammu Akhnoor and Bishnah. 3. Appeals cases under Land Revenue Act/cases under Agrarian Reforms Act. 4. Land Acquisition cases which are transferred by the District Collector. 5. Felling of cases for Tehsil Jammu Akhnoor and Bishnah. 6. PRC cases of Tehsil Akhnoor. 7. Renewal of Gun licence for Tehsil Jammu/Akhnoor/Bishnah and renewal of gun licences of Army. 8. Numberdari/chowkidari cases of Tehsil Jammu/Akhnoor and Bishnah. 9. Cases under SRO 43 dated 23.02.1994. 10. Agenda for revenue officers meeting. 11. Coordination with ADC (W) in respect of monitoring of work under Agr. Reforms and settlement. 12. Land Alienation cases and all other cases of SQ section. 4. JK Sawhney Asstt. Commissioner (G) Jammu 1. Collector Agrarian Reforms for Tehsil Samba and R.S. Pura. 2. PRCs of Tehsil R.S. Pura and Bishnah. 3. Issue/renewal of Stamp Vendor Licences. 4. Renewal of Gun Licences for Tehsil R.S. Pura and Samba. 5. Numberdari/chowkidar cases of Tehsil R.S. Pura and Samba. 6............. 7. Appeals under land revenue/and cases under agrarian reforms act are transferred by the Dy. Commissioner. 8. Nodal Officer for grievances cell/monitoring of implementations. 9. Work relating to Traffic Advisory and Traffic consultative committees. 10. Transportation of bovine animals. 11. Felling of trees for R.S. Pura and Samba Tehsils. 12. Nodal/cording officer for Arterial Ex Press way project. 6. That a perusal of the aforementioned order reveals that the Assistant Commissioner (R) Jammu was allocated work as Collector Agrarian Reforms. 9. Work relating to Traffic Advisory and Traffic consultative committees. 10. Transportation of bovine animals. 11. Felling of trees for R.S. Pura and Samba Tehsils. 12. Nodal/cording officer for Arterial Ex Press way project. 6. That a perusal of the aforementioned order reveals that the Assistant Commissioner (R) Jammu was allocated work as Collector Agrarian Reforms. On the basis of the same, learned counsel for the petitioner contends that the finding recorded by the J & K Special Tribunal is palpably erroneous and is liable to be set aside on the said ground alone. Per Contra, learned counsel for respondent No. 2 by referring to Section 18 of the J & K Agrarian Reforms Act, has contended that Appointment, superintendence and control of revenue officers can only be by way of notification in the government gazette and order Annexure A referred to by learned counsel for the petitioner did not fall within the definition of term notification by the Government in the Government Gazette, therefore, the submission of learned counsel for the petitioner was misconceived. 7. Learned counsel for the respondents further refereed to SRO 33, dated 17.02.1993 particularly clause 12 therein to contend that it was only the Additional Deputy Commissioner Jammu who had the powers to decide the matter arising out of Section 19 of the Agrarian Reforms Act as was transferred to him by the respective District Collector i.e. District Collector Jammu. Learned counsel contended that the same not having been done, therefore, the Assistant Commissioner (R) exercising the powers of Collector Agrarian Reforms Jammu in passing order dated 23.09.1994 acted coram non judice. Relevant extract of SRO 33 is reproduced here under: "Notification SRO-33 dated 17th February, 1993.--In exercise of the powers conferred by sub-section (1) of section 18 read with section 19 of the Jammu and Kashmir Agrarian Reforms Act, 1976 (XVII of 1976) and in supersession of Notification SRO-132 dated 01.04.1991, the Government hereby appoint the officers mentioned in column (2) of the sub-joined table, as Revenue Officers of classes as specified in column (3) for purposes of discharging the duties under the said Act within their jurisdiction mentioned in column (4) and for the matters as detailed in column (5) thereof:- 1 Financial Commissioner Commissioner Whole of the State of Jammu and Kashmir. All matters including supervisory functions, control over Joint Financial Commissioner (Agrarian Reforms) Joint Agrarian Reforms Commissioners and Deputy Commissioners. All matters including supervisory functions, control over Joint Financial Commissioner (Agrarian Reforms) Joint Agrarian Reforms Commissioners and Deputy Commissioners. 2 Joint Financial Commissioners (Agrarian Reforms). Commissioner Within Jammu and Srinagar Districts excluding areas notified [and taken up for revision of land records]. Hearing of appeals. 3 Joint Agrarian Reforms Commissioner Within Jammu Division excluding Districts of Jammu, Doda, Poonch and areas notified [and taken up for revision of land records]. Hearing of appeals. 4 Joint Agrarian Reforms Commissioner, Srinagar. Commissioner Within Kashmir Division excluding Districts of Srinagar, Kupwara and areas notified [and taken up for revision of land records]. Hearing of appeals. 5 Deputy Commissioner-cum-Collector, Doda Commissioner District Kupwara. Hearing of appeals. 6 Deputy Commissioner-cum-Collector, Doda. Commissioner District Doda excluding areas notified [land taken up for revision of land records]. Hearing of appeals. 7 Deputy Commissioner-cum-Collector, Poonch. Commissioner District Poonch. Hearing of appeals. 8 Director Land Records (Settlement Officer, Srinagar/Jammu). Commissioner Areas notified and taken up for settlement operations falling within their respective jurisdiction. Hearing of appeals. 