Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(J&K) 713

IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
SANJEEV KUMAR, J.
Hilal Ahmad Wani & Anr. – Appellants
Versus
UT of J&K & Ors. – Respondent
WP(C) No. 890 of 2022
Decided on : 18-07-2022

Advocates:
Advocate Appeared:
For the Appellant : Sheikh Younis; M.M. Khan
For the Respondent: M.M. Khan; Sheikh Younis

IMPORTANT POINT
The court established that agricultural land vested in the state under the J&K Agrarian Reforms Act cannot be claimed by former owners or tenants until the appropriate legal processes are completed, and any transfer of rights, such as through a Power of Attorney, is invalid under the Act.

Headnote:
AGRICULTURAL LAND - LAND TENANCY AND MIGRANT PROPERTY - J&K Agrarian Reforms Act, 1976 (Sections 4, 8), J&K Migrant Immovable Property (Preservation, Protection and Restrain on Distress Sales) Act, 1997 (Section 2(d)) - The court discussed the implications of the J&K Agrarian Reforms Act, 1976, particularly Sections 4 and 8, which govern the vesting of agricultural land in the state and the conferral of ownership rights. It also referenced the J&K Migrant Immovable Property Act, 1997, emphasizing the protection of migrant property rights. The court concluded that the subject land, having vested in the state, could not be claimed by either the original owners or the migrants until the appropriate mutations were finalized.
Fact of the Case:
The petitioners, owners of agricultural land, sought protection against interference from a Power of Attorney holder of migrants who had previously cultivated the land. The land had vested in the state under the J&K Agrarian Reforms Act, 1976, and the petitioners challenged the actions of the District Magistrate regarding the land's custody and the Power of Attorney's validity.
Finding of the Court:
The court upheld the District Magistrate's order to take custody of the land, confirming that the land had vested in the state and that neither the original owners nor the migrants had the right to interfere with it until proper ownership rights were conferred under the Act.
Issues: Whether the Power of Attorney executed by the migrants was valid and whether the District Magistrate's order regarding the custody of the land was appropriate under the relevant acts.
Ratio Decidendi: The court determined that the land, having vested in the state under Section 4 of the J&K Agrarian Reforms Act, 1976, could not be claimed by either party until the necessary mutations were finalized. The Power of Attorney issued by the migrants was deemed ineffective as it violated the provisions of the Act.
Final Decision: Both petitions were disposed of, upholding the District Magistrate's order and ensuring the land remained under state custody until ownership rights were properly established.

JUDGMENT :

SANJEEV KUMAR, J.

Brief Facts

WP(C) No. 890/2022

1. The petitioners are owners of agricultural land measuring 01 kanal and 04 marlas comprised in khasra No. 1313 situate at village Uttersoo Shangus, District Anantnag ['the subject land']. The subject land was under cultivating possession of the father of respondent Nos. 7 and 8 as tenant prior to their migration from the Valley in the year, 1990. The relationship of landlord and tenant between the petitioners and respondent Nos. 7 and 8 ['the migrants'] is admitted by the petitioners. By operation of J&K Agrarian Reforms Act, 1976 ['the Act of 1976'], the subject land vested in the State under section 4 of the Act of 1976 and mutation No. 1657 came to be attested in this regard. The said mutation is subject matter of challenge in an appeal before the competent authority. The said appeal is reportedly dismissed for non-prosecution and there is no application for restoration of the appeal moved by the petitioners. With respect to the subject land, the migrants i.e. respondent Nos. 7 and 8 have also executed a Power of Attorney in favour of respondent No. 9 which is also subject matter of challenge in a Civil Suit pending before the 2nd Civil Subordinate Judge (Passenger Tax), Jammu ['Civil Court']. There is an order of status quo with regard to the said Power of Attorney by the Civil Court. It is alleged that, on the strength of Power of Attorney issued by respondent Nos. 7 and 8, the respondent No. 9 started interfering with the subject land. The petitioners approached the District Magistrate, Anantnag to pass appropriate orders for protection of the subject property from the illegal occupation of respondent No. 9 under J&K Migrant Immovable Property (Preservation, Protection and Restrain on Distress Sales) Act, 1997 ['the Act of 1997']. Vide order No. DCA/MC/(341/15)/20-21/1131-33, dated 05.03.2021, the District Magistrate, Anantnag settled the matter by ordering as under:

(i) The subject land falling under Survey No. 1313 measuring 01 kanal, 04 marlas situate at village Uttersoo shall be taken in custody by the Tehsildar Shangus on behalf of the District Magistrate, Anantnag under section 4 of the Act of 1997;

(ii) Respondent No. 9 shall be at liberty to approach the competent authority for vesting of rights under the relevant provisions of the Act of 1976;

(iii) In case, respondent No. 9, does not prefer to avail the opportunity, Tehsildar Shangus shall take action under the provisions of Section 28-A of Act of 1976 and furnish compliance report before the District Magistrate, Anantnag; and

(iv) In the meanwhile, respondent No. 9 shall be allowed to lift his construction material dumped on the said patch of land within a month from the date of the order, failing which, the same shall be seized by Tehsildar Shangus for disposal under the relevant provisions of law.

2. The migrants [Tej Nath Matoo and Raj Nath Matoo] challenged the order of District Magistrate, Anantnag dated 05.03.2021 (supra) before this Court in WP(C) No. 557/2021. The said writ petition was dismissed as withdrawn with a liberty to the aforesaid migrants to file an application/representation before respondent No. 2. This Court maintained the order of District Magistrate, Anantnag insofar as it ordered the taking possession of the subject property by the Tehsildar Shangus on behalf of the District Magistrate, Anantnag Thereafter, there appears to be an application moved by the migrants before the District Magistrate to hand over the possession of the subject land in favour of their attorney i.e. respondent No. 9.

3. With a view to abort the attempt of respondent No. 9 to take over the possession of subject land, the petitioners, who were erstwhile owners of the subject land, have filed this petition seeking, inter alia, a direction to the District Magistrate, Anantnag to implement his own order passed on 05.03.2021 and restrain respondent No. 9 from raising any sort of construction over the subject land. O

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