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2017 DIGILAW 826 (JK)

Munshi Khan v. Chairman, J&K Special Trinunal

2017-09-11

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Alok Aradhe, J In this appeal, the appellants have assailed the validity of order dated 26.11.2009 passed by the learned Single Judge in exercise of power under section 104 of the Constitution of State of Jammu and Kashmir, by which writ petition preferred by the appellants against order of the Jammu and Kashmir Special Tribunal, Jammu has been dismissed. In order to appreciate the appellants' challenge to the impugned order, few facts need mention which are stated infra. 2. Respondents 3 & 4 were owner of the land admeasuring 12 kanals 17 marlas farming part of survey No. 873, situate at village, Kewal Tehsil Kotranka. The aforesaid land was purchased by their father, Khushi Mohd from the original owner, namely, Shri Randhir Singh about 40 years back. The aforesaid Khushi Mohd had died in early sixties leaving behind his two minor sons, namely, respondents Nos. 3 & 4. After the death of Khushi Mohd, one Ahmad Din was in cultivating possession of land in dispute, who was a Patwari. The aforesaid Ahmad Din manipulated Tarq Kasht mutation No. 394 in favour of his three sons, namely, Manzoor Ahmad, Shamim Ahmad and Abdul Shakoor and subsequently transferred the aforesaid land in favour of Munshi Khan and Talab Hussain. However, their names were not entered in the revenue records. As per Khasra Girdawari for the year Kharief 1971, respondent No. 3 is shown to be owner and in cultivating possession of the land in dispute as one of the owners. Thereafter, Manzoor Ahmad, Shamim Ahmad, and Abdul Shakoor have been shown in possession of the land in equal shares through a mutation attested by the Tehsildar, Kotranka on 29.12.1978. Thereafter, the Tehsildar attested mutation No. 454 under section 4 on 17.02.1982 and mutation No. 541 under section 8 of the J&K Agrarian Reforms Act, 1976 on 21.12.1982 in favour of the sons of Ahmad Din. 3. Respondent No. 3 being aggrieved, filed an appeal before the Additional Deputy Commissioner, Rajouri, who after hearing the parties, set aside orders of mutations and remanded the matter to the Assistant Commissioner (Revenue) Rajouri for holding a fresh inquiry on spot. The Assistant Commissioner, Rajouri thereafter held an inquiry and fresh mutation No. 1017 was attested in favour of the State and mutation No. 1018 was attested in favour of the appellants. The Assistant Commissioner, Rajouri thereafter held an inquiry and fresh mutation No. 1017 was attested in favour of the State and mutation No. 1018 was attested in favour of the appellants. Being aggrieved, the respondents 3 & 4 filed an appeal before the Financial Commissioner, (revenue) Jammu, who vide order dated 29.05.2004 dismissed the appeal. The aforesaid order was challenged by respondent Nos. 3 & 4 before the J&K Special Tribunal, Jammu in a revision. The Tribunal vide order dated 09.03.2007 allowed the revision. The aforesaid order of the Tribunal was challenged before the learned Single Judge. The learned Single Judge vide impugned order dated 26.11.2007 dismissed the writ petition preferred by the appellants. In the aforesaid factual background, the appellants have filed this Letters Patent Appeal. 4. Learned counsel for the appellants submitted that learned Single Judge ought to have appreciated that the Assistant Commissioner (Revenue) Rajouri after affording opportunity of hearing to respondents 3 & 4 and after recording their evidence by an order dated 23.10.2002 had attested the mutation in favour of the appellants. It is further submitted that there is no violation of standing order 23-A as respondent Nos. 3 & 4 were afforded opportunity of hearing. It is further submitted that respondents 3 & 4 were in cultivating possession of the land in the year Kharief 1971, therefore, their right, if any, in the land in question extinguished. It is also submitted that the revisional jurisdiction could have been exercised by the J&K Special Tribunal only on the question of law or of public interest. In support of the aforesaid submissions, he has referred to the decisions of the Division Bench of this Court in the cases of Gori Shanker vs. Mangoo Ram and others, 2004(II) SL.J, Garib Dass vs. Tehsildar Kathua and ors. LPAOW No. 193/2001 decided on 30.05.2013, Permanand vs. J&K Special Tribunal Jammu, 1999 SLJ 245, and Rashid Sheikh vs State and ors, 2010(3) JKJ 752 . 