Behari Lala and Others vs Allah Rakhi and Others

Ramakrishna, C.J.—This appeal is presented by appellants 1 to 19, challenging the correctness and legality of the order passed by a learned

single Judge in OWP No. 525/94 dated 7-9-1995 whereby the learned single Judge after hearing learned counsel on both the sides held,

The question of application of Agrarian Reforms Act is a question independent of it and in my opinion the observation impugned was uncalled for

and the Tribunal had while passing that direction, acted beyond jurisdiction.

Thus the writ petition was disposed of. It is this order which is called in question in this appeal.

The respondents in the writ petition referred to above had been claiming to be the tenants cultivating a piece of land and deriving certain rights

by virtue of the lease made in their favour. However, it is not in dispute that consequent upon the demise of the sole proprietor, the propriety was

declared as evacuee property and allotted to the respondents (appellants 1 to 19) by applying the provisions of J&K State Evacuees'

(Administration of Property) Act, 2006 (1949 A.D.), hereinafter referred to as 'the Act'. It is also not in dispute that against that order of the

Custodian the matter was taken up in appeal before the Custodian General who by an order made on 28-5-1979 upheld the finding and it has

accordingly assumed the finality. Indeed, it is now brought to our notice that, that order was challenged before the learned single Judge of this

Court in (CSA No. 7/1979) and again after exhausting the remedy before this court, the matter was taken before the Supreme Court in SLP(C)

No. 14392/1991. Before the Supreme Court dealing with the Contempt Petition No. 361/ 1993 holding that there was an inordinate delay in

bringing the SLP, the Supreme Court did not condition the delay. Accordingly the SLP came to be dismissed. Thus the entire proceedings came to

be culminated in the above order of the Supreme Court.

It is now brought to our notice that thereafter the order of the Custodian was sought to be executed before the competent executing court. At

that time an application was presented seeking the transfer of the proceedings of the execution before the Land Tribunal on the premises that the

question of Land Agrarian Reforms arose in the proceedings inasmuch as the real question sought to be pressed into service was that the land in

question is in excess of the ceiling limit imposed under the Agrarian Reforms Act. However, the member of the Special Tribunal has issued a

direction in this manner :

All this has been said with a view that the parties who are litigating for the last more than two decades should obey the majesty of law and none of

the party should become victim of false and imaginative transgression of law and setting the wheels of justice in motion on frivolous and untenable

grounds, Either the fear psychosis or the motivation to perpetuate the wrongful gains have impelled the petitioners herein to bring this litigation in

tthis forum which at this stage should have remained confined to the precincts of the lowest of the hierarchy.

With these observations the application came to be dismissed. Aggrieved by this order of the Tribunal, the matter came up before a learned single

Judge of this court in OWP No. 525/ 1994 challenging the correctness and legality of the finding and the conclusion reached by the Tribunal.

A learned single Judge of this Court having gone through the salient facts and the nature of the orders passed by the Tribunal has held:

The proceedings before the Tehsildar (Assistant Custodian) R. S. Pura, are exclusively governed by Rule 33 of the rules under the Evacuee

(Administration of Property) Act, 2006 and while dealing with the matter the Tehsildar concerned has to confine himself to R. 33 (supra) only.

He further held,

The question of application of Agrarian Reforms Act is a question independent of it and in my opinion the observations impugned was uncalled for

and the Tribunal had while passing that direction, acted beyond jurisdiction. The application of statute does not require the direction of, any court.

It is adjudicated upon when such proceedings under that Statute come before the competent authority under the Statute.

The learned single Judge further held,

I do not find any other question being involved. So while allowing the petition, I quash the direction made by the Member Special Tribunal in his

order dated 9-5-1994 in so far as application of Agrarian Reforms Act is concerned.

He further held,

I substitute the same by a direction that the Tehsildar, Assistant Custodian R. S. Pura will proceed ahead in terms of Rule 33 of Evacuee

(Administration of Property) Rules, with reasonable despatch.

