Ved Parkash vs Special Tribunal, Jammu and Another

O.P. Sharma, J.—The facts of the case in brief are these. It appears, Respondent-Janak Raj had applied for correction of Annual Record

(Girdawari) for the land measuring five marlas comprised under survey No. 1144/832 situated in Chann Rorian Tehsil Hiranagar to the Assistant

Commissioner, Kathua. By order dated 5-9-1981, the Assistant Commissioner (Collector) 'Kathua found that as per copy of the Chowkidara and

report of the Naib Tehsildar, Hiranagar, applicant Janak Raj, (respondent herein) was in continuous occupation of the land prior to Kharief 1971.

He, therefore, directed that revenue record be corrected accordingly by entering him in possession and also restrained the petitioner Ved Parkash

from interfering in the possession of Janak Raj-respondent. This order was challenged by the petitioner in appeal before Joint Financial

Commissioner, Agrarian Reforms with powers of Commissioner under Agrarian Reforms Act. While allowing the appeal, the Commissioner,

Agrarian Reforms held as under :--

...........In the instant case the disputed land was not used for agricultural purposes or for purposes subservient to agriculture etc, but was under

shops in Kharief 1971 which fact, has been undisputedly admitted by both the parties and is also duly supported by Revenue record produced by

the parties.

In view of the fact and law, as discussed above, the disputed land does not fall within the definition of land and therefore the appeal is accepted

and the impugned order set aside........

This order was challenged by respondent-2 Janak Raj in revision before the Special Tribunal who allowed the revision and set aside the order

for the following reasons :

..........From the plain reading of the impugned order of the Assistant Commissioner (R), it will be evident that the said order does not pertain to

any provision of the Agrarian Reforms Act. The order has to be seen regarding its nature. The order does not decide claim inter se of parties under

the provisions of the Agrarian Reforms Act and as such the same cannot be given the camouflage of an order allegedly passed by the authorities

under the Agrarian Reforms Act. The main criteria for holding a proper order to have been passed under the provision of the particular enactment

is to be visualised from the contents of the order, nature of the dispute and the adjudication given there by. In the instant case, none of the

prerequisite are fulfilled to give it a shape of an order to have been passed under the Agrarian Reforms Act and as such property in question does

not fall within the ambit of Agrarian Reforms Act and moreover, the impugned order of Assistant Commissioner (R) has not been passed under the

Agrarian Reforms Act, the same does not determine any of the rights or interest of the parties The grounds of revision petition are well taken. The

shop and house do not come under the definition of ""Land"" under the Agrarian Reforms Act, 1976 as also conceded by the Commissioner

Agrarian Reforms in his concluding para of his order. The Assistant Commissioner (R) has passed the order in his capacity as Revenue Officer and

appeal against that order lies before the Revenue Officer under the Land Revenue Act. The Learned Commissioner Agrarian Reforms has

assumed the jurisdiction which was not vested in him. Order without made jurisdiction which is nullity as held in Amrit Bhikaji Kale and Others Vs.

Kashinath Janardhan and Another, . The said order suffers from inherent lack of jurisdiction and is legally non est and non-exist-, ent and is to be

completely ignored as if no such order was passed or existed.

7: In view of what has been discussed above, I hold that the Assistant Commissioner(R)Kathua has passed the order as a Revenue Officer under

the Land Revenue Act and appeal against that order lies before the Competent Revenue Officer under the Land Revenue Act and not before the

Agrarian Reforms Act. The revision petition is, therefore, accepted and the impugned order of the Agrarian Reforms Commissioner dated 11-9-

1991 is set aside. The non-applicant is at liberty to agitate the order before the proper forum, if he so likes.......

This order has been challenged by the petitioner on the ground that the Tribunal erred in holding that the Assistant Commissioner did not act as

Collector Agrarian while passing the order impugned in appeal.

Learned counsel appearing for the petitioner argued that the order dated 5-9-1981 passed by the Assistant Commissioner (Collector) is itself

proof of the fact that he was acting under the Agrarian Reforms Act otherwise reference to the possession in Kharief 1971 was irrelevant. This

fact, according to her, has been ignored by the Special Tribunal. Mr. Raghu Metha, appearing for the respondents has however, argued that since

Assistant Commissioner also exercises power under the Agrarian Reforms Act, therefore, Appellate Authority construed it as an order passed by

him as Collector Agrarian Reforms The order being erroneous, the Tribunal, it is argued, was justified in exercising jurisdiction u/s 21 of the

Agrarian Reforms Act.

The question involved is whether the Assistant Commissioner had passed the order directing correction of the entries in the Register of

Girdawari since 1971 under the Land Revenue Act or Agrarian Reforms Act. While appreciating this question, the Tribunal observed that, 'The

main criteria for holding a proper order to have been passed under the provision of the particular enactment is to be visualised from the Contents of

the order, nature of the dispute and the adjudication given there by."" This was the correct approach to the problem. But after holding that the

Assistant Commissioner had directed (i) maintaining the status quo on spot (ii) recorded a finding that Janak Raj was in possession since prior to

Kharief 1971 and (iii) directed correction of the revenue record since Kharief 1971, the Tribunal failed to apply the criteria set Out above to

determine the question.

The Learned Member of the Tribunal failed to appreciate that the Assistant Commissioner had decided the factum of possession with reference

to Kharief 1971 which is relevant only under Agrarian Reforms Act. Similarly, the order of status quo could be passed only under the Agrarian

Reforms Act and so also the order directing correction of entries. The Assistant Commissioner while passing the order had undisputedly acted only

as Collector Agrarian but this was a colourable exercise of power because he had no jurisdiction to entertain the application. The order passed by

him being illegal and against law was rightly set aside by the appellate authority under the Act. The order has not been passed under Revenue Act

because the law do not empower him to direct correction of Revenue entries with effect from Kharief 1971. Moreover, the object of such a

direction was only to confer the benefit of ownership under the Agrarian Reforms Act at the cost of owner. This apart, the learned Member of the

Tribunal failed to appreciate the fact that Assistant Commissioner did not record a finding as to when the shop and house was constructed. He only

stated that Janak Raj was in possession of the land in Kharief 1971 and prior thereto on which construction has been raised. This statement of fact

should have been considered by the Tribunal with reference to the law as to what would be the effect of conversion of Agricultural land u/s 13 of

the Agrarian Reforms Act. However, assuming that the user of land stand changed, the order of the Commissioner Agrarian Reforms did not

require interference by the Tribunal because it was he alone who could have quashed the same leaving the parties free to agitate the matter before

appropriate Forum. The consequence of the order impugned is that the order of the Assistant Commissioner (Collector) remains intact and so also

the mischief regarding his finding that Janak Raj was in possession of the land in Kharief 1971. This finding could be displaced only by the

Appellate Authority under the Act because such an order regarding the date of possession could be passed only under the Agrarian Reforms Act.

So, the Special Tribunal exceeded his jurisdiction, while setting aside the order passed by the Commissioner Agrarian Reforms He has

misconstrued the fact recorded by the Assistant Commissioner only to reach a conclusion which is not only perverse but against the admitted facts

of the case.

In view of the above, the petition is allowed and the order impugned is quashed. The order of the Commissioner, Agrarian Reforms shall stand

restored with all the consequential benefits.