Mohd Maqbool Raina vs State of Jammu & Kashmir and Others

Permod Kohli, J.—Aggrieved of the order dated 2-12-1996 passed by Member, J&K Special Tribunal, Srinagar in exercise of its

revisional powers u/s 21(2) of the J&K Agrarian Reforms Act, 1976, the petitioner has preferred the present writ petition challenging the same.

Petitioner claims to be the tenant of the respondents 5 to 12 and Sattar, predecessor-in-interest of respondents 9 to 12, prior to Kharif 1971.

His case as projected before the courts below was that entry regarding his possession was not reflected in the concerned revenue record and

accordingly he applied for correction of entry through 'Sahti Kasht' in the year 1983, The Tehsildar Chadura who initiated the proceedings for

correction of entry, summoned the respondents 5 and 6 and Sattar, the common encestor of respondents 7 to 12 who presented affidavits before

him and also recorded their statements, admitting the claim of the petitioner of being in possession of the land measuring 13 Kanals and 17 marlas

comprising of survey Nos. 497/ Min (6 Kanals 4 marlas), 501/Min (4 Kanals 2 marlas) and 503/ Min (3 Kanals and 1 marla) situated at Barwa

tehsil Chadura. On the basis of admission, of the owners in respect to actual possession of the petitioner in Kharif 1971, the crucial period for

conferment of benefits under the provisions of the Agrarian Reforms Act, the Tehsildar Chadura, recorded and attested mutation No. 457 dated

14-5-1983.

It appears that private respondents and their predecessor Sattar resiled from their affidavits and admission made before Tehsildar and

challenged the mutation No. 457 before respondent No. 3. Respondent No. 3 vide his order dated 18-10-1994, dismissed the appeal and up-

held the mutation attested in favour of the petitioner. The appellate authority was of the view that the mutation having been attested by Tehsildar on

the basis of admission of the appellants before him, the appeal was not competent. He applied the anology as contained in Section 96(3) of the

CPC which bars an appeal against a consent decree.

The order dated 18.10.1994 of Joint Commissioner Agrarian Reforms, the appellate authority became subject matter of revision before the

Jammu and Kashmir Special Tribunal, who set aside the mutation No. 457 dated 14-5-1983 as also the order dated 18.10.1994 passed by the

appellate authority. The revisional authority examined the issue afresh by appreciating the evidence recorded by the Tehsildar during mutation

proceedings and came to the conclusion that the finding of the appellate authority (Joint Agrarian Commissioner) that the petitioner consented for

the change of the girdawari of the year 1971 is wrongly recorded. He also came to the conclusion that the question of title was involved, question

of consideration amount of Rs. 39,000/- was involved as also question of passing of title was involved, therefore, girdawari of 1971 could not have

been changed. These findings of fact recorded by the Tribunal have not been even raised in the memo of the revision nor the same were raised

before the appellate authority and Tehsildar. It is this order of the revisional authority which is under challange before this court.

The main contention of Mr. G.A. Lone, learned counsel appearing for the writ petitioner is that the Tribunal exceeded its revisional jurisdiction

by reversing the order of appellate authority. Particular reference is made to the observations and findings of the Tribunal, wherein the Tribunal has

took upon itself burden of re-examining the evidence and re-appreciating the same to arrive at a conclusion regarding the factum of actual physical

possession in Kharif 1971. It is contended that the scope of revision as provided u/s 21(2) of the J&K Agrarian Reforms Act is confined only to a

question of law or public interest and sicne neither any question of law nor of any public interest was involved in the revision pettion, hence the

learned Member of the Tribunal was not competent to interfere in exercise of its revisional power to over set the judgment of the appellate

authority.

Learned counsel for the respondent Mr. M.M. Bar on the other hand has supported the order of the Tribunal. He has submitted that there has

been violation of Rule 4 of the Jammu and Kashmir Agrarian Reforms Rules framed under the Act. He has further stated that a part of the land in

question was orchard and as such, the Tehsildar was not competent to attest mutation in respect to the land which was orchard.

In order to appreciate the contention of the parties, it is apt to refer to Section 21 of te Jammu and Kashmir Agrarian Reforms Act as also Rule

4 of the Jammu and Kashmir Agrarian Reforms Rules :

21 Appeals and revisions--(1) Any person aggrieved by a final order of a Collector or a Revenue Officer of a class lower than that of a Collector

may prefer an appeal to the Commissioner having jurisdiction in the area to which the appeal relates. (2) The Revenue Minister may at any time call

for the record of any case in which a Tehsildar or an Assistant Commissioner has passed order in respect of any evacuees land or State land or of

any case in which Commissioner has passed final order and if he finds that a question of law or public interest is involved in the case he may pass

such order thereon as he thinks fit.

Provided that no order shall be passed against any party without affording that party an opportunity of being heard......"".

Disputes relating to girdawari entries.--(1) Where in the course of attestation of mutations under Chapter TV, any party objects to the

correctness of an entry in the Khasra girdawari (whether made under the earlier rules or standing Order No. 22), a Revenue Officer, not below the

rank of Tehsildar, shall, subject to the provisions of Sub-rules (2), (3) and (4) and after giving an opportunity of being heard to all the concerned,

conduct an enquiry on spot in respect of such mutation and give his finding thereon either confirming the impugned entry or indicating what entry

should be made.

(2) Where the impugned entry mentioned in Sub-rule (1) has been made by or under the order of a Tehsildar or a Revenue Officer of a higher

class, the Tehsildar disposing of a mutation under Chapter IV shall act on the basis of such entry, it being open to the party aggrieved by it to

object to the entry in an appeal against the final order passed on such mutation.

