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2024 Supreme(J&K) 248
IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU
Sanjay Dhar, J.
Tej Ram and Another – Petitioners
Versus
State of J&K and Others – Respondents
OWP No. 1356 of 2018
Decided On : 18-03-2024
Advocate Appeared:
For the Petitioner: Virender Bhat.
For the Respondent: Monika Kohli.
Section 28-A of the J&K Agrarian Reforms Act applies prospectively, not retroactively, validating prior transactions.
Headnote:
Agrarian Reforms - J&K Agrarian Reforms Act - Sections 13(2), 28-A - The court interpreted Section 28-A, emphasizing its prospective application, ruling that prior transactions were not subject to its prohibitions, thus invalidating the order against the petitioners.
Fact of the Case:
The petitioners challenged an order directing action under Section 13(2) of the J&K Agrarian Reforms Act for selling/ leasing land, claiming the transactions occurred before the relevant amendment.
Finding of the Court:
The court found that the transactions took place before the amendment introducing Section 28-A, which prohibits such transfers, and thus ruled the order against the petitioners was unsustainable.
Issues: Whether the transactions of sale and lease of land by the petitioners were valid under the J&K Agrarian Reforms Act, considering the introduction of Section 28-A.
Ratio Decidendi: The court held that Section 28-A applies prospectively and does not affect transactions completed before its enactment, thereby validating the petitioners' actions.
Result: The writ petition is allowed and the impugned order is set aside.
JUDGMENT :
Sanjay Dhar, J.
1. The petitioners have challenged order dated 05.01.2013 passed by respondent No. 2, directing initiation of action under Section 13(2) of the J&K Agrarian Reforms Act, 1976 against the petitioners for having sold/leased out the land in violation of the provisions of the Agrarian Reforms Act.
2. According to the petitioners, Geeta Devi and Shanti Devi daughters of Dhani Ram filed an appeal against the mutation under Sections 4 and 8 of the J&K Agrarian Reforms Act attested in favour of the predecessor-in-interest of the petitioners. Mutation under Section 4 was attested vide No. 316, dated 24.10.1982, whereas mutation under Section 8 was attested vide No. 321 dated 07.02.1983. It has been submitted that a portion of the land, which is subject matter of these mutations, was transferred on lease hold basis vide lease deed dated 15.02.1989. Another co-owner had sold a part of the land vide sale deeds dated 23.02.1989/ 27.02.1989.
3. Respondent No. 2, after hearing the appeal filed by daughters of Dhani Ram, who claimed to be the tenants of the land in question, concluded that a part of the land, which is subject matter of the impugned mutations, has been transferred by virtue of lease deed and sale deed in violation of the provisions contained in Section 28-A of the J&K Agrarian Reforms Act, as such, action is required to be taken in terms of the said provision.
4. The petitioners have contended that the impugned order passed by the learned Commissioner, Agrarian Reforms, Samba is not sustainable in law, inasmuch as, transfer of the land, which was subject matter of the impugned mutations, has taken place prior to the insertion of Section 28-A into the J&K Agrarian Reforms Act. Therefore, the very basis of the impugned order passed by the learned Commissioner is flawed.
5. Reply on behalf of the respondents stands filed. In the reply, it has been submitted that Gian Chand, Prabh Dayal and Nanak Chand were declared prospective owners of the land measuring 90 kanals and 19 marlas in Khasra No. 120 situated at village Gudwal, Tehsil Vijaypur under mutation No. 316 under Section 4 of the Agrarian Reforms Act and they were vested with ownership rights in respect of the said land vide mutation No. 321 under Section 8 of the Agrarian Reforms Act. It has been submitted that Ms. Suman D/o Prabh Dayal sold land measuring 4 kanals under khasra No. 131 min to Hameed Ahmad Bhat and mutation No. 392, dated 10.09.1988 was attested in favour of the vendee. It has also been submitted that Hameed Ahmad Bhat, vendee further sold the land to Kuldeep Raj Gupta, (petitioner No. 2) Madan Lal Gupta, Sodagar Chand Gupta, Sunil Kumar Gupta, Janak Raj, Sham Saroop Mahajan, Tej Ram (petitioner No. 1) Tara Chand, Rounak Ram, Satish Sharma, Rajesh Kumar and Arvind Bakshi and mutation No. 411, dated 22.05.1989 came to be attested in favour of the vendees. It has been further submitted that Gian Chand and Nanak Chand sublet the land measuring 52 kanals 19 marlas on lease for a period of 99 years to petitioner No. 2 and others and lease deed was registered on 17.02.1989, whereafter mutation No. 417, dated 22.05.1989 came to be attested in favour of the lessors.
6. It has been further submitted by the respondents that Geeta Devi and Shanti Devi daughters of Dhani Ram filed appeal against the mutations attested under Sections 4 and 8 of the Agrarian Reforms Act and also mutation relating to the sale deed and lease deed before the Commissioner Agrarian Reforms, Samba on 17.06.2008 and the impugned order came to be passed in the said appeal. According to the respondents, even as per section 13 of the J&K Alienation of Land Act, it was not open to lease out the agricultural land for more than 21 years. On the basis of these submissions, the respondents have contended that the petition deserves to the dismissed.
7. Heard and considered.
8. Admitted facts, which emerge from the pleadings of the parties are that mutation under Sections 4 and 8 of the
