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2020 DIGILAW 727 (JK)

Ahmad Sofi v. Union Territory of J&K

2020-12-31

SANJEEV KUMAR

body2020
Judgment Sanjeev Kumar, J.—Shamboo Nath, the respondent No.4, was recorded owner in possession of land measuring 15 kanals and 10 marlas (subject land) falling under Khasra No.398, 400, 403, 558 and 560/1 situated at Village Malmooh Pattan. He was also shown in cultivating possession of the subject land in Kharief 1971. It is also claimed by the respondent No.4 that apart from the Girdawari entries recorded in his name, all along he was actually cultivating the subject land till the year 1990 when he had to migrate from the Valley due to law and order situation. Somewhere in the year 2012, he came to know that the petitioners have occupied the subject land and have been cutting the fruit bearing and other trees standing thereon. On enquiry, the respondent No.4 claims, he found that a mutation of ownership under Section 8 of the J&K Agrarian Reforms Act, 1976 [“the Act of 1976”] had been attested in favour of the petitioners. 2. Feeling aggrieved and after obtaining certified copy of the impugned mutation bearing No.499 dated 4th of August, 2003, attested by Tehsildar, Pattan, the respondent No.4 filed an appeal before the Commissioner, Agrarian Reforms (Financial Commissioner, Revenue), Jammu and Kashmir. The appeal was contested by the petitioners on the ground that the Girdawari entry with regard to personal cultivation of respondent No.4 recorded for Kharief, 1971 and thereafter was factually incorrect and stood corrected by the competent authority. It was the further stand of the petitioners that based on the correction of Girdawari entry supra, Tehsildar, Pattan, had also attested mutation No.318/1 on 16th of June, 1969, under Section 4 of the Act of 1976. The Appellate Authority after considering the rival contentions and having gone through the revenue record came to be conclusion that mutation No.318/1 attested purportedly under Section 4 of the Act of 1976 on 16.06.1989 was shrouded in suspicion. The Appellate Authority was of the prima facie view that the mutation under Section 8 of the Act of 1976, had been attested by the Tehsildar concerned without attesting mutation under Section 4 of the Act and what was relied upon and referred to in the order of mutation attested under Section 8 of the Act of 1976, was only a mutation of “Sehat Kasht”. On the basis of these conclusions, the Appellate Authority set aside both mutations and remanded case back to Tehsildar concerned for de-novo enquiry and further appropriate action in the matter. 3. Aggrieved, the petitioners herein approached the J&K Special Tribunal by way of a revision petition. The J&K Special Tribunal too concurred with the view taken by the Commissioner Agrarian Reforms (Appellate Authority) and, accordingly, dismissed the revision petition observing that the parties were free to agitate their contentions before the Tehsildar concerned who shall conduct a discreet enquiry into the matter keeping in view the background details of the case, revenue records and shall pass appropriate orders after affording opportunity of being heard to all stakeholders. This was done by the J&K Special Tribunal vide its order and judgment dated 28th of February, 2019. It is this order of the Tribunal along with order of the Appellate Authority supra, the petitioners are aggrieved of and have filed the instant petition to assail the same. 4. It is contended by the learned counsel for the petitioners that the orders passed by the Appellate Authority as well as the Revisional Authority, impugned in this petition, are not sustainable in law, in that, the Appellate as well as Revisional Authority failed to appreciate that challenge to mutation attested under Section 8 of the Act of 1976 was not maintainable in the absence of a specific challenge made to mutation attested under Section 4 of the Act. He submitted that a mutation under Section 8 was only by way of a follow up of the mutation under Section 4 of the Act. It is further submitted that the petitioners were all along tenants in cultivating possession of the subject land but inadvertently the correct position had not been reflected in Khasra Girdawari, particularly in the Khasra Girdawari of Kharief, 1971. When this fact was brought to the notice of competent authority, “Sehat Kasht” mutation was attested and petitioners were reflected in cultivating possession of the subject land as tenant thereof in Kharief, 1971 as well and it is because of this reason, the petitioners became entitled to conferment of ownership rights in terms of Section 8 of the Act of 1976. 5. 