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Judgment
(1) In this writ petition under Art. 226 of the Constitution of India read with Sec 103 of J&K. State Constitution, it has been prayed that the Govt.
order No. Rev (BLA) 175/79 dated 27. 7. 1979 be quashed as the order is illegal and against the principles of Natural justice affecting the rights
of the petitioner without he having been given an opportunity of being heard.
(2) Briefly stated the facts of the case are : that the respondent No. 3 Mohd Ashraf Durrani is the owner of piece of land measuring 4 kanals
comprised in Khasra No. 373/min situated in Umerhair rear Srinagar. The petitioner alleges that respdt No. 3 entered into an agreement of sale
with him in respect of this piece of land, Accordingly the petitioner as well as the respdt No. 3 jointly submitted an application to the Revenue
Minister (Respondent No. 1) in terms of Sec 8 of the J&K Agrarian Reforms (Suspension of Operation) Act, 1975 for permission to sell and
purchase the land respectively as the piece of land sought to be alienated by respondent No. 4 was entered in revenue records as agricultural land
and in view of the provisions of the Agrarian Reforms Act, the permission for its sale had to be necessarily obtained from the respondent No. 1.
The petitioner alleges that the matter was jointly pursued and got processed by him and the respdt No 3 and various formalities as required by the
Act and the Rules were observed by both of them together In pursuance of their efforts it was on 30 9. 77 that the respondent No. 1 accorded
sanction to the alienation of land aforementioned in favour of the petitioner, a copy of the order is attached as AnnexureA to the petition. The
petitioner then alleges that keeping him in dark respdt No 3, the owner of the piece of land, negotiated another sale of the same property with
respdts Nos. 4&5. The matter was again processed under the provisions of the Agrarian Reforms Act, 1976 (hereinafter referred to as the 'ACT')
and the respondent No 1 the Revenue Minister again accorded sanction to the sale of the same piece of land in favour of respondents Nos 4&5
The impugned order, also contained a clause rescinding the earlier order sanctioning the sale in favour of the petitioner This was done by respdt
No. 1 in spite of the fact that earlier order sanctioning the sale in favour of the petitioner was within his knowledge. It has been alleged that the
impugned order has been passed by respdt No. 1 in violation of principles of Natural Justice. No notice was issued to the petitioner before the
earlier order was rescinded by respondent No. 1 It has been further alleged that the rules of Natural Justice are necessarily to be read into the
provisions of Statute and the statutory authority exercising powers under the Statute is bound to observe these principles before an order in the
nature of the impugned one could be passed. It has been admitted in the petition that sec 31 of the Act of 1975 does not as such embrace the rules
of natural justice but it would be only just and equitable and in accordance with the interpretation of these Statutes to read the requirements of rules
of Nature justice so far as sanction for sale u/s 31 of the Act is concerned The petitioner should have been given an opportunity of being heard
before cancellation of the earlier order. It is being next contended that the respdt No. 1 was not competent to rescind the earlier order sanctioning
the sale in favour of the petitioner as by rescinding the same the petitioner has been deprived of his right to institute a suit for specific performance
of the contract against the respondent No. 3 Also it is contended that the respondent No. 1 in such an. eventuality himself became a party to the
breach of contract. The next contention raised by the petitioner was that no reason have been given in the impugned order for rescinding the earlier
order and on this ground, the impugned order deserves to be quashed as it was a nonspeaking one The rescinded order has is view of the
petitioner created a legal right in favour of the petitioner which was capable of being enforced through a civil court but the impugned order has
deprived him of this right. By rescinding the earlier order, the respondent No. 1, exceeded the jurisdiction vested in him and has acted in a manner
which offends the very concept of justice. It has been further alleged that the petitioner has no other alternative remedy under the Act and
therefore, has invoked the extraordinary jurisdiction of the court.