It is this order which is called in question in this appeal.

We have heard Mr. Kalgotra learned counsel for the appellant, who having taken us through the relevant questions of law and the documentary

evidence produced, argued :

(1) Regard being had to the provisions of Sections 3, 4, 5, 13 and 14 of the Agrarian Reforms Act, 1976, any excess land that may be

demarcated, applying the provisions of the Statute, the tenants (appellants) shall be entitled to the custody of the said land;

(2) The appellants 1 to 19 are landless people. Having protection under the Statute, the learned single Judge failed to consider this aspect of the

matter while disposing of the writ petition. As and when, if this court recorded a finding that there is excess land beyond the ceiling imposed under

the Act, such land can be cultivated by the appellants 1 to 19. Therefore the view taken by the learned single Judge is required to be reconsidered.

In opposition to this argument of the learned counsel for the appellant, learned counsel for the respondent maintained that the conclusion of the

learned single Judge holding that the jurisdiction of the Tribunal has been taken away is justified. He further submits that the grounds of appeal are

not tenable in law and as such the appeal be dismissed.

Before we consider the rival arguments advanced in this appeal, let us refer to the salient facts of the case.

In order to ascertain the correct facts relevant for purposes of disposal of this appeal, we have gone through the copy of the order made by the

Custodian General Jammu dated 28-5-1979. This orderdoes not disclose the correct date of lease made by the Competent Authority in favour of

the appellants, leasing the land in question for cultivation. However, Mr. Kalgotra, learned counsel for the appellants submits that according to his

information the lease came to be granted in favour of the appellants some time in the year 1954. It is however seen by a perusal of the copy of the

order of the Custodian General referred to above that on 26-2-1971 there was an application made by Mst. Allah Rakhi d/ o Sahab-ud-Din

seeking for deletion of her fathers landed property including that of her uncle Chirag Din. That application was made under the provisions of

Section 8 of the Evacuees' (Administration of Property) Act to the Assistant Custodian (Tehsildar) R. S. Pura, who having made the enquiry in the

matter returned a finding on 17-4-1971 thereby allowing the application referred to above and ordered that compensation be paid to the applicant

in lieu of her land as the land was under the occupation of the allottees and their dispossession from the land was not possible. The above aspect of

the case goes to show that the lease of the land in question came to be granted by the Competent Authority before the coming into force of the

Agrarian Reforms Act, 1976, hereinafter called as the 'Act of 1976'. It is submitted that the Act in question came into force on 13-7-1978. The

argument advanced by Mr. Kalgotra in support of the appeal is that regard being had to the provisions of 1976 Act, the land in question is covered

under the provisions of the; said Act, as the land was under the cultivation of the tenants (appellants 1 to 19). It is in this context that an application

was made to transfer the proceedings of the execution before the Land Tribunal with a view to obtaia the benefit of said Act. The other argument

advanced by Mr. Kalgotra in support of the appeal is that regard being had to the provisions of Section 4(2)(c), according to Schedule 2 of the

Act whenever such lands are being allotted to displaced persons, the right of such persons are controlled by this provision of law. The learned

counsel for the appellant also brought to our notice Section 5 which deals with the vesting of such lands with the State. After vesting any land that

was found to be in excess of ceiling limit as provided u/s 5 shall be available for the allottees (tenants) and in that view of the matter the view taken

by the learned single Judge is contrary to the rights of the tenants and not tenable.

We will now deal with the relevant provisions of the Act. It is true that Section 4 deals with the vesting of such lands in the State of Jammu and

Kashmir and lays down as follows:

Vesting in the State of rights in land not held in personal cultivation.-

(1) Notwithstanding anything contained in any law for the time being in force, but subject to the provisions of this Chapter, all rights, title and

interest in land of any person, not cultivating it personally in Kharif 1971, shall be deemed to have extinguished and vested in the State, free from all

encumbrances, with effect from the first day of May, 1973.