5. It is also urged that the Appellate Authority as well as Revisional Authority un-necessarily entertained a suspicion with regard to genuineness of mutation No.318/1 on the ground that the serial number given to the mutation attested under Section 4 was a divisible serial number having no sanction by Standing Order 23-A. It is submitted that pursuant to the directions of the Appellate Authority, an enquiry was conducted by the Tehsildar, Pattan, who found nothing wrong with the mutation, suspected by the Appellate Authority to be not genuine. 6. Per contra, Mr. Shafqat Nazir, learned counsel representing respondent No.4, contends that as per Standing Order 23-A, all the mutations attested during a year are given continuous and whole serial number and fraction is unknown to the procedure laid down in Standing Order 23-A. He, therefore, submits that both the authorities, Appellate as well as Revisional Authority, were correct in viewing the mutation No.318/1 of 1989 as suspicious and not genuine. On merits, learned counsel for respondent No.4 argues that as per the revenue record maintained by Tehsildar, Pattan, the respondent No.4 has all along been reflected as owner in cultivating possession of subject land and, therefore, correction of the Girdawari entries, particularly that of Kharief, 1971, was unauthorized, uncalled for and in violation of principles of natural justice. He further urges that mutations under Section 4 and 8 of the Act of 1976 were attested at the back of respondent No.4 without affording him an opportunity of being heard. The Appellate as well as Revisional Authority, thus, very correctly held the same bad in the eye of law and set aside the same. 7. Learned counsel for the respondent No.4 further argues that the orders impugned in this writ petition have not determined any of the rights of the parties, in that, the matter has been remanded back to the Tehsildar for de-novo enquiry where both the sides will have ample opportunity to put up and prove their case. 8. Having have heard learned counsel for the parties and perused the record, I am of the considered view that the orders of Appellate as well as Revisional Authority are in complete harmony with law and, therefore, deserve to be sustained. 8. Having have heard learned counsel for the parties and perused the record, I am of the considered view that the orders of Appellate as well as Revisional Authority are in complete harmony with law and, therefore, deserve to be sustained. Admittedly, the respondent No.4 is owner of the subject land and has been shown in self cultivation in Kharief, 1971, which is a crucial date for determining rights of the parties. 9. In terms of Rule 3 of the J&K Agrarian Reforms Rules, 1977 [“the Rules of 1977] record of personal cultivation in the form of entries in Khasra Girdawari shall be presumed to be correct unless varied or amended in accordance with the provisions of Rule 4. For facility of reference, Rule 3 and Rule 4 of the Rules of 1977 are reproduced here-under: 3. Record of personal cultivation— Subject to the provisions of rule 4, entries in khasra girdawari, including those verified or amended and authenticated under the earlier rules, shall be the record of personal cultivation of land. 4. Disputes relating to girdawari entries— (1) Where, in the course of attestation of mutations under Chapter IV, any party objects to the correctness of an entry in the khasra girdawari (whether made under the earlier rules or Standing Order No. 22), a Revenue Officer, not below the rank of Tehsildar, shall, subject to the provisions of sub-rules (2), (3) and (4) and after giving an opportunity of being heard to all the concerned, conduct an enquiry on spot in respect of such mutation and give his finding thereon either confirming the impugned entry or indicating what entry should be made. (2) Where the impugned entry mentioned in sub-rule (1) has been made by or under the order of a Tehsildar or a Revenue Officer of a higher class, the Tehsildar disposing of a mutation under Chapter IV shall act on the basis of such entry, it being open to the party aggrieved by it to object to the entry in an appeal against the final order passed on such mutation. (3) Where, in the course of enquiry under the foregoing sub-rules, objection raised against an entry relating to personal cultivation is admitted by the party in whose favour such entry is made, the Revenue Officer shall, before accepting such objection and admission, record his finding and the reasons therefor that such objection and admission are not a device to defeat the provisions relating to restrictions on alienation of land provided by the Act. (4) Nothing herein contained shall empower any Revenue Officer to pass, or to act upon any order directing an entry relating to rent otherwise than in accordance with the provisions of the Jammu and Kashmir Tenancy Act, Samvat 1984. 