(3) The respondent No. 3 has admitted that he applied to the respondent No. 1 (Revenue Minister) for permission to sell the disputed piece of
land as required under the provisions of the Act and also mentioned therein the name of the prospective purchaser as that too was required to be
given in view of the provisions of the Act and the rules made thereunder. He has denied that there was any agreement between him and the
petitioner that the property in question would necessarily be sold to him in case the permission was granted by respdt. No. 1. He has however,
admitted that there were some inconclusive negotiations of a transaction about the sale of the piece of land between the petitioner and himself but
the same fell through and did not mature and therefore, no agreement for sale in respect of the said land was executed between the petitioner and
himself. Ha thereafter got an offer for the sales of the same piece of land from respdts. 4 & 5 In this context an application seeking permission to
amend the names of the wouldbe purchasers was made and the same was granted in accordance with the provisions of the Act. It has been denied
that the petitioner has any right or locus standi to challenge the same. It has next been categorically denied that by mentioning his name as the
intending purchaser in the rescinding order, the petitioner had acquired any legal right the infringement of which could confer on him a right to file
and maintain a writ petition of this nature. Respondent No 3, further deposed that the land in question belongs to him and it was open for him to
sell same to any one he likes provided such a person could be a competent purchaser under the Act. It has flatly been denied that there was
agreement to sell between the petitioner and the respondent No 3 executed either before or after obtaining the permission from the Revenue
Minister (Respdt No 1). Reference in this regard has been made to Sec 54 of the Transfer of Property Act of the J&K State which was in this
context quite distinguishable from the law prevailing in the rest of the country. According to a subclause of section 54 of the T. P. Act, no contract
for sale is to be taken into consideration unless it was in writing. According to the respondent there was no agreement for sale between him and the
petitioner in terms of section 54 of the State Transfer of Property Act and therefore, the petitioner had obtained no right whatsoever to maintain
either a civil suit or this writ petition. Respondent No. 3 has further maintained that the petitioner had earlier taken recourse to a civil court and had
filed a suit against the same respondents for breach of contractual obligations but he having pursued that course for some time and having failed
therein, the instant petition was filed and as such is liable to be dismissed on this ground alone. It has been contended that the grant of permission
for sale of the agricultural land under S 31 of the Act was not a quasi judicial proceedings where the authority was bound to hold a regular enquiry,
hear the parties, determine the rights and disputes interse and then pass orders thereon. The action of the respondent No. 1 under Sec. 31 of the
Act was simply in the nature of an executive one prima facie to arrive at conclusion as to whether by the intended transaction the basic purpose of
the Act is or is not affected or subverted, and check the violation of the provisions of the Act, if any According to the respondent No. 3 it was
wrong to say that the order passed by respondent No. 1 was in violation of the rules of Natural Justice as the subsequent order before its issuance
did not require a notice to the petitioner. It has been next contended that in view of the circumstances appearing in the case the only appropriate
forum for deciding such matters in case of a dispute was a civil court, where questions of fact could be gone into and where a thorough enquiry
could be held without which a dispute of this nature may not get decided.
(4) The respondent 1 and 2 have contended that an efficacious alternate remedy of a suit being available to the petitioner the writ could not lie
especially when the alternate remedy has been tried and the petitioner has failed therein. It has been stated the impugned order permitting the
respondent No. 3 to amend and furnish the name of the next wouldbe alienee was issued at his request but not before he filed an affidavit stating on
solemn affirmation that the first proposed purchaser has resiled from, the bargain and for several months has failed to come forward to complete
the bargain. It has been stated further that in terms of Rule 60 embodied in J&K Agrarian Reforms Rules, 1977 (Rules of 1977 the respondent
No. 1 before granting permission for alienation of land u/s of the Act has to see :
i/ That the basic area of the alienor does not exceed the ceiling area; and
ii/ That the basic area of the person seeking to acquire land does not alongwith land sought to be acquired exceed the ceiling area; and
iii/ Where the land is acquired for residential purposes, the land of the alienee for such purposes does not exceed 4 kanals.
It has been alleged that the respondent No. 1, while according sanction/permission under Section 31 of the Act has kept in view the above
mentioned requirements and objects. It is submitted that the name of the proposed purchaser is to be supplied simply to see that the provisions of
the Act were not defeated under the garb of the sale. The petitioner as well as Respdts. 4 & 5 were found to meet the requirements of law in this
regard. There was no impediment found in granting permission in their favour and the same was granted by respondent No. 1. It has been next
contended that there was no illegality in the impugned order.