Let us presume for purposes of argument that the land in question is covered under the provisions of this Act. Therefore, Section 4 of the Act

is made applicable and in that view of the matter the land shall vest with the State Government.

Section 5 of the Act lays down :

Vesting of personally cultivated land in excess of ceiling area in the State.-

(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of this Chapter -

(a) Where any land, held by an individual in personal cultivation whether as owner or as tenant or otherwise, was in excess of the ceiling area on

the first day of September, 1971, the rights; title and interest of such individual in the excess land shall be deemed to have vested in the State, free

from ail encumbrances, on the first day of May, 1973.

Therefore, in the light of the provisions referred to above we shall now consider the submissions of the learned counsel for the appellant.

The contention is that a person who has been cultivating the land as lessee by virtue of lease made by the Custodian under the J.&K. State

Evacuees' (Administration of Property) Act, 2006 (1949 A.D.), shall be entitled not only to cultivate the land as such but also will be entitled for

enjoyment of this land found in excess of ceiling as found in Section 5. At the outset it is not possible to concede to this submission of learned

counsel for the appellant, for presuming for purposes of argument that Section 5 is made applicable to the land in question, then once we hold that

the land in question vests with the State Govt. u/s 5 of the Act, then even presuming for purposes of argument that there is land in excess of the

ceiling limit, such land having been vested in State Govt. will not be available either to the real owner or to the tenants. On the other hand by virtue

of vesting the land in the State Government such right to enjoy the land found in excess of the ceiling limit is available only to the State Government

and not to the tenants. Therefore, we do not see any force in the submission of the learned counsel for the appellant.

Secondly referring to the provisions of Section 3 of the Act, it deals with the exceptions and lays down as follows:

The provisions of this Act, except those specified in column 2 of the sub-joined table, shall not apply to the categories of land specified in column

1 thereof:--

Column 1. Column 2.

Clause (c) of sub-section (2) of Section 4 and

(a) Evacuees' land Sections 5, 7, 13 and 14 and sub-section (3) of

Section 26.

Provided that nothing herein shall-

(ii) confer any ownership rights upon a displaced or other person in any evacuees' land; or

...... ...... ...... ......;

Referring to the provisions-exceptions as provided in Section 3 of the Act, no ownership rights shall confer upon a displaced or other person in

evacuees' land. In the instant case we are not concerned with the right of a displaced person. On the other hand referring to the exception as is

found in Clause (c) of Sub-section (2) of Section 4, we shall now refer to that provision.

Sub-clause (c) of Section 4(2) lays down:

(c) land mentioned in Schedule II allotted to a displaced person

and as brought between the proviso, which reads:

Provided that the right of a tenant thereof shall be heritable according to the law of succession applicable to occupancy tenants"" which means the

tenant enjoying such land under the leasehold rights is inheritable.

We have already referred to Sections 4 and 5 dealing with the vesting of land in State Government and the ceiling limit of such land.

Sections 7, 13 and 14 deals with :

(i) Resumption for bona fide personal cultivation by ex-landlord;

(ii) Restriction on utilization of land;

(iii) Optimum retainable area of land. with which wer are not concerned in this case.

Therefore summarising these aspects of the relevant questions of law to be considered in this case, it is made clear that presuming for purposes

of arguments that a tenant is entitled to continue to enjoy the leasehold rights even after the coming into force of the Act in Jammu and Kashmir in

respect of this land, still by virtue of Sections 4 and 5 referred to above when once such lands have vested in the State Government by virtue of

Section 4 of the Act, any land found to be in excess of ceiling limit as provided in Section 5, such land shall not be available either to the real owner

or the cultivator. Therefore, it is not possible to accept the contention of the learned counsel for the appellant.

For the foregoing reasons we hold that the appeal is one without merit and is dismissed.

Order accordingly.