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2012 Supreme(J&K) 725
J&K SPECIAL TRIBUNAL AT JAMMU
Sanjay Gupta, J.
Mohd. Shafi & Ors. -Appellant
Versus
Siraj Bibi -Resopndent
STJ-753-2009 [Revision against the order of learned Custodian General Jammu dated 7-7- 2009 prayer for setting aside the same.]
Decided On : 01-03-2012
The central legal point established in the judgment is the relevance of mutation under the Agrarian Reforms Act and the lack of jurisdiction of the Custodian Department to adjudicate upon land that had been deleted from their record due to restoration under the Evacuee Property Act.
Headnote:
Revision Petition - Land Dispute - Agrarian Reforms Act 1976, Evacuee (Administration of Property) Act 2006 - The court discussed the legal provisions of the Agrarian Reforms Act 1976 and the Evacuee (Administration of Property) Act 2006, emphasizing the relevance of mutation under section 4 and 8 of the Agrarian Reforms Act. The court highlighted the overriding effect of the provisions of the Agrarian Reforms Act and the lack of jurisdiction of the Custodian Department to adjudicate upon land that had been deleted from their record due to restoration under the Evacuee Property Act.
Fact of the Case:
The respondent was seeking possession of land restored to her in 1963, which was occupied by the petitioners. The Deputy Custodian dismissed the application, leading to a challenge before the Custodian General. The Custodian General remanded the case, prompting the petitioners to file a revision petition.
Finding of the Court:
The court found that the Deputy Custodian had not conducted a thorough inquiry and had passed the order in a casual manner. It held that the Custodian had the power to adjudicate despite the deletion of the land from evacuee property records. The court also emphasized the relevance of mutation under the Agrarian Reforms Act and the exhaustion of remedies under the Act by the respondent.
Issues: The issues revolved around the jurisdiction of the Custodian Department to adjudicate upon the land, the relevance of mutation under the Agrarian Reforms Act, and the maintainability of the respondent's application for possession.
Ratio Decidendi: The court's decision was influenced by the legal provisions of the Agrarian Reforms Act 1976 and the Evacuee (Administration of Property) Act 2006, emphasizing the relevance of mutation under section 4 and 8 of the Agrarian Reforms Act, the overriding effect of the provisions of the Agrarian Reforms Act, and the lack of jurisdiction of the Custodian Department to adjudicate upon the deleted land.
Final Decision: The revision was accepted, and the order of the court below was set aside. The file of the court below was sent back along with the order, and the file of this court was to be consigned to record after due compilation.
2. Petitioners have challenged the impugned order on the grounds, that court below has not properly appreciated the law and so order is against facts and law. That Custodian has no power to adjudicate upon the land, as land has been deleted from the Custodian record.
3. Heard counsels for the parties and perused the record.
4. Counsel for petitioners has elaborated all grounds taken in revision petition, whereas counsel for respondent has taken a preliminary stand that revision against remand order is not maintainable.
5. I have given my thoughtful consideration to whole aspects of matter.
6. Facts necessary for deciding the matter reads that, respondent herein was restored land comprising khewat no. 23/21 and 17/16 situated at village kheri on 6.7.1963 and possession of land was also given to her, which is evident from mutation no. 115 attested on 7.9. 1976.
7. It appears that mutation no 122 under section 4 of agrarian reform act was attested in favour of father of petitioners on 24.12.1981, as he was in cultivating possession of land in kharif 1971.
8. Respondent herein filed an appeal before Financial Commissioner with power of agrarian reform commissioner and said appeal was dismissed in default on 26-09-96. Restoration application was also dismissed on 8.2.2000.
9. Respondent also filed a suit before Additional Munsiff Forest Magistrate Jammu on 17-2-2000 for permanent property injunction with regard to land. This suit was withdrawn on 26-3-2003.
10. That after dismissal of suit respondent herein filed an application for delivery of possession of land before Deputy Custodian with regard to land measuring 90K-13M situated village Kheri Teshil and District Jammu, which was restored to her in 6.7.1963. Siraj Bibi laid the claim for possession of land on the ground that, land has been restored to her by department and respondents/ petitioners herein without any right and title have illegally occupied the said land. Respondents have also got wrong entry in the revenue record on their name.
11. Dy. custodian dismissed the application on the ground that, as land in question has been deleted from evacuee property, so applicant has to approach civil court for possession.
12. The order of dismissal of application was challenged before Custodian General by respondent herein.
13. Custodian general, while passing the impugned order under revision, held that, Deputy Custodian has not deeply conducted the inquiry and order has been passed in very casual manner. The legal as well as factual aspects have not been mentioned. He further held that if E.P. is de-notified or deleted, that does not mean that Custodian has no power. Court below has also observed in the impugned order that restoration order dated 6-7-1963 was also not in Deputy Custodian file. Deputy Custodian while passing the impugned order has not initiated any deep inquiry in to the matter The Rule 33(Restitution provision) of E.P. Act has not been complied, accordingly case file was been remanded by way of impugned order to Custodian after setting aside the order of Deputy Custodian.
14. I have given my thoughtful consideration to whole aspects of matter and also gone through relevant law.
15. Agrarian reforms act 1976 and Evacuee (Administration of property) act 2006 are two different acts, having different field. Former act deals with transfer of land to tillers, who were cultivating the land in Kharif 1971. Later act deals with administration of evacuee property. Both acts have complete procedure.
16. As per agrarian reform act, entry in Kharief 1971 with regard to cultivating possession, is relevant, it is upon this entry right of prospective ownership is conferred under section 4 of act.
17. Section 4 of Act envisaged tha
