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2017 DIGILAW 524 (JK)

J and K Dharmarth Trust v. Tara Chand

2017-08-02

ALOK ARADHE, SANJEEV KUMAR

body2017
JUDGMENT : Alok Aradhe, J. In this intra court appeal, the appellant has assailed the validity of the order dated 08.07.2010 passed by the learned Single Judge by which the writ petition preferred by the respondents has been allowed and the order dated 04.11.2001 passed by the Financial Commissioner, Jammu has been quashed. In order to appreciate the issues involved in this appeal, we set out the facts which are stated hereunder: 2. The respondents No.1 to 3 were declared as protected tenants in purported exercise of Government Order No. LB/C of 1957 and an entry to that effect was made in Sarwarg of Jamabandi for the year 1959-60. It is the case of the appellant that the aforesaid entry was made without their consent and without putting it on notice. Thereupon the appellant filed an application for correction of the aforesaid entry in the year 1972 before the Tehsildar, Samba and the Tehsildar by an order dated 17.11.1981 had corrected the entry and described the status of the respondents instead of protected tenants as non occupancy tenants. The Tehsildar by an order dated 20.10.1972 passed a Fardpartal and directed that the name of the respondents be entered as “Gair Maroosi Billa Lagan bewaja lailmi Malikan’ instead of “Gair Maurousi Muzarin Mahfooz”. Being aggrieved, the respondents 1 to 3 filed an application before the Tehsildar for correction of the entry who by order dated 17.11.1981 corrected the entry and recorded the petitioners as protected tenants by virtue of Mutation No.191 dated 17.11.1981. Being aggrieved, the petitioners approached the Deputy Commissioner, Jammu by filing a review petition who by an order dated 20.06.1984 declared the respondents 2 and 3 to be protected tenants while the status of the protected tenant was denied to respondent No.1 and he was held to be an employee of the appellant. 3. The respondents thereupon filed a revision before the Director Land Records who was vested with the powers of the Divisional Commissioner. By an order dated 31.07.1986, Director Land Records set aside the entries made in favour of the respondents 1 to 3 and held that change of entries in favour of the respondents No.1 to 3 is fishy and has been manipulated by respondent No.1 without knowledge and consent of the appellant. By an order dated 31.07.1986, Director Land Records set aside the entries made in favour of the respondents 1 to 3 and held that change of entries in favour of the respondents No.1 to 3 is fishy and has been manipulated by respondent No.1 without knowledge and consent of the appellant. Thereafter the reference was made to the Financial Commissioner, Jammu who while disagreeing with the reference accepted the same to the extent entries made in the revenue records in favour of the respondents are not in consonance with the entries made in record of rights of 1959-60 shall stand deleted and directed that the revenue records be prepared in terms of the entries contained in record of rights of 1959-60. Being aggrieved, the appellant filed a writ petition, namely, OWP No.826/1995 before this Court which was decided vide order dated 14.12.1999 and the order passed by the Financial Commissioner was set aside and the matter was remanded to him for passing fresh orders in accordance with law. Thereafter the Financial commissioner accepted the recommendations made by the Director Land Records and set aside the order passed by the Tehsildar Samba which was passed on the basis of Mutation No.191. In the aforesaid factual matrix, the respondents No.1 to 3 approached the learned Single Judge by filing this writ petition. The learned Single Judge vide impugned order inter alia held that correctness of the entries made in the record of rights could not have been challenged accept by filing a suit under Section 32 of the Land Revenue Act. The aforesaid order passed by the learned Single Judge is under challenge in this appeal. 4. Learned Senior counsel for the appellant submitted that there has been no adjudication on merits in respect of rights of respondents 1 to 3 before making entry in their favour. It is further submitted that the procedure prescribed under notification LCB-8/C of 1957 dated 15.11.1957 has not been followed inasmuch as the entries made in favour of the respondents No.1 to 3 were not read out to the appellant nor the note to this effect has been made in the Quadrennial Jamabandi. It is further submitted that the respondents 1 to 3 have obtained the entry by playing fraud which is non-est in the eye of the law. It is further submitted that the respondents 1 to 3 have obtained the entry by playing fraud which is non-est in the eye of the law. It is also submitted that the learned Single Judge ought to have appreciated that the remedy under Section 32 of the Land Revenue Act was not available to the appellant. It is also urged that since that the impugned entry has been passed in flagrant violation of the principles of natural justice, therefore, the same is nullity and is void and no order can be allowed to stand if it is obtained by fraud. It is also submitted that if the statute prescribes a mode of doing an act in a particular manner, the said act has to be performed in the manner prescribed by the statute alone and all other modes of performing that act are necessarily forbidden. In respect of the aforesaid submissions, learned senior counsel has referred to the decisions of the Supreme Court in the cases of Olga Tellis and others v. Bombay Municipal Corporation and others, AIR 1986 SC 180 , Indian Bank v. Satyam Fibers India Private Limited, AIR 1996 SC 2592 , Ramchandra Murarilal Bhattad and ors. V. State of Maharashtra and ors., AIR 2006 SCW 6304 , Jagjit Singh v. State of Haryana and ors, AIR 2007 SCW 158, Ram Jethmalani & ors, v. Union of India and ors., AIR 2011 SCW 6194, Nidhi Kaim and anr. V. State of Madhya Pradesh and ors, AIR 2017 SC 2858. 