Baboo Ram vs The Financial Commissioner and others

Jaswant Singh, J.—This letters Patent appeal which is directed against the judgment and order dated November 20, 1969. of Hon'ble Bhat,

J. dismissing the writ petition No. 263 of 1969 filed by the petitioner challenging the order dated February 26, 1967. of the Financial

Commissioner, has been referred to Full Bench by a Division Bench of this Court, as it raised important questions relating to the extent of revisional

powers of the Financial Commissioner u/s 86 of the Jammu and Kashmir Tenancy Act read with Section 15 of the Land Revenue Act. 1996, and

the manner of the relinquishment of a tenancy by a tenant other than a fixed term tenant. For a proper appreciation of the questions involved in this

appeal, it is necessary to give a resume of the facts which have led to this appeal.

The appellant who is a proprietor of land measuring 51 kanals and 3 marlas comprised in Khasra Nos. 696, 699, 970, 971, 972, 974, 982,

983, 984, 985, 986 and 988 and 989 situate in village Bamnal. Tehsil Ranbirsinghpur, filed on November 7, 1963 an application before the

Collector, Jammu. u/s 46 of the Tenancy Act for ejectment of respondents Nos. 2 to 4 alleging inter alia that respondent No. 2 who was initially a

protected tenant surrendered his protected tenancy rights by an oral notice and entered into a fresh agreement with him for cultivation of the land as

a tenant at will along with respondents 3 and 4.

The application was resisted by the said respondents averring inter alia that respondent No. 2 being the Karta of the Joint Hindu Family of

which respondents Nos. 3 and 4 were coparceners, had been in continuous cultivating possession of the land as a protected tenant in his capacity

as Karta of the joint Hindu family. The plea of the appellant that there was a surrender of the protected tenancy rights by respondent No. 2 and a

fresh agreement between him and respondents Nos. 2 to 4 for cultivation of the land was also denied by the respondents.

The Assistant Commissioner, Jammu. to whose file the case was transferred, allowed the application on March 16, 1965. holding that

relinquishment of the tenancy by oral notice as contemplated by Section 41 of the Tenancy Act was established by an entry made by the Patwari in

his Roznamcha Waqiatia. Aggrieved by the decision of the Assistant Commissioner respondents Nos. 2 to 4 filed an appeal before the Collector,

Jammu. who unfortunately under a misconception of the true legal position treated the application as a suit for resumption of the land on the ground

of Personal cultivation and held that the appeal had abated. This order was passed by the Collector on December 13, 1965. The said respondents

thereupon made an application to the Collector on March 19, 1966, requesting him to review his earlier order dated December 13, 1965. but

ultimately on their representation that they did not want to pursue the matter the review application was dismissed on April 22, 1966. After the

order of the Collector holding that the appeal filed before him by the said respondents had abated the appellant applied to the Collector on

December 24, 1965, for execution of the decree passed in his favour by the Assistant Commissioner. On the application being transferred by the

Collector to the Assistant Commissioner the latter filed the same on May 17. 1966, observing that as proceedings had been declared in appeal by

the Collector to have abated no further action could be taken in pursuance of the original decree. Feeling however that the order dated December

13, 1965, of the Collector suffered from an error apparent on the face of it, he made a reference to the former requesting him to review his

predecessor's order dated December 13, 1965. Thereupon the Collector sought the permission of the Divisional Commissioner for review of his

predecessor's order. As however, the parties opposed the reference the Divisional Commissioner refused to grant the permission sought by the

Collector. Thereafter the appellant preferred an appeal against the Assistant Commissioner's order dated May 17, 1966, refusing to execute the

decree for ejectment of respondents Nos. 2 to 4. This appeal was dismissed by the Collector on June 9, 1967. on the ground that the parties not

having availed of the right of appeal against his earlier order the appeal could not be entertained. Against this order the appellant filed an appeal

before the Divisional Commissioner. The Divisional Commissioner treating the appeal as revision made a report to the Financial Commissioner on

December 23, 1967 recommending that the order of the Collector dated December 13, 1965. which proceeded on the erroneous assumption that

the case came under the purview of the Jammu and Kashmir Tenancy Amendment Act. 1965, and which had also mislead respondents Nos. 2 to

4 should be set aside and he should be directed to dispose of afresh according to law the appeal preferred before him by respondents Nos. 2 to 4.

