Writ court cannot question validity of unchallenged final prior mutations on tenancy surrender while reviewing tribunal order upholding them against later agrarian reform conferment.

JUDGMENT :

RAJNESH OSWAL, J.

1. This intra-court appeal is directed against the judgment dated 23.11.2022 rendered by the learned writ court in OWP No. 879/2003. In terms of the impugned judgment, the learned writ court has quashed the order dated 27.08.2003 passed by the learned Special Tribunal, Jammu as well as the mutation No. 221 dated 04.12.1986, and further the matter has been remitted to the Tehsildar, Hiranagar to conduct a de novo enquiry into all aspects as highlighted in the judgment and pass fresh mutation in terms of Agrarian Reforms Act of 1976 after affording opportunity of hearing to all the stakeholders including the appellants . and the private respondents

2. The judgment dated 23.11.2022 has been impugned by the appellants on the ground that the private respondents had not challenged mutation Nos. 104, 106 and 115, even though the respondent No.1 i.e. J&K Special Tribunal, Jammu in its order dated 27.08.2003 had explicitly held that that as mutation Nos. 104, 106 and 115 had become final, there was no question of attesting mutation No. 221 under Section 4 of Agrarian Reforms Act in favour of the writ petitioners/private respondents. It is urged that as there was no challenge made to surrender of tenancy and the mutations by the private respondents, the learned writ court had no jurisdiction to entertain appeal directly or indirectly allowing a challenge to mutation No. 104, 106 and 115 and surprise the appellants with the judgment impugned. It is further urged that the learned writ court proceeded on a wrong presumption, as if, surrender of tenancy and attestation of mutation Nos. 104, 106 and 115 were part of implementation of the Agrarian Reforms Act, 1976. In fact, the learned writ court landed itself in grave error of law both pertaining to nature of jurisdiction under Article 226 of the Constitution, as also with respect to nature of controversy by taking same as a matter relating to implementation of Agrarian Reforms Act of 1976, which it was not.

3. Heard learned senior counsel for the parties and perused the record.

4. The sole contention of the appellant is that in absence of challenge thrown to surrender of tenancy by the predecessor-in-interest of the private respondents, the learned writ court could not have commented upon the validity of attestation of mutation Nos. 104, 106 and 115.

5. In order to appreciate the abovementioned contention, it would be appropriate to have the brief resume of the facts of the case. One Budha Ram was the protected tenant of land measuring 17 kanals 12 marlas, comprising survey No. 228 (5 kanals) and survey No. 230 (12 kanals 12 marlas) situated at village Gopala Chak Hiranagar, District Kathua. In the month of May 1971, he surrendered the tenancy in favour of the owners pursuant to which mutation No. 104 was attested on 27.09.1971. As the possession of owners was not reflected in Girdawri, pursuant to the application moved by Mulkh Raj, mutation No. 106 was attested on 22.01.1972, and the land in question was recorded as “Khud Kasht Malkan.” Subsequently, mutation No. 115 was attested on 25.10.1972, and Budha Ram was recorded as “un-authorized occupant” of the land.

6. Thereafter, in terms of mutation No. 221, Buddha Ram was declared as prospective owner of the subject land in terms of Section 4 of Agrarian Reforms Act on 21.12.1986. This order was assailed before Director Land Records (with power of Commissioner, Agrarian Reforms), J&K, who vide o