(5) With the coming into force of the Agrarian Reforms Act, certain restrictions have been laid on the sale of the agricultural land in the State. The
ceiling has been fixed for possession of such land. Sale and purchase of the agricultural land has been prohibited. It is only u/s 31 of the Act that
sale of a piece of land not measuring more than 4 kanals for building purposes could be effected by an owner in favour of any intending purchaser
with the permission of the Revenue Minister. In this context if an owner of land intends to or is desirous of selling a piece of land to any person, he
has to submit an application to the Revenue Minister seeking permission for selling the same to a named person. The application is processed in the
Deptt of Revenue with a view to find out as to whether in case of permission being granted the owner by selling the land would or would not
thereby contravene any provision of the Act and also on the same lines it is to be found out whether the intending purchaser would not exceed the
ceiling fixed for a landholder to possess land. Under the Act and the Rules framed thereunder, the land owner alone merely apply for such a
permission. The intending purchaser is not given the right to file an application for permission to purchase the land. If the application u/s 31 is
allowed and the owner (landlord) is permitted to sell the land in question, it undoubtedly creates a legal right in him and he can dispose of the
property as he likes. The permission in favour of the landlord, however, does not at the same time create a legal right in the named purchaser in the
sense that the letter could file a writ petition to enforce the same. No absolute right is created in favour of the intending purchaser as the seller could
change his mind and refuse to sell at all or in particular to the named purchaser. Nor the intending purchaser was bound to purchase, even he could
reject the bargain.
(6) It is implicit in the exercise of the extraordinary jurisdiction under Art 226 of the Constitution that the relief asked for must be one in the
circumstances of this case to enforce a legal right. In AIR 1962: SC : 1044, it has been held that the existence of a right is the foundation of the
exercise of jurisdiction by the High Court under Art. 226. The right that can be enforced under Art 226 shall be personal right of the petitioner
himself In AIR : 1962.: SC : 1044 the facts were that the petitioner under the agreement had the right to manage the oriental Gas Co for a period
of 20 years and to receive remuneration for the same. The matter came under a dispute and the Supreme Court held that there was a legal right
that had accrued to the petitioner under the agreement and as such the petitioner had a locus standi to file the writ petition.
(7) In the instant case there was no agreement between the parties though it was alleged by the petitioner that he had entered into an agreement
with the respondent No 3 for the sale of a piece of land to him, yet this has been flately denied by the respondent No 3. No deed of agreement has
been produced to prima facie establish this fact It has thus, become a question of fact which could not be enquired into and made subject matter of
a writ petition of this kind Moreover, it is not alleged that the agreement to sell was in writing and signed by the parties. Sec 54 of the T. P. Act of
the State of J&K recognizes only such an agreement to sell as is in writing and signed by the parties. Had there been an agreement in writing
between the petitioner and the respondent No. 3 the situation might have taken a turn and may be the turn might have been in favour of the
petitioner as in that case a right to sue damages or specific performance might have accrued to him against the respondent No. 3; though even in
that eventuality it could not be said with certaintity that a writ petition could also have been maintained In this context the argument of the learned
counsel for the petitioner that by rescinding the earlier order the respondent No. 1 has deprived the petitioner of a right to file a suit for specific
performance against the respondent No 3 could not be entertained as in view of the provisions of Sec. 54 of the T. P. Act the suit for specific
performance or even for damages on the facts of the case may not have been maintainable. It was stated at the bar that in fact a civil suit had been
instituted in a court of law in Srinagar but the same has been dismissed as withdrawn.
(8) Much stress has been laid by the learned counsel for the petitioner on the point that the principles of Natural Justice demanded that before
cancelling the previous order the respdt No. 1 must have issued a notice to the petitioner and heard him in this regard : I do not however, find any
force in this contention. The R venue Minister (Respdt No 1) is not authorised under the Act especially u/s 31 of the Act to inquire into these
details and give his decision. He has only to see whether the provisions of the Act especially in regard to the ceiling of land have or have not been
violated. It was not the petitioner who had applied for the permission to sell the land which only respdt No. 3 could and had submitted. The respdt
No. 3 by submitting an affidavit convinced the respondent No. 1 that the person whose name he had earlier given as intending purchaser i. e. the
petitioner has backed out or that he no longer intended to sell the land to him and therefore, be may be permitted to sell the same piece of land to
others named in the application Relying on the affidavit after necessary enquiries were made, the new intending purchasers were also found
competent to purchase the piece of land and so the impugned order came to be passed. An appropriate authority having bonafide formed an
opinion that either the intending purchaser has backed out of the transaction f or the reason or the other or that the landowner himself would net
like to sell the piece of land to the person concerned, the Authority was within its powers to permit the owner to sell the land to any one else who
was found to be willing and also competent to purchase the same. In AIR 1971 ; SC : 40, it has been held that the rules of Natural Justice are not
embodied rules nor they can be elevated to the position of Fundamental Rights. Their aim is to secure justice or to prevent miscarriage of justice. In
this judgment of the Supreme Court, the following also appears :
Whether the exercise of a power conferred should be made in accordance with any of the principles of natural justice or not depends upon the
express words of the provision conferring the power, the nature of the power conferred the purpose for which it is conferred, and the effect of the
exercise of that power.