The Divisional Commissioner also recommended that the orders passed by the Assistant Commissioner on May 17, 1966. and on appeal by the

Collector on June 9, 1967, refusing to execute the decree may also be vacated. On the matter coming up before the Financial Commissioner he

dismissed the application for ejectment of respondents Nos. 2 to 4 by his order dated February 26, 1969. He also set aside the entire proceedings

commencing with and subsequent to the first appellate order of the Collector observing that the officers below had exhibited an utter lack of

understanding and knowledge of the law. While disposing of the reference he made the following observations:-

The Assistant Commissioner had by deciding the original application ignored the fact that relinquishment of cultivation by an occupancy or

protected tenant, even though it can be made orally, cannot be given effect to, except after an order is obtained from the competent Revenue

Officer on a regular mutation entered for this purpose. As no mutation of 'tark-i-kasht' had been entered, the status of Baldev Raj as a protected

tenant persists, notwithstanding entries to the contrary made by the Patwari on his own in Roaznamcha-waqiati or in Khasra girdawari.

x x x x

Baldev Raj has been entered as a protected tenant in the Khasra Girdawari in 1958 and in earlier years. That status could only be changed on the

basis of a mutation order"".

Aggrieved by this order the appellant filed on April 26, 1969, a petition u/s 103 of the Constitution of Jammu and Kashmir challenging inter alia

the interpretation placed on Section 41 and other provisions of the Tenancy Act. Hon'ble Bhat, J. who heard the petition, however, dismissed it

holding that the finding of fact arrived at by the Financial Commissioner that a fictititious entry at the instance of Baboo Ram had been made in the

Roznamcha Waqiati appeared to be correct. Aggrieved by this judgment, the appellant came up in appeal to this Court which as already stated has

been referred to this bench.

Two questions arise for consideration before us, firstly, as to whether the revisional powers of the Financial Commissioner under the Tenancy

Act are unfettered or are circumscribed by the same consideration as are contained in Section 115 of the Code of Civil Procedure. Secondly

whether the relinquishment of tenancy by a protected tenant can be made by means of an oral notice or a mutation of 'Tark Kasht' by such a tenant

should be entered and attested by a competent revenue authority as held by the Financial Commissioner.

For a proper determination of the first point it is necessary to refer to Section 86 of the Jammu and Kashmir Tenancy Act. 1980, which is in

these terms:

Administrative control, appeal, review and revision:-

In regard to all matters relating to:

(a) x x x x

(b) x x x x

(c) x x x x

(d) x x x x

(e) x x x x

(f) revision of proceedings, order or decree of a Revenue Officer or Revenue Court:

the provisions of the Jammu and Kashmir Land Revenue Act. 1996, shall apply to the proceedings, decrees or orders of Revenue Officers,

whether exercising jurisdiction as such or as Revenue Courts under this Act.

xx xx xx xx

As the above provision makes the provisions of the Jammu and Kashmir Revenue Act. 1996 applicable to revisions against proceedings, decrees

or orders of Revenue Officers whether exercising jurisdiction as such or as Revenue Courts under the Tenancy Act. We shall have to examine the

provisions contained in Section 15 of the Land Revenue Act to find out the extent of the revisional jurisdiction of the Financial Commissioner. The

Section reads:

15 (1) The Financial Commissioner may at any time call for the record of any case pending before or disposed of by any Revenue Officer under

his control;

(2) The Commissioner may call for the record of any case pending before or disposed of by, any Revenue Officer subordinate to him;

(3) If in any case in which, the Commissioner has called for a record he is of opinion that the proceedings taken or order made should be modified

or revised, he shall report that case with his opinion thereon for the orders of the Financial Commissioner;

(4) The Financial Commissioner may, in any case called for by him under subsection (1) or reported to him under subsection (3), pass such order

as he thinks fit.

Provided that, he shall not under this section pass an order reversing or modifying any proceeding or order of a subordinate officer affecting any

question of right between private persons without giving those persons an opportunity of being heard"".

A combined reading of S. 86 of the the Tenancy Act and Section 15 of the Land Revenue Act would make it clear that the powers of Financial

Commissioner to interfere in revision are very wide and extensive. Unlike the powers of his counterpart in Punjab, the powers enjoyed by the

Financial Commissioner under the Tenancy Act in force in our State are not subject to the limitations and restrictions contained in Section 115 of

Civil P. C. Sitting on the revisional side it is open to him to pass any order which he may deem proper in the circumstances of a case.

While interpreting the provisons of Section 27 of the Administration of Evacuee Property Act. 1950, which, are more or less analogous to those

of Section 15 of our Land Revenue Act, their Lordships of the Supreme Court observed in Indira Sohanlal Vs. Custodian of Evacuee Property,

Delhi and Others, :

Section 27 is very wide in its terms and it cannot be construed as being subject to any limitations such as filing of an appeal. Nor can the scope of

re visional powers be confined only to matters of jurisdiction or illegality, because u/s 27 the Custodian General can exercise revisional powers for

the purpose of satisfying himself as to ""the legality or propriety"" of any order of the Custodian"".

It would also be useful to refer to the following observations made by a bench of the Madhya Pradesh High Court, in Premchand Lalchand v.

