Habib.Rather vs State of J&K and others

Heard learned counsel for the petitioner.

By way of this petition, petitioner projects and prays for issuance of a writ of certiorari for quashing mutation order No: 537 dated 1871984

passed by respondent no 3 in file No: 742 and order dated 3011 1992 passed by respondent no. 2 in file No: 2312 petitioner has also prayed for

issuance of writ of mandamus directing the respondent 1 to 4 to treat the petitioner as owner of land in question as per Section 8 of the Agrarian

Reforms Act of 1976.

The facts in brief which have given rise to the present petition are that on Syed Mohammad Syed S/o Syed Mubrik Shah R/ o Takia Magam,

Anantnag is the owner of land measuring 14 Kanals and 14 marlas covered under survey No:37/Min (4 Kanals, 6 Marias), survey No: 46/Min (2

Kanals 10 Marias), under survey no: 101 situate at Takia Magam, Anantnag. It is further averred that by virtue of mutation order No: 484 passed

under Section 4 of the Agrarian Reforms Act, the rate of rent for this land was fixed l/4th of the produce annually.

Petitioner projects that as per law and rules on the subject, after attestation of mutation under Section 4 of the Agrarian Reforms Act, the mutating

officers are duty bound to transfer the ownership rights of the land in the name of rightful persons either under Section 7 or 8 of the Agrarian

Reforms Act of 1976. It is further projected that in case in the exowner i.e. the landlord happens to have filed an application form no. 5 for

resumption of land, the mutation under Section 7 of the Act can be effected in his favour, otherwise mutation under Section 8 of the Act is to be

attested and the cultivator gets full ownership rights after depositing the levy before the conmcemed authority.

In the present case, as per averments, the exowner i.e. respondent No. 5 before me has not filed any valid application for resumption of land as

is being evidenced by the report of the patwari concerned on mutation sheet No: 537. So the petitioner claims that the land which was mutated

under Section 4 of the Act, should have been mutated under Section 8 of the Act in favour of the petitioner who was the cultivator/tenant and has

deposited the levy for ownership rights under Section 8 of the Act. However, the respondent no.4(Tehsildar Agrarian, Anantnag) had in violatation

of the land attested mutation order No:537 under Section 7 of the Act on 1871884, allowing thereby respondent no. 5 to resume the land, though

the report of the patwari concerned was to the contrary.

It seems that the petitioner had agitated this matter before the higher authorities/ appellate authorities under the Act by way of an appeal filed in

the Court of joint Agrarian Reforms Commissioner, Kashmir (respondent No. 3} on 881994 projecting therein his grievances and the said appeal

was dismissed and the order passed in mutation No: 537 on 261988 in file No: 740 was upheld. Aggrieved by this order of respondent No. 3, the

petitioner approached respondent No. 2 by way of revision petition No. 2312 dated 1971988, but to the dismay of the petitioner, the respondent

No. 2, as per averments did not apply his mind towards the legal points involved in the matter and upheld the order of respondents 3 and 4, vide

its order dated 10111992. Thus the petitioner has now been constrained to file the present petition before this Court invoking the extraordinary

writ jurisdiction of this Court.

From the careful perusal of the file and appreciation of arguments advanced by learned counsel for the petitioner, I am of the opinion that some

finality is to be given to the findings arrived at by different functionaries under the Agrarian Reforms Act.

The main contention joined by the petitioner is that in view of the fact that respondent No. 5 as per his averments had not filed any application

form for resumption of land in accordance with law rules within the stipulated time, so the land cannot be mutated in his name under Section 7 of

the Act. But the land is to be mutated in the name of the petitioner under Section 8 of the Agrarian Reforms Act being the prospective owner of the

land and has also deposited levy under norms before the competent authority. So the mutation as per his averments was to be attested under

Section 8 of the Act.

It has been brought on record that the respondent No. 5 had infact filed an application on 21173 in circle office kokemag annexurep3 to the

petition and the same is reported to have been entered in the relevant register under serial No: 37. This fact has been projected by learned

Tehsildar Agrarian, Anantnag in his mutation order and also finds its place in the order passed by join Agrarian Reforms Commissioner on the

appeal preferred against the mutation order passed by Tehsildar Agrarian Reforms, Anantnag. It has also come on record that Tehsildar concerned

had conducted a detailed enquiry in this regard wherein the petitioner has failed to prove this fact before the Court of Tehsildar that the respondent

No.5 did not file any application for resumption in accordance with law,

While giving my thought full considerations to the arguments advanced by learned counsel for the petitioners, the facts which have been

reiterated, have already been gone into by the Court of facts viz. Tehsildar Agrarian Reforms and other functionaries under the Act and they have

concluded that the respondent No.5 had infact filed an application for resumption.

Now the question arises as to whether, the application which was filed by respondent no, 5 way back on 2111973 against receipt No:37 in

circle office kokemag along with three annexures will be deemed to an application for resumption of the land in the eye of law to have been moved

under the Agrarian Reforms Act of 1976.

The Agrarian Reforms Act nodoubt had come into force in the year 1978, but the fact remains that the Agrarian Reforms Act was passed way

back in the year 1972 and was subsequently kept in abeyance in the year 1975 under the Jammu and Kashmir Agrarian Reforms Suspension of

operation Act of 1975. However, after the enforcement of the J and K Agrarian Reforms Act of 1976, both these Acts namely J and K Agrarian

Reforms Act of 1972 and J and K Agrarian Reforms (Suspension of operation) Act of 1975 were repealed, and under the repealing clause as

envisaged under Section 43 of the Agrarian Reforms Act of 1976, it was stipulated that any right accrued, liability incurred or action taken under

the Acts so repealed, as is inconsistent with the provisions of this Act shall be deemed never to have accrued, incurred or taken, as the case may

be. So under the provisions of this saving clause, the actions taken have been saved. In case respondent no. 5, the land owner had filed an

application for resumption of land under the provisions of relevant Act of Agrarian Reforms Act of 1972, that will be deemed to have been done

under the provisions of the Agrarian Reforms Act of 1976 also. Thus this petition does not call for adjudication of any matter to be agitated or

projected before the extraordinary writ jurisdiction of this Court. The finding arrived at by the Revenue Courts under the Agrarian Reforms Act is

to be given a finality.

For the foregoing reasons, no good ground is made for admission of this petition, which is accordingly dismissed in limine.