Mohd.Maqbool Dar vs Revenue Minister

This petition has been directed against an order passed by Revenue Minister on 248l982.This has decided two cross revisions filed by the

parties before him against an order of the Agrarian Reforms Commissioner/ in terms of Jammu and Kashmir Agrarian Reforms Act of 1976,

(hereinafter called the Act)"", under the order impugned, the Revenue Minister has remanded the case to the Collector Agrarian Reforms Sopore

for fresh orders in terms of the following directions:

The area under personal cultivation of the nonapplicant (Mohammad Anwar Dar) be identified and specified on spot, showing the ""land ""and

orchard"" separately.

The land under the personal cultivation of the nonapplicant Mohammad Anwar Dar so identified be ordered on mutation to be recorded in the

girdawari ""Khud Kasht Subhan Dar through Mohd. Anwar Dar, his son"".

In respect of orchard as identified and found in the occupation of the nonapplicant, the concerned party is at liberty to move the Revenue

Officer, under the land Revenue Act 1996, for necessary correction under rules.

BRIEF FACTS:

The petitioner ""Subhan Dar was the father and respondent No.3 his son, Subhan Dar inherited some land falling within the ambit of the Act. He

was duly recorded to be in cultivating possession of this land in Kharief 1971. Mohd Anwar, the son (Respondent No.3), approached Additional

Tehsildar, Sopore, (circle Officer) and got mutation No. 49 of village Riban Rehema, attested, whereunder Mohammad Anwar Dar was ordered

to be entered in the possession column of 12 kanals and 12 marlas comprising of different survey Nos.w.e. from Kharief 1971. This order was

challenged in appeal before Agrarian Reforms Commissioner. The Agrarian Reforms Commissioner accepted the appeal and held that the Circle

Officer was not at all justified in passing the order against the law and was absolutely wrong in holding that Anwar Dar had a separate family unit.

According to him, the Addl. Tehsildar also committed a gross' error of law in placing reliance upon the will which was said to have been executed

by Subhan Dar as Subhan Dar at the time of mutation was very much alive and the will could not be acted upon.

Subhan Dar, however, during the pendency of this petition died and his representatives have stepped into his shoes after duly being substituted.

The petitioners herein are aggrieved of the order on the following grounds:

i) That the order impugned is full of contradictions,

ii) That the direction of the Revenue Minister under the impugned order to specify and identify orchard land is perverse as the same was never

pleaded. Direction for identification of land held by the respondent under cultivation is also inconsistent.

iii) That the permission for correction of Revenue record in respect of orchard land granted under the impugned order is also against the spirit of

law,

I have heard the learned counsel for the parties at length and examined the whole case.

I venture to preface my findings with an observation that the learned Revenue Minister has throughout been labouring under indefiniteness and

uncertainty. That is why the order impugned seems to be fraught with ambiguities and inconsistencies. He has tried to mix the concept of personal

cultivation with jointness of a family.

The definition of the word 'family' under Section 2(6) of the Act may be germane for purposes of resumption of land, under Section 7.

Therefore, the exclusion of a major son holding land separately on or before 191971, from the family of his father has a relevance for that purpose.

Even for that purpose, the word ""separated"" used in Clauseb of Section 2(6) has to be noticed, ""separated"" does not mean 'living separately'. On

the other hand word separated connotes that the partition between the father and the son must have taken place in any of the modes of transfer

recognised by law. Proof of formal partition may be irrelevant where the son father due is not pitched in a controversy. But the term 'separated' will

have to be read cautiously where the dispute is between a son and a father. This separation from the jointness of family has absolutely no nexus

with the concept of personal cultivation as envisaged u/s 2(12) of the Act which deals with Cultivation by a person himself or any of the six persons

mentioned under clause (a)to(g) of Section 2(12).

Section 2(12) reads as under.

Personal Cultivation"" by a person shall mean cultivation:

a) by the person himself; or

b) by any member of the family, if any, to which he belongs; or

c) by a khananishin daughter of khana damad or a parent of the person; or

d) by a son, adopted son or pisarparwardah, not included in the family, if any, to which the said person belongs; or

e) by brother or sister of the person; or

f) in the case of such religious or

charitable institutions of public nature as are notified by the Government, by a member of the management or, on behalf of the management, by a

servant or hired labourer on payment of wages otherwise than as a share of crop; or

g) in the case of a person, who is minor, insane, physically disabled or incapacitated by old age or infirmity widow of serving in defence force, or in

detention or prison, by a servant or hired labourer under the personal supervision of the guardian or any agent of such person; provided that such

servant or hired labourers or guardian or agent does not bear the risk or cost of cultivation nor receives wages or remuneration as a share of crop.

On a birds eye view, it becomes clear that under clause (b) supra, cultivation by any member of the family will be presumed to be the cultivation

of the person. Within the compass of clause (b), a son who lives with his father is included and sons* cultivation will be presumed to be that of his

father.

Clause (d) of Section 2(12) for our purposes is significant. It separately includes a son, adopted son or Pisarparwardah, who is not included in

the family of the person, what Clause (d) directly suggests is that a son irrespective of the fact whether or not he is a member of his father's family

will cultivate the land on behalf of his father and the father, despite such cultivation by the son, will be held to be in personal cultivation of the land.

Section 2(12) creates a fiction of law. under this fiction of law, the person who cultivates land, through others detailed out under this fiction is

safeguarded. The case in hand reflects a direct illustration of the safeguard which becomes available to the petitioner/father Subhan Dar,who was

duly recorded in the possession column up to Kharief 1971.