The provisions of Sec 31 of the Act are reproduced below :
31Restriction on alienation and felling or removal of trees
Notwithstanding anything contained in any law for that time being in force
(a) (i) alienation of land, whether by act of parties or a decree or order of a court of a Revenue Officer: or
(ii) felling or removal of trees standing on land; except under such conditions as may be prescribed and with previous permission of the Revenue
Minister, or such officer as may be authorised by him in this behalf is forbidden :
Provided that clearing of bushes or lopping or pruning of trees in accordance with agricultural practice shall not be deemed to be felling of trees.
Provided further that a mortgage without possession of land in favour of an institution mentioned in section 4A of the Jammu and Kashmir
Alienation of Land Act, Samvat 1995 and transfer of land in favour of the Govt. of Jammu and Kashmir shall not need any permission;
Provided also that felling of tree by the owner thereof standing within his ceiling area in personal cultivation shall not need any permission if it is
needed for domestic or agricultural use or where felling of tree becomes necessary to save life end property.
(b) any alienation of land made on or after the first day of May, 1973 in contravention of
(i) the provisions of this act : or
(ii) Section 45 of the J&K Agrarian Reforms Act, 1972 ; or
(iii) Section 8 of the J&K Agrarian Reforms (Suspension of Operation) Act, 1975; or
(iv) Clause (a) of Subsection (1) of section 3 of the J&K Prohibition on Conversion of land and alienation of Orchards Act, 1975 shall be null and
void and the land so alienated shall, after such enquiry as may be prescribed, vest in the state :
Provided that nothing herein contained shall be deemed to affect the provisions of sec 4 of the J&K Prohibition on Conversion of land and
Alienation of Orchards Act, 1975.
(c) no transfer of possession of land effected in anticipation of alienation of such land shall be valid and the land in respect of as may be prescribed,
vest in the State.
(d) no document purporting to alienate land in contravention of the provisions of this section shall be admitted to registration.
ExplanationFor the purpose of this section, alienation means sale, gift, mortgage with possession, bequest or exchange.
(9) Obviously no where in express words this provision of law enjoins the authority under the Act to apply principles of natural justice in a case like
the one at hand The nature of the power conferred on the Revenue Minister is such which is referable to the provisions of the Act and the effect
produced in case of being exercised only results m permission to sell The Revenue Minister in accepting or rejecting the application u/s 31 of the
Act has to act within the framework of the act and the Rules made thereunder; and if a deserving owner is refused permission to sell on grounds
not covered by the Act the same may bring in and attack the application of the principles of Natural Justice. In the instant case I am not inclined to
agree with the contention of the learned counsel for the petitioner that principles of natural justice have been violated because the petitioner was not
heard before the previous order was rescinded as in my view the earlier order has created no right in his favour whatsoever. Even in presence of
the earlier order the owner could have refused to sell the piece of land to him especially when there was no agreement in writing between the
parties. The right to purchase the piece of land is not created by the Agrarian Reforms Act in the intending purchaser but so far as the interpretation
of Sec 31 of the Act is concerned, it only declares that is case the named person intends to purchase the piece of land there was no bar to it under
the Act. The impugned order contains a line declaring the earlier order as cancelled. The introduction of this line was unfortunate and need not have
been introduced in the impugned order. Had there been a proper and legal agreement between the parties, the cancellation might have been
interpreted as taking away the right of the intending purchaser to persue the nun in a civil court.
In AIR: 1970 ; S C 150, the following appears;
The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in
areas not covered by any law validly made. In other words they do not supplant the lawof land but supplement it. The concept of natural justice
has undergone a great deal of change in recent years.
(10) The impugned order is only an executive order in nature wherein no enquiry in a manner suggested by the petitioner is required to be heId.
The only requirement in such cases for the authority is to do just and fair. The Revenue Minister in passing the impugned order does not appear to
have acted otherwise than fairly and justly.
(11) In this view of the matter prayer made in the writ petition that the Govt order No REV (BLA) 175/79 dt. 7.7/79 be quashed by a writ of
certiorari could not be allowed. The petition is therefore, dismissed accordingly. No order as to costs.