Shashi Pal vs Kamloo and Another

Aftab H. Saikia, C.J.—Heard Mr. M.L. Sharma, learned Counsel for the appellant.

None appears for the respondents despite notice.

By means of this Letters Patent Appeal, the appellant has challenged the judgment and order dated November 30, 1999 passed by the Writ

Court in OWP No. 138/1995 whereby the writ petition preferred by respondent No. 1 herein as the writ petitioner was allowed by the Writ Court

holding that conferment of his proprietary right on the respondent No. 1 was held to be in accordance with law and resultantly the findings arrived

at by the Jammu and Kashmir Special Tribunal, Jammu rendered by its order on 2.9.1993 in file No. STJ/845/92-93 were interfered with.

The basic facts needed to be noticed herein for proper resolution of the appeal are that respondent No. 1 was cultivating, being in possession of

the land in question as a tenant, before and till Kharif 1971. Meanwhile, the said land was requisitioned by the Armed Forces with effect from

1.4.1974. However, even after requisition, the respondent No. 1 continued to be in possession of the land with the Armed Forces.

It was not in dispute that the respondent No. 1 was in cultivating possession of the land up to Kharif 1971 and till date of its requisition by the

Armed Forces. Under such circumstances, it was pleaded in the writ petition that she was entitled to get the benefit of Sections 4 and 8 of the

Jammu and Kashmir Agrarian Reforms Act, 1976 (hereinafter referred to as the ""Act"").

Learned Single Judge accepted the submissions so made on behalf of respondent No. 1, and, accordingly, granted the relief as already indicated

above.

Impugning the Judgment and order of the writ Court, Mr. Sharma has strenuously argued that the benefit given to respondent No. 1 by the writ

Court is not permissible under the law. According to him, the Act is not applicable to the instant case so as to give the relief granted under the Act

to respondent No. 1. His basic contention is that the land being requisitioned by the Army, it falls in the category of exception so contemplated u/s

3 of the Act. He has drawn our attention to Section 3(h)(i) in support of his submission.

For the sake of convenience, the relevant provisions of the Act, to be dealt with herein, may be reproduced as under:

Exception:

....

....

(h) Land:

(i) requisitioned under any law for the time being in force; or

....

....

Vesting in the State of rights in land not held in personal cultivation (1) Notwithstanding contained in any law for the time being in force, but

subject to the provisions of this Chapter, all rights, title and interest in land of any person, not cultivating it personally in Kharief 1971, shall be

deemed to have extinguished and vested in the State, from encumbrances, with effect from the first day of May, 1973.

....

....

Vesting of ownership rights in land in prospective owner"" Notwithstanding contained in any law, for the time being in force, but subject to the

provisions of Sections 5 and 14, where an ex-landlord resumes land u/s 7, the tiller, from whom land is so resumed, or his legal heirs shall be

bested with ownership rights in land left with him or his heirs, as the case may be, after resumption in the following manner, namely:

Where the ex-landlord resumes the entire land permissible under Clause (f) of Sub-section (2) of Section 7, without payment of any levy and as

soon as the ex-landlord is given possession of resumed land; and Where the ex-landlord does not resume the entire land permitted by clause (f) of

Sub-section (2) of Section 7 because of the provisions of Sub-section (3) of Section 7:

after payment of such levy in such manner as is provided in Schedule III for the portion of such land which, though resumable by such ex-landlord

under Clause (f) of Sub-section (2) of Section 7; and without payment of any levy and after the ex-landlord is given possession of the resumed

land, for the portion of such land left with such tiller other than that mentioned in Sub-clause (i)

....

....

(4) Where such land as is mentioned in Sub-section (10) has been or is cleared for acquisition by the Government under any law for the time being

in force and the prospective owner thereof has not acquired ownership rights until the date of such declaration, besting of ownership rights in such

land in such person shall not be effective and the instalments of levy, if any, paid shall be refunded to such person in lump sum with interest at five

per centum per annum.

Relying on the above provisions of law, Mr. Sharma has placed his limited argument that since Section 3(h)(i) has completely barred the benefit

to the tiller, over his land on being requisitioned the same under any law for the time being in force, the learned Writ Court committed an error

apparent on the face of record in granting relief to the respondent No. 1 and, as such, the impugned judgment and order deserves interference by

this Court.

Due consideration was given to the extensive argument so canvassed by Mr. Sharma, learned Counsel for the appellant.

We have also closely perused the impugned judgment and order as well as the relevant laws so reproduced hereinabove.

In the instant case, respondent No. 1, admittedly, was occupying the land since 1971 and till date of requisition of the same by the Armed

Forces on 1.4.174. On the other hand, Section 4 clearly and emphatically contemplates that the land shall be vested with the Government with

effect from May 1, 1973 if the land in question is not in cultivating possession by any person in Kharif 1971. What transpires herein that

respondent No. 1 was cultivating the land since 1971 and she continued to do so even after the requisition by the Armed Forces in the year 1974,

under the Armed Forces.

It is clear from the provisions of Section 4 that the effective date of extinguishing the right of cultivation of a person and vesting the land with the

Government is May 1, 1973. Be it mentioned herein that the Act came into force with effect from 13.7.1978 providing the cut off date of May 1,

1973, as clearly reflected u/s 4 of the Act.

Having considered the above mentioned factual position also upon hearing learned Counsel for the appellant, we are of the firm view that no

illegality or irregularity having been committed by the writ Court in arriving at a finding so recorded in the impugned judgment.

Consequently, we are of the view that this Letters Patent Appeal is bereft of any merit and, accordingly, the same stands dismissed.