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2013 Supreme(J&K) 361
J&K SPECIAL TRIBUNAL AT SRINAGAR
Zubair Ahmad Raza, J.
Mir Muhammad Maqbool Shahbad Boulevard Srinagar -Appellant
Versus
Shakut Ahmed Ningroo & Ors. -Resopndent
File No. STS-2374-2008
Decided On : 09-05-2013
Petitioner in person, Nemo.
The main legal point established is that the vesting of ownership rights, determination of levy, and consequences of unauthorized land use change are crucial aspects under the J&K Agrarian Reforms Act, 1976.
Headnote:
Agrarian Reforms - Land Dispute - J&K Agrarian Reforms Act, 1976 - Section 4, Section 8, Section 11, Section 13 - The court discussed the mutations under section 4 and section 8 of the Act, the concept of personal cultivation in Kharif 1971, and the consequences of changing the nature of the land from agriculture to orchard. The key legal provisions interpreted include the conditions for vesting ownership rights, determination of levy, and the consequences of unauthorized land use change.
Fact of the Case:
The dispute involved a land measuring 10 kanals 7 marlas under Khasra Nos. 129 and 130 situated at Village Kachadora Shopian. The petitioner contested the mutations under section 4 and section 8 of the J&K Agrarian Reforms Act, 1976, claiming that the land had been converted into an orchard and the mutations were attested without adequate opportunity for the petitioner.
Finding of the Court:
The court found that the mutations were in accordance with the Act, and the land had been vested to the State. It concluded that the ex-landlord's right had been extinguished, and the tillers were entitled to levy but not restoration of the land. The court dismissed the revision petition for lacking merit.
Issues: The issues revolved around the validity of mutations under section 4 and section 8, the concept of personal cultivation in Kharif 1971, and the consequences of changing the land use from agriculture to orchard.
Ratio Decidendi: The court held that the mutations were valid, the ex-landlord's right had been extinguished, and the tillers were entitled to levy but not restoration of the land. It emphasized the importance of personal cultivation in Kharif 1971 and the consequences of unauthorized land use change.
Final Decision: The revision petition was dismissed for lacking merit, and the record was sent to the court below.
2. The brief history of the case is that mutation No. 285 comprising of land under survey No. 129 measuring 10 kanals and 7 marlas situated at Village Kachdora Shopian was attested under section 4 of J&K Agrarian Reforms Act, 1976 (hereinafter for short `as the Act') on 25-09-1982 declaring Abdul Qudoos Ningroo as prospective owner. This mutation was challenged by the petitioner before the Commissioner Agrarian Reforms/ADC Pulwama who set aside the mutation in appeal on 22-06-2002 and directed the Tehsildar Shopian to hold denovo inquiry and pass appropriate order as per law after providing an opportunity of being heard to all the parties. The Tehsildar Shopian after conducting the denovo inquiry passed an order on 28-08-2006 and declared respondents 1 to 3 herein as prospective owners under section 4 of the Act. Aggrieved of this order of Tehsildar Shopian, the present petitioner preferred an appeal before the court of Agrarian Reforms Commissioner, J&K, Srinagar who upheld the order of Tehsildar vide order dated 17-09-2008 and declared the respondents 1 to 3 as prospective owners and upheld the mutations of section 4 of the Act.
3. The petitioner preferred a revision against the order of Agrarian Reforms Commissioner, J&K, Srinagar dated 17-09-2008 before this Tribunal on the grounds that late Abdul Qudoos Ningroo who was entrusted with the chowkidari of land at Kachadora managed to attest a mutation under section 4 of the Act in the year 1982 at their back and on hearing about this mutation, the petitioner preferred an appeal before Agrarian Reforms Commissioner/ADC, Pulwama and in the meantime, it has come to their knowledge that respondents have changed the nature of the suit land and converted it into orchard about which a certificate was received from Horticulture Officer which clearly indicates that the land is orchard from the year 1991. In appeal, an order of denovo inquiry has been passed by the appellate authority and remanded the case for fresh mutations. Finally, the Tehsildar vide its order dated 28-08-2006 restoring the mutation under section 4 and probably under section 8 without giving an adequate opportunity of being heard. Aggrieved by the order of Tehsildar, the petitioner filed the appeal before the Agrarian Reforms Commissioner, J&K, Srinagar who upheld the order vide its order dated 17-09-2008.
4. The order dated 17-09-2008 has been assailed by the petitioner through the medium of instant revision petition on the grounds that adequate opportunity has not been provided to the petitioner and mutation under section 4 has been attested in 1982 and under section 8 in 1997 when the land was already an orchard in 1991. It is also admitted by the Tehsildar in the mutation that land is an orchard. "Under section 8(2) of the Act, the tiller of Kharif 1971 holding the land under him shall be vested with the ownership rights in such land after payment in full of such levy in such manner as is provided in Schedule-III, as such, the tiller should be holding the land under him at the time he is vested with ownership rights in such" land but in the instant case, he is holding full fledged orchard, therefore, the tiller cannot be vested with the ownership right under section 28 of the Act whereunder a prospective owner of the land eligible to acquire the ownership right in land under his personal cultivation shall be deemed to have all rights and subject to all liabilities as a tenant under J&K Tenancy Act, 1980 untill he is vested with the ownership rights. In the instant case, he is holding an orchard and not land which alone can be under his personal cultivation through which alone he can pay rent to the State, hence section 8(2) will not apply. Under sectio
