Hoshnak vs J and K Spl. Tribunal and Others

J.P. Singh, J.—Dispute raised in this petition pertains to land measuring 3 kanals and 15 marlas, comprised in Khasra No. 1562, situated in

village Jandyal, Tehsil Jammu. Hoshnak, the petitioner, says that this land was mortgaged to him on 06-03-1975 by one Beli Ram son of Sarsa

Ram. It is claimed by the petitioner that Beli Ram had, subsequently executed an agreement to sell on 08-05-1978 after taking full price of the land

from the petitioner. He says that it was due to ignorance and illiteracy that a wrong Khasra number, i.e., Khasra No. 1538, came to be recorded in

the agreement to sell. He says that this mistake remained undetected till 1991. Ram Singh, the fourth respondent, is stated by the petitioner to have

succeeded to the rights of Beli Ram, who is reported to have died issueless.

The fourth respondent filed an application for redemption of mortgage u/s 10 of the Jammu and Kashmir Agrarian Reforms Act, 1976, in

respect of land, comprised in Khasra No. 1562, measuring 3 kanals and 15 marlas, situated in village Jandyal. This application was allowed by

Assistant Settlement Officer exercising powers of a Collector under the Jammu and Kashmir Agrarian Reforms Act, 1976, directing restitution of

the land vide his order dated 30th of June, 2000. An appeal preferred by the writ petitioner was dismissed by Director, Land Records, in exercise

of his powers as Commissioner, Agrarian Reforms. Petitioner's approach to the Jammu and Kashmir Special Tribunal, by way of a Revision, too

remained unsuccessful with the dismissal of the Revision Petition on 10th of March, 2004.

The petitioner has filed this petition questioning the three orders passed by the Authorities under the Jammu and Kashmir Agrarian Reforms Act,

1976.

Mr. D.R. Khajuria, learned Counsel for the petitioner, submits that the findings of the Authorities under the Jammu and Kashmir Agrarian

Reforms Act, 1976, are factually incorrect and legally unsustainable. Learned Counsel adds that the transaction of Mortgage executed by the

petitioner in the year 1975 was illegal because there was a total ban on alienation of land in 1975 and this alienation included mortgage too. The

Authorities under the Jammu and Kashmir Agrarian Reforms Act, therefore, had no jurisdiction to exercise powers u/s 10 of the Jammu and

Kashmir Agrarian Reforms Act, 1976, because such powers could be exercised only if there was a valid mortgage between the parties.

Mr. A.H. Qazi, learned Additional Advocate General appearing for respondents-1 to 3, and Mr. G.S. Thakur, learned Counsel appearing for

respondent-4, submit that the extraordinary writ jurisdiction cannot be invoked by the petitioner to seek appreciation of evidence afresh, which

stands concluded by three Authorities under the Jammu and Kashmir Agrarian Reforms Act, Reiterating the stand taken in the objections of the

fourth respondent, Mr. Thakur submits that the plea of the petitioner that Khasra No. 1538 came to""recorded incorrectly in the agreement to sell,

was an afterthought intended to defeat the provisions of the Agrarian Reforms Act. The fourth respondent, while denying the execution of the

agreement to sell, has stated that the land in dispute continued to remain in possession of the petitioner as mortgagee and that it had not been sold

to him, as projected by the petitioner. Both the learned Counsel submitted that provisions of the Jammu and Kashmir Agrarian Reforms Acts,

1972 and 1973, would not come in the way of Authorities under the Jammu and Kashmir Agrarian Reforms Act, 1976, to exercise powers u/s 10

of the Act, because the mortgage with possession was subsisting at the time when the Jammu and Kashmir Agrarian Reforms Act, 1976, came into

force.

I have considered the submissions of learned Counsel for the parties and gone through the records.

Extraordinary writ jurisdiction, of the High Court may be invoked for the protection of any fundamental, legal, statutory or other enforceable

right. Projection and existence of an enforceable right is, thus, the sine-qua-non for invoking the jurisdiction of the High Court under Article 226 of

the Constitution of India or Section 103 of the Constitution of Jammu and Kashmir.

Petitioner does not claim any such right in this petition except seeking quashing of the orders passed by the Authorities under the Agrarian

Reforms Act. The jurisdiction under Article 226 of the Constitution of India or Section 103 of the Constitution of Jammu and Kashmir is not an

appellate jurisdiction, where a party to the litigation may have the right to question the orders of the Courts or the Authorities below. The petitioner,

it appears, has purposely omitted to project his right in the land in dispute, which is governed by the Jammu and Kashmir Agrarian Reforms Act,

1976. This is so because no right in the agricultural land could be claimed by the petitioner as such. Status of the petitioner as mortgagee in the

land, as admitted by him through out the proceedings before the Authorities under the Jammu and Kashmir Agrarian Reforms Act, 1976, as also in

this Court in this writ petition, that he property was mortgaged to him by Beli Ram, the predecessor-in-interest of the respondents, on 06-03-

1975, would not vest any enforceable right in the petitioner under the Jammu and Kashmir Agrarian Reforms Act, 1976, or for that matter under

any other law in force in the State. It was because of this reason that the petitioner had deliberately omitted to project any right in the land, in this

petition.

I, therefore, find that the petitioner, having no right in the property, which has been ordered to be redeemed of the mortgage, cannot invoke the

extraordinary writ jurisdiction of the Court.

That apart, I do not find any substance in the submission of learned Counsel for the petitioner that the mortgage of the land of the predecessor-

in-interest of the respondents, to the petitioner being allegedly illegal under the then existing provisions of the Jammu and Kashmir Agrarian

Reforms Act, would debar the Authorities under the Jammu and Kashmir Agrarian Reforms Act, 1976, to exercise jurisdiction u/s 10 of the Act.

This it. so because the petitioner having entered into the possession of the land as a mortgagee, cannot be permitted to turn around and question

the very document and transaction pursuant whereto he had enjoyed usufruct of the land as a mortgagee. Having admitted himself to be the

mortgagee of the land, the petitioner cannot be permitted to question the transaction of the mortgage.

Even otherwise, Jammu and Kashmir Agrarian Reforms Act, 1976, was attracted to the facts of the present case. In order to invoke Section

10 of the Jammu and Kashmir Agrarian Reforms Act, 1976, what was required to be seen by the concerned Officer was as to whether the

mortgage was subsisting on the date when the Jammu and Kashmir Agrarian Reforms Act, 1976, came into force. This Act came into force on

21st of August, 1976. The mortgage, in question, as admitted by the petitioner, was subsisting at the time when the Act came into force. The

validity or otherwise of the mortgage, would not, thus, come in the way of the officer exercising powers u/s 10 of the Jammu and Kashmir Agrarian

Reforms Act, 1976, in giving effect to the provisions of Section 10.

Intention of the Legislature in enacting Section 10 was to remove the mortgagees from the possession of land and restore the possession to the

mortgagors, if the conditions required under the Section were found to have been satisfied. The question as to the validity or otherwise of the

mortgage was not, thus, required to be gone into under the Act, while exercising powers u/s 10, when the land was admitted by the petitioner to

have been mortgaged to him.

Plea of the petitioner that he had purchased the land and the Khasra number of the land had come to be incorrectly recorded in the Deed, is a

factual plea, which has been examined in detail by the three Authorities under the Jammu and Kashmir Agrarian Reforms Act.

I do not find any error in the findings recorded by the Authorities that the petitioner had failed to substantiate this factual assertion.

For what has been said above, I do not find any case for admission of this petition, which is, accordingly, dismissed along with CMPNo.

291/2004.