9 Deputy Commissioner (Settlement Officer, Kargil/Leh). Commissioner Within their respective jurisdiction. Hearing of appeals. 10 Deputy Commissioner, Srinagar, Anantnag, Baramulla, Pulwama, Badgam, Jammu, Kathua, Rajouri and Udhampur. Collector Within their territorial jurisdiction excluding areas notified [and taken up] for settlement operations. Hearing of cases arising out of section 19 of the Agrarian Reforms Act. 11 Additional Deputy Commissioner, Ramban Collector Within his territorial jurisdiction. All matters to be dealt with under Agrarian Reforms Act and Rules by the Collector, excluding areas notified and taken up for revision of land records. 12 Additional Deputy Commissioner Srinagar/Jammu Collector Within his territorial jurisdiction. Cases arising out of section 19 of the Agrarian Reforms Act as may be transferred to him by the respective District Collectors, excluding areas notified and taken up for revision of land records. 13 Assistant Commissioner (R) Kupwara/ Doda/Poonch/ Leh and Kargil Collector Within his territorial jurisdiction. All matters to be dealt with by the Collector under the Agrarian Reforms Act and Rules. 14 Every other Assistant Commissioner R/(G) and Sub-Divisional Magistrates. Collector Within his territorial jurisdiction. (i) All matters to be dealt with under the Agrarian Reforms Act and Rules by the Collector. (ii) Cases arising out of section 19 of the Agrarian Reforms Act as maybe transferred to him by the respective District Collector excluding areas notified and taken up for revision of land records. Collector Within his territorial jurisdiction. (i) All matters to be dealt with under the Agrarian Reforms Act and Rules by the Collector. (ii) Cases arising out of section 19 of the Agrarian Reforms Act as maybe transferred to him by the respective District Collector excluding areas notified and taken up for revision of land records. 15 Every Assistant Settlement Officer Collector Areas notified and taken up for settlement operations falling within the respective jurisdiction. All matters to be dealt with under the Act and Rules by the Collector. 8. I have considered the submissions of learned counsel for the parties. 9. A perusal of SRO 33 reveals that the Deputy Commissioner Jammu had the powers to hear cases arising out of Section 19 of the Agrarian Reforms Act. 10. Learned counsel for the parties are ad idem that the instant case is a matter arising out of Section 19 of Agrarian Reforms Act. Clause-12 of the aforementioned SRO stipulates that Additional Deputy Commissioner would exercise powers within his territorial jurisdiction for deciding a case arising out of Section 19 as may be transferred to him by the District Collector. Clause 14 of the aforementioned SRO on the other hand provides that every other Assistant Commissioner R/G and Sub Divisional Magistrates would exercise powers within their territorial jurisdiction with regard to the matter to be dealt with under the Agrarian Reforms Act and rules by Collector and consequently in respect of cases arising out of section 19 of the Agrarian Reforms Act as may be transferred to him by the respective District Collectors. 11. A perusal of the provisions of Clause 10, 12 and 14 of SRO 33 read with Annexure-A dated 11.05.1994 makes the position very clear that no power as such was conferred by the Collector on the Additional Deputy Commissioner Jammu to decide the cases arising out of Section 19 of the Agrarian Reforms Act. At least no power has been shown to have been conferred despite query to learned counsel for respondent No. 2. On the other hand, learned counsel for the petitioner has placed on record Annexure-A dated 11.05.1994 which goes to show that the Assistant Commissioner (R) Jammu had been conferred powers of Collector Agrarian Reforms for Tehsil Jammu, Akhnoor and Bishnah, therefore, the powers conferred vide order dated 11.05.1994 are relatable to clause 14(i) of SRO 33, dated 17.02.1993. On the other hand, learned counsel for the petitioner has placed on record Annexure-A dated 11.05.1994 which goes to show that the Assistant Commissioner (R) Jammu had been conferred powers of Collector Agrarian Reforms for Tehsil Jammu, Akhnoor and Bishnah, therefore, the powers conferred vide order dated 11.05.1994 are relatable to clause 14(i) of SRO 33, dated 17.02.1993. In this view of the matter, it is crystal clear that order dated 23.09.1994 passed by the Assistant Commissioner (R) Jammu exercising powers of Collector Agrarian Reforms was exclusively within the jurisdiction of the said authority and consequently was immune from challenge on the ground that the same had not been passed by the competent authority. Accordingly, the finding to the contrary recorded by the learned J & K Special Tribunal being de hors the mandate of clause 14(i) of SRO 33 dated 17.02.1993 as also order distributing the work dated 11.05.1994 is unsustainable and is consequently set aside. 