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1978 Supreme(J&K) 24
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
I.K. Kotwal, J.
Haji Shaban Dar & Anr. - Appellant
Versus
Financial Commissioner & Ors. - Respondent
Writ Petition No. 73/1972
Decided On : 25 April, 1978
Advocate For Appellant: K.N. Raina
Advocate For Respondent: S.K. Chaku
Advocate For Respondent: A.K. Malik
A party cannot claim protected tenancy rights over land converted into an orchard before the introduction of section 15-A of the Tenancy Act.
Headnote:
TENANCY - EJECTMENT - PROTECTED TENANCY - LAND CONVERTED INTO ORCHARD BEFORE 1955 - NO PROTECTED TENANCY RIGHTS - SECTION 15-A OF THE JAMMU AND KASHMIR TENANCY ACT, 1928 - REVISION - JURISDICTION - SECOND APPEAL - GROUNDS - SECTION 11 OF THE JAMMU AND KASHMIR LAND REVENUE ACT, 1939 - SECTION 100 C. P. C. - ORDER 7 RULE 7 C. P. C. - RELIEF ON THE BASIS OF A CASE NOT PLEADED - PROCEDURE - SECTION 88 OF THE JAMMU AND KASHMIR TENANCY ACT, 1928 - SECTION 4 C. P. C. - STAY OF EJECTMENT PROCEEDINGS - JAMMU AND KASHMIR TENANCY (STAY OF EJECTMENT PROCEEDINGS) ACT, 1966 - SECTION 49 OF THE JAMMU AND KASHMIR TENANCY ACT, 1928.
Fact of the Case:
Petitioners, alleged to be tenants-at-will, were sought to be ejected by the respondents, the owners of the land, under sections 46, 47(i)(b), and 48(2) of the Jammu and Kashmir Tenancy Act. The petitioners resisted the application, claiming protected tenancy rights acquired before the land was brought within the limits of the Notified Area, Srinagar, and improvements made by planting fruit-bearing trees and reducing the land to vegetable growing. The Assistant Commissioner and the Collector dismissed the application, holding the petitioners to be protected tenants. However, the Divisional Commissioner, on appeal, held the petitioners to be tenants-at-will and remanded the case for ejectment proceedings. The Financial Commissioner upheld the Divisional Commissioner's order. The petitioners challenged these orders in a writ petition.
Finding of the Court:
The High Court held that the Divisional Commissioner had jurisdiction to entertain the second appeal under section 11 of the Land Revenue Act as the orders of the Assistant Commissioner and the Collector suffered from an error envisaged by clause (c) of section 100 C. P. C. The petitioners could not claim protected tenancy rights as the land had been converted into an orchard before the introduction of section 15-A of the Tenancy Act by the Jammu and Kashmir Tenancy (Amendment) Act, 1955. The petitioners were not taken by surprise as the relief was granted to the respondents on the case pleaded and proved by the petitioners themselves. The procedure adopted by the Divisional Commissioner in deputing his P. A. as a Commissioner to lend reassurance about the truth of the case set up by the petitioners was not improper. The Jammu and Kashmir Tenancy (Stay of Ejectment Proceedings) Act, 1966, which placed an embargo on the ejectment of tenants, did not apply to the application made by the respondents as it was not under section 49 of the Tenancy Act.
Issues: 1. Whether the Divisional Commissioner had jurisdiction to entertain the second appeal under section 11 of the Land Revenue Act? 2. Whether the petitioners could claim protected tenancy rights over the land converted into an orchard before the introduction of section 15-A of the Tenancy Act? 3. Whether the petitioners were taken by surprise by the relief granted to the respondents? 4. Whether the procedure adopted by the Divisional Commissioner in deputing his P. A. as a Commissioner was improper? 5. Whether the Jammu and Kashmir Tenancy (Stay of Ejectment Proceedings) Act, 1966, applied to the application made by the respondents?
Ratio Decidendi: 1. A second appeal lies under section 11 of the Land Revenue Act on the grounds mentioned in clauses (a), (b), or (c) of section 100 C. P. C. where an original order has been confirmed on first appeal. 2. Protected tenancy rights cannot be acquired over land converted into an orchard before the introduction of section 15-A of the Tenancy Act. 3. A party cannot claim to be taken by surprise by relief granted on the basis of a case pleaded and proved by the party itself. 4. Deputing a P. A. as a Commissioner to lend reassurance about the truth of a case set up by a party is not improper if the party is not permitted to turn a volte face at a later stage. 5. The Jammu and Kashmir Tenancy (Stay of Ejectment Proceedings) Act, 1966, applies only to proceedings under section 49 of the Tenancy Act.
Final Decision: The writ petition was dismissed.
(i) the matter stood concluded by the concurrent findings of fact arrived at by the Assistant Commissioner and the Collector that the petitioners had acquired rights of protected tenants qua the land which could not be disturbed either in second appeal or in revision even assuming that the findings were grossly erroneous ;
(ii) no relief could be given to the respondent landlords on the ground that the land was an orchard when they had failed to raise such a plea in their application ;
(iii) the Divisional Commissioner could not refer the matter for enquiry to his P. A. who was not a Revenue Officer within the meaning of section 19-A of the Jammu and Kashmir Land Revenue Act, nor act upon his report without inviting objections thereto from the petitioners ; and
(iv) the ejectment proceedings of tenants had been stayed by an Act passed by the State Legislature.
2. Developing his first two points, Mr. Raina has argued that the Divisional Commissioner had exceeded his jurisdiction in oversetting the concurrent findings of fact arrived at by the two officers below that the petitioners were protected tenants qua the land in dispute. In any event, argued the learned counsel, the respondents could not get any relief on the ground that the land was an orchard to which the provisions of section 15-A of the Tenancy Act did not a
