Permanand vs J & K Special Tribunal, Jammu

The only question involved is, whether the petitioners are the tenants or mortgagees of the land comprised in Khasra NO.I24min measuring 22

Kanals situate hi village Chak Bhagata tehsil Udhampur. In case the petitioners were the tenants of the property in possession in Kharifl971, the

consequences would be different, whereas if it is found they were mortgagees, section10 of the Agrarian Reforms Act will be attracted.

The admitted facts of the case are that, an application of the private respondents for redemption of mortgage under section 10 of the Agrarian

Reforms Act was allowed by the Assistant Commissioner Collector. Agrarian Reforms Udhampur by his order dated 8.5.89 holding that the land

was mortgaged to the petitioners herein for Rs.100/ in the year 2003. Since mortgage was subsisting, he ordered the redemption of the mortgage

and directed the Tehsildar to deliver the possession of the land to the private respondents. On appeal, the Commissioner Agrarian Reforms, vide

his order dated 2.1.96 reversed this finding holding that the petitioners were the tenants and not the mortgagees. This order challenged in revision

before the Special Tribunal, who reversed the findings of the Commissioner Agrarian Reforms and restored that of the Collector Agrarian

Reforms.

The order of the special Tribunal dated 20596 has been challenged on the ground that neither any question of law nor public interest was

involved and therefore, petition of revision was not maintainable under subsection 2 of scc.21 of the Agrarian Reforms Act, 1976 (hereinafter the

Act).

Mr. Qazi, learned counsel appearing for the petitioners argued mat finding of the facts recorded by the appellate authority could be reversed in

exercise of revisional jurisdiction only on the grounds specified under subsection2 of section 21 of the Act. Since no such point was urged before

it, the order impugned is without jurisdiction. He also argued that (he Tribunal erred in reversing the finding how the entry of mortgage came to be

made by the Patwari as unfolded by the Commissioner Agrarian Reforms in his order dated 2.1.96, for which there is no basis and the finding is

perverse.

Mr. Khajuria, learned counsel appearing for the respondents supported the order impugned on the ground that the Commissioner, Agrarian

Reforms was misled by the fact of redemption of earlier mortgage in favour of one Shibe vide mutation no. 65 of 2008 BK. According to him, the

entry of tenancy in favour of the petitioner on payment of land revenues negatives their claim of tenancy because no rent was fixed as the land

revenue is payable to the state directly. Since no rent was payable to the owners, he argued the petitioners could not claim the status of tenants.

But the question of law involved is the scope of subsection 2 of section 21 of the Agrarian Reforms Act, 1976, under which re visional

jurisdiction is exercised by the tribunal. It reads as under ;

21 (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

orders in respect of any evacuees land or Sate land or of any case in which Commissioner lias passed final order and if he finds feat a question of

law or public interest is involved in the case, he may pass such orders thereon as he thinks fit:

Provided that no order shall be passed against any party without affording that party an opportunity of being heard"" (Emphasis supplied).So, it is

only on question of law or public interest that revisional jurisdiction can be exercised by the Tribunal. It is thus to be noticed whether the order of

the Agrarian Reforms Commissioner involved any question of law or public interest which alone could justify interference. The operative portion of

the order dated 02011996. of the Agrarian Reforms Commissioner, Jammu reads as under :

I have perused the record on the file of the court below and also considered the arguments of the learned advocates for the parties and have come

to the conclusion that the perusal of copies of Khasra Girdawari on file w.e.f. Rabi 1966 to Kharif 1969 the appellant's father Sh. Chetu alongwith

his brother Sh. Amru has been shown as protected tenant and there is no entry of mortgage. Moreover no doubt the land under appeal was

mortgaged as revealed from the copy of Kh. girdawari khari 1995 BK with Shiba and others but the same has been redeemed vide mutation no.

