Point of Law : Section 3-A of the Act of 1976, a displaced person, claiming occupancy rights, must demonstrate that he has been allotted the evacuee land and has been in cultivating possession thereof at the time of attestation of mutation. That apart, it is equally necessary for such person to demonstrate that the land claimed to be under his personal cultivation is the land as defined under Section 2(9) of the Act of 1976.

JUDGEMENT :

1. In this petition the petitioner has called in question order dated 05.01.2015 passed by the Jammu and Kashmir Special Tribunal, Jammu (‘the Tribunal’) in a revision petition titled Kewal Krishan and Ors v. Deputy Custodian Evacuee Property, Rajouri and another, whereby the Tribunal has dismissed the Revision Petition filed by the petitioner and has up-held the order of Additional Deputy Commissioner (with powers of Commissioner Agrarian Reforms), Rajouri, ( ‘the appellate authority’) dated 20.03.2004.

2. Briefly stated, the facts, as projected by the petitioner in this petition are that, the land falling under Khasra No. 86/3 of Village Badika Tehsil and District Rajouri was allotted to the petitioner and one Kewal Krishan and Sham Lal as displaced persons from Pakistan. The petitioner, on the basis of being in possession of the land as allottee thereof, was conferred the proprietary rights under Section 3-A of the Jammu and Kashmir Agrarian Reforms Act, 1976 ( ‘the Act of 1976’). Mutation No. 38 was attested in this regard by the Naib Tehsildar, Rajouri on 04.12.1996. The respondent No.2 assailed the mutation after seven years by filing an appeal before the Respondent No.3. The Respondent No.3, the appellate authority, without formally condoning the delay, set aside the mutation vide its order dated 20.03.2004. The order of the appellate authority was challenged by the petitioner and the two others, namely, Kewal Krishan and Sham Lal, by way of revision petition before the Respondent No.1 on the ground that the appellate authority had passed the order impugned without affording the petitioners an opportunity of being heard and without appreciating the real controversy, but the Tribunal dismissed the revision petition vide order dated 05.01.2015, hence the present writ petition.

3. The writ petition is opposed by respondent No.2, who, in its objections, has taken the stand that in view of the concurrent findings of fact recorded by the two forums below, the writ petition is not maintainable. It is the contention of the respondent No.2 that both the forums below have found that the subject land was in possession of the Army prior to Kharief 1971 and that, it was recorded as ‘Banjar Qadeem’. That being the position, the subject land was exempted from the operation of the Act of 1976. It is contended by Mr. F. A. Natnoo, appearing for respondent No.2, that mutation attested by the Naib Tehsildar, which was subject matter of challenge in the appeal before the appellate authority, was decided at the back of the respondent No.2 and, therefore, was rightly interfered with by the appellate authority.

4. Having heard learned counsel for the parties and perused the material on record, it is necessary to first set out the provisions of Section 3-A of the Act of 1976, which reads thus:-

“3-A. Notwithstanding anything to the contrary contained in this Act or any other law for the time being in force, displaced persons cultivating evacuees lands personally shall in respect thereof be deemed to be occupancy tenants and recorded as such. They shall be liable to pay rent equal to the amount of land revenue and cesses assessed thereon;

Provided that such displaced persons shall have right to transfer their right of occupancy tenancy by sale, mortgage or gift subject to the provisions of the Alienation of Land Act, and the provisions of Section 60 of the Jammu and Kashmir Tenancy Act, Samvat 1980 shall not apply to such transfer.”

5. From reading of Section 3-A above, it is abundantly clear that in case a displaced person is found to have been in personal cultivation of the evacuees land, he shall be deemed to be occupancy tenant and recorded as such. It is, therefore, clear that for attracting Section 3-A of the Act of 1976, a displaced person, claiming occupancy rights, must demonstrate that he has been allotted the evacuee land and has been in cultivating possession thereof at the time of attestation of mutation. That apart, it is eq