10. A conjoint reading of aforesaid two Rules make it crystal clear that ordinarily the Girdawari entries including the entry with regard to personal cultivation in Kharief 1971 are required to be accepted and the rights of the parties determined accordingly. However, if during the course of attestation of mutation under Chapter IV of the Rules, any party objects to the correctness of an entry in Khasra Girdawari, the Revenue Officer not below the rank of Tehsildar shall, after giving an opportunity of being heard to all concerned, conduct an enquiry on spot and give his finding therein either confirming the impugned entry or indicating what entry should be made. It is only when such entry is affirmed or varied by or under the order of Tehsildar or a Revenue Officer of higher class, the Tehsildar disposing of a mutation under Chapter IV shall proceed on the basis of such entry and the party aggrieved shall have a right to object to such entry in an appeal filed against the final order passed on such mutation. The procedure for attestation of mutation under Chapter IV of the Rules of 1977 is elaborately provided from Rule 10 to Rule 14A. 11. From the aforesaid discussion it is evident that Khasra Girdawari entries are the conclusive evidence of personal cultivation subject only to their correction by the competent authority in terms of Rule 4. No Girdawari entry with regard to personal cultivation shall be varied or amended without holding an enquiry on spot and giving an opportunity of being heard to all the concerned. No Girdawari entry with regard to personal cultivation shall be varied or amended without holding an enquiry on spot and giving an opportunity of being heard to all the concerned. Obviously the person who has been shown in personal cultivation in Kharief, 1971, is a vital stakeholder in the proceedings undertaken by the Revenue Officer under Rule 4 of the Rules of 1977. In the case on hand, indisputably the respondent No.4 was never provided an opportunity of being heard. 12. Mutation attested under Section 4 is found to be suspicious by both Appellate and the Revisional Authority constituted under the Act of 1976. The mutation No.318/1 attested, purportedly, under Section 4 of the Act has been doubted by the authorities, primarily, on the ground that in terms of Standing Order 23-A, the serial numbers to be given to the mutation are to be a whole number and fraction only suggests that the mutation has been attested later on and may be after the attestation of mutation under Section 8 of the Act. 13. Rule 2 of Standing Order 23-A speaks about disposal of counterfoil mutation registers and provides that each Patwari shall be supplied with a register consisting of a foil and a counterfoil for each estate under him. The counterfoil and foil sheet shall be numbered in the Press from 1 to 25 to 50 or to 100 according to the necessity of each estate. The numbering of the sheets shall be continuous on both foil and the counterfoil. Similarly, Rule 9 mandates that serial number of mutation cases for each village should be continuous for the whole term of Settlement and each case should be given a separate serial number. 14. A plain reading of Rule 2 conjointly with Rule 9 makes it evident that the serial numbers to be given to the mutations are to be whole number and there cannot be a fraction. In the instant case, the serial number given to mutation attested under Section 4 is ;318/1’, that means the mutation has been attested between serial No.318 and 319, which really puts the mutation in the realm of suspicion. In the instant case, the serial number given to mutation attested under Section 4 is ;318/1’, that means the mutation has been attested between serial No.318 and 319, which really puts the mutation in the realm of suspicion. This also substantiates the plea of respondent No.4 that when he came to know that the subject land has been occupied by the petitioners, he could only obtain a mutation attested under Section 8 of the Act and could not lay his hands in the revenue records on mutation No.318/1 attested, purportedly, under Section 4 of the Act. In these circumstances, the consistent and concurrent view taken by the Commissioner Agrarian Reforms and the J&K Special Tribunal cannot be found fault with. 15. For the foregoing reasons, this Court is not inclined to interfere with the impugned orders. The writ petition is, accordingly, dismissed. Interim directions, if any, shall stand vacated.