Girdawari of Kharief 1971 under the Act has a conclusive presumption of correctness. That presumption could be dislodged by any person

other than those mentioned in Section 2(12). In other words the Respondent/Son Anwar Dar could have not asked for a correction, because, he

had no right of such correction. Assuming for a while that, mutation No.49 would not have been challenged, even then by virtue of the fiction of

law, discussed above, Subhan Dar would be deemed to be in personal cultivation of the land. No amount of correction subsequent to 1971 made

in the Revenue record would come to Anwar Dar's rescue. Revenue record could not be allowed to be manuplated to override the above

discussed fiction of law. A son in the light of Section 2(12) cannot be saddled into some rights, which override this fiction, and go against the spirit

of the Act. Even otherwise, the proprietory rights of Anwar Dar (A Muslim) would flow from the death of his father. The possessory rights of the

father are zealously guarded by Section 2(12) of the Act. Therefore, a son during the life time of the father cannot be allowed to maintain a

possessory right of agricultural land as against his father If that is allowed, it will be equivalent to observing both Muslim law and the Act in breach.

The learned Minister has failed to notice this glaring complexion of law, because of the oblivious lack of clarity of mind, so he has landed into

an error. This is how he on one hand agrees that Anwar Dar did not constitute a separate family and admits that the father would be deemed to be

in personal cultivation of the land, on the other, he hastened to add that such personal cultivation would not stand in the way of Anwar Dar to get

his name entered into the revenue record as cultivation. Interestingly, the Revenue Minister observes as under:

There cannot be two opinions that the cultivation by the son shall be the cultivation by the father himself. But the fact that the land under dispute is

in personal cultivation of Mohammad Anwar Dar who has also constructed a house on it as per the report of the Patwari on mutationNo.49 of

village Riban Rehama

the son, cannot be ignored especially when it has been given to him by his father by way of a will wherein the testator has admitted the possession

of nonapplicant, the son. Therefore , the land may be shown under the personal cultivation of Subhan Dar through his son Anwar Dar.

I fail to understand as to how in the same breath the Minister has upheld the factum of personal cultivation of Subhan Dar and also has held that

Anwar Dar, the son, cannot be ignored. Reliance is again put upon a will, which was said to have been executed by the father, who was living at

the time when the Revenue Minister was deciding the case.

The preposition laid down/above is a contradiction in terms and therefore, preposterous. Once Section 2(12) recognises Subhan Dar to be in

personal cultivation of the land, how could Anwar Dar be held entitled to being recorded as an agent in cultivation of his father. Such an approach

breaks the spine of the fiction of law and will violate the Act.

I deem it necessary to make an observation with respect to the will deed, that has been relied upon. The Revenue Minister, as evidenced by

the order itself, had full knowledge of the fact that Subhan Dar was living. He also knew that a civil litigation between the parties in respect of the

will was pending before a civil court. A will under Muslim law speaks on the graveyard of the testator. It has absolutely no force during the life time

of the testator. Besides this, a will under Muslim law relating to immoveable property, has some legal fetters. I fail to understand as to how could

the learned Revenue Minister rely upon the will. This assumes importance, because, he seems to be conscious of all these legal circumstances and

still proceeds to decide the question of Anwar Dar's possession on basis of the will. Suffice to say, that while doing so, he has committed an error

in law.

The learned Revenue Minister has remanded the case with directions to the Collector Agrarian Reforms, Sopore for fresh

orders in the light of the three observations made and reproduced at the out set.

The object of the order is to get the area under the ""personal cultivation"" of Mohd. Anwar Dar identified and specified on spot. Earmarking as

to which portion was ""Land ;'and what portion was ""orchard. ""In respect of the land so identified, Anwar Dar is ordered to be recorded Khud

Kasht Subhan Dar , through Mohd Anwar Dar(son). So far as the parcel of land forming the orchard is concerned, Anwar Dar was left free to

agitate the matter before the Revenue Officer under the Revenue Act for necessary correction under rules.

The sum total of these directions is to dislodge the concept of personal cultivation which parse grants a protection to the father Subhan Dar

personal cultivation through son"" is an innovation of the learned Minister. The same is squarely opposed to the spirit of the Act and in particular

Section 2(12). An attempt to introduce classification of land into 'orchard' and 'land' as defined under the Act is also a figment of imagination. No

such prayer was ever made in the pleadings. On the other hand the clear case of Anwar Dar before the Circle Officer was that he was seeking

correction of entries in respect of land as defined under the Act. The classification introduced by the Revenue Minister is neither borne by any

pleadings nor by records. Therefore, the same is perverse. Again recording a son as an agent of his father was again an imaginary concept which

was tried to be evolved to bring the directions within the fold of the Act. The attempt was totally unsuccessful as the Revenue Minister's term of

Khud Kasht Subhan Dar through Mohd Anwar Dar as son"" wears thin on the text of the Act.

Lastly, while imparting a direction that regarding orchard, Collector under land Revenue Act may make necessary correction also seems to be

a direction passed much against the scope of powers of the Minister. These directions to a naked eye seem to have a resemblance of swinging the

Revenue hierarchy into action to safeguard the interests of the respondent Anwar Dar who under law had no right a£*the relevant time except

the right of inherence after his father's death.

The above observance lead me to irresistible conclusion that the finding of the Revenue Minister impugned in the petition are perverse, contrary

to law and unjustified. That being so, I quash the order impugned and maintain the order of the Agrarian Reforms Commissioner passed by him on

2871979.

No order as to costs.