Atta Mohd. Katoch vs J&K Special Tribunal

Mr. Dhiraj Singh Thakur, J. - This Letters Patent Appeal has been preferred against the judgment and order dated 6.9.2002 passed in writ

petition being OWP No. 612/2002 whereby the petition filed by the appellant-petitioner has been dismissed.

With a view to understand the controversy in its correct perspective, it is, however, necessary to give in brief a few material facts:

Vide mutation No. 936, dated 28.7.1981, the Tehsildar, Banihal ordered correction of Girdawari (Sehat kashat) in favour of one Habib Ullah,

father of the petitioner/ appellant herein, in respect of land measuring 1 maria under Khasra No. 66 and 1 maria under Khasra No. 1088/67 min

situated at Ramsoo Tehsil Banihal

As a necessary consequence: of the mutation No. 936 (supra), another mutation No. 1077 was attested in respect of the same land under

Section 6 of the Jammu and Kashmir Agrarian Reforms Act, 1976 (for short, Act of 1976) and finally vide mutation No. 1078, father of the

appellant (Habib Ullah) was declared as absolute owner of the land under Section 8 of the Act of 1976.

Aggrieved of the mutation No. 936, an appeal was preferred before the Joint Agrarian Reforms Commissioner, Jammu after a lapse of four

years and ten months of the date of the aforesaid mutation. This was subsequently transferred to the Deputy Commissioner, Doda, who was

vested with the powers of the Commissioner Agrarian Reforms. Subsequently, it appears that the said powers of Joint Agrarian Reforms

Commissioner were delegated to the Additional Deputy Commissioner, Ramban, who vide its order dated 29.07.1997 allowed the appeal and set

aside the mutation No. 936.

The reasons for allowing the appeal were firstly that the mutation had been attested without affording any opportunity of being heard to the

respondents herein and secondly, that the mutation was contrary to the provisions of the Agrarian Reforms Act inasmuch as the land in question

was Gair Mumkin i.e. uncultivable land, therefore, outside the purview of the Act.

Aggrieved of the order dated 29.07.1997, revision came to be preferred before the J&K Special Tribunal inter alia on the ground that Habib

Ullah predecessor-in-interest of the petitioner had died and that the appeal was decided without bringing on record the appellant herein, as his legal

heir on record and without affording any opportunity of being heard to such legal heirs. It was stated that Habib Ullah had died on 18.02.1997

oven before the order was passed without any stops having been initiated to bring on record his legal heirs.

The Tribunal, held that the order passed by the Additional Deputy Commissioner, Ramban was one against a dead person and, therefore, not

sustainable in the eyes of law and also being satisfied that there being no condonation of delay application filed by the appellant despite there being

a delay of four years and ten months, held the order passed by the Appellate Authority dated 29.07.1997 as bad in law. However, at the same

time, it remanded the case to the Tehsildar Banihal for conducting a denovo inquiry regarding the nature of land as also possession thereon during

the period of Kharif 1971 after providing an opportunity of being heard to all the parties concerned on the ground that the provisions of the

Agrarian Reforms Act did not apply to the land in respect of which mutation under Section 4 had been attested and further that it had not been

attested in accordance with the provisions, governing attestation of such mutations.

The Tribunal by virtue of the same order dealt with and decided another revision petition filed in the Tribunal against the order of Joint Agrarian

Reforms Commissioner dated 3rd May, 1998 passed in appeal titled ""Ghulam Nabi & Ors v. Atta Mohammad & Ors"" in which appeal,

mutation Nos. 1077 & 1078 had been challenged under Sections 6 & 8 of the Act of 1976 and pertained to the same land in regard to which

mutation No. 936 had also been attested.

The basis of challenge in the aforementioned revision petition filed by Atta Mohammad, the appellant herein, was on the question of jurisdiction

to the extent that the Additional Deputy Commissioner with powers of Agrarian Reforms Commissioner, Ramban did not possess the jurisdiction

to hear appeals. The Tribunal recorded a finding that the Joint Agrarian Reforms Commissioner did not exercise its jurisdiction in accordance with

Order 7, Rule 10 of Code of Civil Procedure as the Appellate Authority did not have the jurisdiction to pass the order impugned and consequently

set aside the said order. However, even then the Tribunal set aside the aforementioned order in regard to mutation Nos. 1077 & 1078, being

satisfied that the said mutations were natural corollaries of mutation No. 936 and pertained to the same land. The Tribunal while remanding the

case to the Tehsildar, Banihal issued a direction to examine afresh the said two mutations after providing an opportunity of being heard to all the

parties concerned.

Being aggrieved of the order passed by the Tribunal, the appellant filed a petition before a Single Bench of this Court, urging therein that once

the Tribunal had set aside the order of the appellate authority on the ground that the same had been passed against a dead person then the matter

should have been left to the decision of the appellate authority and mutation No. 936 should not have been quashed. Additionally that once the

Tribunal in regard to mutation Nos. 1077 and 1078 had held that appellate authority i.e. Joint Agrarian Reforms commissioner had no jurisdiction

to hear the appeal then it ought not to have set aside the said mutations and the correct procedure to adopt was to follow Order 7, Rule 10 of the

Civil Procedure Code.

Heard learned counsel for the parties.

It is true that an appeal preferred against a mutation No. 936 was filed belatedly without there being any application for condonation of delay.

It was also admitted that the order of the appellate authority dated 29.7.1997 was passed against a dead person, yet the Tribunal remanded the

matter to the Tehsildar. While the Tribunal could have remanded the case back to the appellate authority to decide those issues afresh but nothing

prevented the tribunal in law being a revisional authority to remand the matter to the Tehsildar for consideration of the issue afresh after conducting

a denovo enquiry regarding the nature of the land and the possession thereupon during the period of Kharif 1971.

The powers of revision earlier available to the Revenue Minister in terms of Section 21 of the Agrarian Reforms Act, 1976 are now exercised

by the Tribunal in terms of the provisions of the Jammu and Kashmir Special Tribunal Act, 1988. According to Section 21 of the Act 1976, the

Revisional authority has the power to exercise revisional jurisdiction if it finds that a question of law or public interest is involved in the case.

Applying the provisions of the Agrarian Reforms Act to a piece of land, which does not at all attract the provisions of the Act or attesting a

mutation contrary to the provisions prescribed for attestation of such mutations does involve a question of law and to that extent, there was nothing

wrong in the revisional authority exercising its revisional jurisdiction and remanding the matter back to the Tehsildar to conduct a denovo enquiry.

Since mutation Nos. 1077 and 1078 were a necessary consequence and a fall out of the mutation No. 936, it appeals to logic that the said

mutations too are set aside with fresh orders to be passed upon a denovo enquiry.

We cannot persuade ourselves to take a view different from the one taken by the writ court. Consequently, the present Letters Patent Appeal

is found to be without merit and is accordingly dismissed along with connected application. It is, however, made clear that the Tehsildar on remand

of the case shall pass appropriate orders uninfluenced by the observations made by the Tribunal in regard to the mutations in question.