5. On the other hand, learned counsel for the respondents submitted that even if it is assumed that Tara Chand was an employee of the Trust, yet his brothers were not the employees of the Trust who were in cultivating possession of the land since 1955. It is further submitted that by an operation of Section 15-A of the Tenancy Act, the brothers of Tara Chand had become protected tenants by operation of law. It is further submitted that the names of the respondents were recorded as protected tenants in the record of rights of 1959-60 and in the subsequent Jamabandi as well and the entry made in the Jamabandi could not have been corrected in 1972 by ‘Fard Badar’ without passing a formal order of mutation as required under Standing Order 22. It is further submitted that the names of the respondents were recorded as protected tenants in the record of rights of 1959-60 and in the subsequent Jamabandi as well and the entry made in the Jamabandi could not have been corrected in 1972 by ‘Fard Badar’ without passing a formal order of mutation as required under Standing Order 22. It is also submitted that any entry made in the record of rights cannot be corrected without passing the order of mutation. It is also pointed out that a statutory presumption is attached to an entry made in the record of rights under Section 31 of the Land Revenue Act and the same can only be assailed by way of a suit under Section 32 of the Act. It is further submitted that the appellant Trust had never challenged the entry made in favour of the respondents in record of rights of 1959-60 and therefore, the order passed by the learned single Judge is perfectly just and legal and does not call for any interference. 6. We have considered the submissions made by learned counsel for the parties and have perused the record. Admittedly, in pursuance of the Government Order No.LD-B/8/C of 1957 dated 15.11.1987, the respondents were treated as protected tenants from 1955, which is reflected from the record of rights of 1959-60, wherein the respondents have been described as protected tenants. Section 31 of the Land Revenue Act provides that the entries made in the record of rights shall be presumed to be true unless contrary is proved. Section 32 of the Land Revenue Act provides for the remedy for questioning the entries made in the records of rights. Thus, the correctness of the entries made in the record of rights can only be assailed by way of suit under Section 32 of the Act as provided under the Land Revenue Act. 7. It is pertinent to mention that entry made in the records of rights cannot be corrected by way of ‘fard badar’ which is meant to correct a clerical and accidental error in the revenue record. 7. It is pertinent to mention that entry made in the records of rights cannot be corrected by way of ‘fard badar’ which is meant to correct a clerical and accidental error in the revenue record. In case, the entry in favour of the respondents has been made dehors the procedure prescribed under the provisions of the Tenancy Act and the same is nullity and is void, it would be open to the appellant to file a suit to seek a declaration that the aforesaid entry is null and void. It is well settled in law even if an order is null and void, the same is binding inter parties until and unless it is challenged in a forum. (See. State of Kerala vs. M. K. Kunhikannan Nambiar Manjeri Manikoth, Naduvil (Dead) and Ors, 1996 (1) SCC 435 ). The question whether the entry has been made in favour of the respondents by taking recourse to the procedure prescribed under the provisions of the Land Revenue Act or dehors the Land Revenue Act or are in flagrant manner, requires factual adjudication which cannot be gone into in summary proceeding in a writ petition and the same requires to be proved by adducing evidence. Therefore, in view of the aforesaid enunciation of law, the appellant is at liberty to challenge the entry made in favour of the respondents by way of a civil suit. In the alternative, since according to the appellant, it derived knowledge about the entry made in favour of the respondents for the first time in the year 1972 when it approached the Tehsildar for making correction of the record of rights by ‘fard badar’ and thereafter the appellant has been continuously litigating before this Court, in our considered opinion, the appellant would also be entitled to challenge the entry made in favour of the respondents by way of proceeding under Section 32 of the Land Revenue Act and the bar of limitation would not apply in case of the appellant in the fact and circumstances of the case and even though principles of Section 14 of the Limitation Act, 1963 do not apply in respect of proceeding under the Land Revenue Act yet the principle governing the provision may apply. 8. To the aforesaid extent, the order passed by the learned Single Judge is modified. Accordingly, the appeal is disposed of.