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IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
MOHAMMAD YAQOOB MIR, J.
Gh. Mohammad Dar and Ors. - Appellants
Versus
State of J&K and Ors. - Respondents
OWP No. 720 of 2014 and MP No. 1142 of 2014
Decided On : 02-03-2018
Agrarian Reforms Act - Land Dispute - Section 4, 8 - Summary of Acts and Sections: The court discussed the provisions of the Agrarian Reforms Act, particularly Sections 4 and 8, which deal with the vesting of ownership rights in land and the declaration of tillers as prospective owners. The court highlighted the importance of Rule 4 of the Agrarian Reforms Rules, 1977, which provides for correction of entries in Girdawari and the necessity of conducting an inquiry in the presence of the parties and the village body. The court emphasized the need to address the issue of self-cultivation on the spot and the consequences of delay in challenging mutation orders.
Fact of the Case:
The dispute involved land ownership rights under the Agrarian Reforms Act, with the petitioner claiming to be a tenant entitled to ownership rights, while the owner disputed the mutation orders. The appellate authority dismissed the appeals on the grounds of delay and lack of merit.
Finding of the Court:
The court found that the mutation orders and the orders of the appellate and revisional authorities were unsustainable due to failure to address the issue of self-cultivation on the spot and the lack of inquiry in the presence of the village body. The case was remanded for further inquiry and the Collector was directed to finalize the proceedings within a specified period.
Issues: The issues involved the validity of mutation orders, the delay in challenging the orders, and the failure to conduct inquiries in the presence of the parties and the village body.
Ratio Decidendi: The court held that the failure to address the issue of self-cultivation on the spot and the lack of inquiry in the presence of the village body rendered the mutation orders and the appellate and revisional authorities' orders unsustainable.
Final Decision: The court set aside the mutation orders and the orders of the appellate and revisional authorities, remanding the case for further inquiry and directing the Collector to finalize the proceedings within a specified period.
ORDER :
Mohammad Yaqoob Mir, J.
1. Petitioner seeks quashment of the order dated 25.04.2014, passed by the J & K Special Tribunal (revisional authority) under Agrarian Reforms Act (hereinafter referred to as the Act), in terms whereof order of the appellate authority dated 20.08.2008 as well as mutation orders passed under Section 4 and 8 of the Agrarian Reforms Act, in the year 1989 and 1992 respectively, have been set aside.
2. The dispute is regarding land measuring 16 marlas covered by Survey No. 1281 situated in Village Surasyar Tehsil Chadoora District Budgam, which land, according to the owner (respondent No. 3) was in his self cultivation before and after Kharif 1971 whereas petitioner claimed to be the tenant of the land, therefore, entitled to be conferred prospective ownership rights and then ownership rights under Section 4 and 8 of the Act.
3. Mutation under Section 4 of the Act in respect of the land in question bearing No. 1374 dated 19.07.1989 has been attested in favour of the petitioner on 19.07.1989. Thereafter, on deposit of levy, he has been conferred with ownership rights under Section 8 of the Act vide mutation No. 1407 dated 16.01.1992. Both the mutations have been challenged by respondent No. 3 by medium of two separate appeals before the Financial Commissioner Revenue with powers of Agrarian Reforms Commissioner (hereinafter referred to as the appellate authority). Learned appellate authority has noticed that the mutation under Section 4 has been challenged after a gap of 18 years whereas mutation under Section 8 has been challenged after a gap of 15 years. He has also noticed that in mutation under Section 4 reference is to some agreement between the parties attested by Notary as a result of which entries of 1971 have been changed so as to show the land under the cultivation of the tenant(petitioner). Learned appellate authority has noticed that after considering the records no ground is made for condoning the delay and has added that though the method adopted by the parties to change entry is questionable but justice would not demand setting aside of the mutation. Finally, has dismissed the appeals both on the point of delay and merit.
4. Dissatisfied with the order of the appellate authority dated 20.08.2008, the owner-respondent No. 3 has filed revision petition under Section 21 of the Act before Jammu and Kashmir Special Tribunal, Srinagar (hereinafter referred to as the revisional authority). The revisional authority has noticed that as per entries, prior to and after Kharif, 1971, the land was shown in personal cultivation of the owner. The mutating officer in collusion with so-called tenant (petitioner) has attested mutation under Section 4. He has also observed that the appellate authority was first to decide the application for condonation of delay and then appeal but the appellate authority has decided the application for condonation of delay along with main appeal, which was not permissible.
5. Agrarian Reforms Act has the object of vesting ownership of the land to the "tillers" who were cultivating the land on the crucial date of Kharif, 1971. As per Section 2(17) of the Act, "tiller" means tenant cultivating land personally in Kharif, 1971. Section 4 of the Act provides for vesting in the State of rights in land not held in personal cultivation by the owner on the crucial date i.e. Kharif 1971 and to declare "tiller" thereof as prospective owner. Then after adhering to Section 7, if applicable, has to vest prospective owner/tiller with ownership rights under Section 8 of the Act.
6. While initiating proceedings under Section 4 of the Act, once attesting authority notices that there is dispute relating to Girdawari entry, then he has to resort to Rule 4 of the Agrarian Reforms Rules, 1977 (hereinafter after referred to as the Rules of 1977), which provides for correction of entries in Girdawari. Sub-rule (3) of Rule 4 of the Rules of 1977 provides that when an objection relating to personal cult
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