State of Madhya Pradesh. AIR 1958 Madh Pra 68 while interpreting the provisions of the above noted Section of the Administration of Evacuee

Property Act:-

These powers are not less than appellate powers; in fact, if anything, they are more extensive than ordinary appel, late powers as they are

understood. These powers cannot by any stretch of reasoning be equated to the powers exercised by the High Court under S. 115 of the Civil P.

C.

It Is thus crystal clear that the powers of the Financial Commissioner in any case called for by him or reported to him are unlimited and are not

circumscribed by the same considerations as are contained in Section 115 of the Code of Civil Procedure.

The next question that falls for decision is whether the relinquishment of tenancy by a protected tenant cannot be given effect without obtaining

an order from competent revenue officer on a regular mutation entered for the purpose, as held by the Financial Commissioner. It is necessary in

this connection to refer to Sections 40 and 41 of the Jammu and Kashmir Tenancy Act which are to the following effect:-

Relinquishment by tenant for a fixed term:-

A tenant holding for a fixed term under a contract or a decree or order of competent authority may relinquish his tenancy without notice at the end

of the term.

Relinquishment by any other tenant:- (1) Any other tenant may relinquish his tenancy by giving orally or in writing to his landlord, or to his

landlord's agent on or before the date fixed by Appendix B of this Act. notice of his intention to relinquish the tenancy after the harvesting of the

current crop.

(2) The tenant may. instead of, or in addition to giving the notice in the manner mentioned in sub-sec. (1) apply to (a Revenue Officer) on or before

the date aforesaid to cause the notice to be served on the landlord, and the Revenue Officer. on receiving the cost of service from the tenant, shall

cause the notice to be served as soon as may be.

(3) If the tenant does not give notice in the manner prescribed in this section, he shall be liable to pay the rent of his tenancy for any part of the

ensuing agricultural year during which the tenancy is not let by the landlord to some other Person, or is not cultivated by the landlord himself"".

The opening words of Section 41 namely ""any other tenant"" are very comprehensive. They encompass within their sweep all tenants including

protected tenants excepting of course the fixed term tenants alluded to in Section 40 of the Act. Section 41. it shall be seen, nowhere provides that

relinquishment of tenancy shall not be recognized without a regular mutation attested by a competent revenue officer. The learned Financial

Commissioner has, by holding that relinquishment of cultivation by an occupancy or protected tenant even though it can be made orally cannot be

given effect to except after an order is obtained from the competent revenue officer, on a regular mutation entered for this purpose.attempted to act

as a super Legislature. He has tried to import something into the Act which is not there. The Government has also not by means of the rules framed

u/s 96 of the Act imposed any such restriction. It cannot also be maintained with any show of force that relinquishment of tenancy by a tenant

comes within the ambit of the expression 'acquisition of a right in an estate' so as to attract the provision of Section 24 of the Land Revenue Act.

The relinquishment of tenancy by a protected tenant is also not a matter covered by Section 33 of the Land Revenue Act so as to entitle the

Government to make rules in regard thereto. Instruction contained in Paragraphs 46 and 95 standing Order No. 23-A cannot also be interpreted

as making it obligatory for relinquishment of Kasht by a protected tenant to be evidenced by a regular mutation.

The learned Financial Commissioner was therefore not right in observing that since the relinquishment of Kasht was not followed by a regular

mutation it could not be given effect to.

As the impugned order of the Financial Commissioner appears to be based on an erroneous assumption of law, the same has to be quashed.

Accordingly I would allow the appeal, set aside the order dated November 20, 1969, of Hon'ble Bhat, J. dismissing the writ petition, quash the

order dated February 26, 1967. of the Financial Commissioner and remit the case to the latter with the direction that he should rehear the

reference.made to him by the Revenue Commissioner and pass fresh orders according to law or by quashing the order dated December 13, 1967.

passed by the Collector in appeal preferred by the respondents, direct him to rehear the same and pass fresh orders according to law. The latter

course being in consonance with the requirements of justice will, in my opinion, be preferable.

S. Murtaza Fazal Ali, C. J.

I agree.

Anant Singh, J.

I entirely agree with my learned brother Shri Jaswant Singh, J. I may only add a word regarding the revisional powers of the Financial

Commissioner that with all his unfettered powers. unlike the limitation imposed by Sec. 115. Civil P. C. he has still to exercise his powers within

the ambit of law, otherwise, he will be acting in excess of his jurisdiction. He was completely in error in holding that relinquishment of a holding by

an occupancy tenant can be complete only ""after an order is obtained from the competent Revenue Officer on a regular mutation entered for this

purpose"". A surrender can be valid even without an order of mutation or the like. It is only a question of fact which can be proved by evidence

even otherwise than the revenue record.

The provision for the giving of a notice of surrender by a tenant is entirely for his protection so that in absence of any notice, he may not be

charged with the rent for the period after the surrender.