(3) Where in the course of enquiry under the foregoing sub-rules, objection raised against an entry relating to personal cultivation is admitted by the

party in whose favour such entry is made, the Revenue Officer shall, before accepting such objection and admission, record his finding and the

reasons therefore that such objection and admission are not a device to defeat the provisions relating to restrictions on alienation of land provided

by the Act.

(4) Nothing herein contained shall empower any Revenue Officer to pass, or to act upon any order directing an entry relating to rent otherwise than

in accordance with the provisions of the Jammu and Kashmir Tenancy Act, Samvat 1984.

Section 21(2) confers powers upon the Revenue Minister (now Tribunal), to call for the record of any case in which a Tehsildar or Assistant

Commissioner has passed orders in respect of any evacuee land or State land or of any case in which Commissioner has passed final order and if

he finds that a question of law or public interest is involved in the case, he may pass such orders thereon as he thinks fit.

The present case falls under the category 21(2) of the cases where the Commissioner has passed final order in the matter. The jurisdiction to be

exercised u/s 21(2) of the Agrarian Reforms Act by the revisional authority is confined to a question of law or public interest. A perusal of the

provision makes it abundantly clear that the revisional authority has to formulate an opinion that a question of law or public interest is involved in the

case. The words used in the section ""If he finds"" are relevant and of great importance.

The Tribunal the revisional authority has not recorded its opinion regarding existance of any question of law or public interest involved in the

case, nor any such question of law or issue of public interest has been referred. On the contrary the Tribunal took upon itself the job of

appreciating avidence recorded by the Tehsildar during mutation proceedings and disagreed with the findings of fact recorded by the mutating

officer. The Tribunal also disagreed with the order of the appellate authority which accepted the findings of fact recorded by the mutating officer

i.e. Tehsildar Chadura. The Tribunal, in this view of the matter, did not confine itself to the question of law or any issue of public interest and rightly

so because no such question of law or public interest was involved, nor the Tribunal in its findings referred to any such question of law or issue of

public interest.

Assuming that the Tribunal was of the opinion that the appellate authority did not consider the facts on record itself and merely accepted the

conclusions of the mutating officer, the only course open to the Tribunal was to have remanded the case to the appellate authority for

reconsideration of the entire matter on merits. The Tribunal instead of doing so, itself exercised the appellate powers and set aside the order of the

appellate authority by referring to the factual material. Such a course was not open to the Tribunal, in view of the restrictions imposed on the

powers of the revisional authority under law.

Mr. Par's contention that the Tribunal was entitled to interfere in view of violation of Rule 4 of the Agrarian Reforms Rules is also not

sustainable. At the first place, the Tribunal has not justified its interference for alleged violation of Rule 4 by the mutation officer and in any case, no

violation or infringement of the said Rule has been referred to.

It would not be out of place to say that following the procedure under Rule 4 becomes necessary where parties are at variance and Tehsildar is

called upon to hold an enquiry. Where the parties appear and admit any fact or fact of possession as on the crucial date, there was no scope for

any further enquiry by the Tehsildar. Therefore, it cannot be said that the mutating officer violated the mandate of Rule 4 in any manner.

The other contention of Mr. Dar is that a part of the land was orchard in Kharif 1971 and thus Tehsildar was not competent to attest the

mutation treating it as land under cultivation. Mr. Dar has not been able to point out from any record regarding the factum of part of land being

recorded as orchard in Kharif 1971 and thereafter as claimed by him. This question does not appear to have been raised before the Joint Agrarian

Commissioner, the appellate authority as also before the revisional authority. This court in exercise of writ jurisdiction cannot record any such

finding of fact, particularly in absence of any material on record. This argument of Mr. Dar also fails.

Mr. Dar has relied upon a Division Bench Judgment of this court reported in 2000 SLJ 245 to persuade this court that the Tribunal is

competent to interfere with the findings of fact.

I have the privilege of going through the judgment of the Hon'ble Division Bench, wherein the order of the Tribunal regarding certain findings of

fact was up-held by the writ court and the Division Bench declined to interfere with the same. In the said case, the Ld. Division Bench came to the

conclusion that one of the parties had manoeuvred with the revenue authorities and under the paculiar circumstances of the case, the Tribunal

recorded its opinion/findings of fact, which were not interferred by the writ court and the learned Division Bench. In this view of the matter, the

Hon'ble Division Bench held that the findings of fact recorded by the Tribunal should not be interferred.

Mr. Lone has referred to a Judgment of this court reported in 1999 SLJ 245 Parmanand v. J&K Special Tribunal, Jammu, This court while

interpreting the scope of revision u/s 21(2) of the Agrarian Reforms Act, observed as under:-

.........Moreover, the findings of fact recorded by the appellate authority have not been reversed on any of the grounds specified u/s 21(2) of the

Act, i.e. question of law or public interest but by appreciating evidence which is not permissible, So, the Tribunal has exercised jurisdiction not

vested in it. It has acted as it was exercising powers of Ist appellate court.

In view of the above, it is clear that Tribunal has acted without jurisdiction because it was not a fit case for exercising jurisdiction u/s 21(2) of the

Agrarian Reforms Act. Accordingly, the order of the Tribunal dated 20,5.1996 is quashed and consequently the order of the Commissioner,

Agrarian Reforms, dated 2.1.1996 shall stand"".

I am of the opinion that existence of question law or public interest is sine qua non for exercising Revisional Jurisdiction u/s 21(2) of Agrarian

Reforms Act and Revisional authority has to record its findings on that. The Tribunal exceeded its jurisdiction while interferring with the judgment of

the appellate authority and the mutation recorded by Tehsildar, Chadura, on the basis of statements of the parties. Under these circumstances, writ

petition is allowed, judgment of the Tribunal is set aside and the order of the appellate authority and the mutation is restored, with no order as to

costs.