65 dated 10.5.2008 and the appellant or his father was not recorded as mortgagee in the record rather even his father does not exist in the record

at that time and his entry came into existence as tenant late after the redemption of the mortgage whatever was in the record. The perusal of copy

of Kh. Girdawan for Kharif 1971 shows that the Patwari concerned while writing Khana No. 3 of the khasra girdawari has not seen the previous

Register Khasra Girdawari pertaining to the year 1966 to 1969 etc. and has taken the entry wrongly which is clear that appellant was recorded as

protected tenants in Rabi 1966 to 1969 but he has been shown in Kharif 1971 as tenant at will which is quite contrary to the fact. Moreover, the

then patwari concerned has also committed mistake while giving effect of the mutation no. 65 regarding redemption in the girdawari register. The

said mutation was attested in 2008 whereas the patwari has reflected the entry of the mutation in Kharif 1998 BK which too is wrong. Not only

this the copy of Jamabandhi for the year 196970 shows the appellant as tenantat will in khana Kashat and there is no entry of mortgagor and

mortgagee in khana kashat but the Patwari has added the word(Ba waja den kangi yak rupaya) in khana lagan lateron. Whereas the appellant was

already recorded as protected tenant in the knasra uirdawan as stated above. It can be well presumed that the patwari halqa was confused and he

was not aware of his job and has made the entry of mortgage wrongly even after the redemption of the same vide mutation no. 65. The plea of the

appellant is thus well established that he is a tenant and not a mortgagee. The court below seems to have passed the order impugned callously and

without applying the mind and going through the whole record minutely which can not be upheld. The order is quite against the factual position and

is against dead persons.

Keeping in view the above noted circumstances, the appeal is accepted and the order impugned under appeal is setaside and Tehsildar Settlement,

Udhampur is directed to invoke the provisions of sections 4 and 8 of the Agr. Ref. Act in this case as the appellant admittedly a tenant and not a

mortgagee"". 7. The order of the Collector was setaside by the appellate authority mainly on the ground that there was no evidence in support of it.

The findings of fact recorded by the appellate authority are: (i) that the mortgage in favour of Shiba was entered in Kharif 1995 BK and redeemed

by mutation no. 65 dated 10.5.2008 BK (ii) that in the register of khasra girdawari pertaining to the year Rabi 1966 to Kharif 1969, the petitioners

have been entered as protected tenants, whereas in Kharif 1971, they are recorded as tenants at will (iii) that in Jamabandhi for the year 196970,

the petitioners have been recorded as tenants at will in khana kashat and there is no entry of mortgage but the patwari has recorded the entry

Bawaja Rehan Khangi"" in the rent column, which was erroneous. These findings of fact were reversed by the tribunal without giving any reason by

observing that:

The entries of Kharif 1998 is in respect of land mortgaged by one Mela Ram, Sansar Giand and Hari Chand cosharers and not the petitioner

herein. Therefore, this entry is not relevant in the case. Subsequently, the land was mortgaged with the respondent for a consideration of Rs.100/

and accordingly, an entry in the revenue record was reflected as ""REHAN KHANGI.....

Similarly, he preferred the entry recorded in 1971 but rejected the same appearing in Rabi 1966 to Kharif 1969 by observing as under :

.........The entries of khasra girdawari hi the year, 1971 indicates that there was a mortgage on behalf of petitioner. The entries of respondents in

khasra girdawari in the year 1966 do not corroborate with the entry of Jamabandhi and, therefore, cannot be relied upon and the respondents have

failed to adduce any documentary evidence to establish the genuineness of the entries....

These observations are not only erroneous and perverse but also against the admitted facts. Moreover, the findings of fact recorded by the

appellate authority have not been reversed on any of the grounds specified under section 21(2) of the Act i.e. question of law or public interest but

by appreciating evidence which is not permissible. So, the Tribune has exercised jurisdiction not vested in it. It has acted as it was exercising

powers of 1st. appellate court.

In view of the above, it is clear that the Tribune has acted without jurisdiction because it was not a fit case for exercising jurisdiction under

section 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 02.1.1996 shall stand.