5. On the other hand, learned counsel for the respondents has supported the order passed by the learned Single Judge and has submitted that order impugned does not suffer from any infirmity warranting interference by this Court. 6. We have considered the submissions made by the learned counsel for the parties and have perused the record. 5. On the other hand, learned counsel for the respondents has supported the order passed by the learned Single Judge and has submitted that order impugned does not suffer from any infirmity warranting interference by this Court. 6. We have considered the submissions made by the learned counsel for the parties and have perused the record. The J&K Special Tribunal Jammu in its order dated 09.03.2007 has recorded its finding that the possession of respondent No. 3, namely, Mohd Amin as one of the owners was recorded in the Girdawari for the year Kharief 1971. It is also pertinent to mention that the aforesaid entry which is also recorded in the jamabandi 1971-72 has not been challenged by the appellants. The Assistant Commissioner (Revenue) Rajouri without there being any material on record has attested the mutation in favour of the sons of Ahmad Din, who was a Patwari of the village. From the order passed by the Assistant Commissioner (Revenue), it is evident that no relationship of landlord and tenant existed between the parties and if the relationship of landlord and tenent did not exists, thus it is beyond comprehension as to how mutation No. 1017 was attested under Section 4 of the Agrarian Reforms Act, 1976 when the appellants were never tenants of the respondents 3 & 4. 7. It is also pertinent to mention that two orders have been passed in respect of mutation No. 1017, which defies logic. It is also pertinent to mention that though presence of respondents 3 & 4 had been shown by the Assistant Commissioner (Revenue) Rajouri while attesting the mutation No. 1017 but their signatures are absent, which shows that mutation had been attested behind their back. It is also pertinent to mention that while attesting mutation No. 1018, two days after attesting mutation No. 1017, appellant Munshi Khan has stated that levy was deposited by Shamim Ahmad S/o Ahmad Din with the Tehsildar and if levy had been deposited by Shamim Ahmad then, how the mutation under Sections 4 & 8 of the Act had been attested in favour of the appellants by the Assistant Commissioner (Revenue) Rajouri. Thus, by assigning valid and cogent reasons, J&K Special Tribunal, Jammu on question of law has set aside the order passed by the appellate authority, which has been affirmed by the learned Single Judge. Thus, by assigning valid and cogent reasons, J&K Special Tribunal, Jammu on question of law has set aside the order passed by the appellate authority, which has been affirmed by the learned Single Judge. The order passed by the learned Single judge does not suffer from any error apparent on face of record. No relief can be granted to the appellants. The learned Single Judge while dismissing the writ petition has expressly observed as below: "For all what has been said above, I do not find any merit in this petition justifying interference in the Tribunal's order in exercise of jurisdiction under section 104 of the Constitution of Jammu and Kashmir. This petition is, accordingly, dismissed.” 8. Thus, it is evident that learned Single Judge has passed the order which has been impugned in this appeal in exercise of power under section 104 of the Constitution of State of Jammu and Kashmir. The Division Bench of this Court in the case of the J&K Cooperative Bank v. Shams-ud Din Bacha, AIR 1970 J&K 190 has held that LPA is not maintainable against an order passed in exercise of jurisdiction under section 104 of the Constitution of Jammu and Kashmir. Similar view has been taken by another Division Bench of this Court in the case of Board of Directors, JCCB ltd. vs. Registrar Cooperative Societies and ors. 2015 (2) JKJ 253 (HC). Therefore, on this ground also no relief can be granted to the appellants as appeal filed by the appellants is not maintainable. 9. In the result, appeal fails and the same is hereby dismissed.