12. At this stage, learned counsel for respondent No. 2 made a prayer that since the J & K Special Tribunal had not adjudicated the case on merits, therefore, the matter be remanded to the J & K Special Tribunal for hearing and deciding afresh on merits. The same is vehemently opposed by learned counsel for the petitioner to contend that respondent No. 2 did not deem it appropriate to challenge the orders of the Tribunal if he was aggrieved with therewith in any manner nor filed any cross objections in the writ petition filed by the petitioners challenging the order of the J & K Special Tribunal deciding the case against the petitioners, therefore, in the circumstances it was not open to respondent No. 2 to make the prayer for remand since in the facts and circumstances of the case, respondent No. 2 had acquiesced in the order and the only ground which was being disputed was with regard to the validity of order passed by the J & K Special Tribunal holding that the Assistant Commissioner (R) Jammu with powers of Collector Agrarian Reforms did not have the powers to pass order Annexure-B dated 23.09.1994. 13. Learned counsel further contended that the Tribunal could have exercised its powers only in respect of a substantial question of law or matter of public importance. 13. Learned counsel further contended that the Tribunal could have exercised its powers only in respect of a substantial question of law or matter of public importance. The only finding returned by the J & K Special Tribunal was of the Collector, Agrarian Reforms, Assistant Commissioner (R), Jammu not having the power to pass order (Annexure-B) dated 23.09.1994, in view of his not having been notified as the designated Authority. No other question of law was agitated before the Tribunal nor was the decision of the Tribunal challenged before the High Court to contend that any other question of law arising in the matter had not been considered by the Tribunal. Learned Counsel contended that in the circumstances, the prayer for remand of the case was misconceived. 14. Learned counsel further contended that apart from question of law, the Tribunal could not have gone into the factual aspects of the matter in view of the decision of this Court in Mohd. Sultan and Others vs. State and Others, 2007 (2) JKJ 546 (HC) : 2007 (II) SLJ 542. Learned counsel referred to the observations of this Court in paragraph No. 3 of the aforementioned decision to contend that the Commissioner Agrarian Reforms being the highest functionary in the entire agrarian reforms machinery, his spot finding regarding factual situation of a case could not be dislodged, much-less in exercise of the Revisional powers which were restricted to determination of questions of law and public importance only. Relevant extract of the aforesaid judgment is reproduced hereunder:- "3. Under Law (S. 21 of Agrarian Reforms Act) the Revisional jurisdiction of Special Tribunal can be exercised to examine a matter involving a question of law or of public importance, which by implication excludes the reappraisal/re-evaluation of materials purely concerning factual aspects, otherwise than to enable determination of a law point. Instantly however the Tribunal appears to have misdirected itself by entering into determination of a factual aspect while assessing the materials found on spot enquiry found on enquiry to be running counter to position on spot. It would be appropriate to observe that Commissioner Agrarian Reforms being the highest functionary in the entire agrarian reforms machinery, his spot finding regarding factual situation of a case can hardly be dislodged, much-less in exercise of the Revisional powers restricted to determination of the questions of law and public importance only." 15. It would be appropriate to observe that Commissioner Agrarian Reforms being the highest functionary in the entire agrarian reforms machinery, his spot finding regarding factual situation of a case can hardly be dislodged, much-less in exercise of the Revisional powers restricted to determination of the questions of law and public importance only." 15. Learned counsel further contended that the petitioners' predecessor i.e. Shri Teja Singh had been dispossessed from the land in question in the year 1970. Shri Teja Singh had died litigating while his sons i.e. petitioner Nos. 1 and 2 are now in their eighties, therefore, it would be wholly inequitable to remand the matter particularly in the light of no other question of law or public importance arises nor having been agitated nor the order of the J & K Special Tribunal having been challenged by respondent No. 2 either by way of writ petition or by way of cross objections nor could any other aspect of the matter be gone into in view of the decision in Mohd. Sultan's case (supra). 16. I have considered the submissions of learned counsel. Admittedly, the Tribunal could have exercised its powers only in respect of a substantial question of law or matter of public importance. The only finding returned by the J & K Special Tribunal was of the Collector, Agrarian Reforms, Assistant Commissioner (R), Jammu not having the power to pass orders (Annexure-B) dated 23.09.1994, in view of his not having been notified as the designated Authority. No other question of law was agitated before the Tribunal nor was the decision of the Tribunal challenged before the High Court to contend that any other question of law arising in the matter had not been considered by the Tribunal. Apart from question's of law or matters of public importance, the Tribunal could not have gone into the factual aspects of the matter in view of the decision of this Court in Mohd. Sultan's case (supra). In the light of the position as noted above, no case is made out for remanding the matter. Accordingly, the writ petition is allowed. Impugned order passed by the Tribunal is set aside and the orders passed by the authorities below are upheld. No order as to costs.