High Court of Jammu And Kashmir
Case Details
1 HIGH COURT OF JAMMU AND KASHMIR AT JAMMU LPAOW No.172/2002 CMA Nos.D-44/2013 & 175/2002 Date of order: 06.11.2013 Krishna Devi and ors. v J&K Special Tribunal and ors. Coram:
Legal Reasoning
Hon’ble Mr. Justice M. M. Kumar, Chief Justice Hon’ble Mr. Justice Hasnain Massodi, Judge Appearing counsel: : For the appellant(s) For the respondent(s) : Mr. V.Bhushan Gupta, Advocate. Mr. R.S.Kotwal, Advocate. 1) 2) Whether approved for reporting in Press/Media Whether to be reported in Digest/Journal : : Yes/No Yes/No M.M.Kumar, CJ 1. The instant appeal under Clause 12 of the Letters Patent is directed against the order dated 08.04.2002 rendered by the learned Single Judge of this Court holding that the order dated 10.11.2000 of the Jammu and Kashmir Special Tribunal was not sustainable in law. The basic reasons given by the learned Single Judge are that neither the Special Tribunal nor the Agrarian Reforms Commissioner had taken into account the Sale Deed and consequential mutations dated 08.04.1967 and 24.09.1967 respectively. 2. The learned Single Judge has opined that there were specific allegations made by the petitioner with regard to purchase of land vide sale deed dated 08.04.1967 and the aforesaid aspect was required to be 2 taken into account by the revenue authorities. After noticing the stand of the parties and claim of the writ petitioner-respondent that he was entitled to resumption of land as he is a member of separate family within the meaning of Section 7 of the Agrarian Reforms Act 1976 (for brevity ‘The Act’) the learned Single Judge proceeds to observe in the concluding para of the judgment which reads as under: is accordingly remanded “Specific allegation of the petitioner that he had purchased land measuring 40 kanals and 15 marlas from one Nek Chand has not been denied. As a matter of fact this aspect of the matter was required to be taken note of by the revenue authorities. This has not happened in this case. to appellate Case authority who decided the matter on 09.07.2002. If said authority feels that some evidence is required to be recorded then he would be at liberty to remand further or seek report. Parties to appear before the appellate authority on 06.05.2002. Question as to whether petitioner had purchased the property or not would be decided. is found that he had purchased the property then question of clubbing this property with that of his father would not be apt. Such is a legal position to which no objection has been taken by any of the parties to this litigation”. In case it 3. We have heard learned counsel for the parties at some length and have perused the record. 4. After hearing learned counsel for the parties, we are of the considered view that the judgment dated 08.04.2002 rendered by the learned Single Judge does 3 not call for interference because the matter has been remanded back on the ground that the Agrarian Reforms Commissioner has failed to notice vital fact that the sale deed dated 08.04.1967 clearly indicates that the land in dispute measuring 40 kanal and 15 marlas was recorded in favour of Dhani Ram s/o Raseela Ram. Accordingly, one of the requirements of Section 7 of the Agrarian Reforms Act, 1976 that the land should be recorded separately in the name of person seeking resumption stood satisfied. The aforesaid vital fact has not been noticed by the Agrarian Reforms Commissioner or the Tribunal in the order impugned before the Writ Court. 5. Likewise a reference has been made to Ration Card in the last but one para of the order dated 09.07.1999 passed by the Agrarian Reforms Commissioner but the same has been discarded. In that regard, our attention
Decision
has been drawn by the counsel for the writ petitioner to the following para of the order dated 09.07.1999 passed by the Commissioner Agrarian Reforms which is set out below: “I have gone through the copy of remand order dated 15.03.1995 passed by the learned Joint Agr. Reforms Commissioner, Jammu, whereby the instant case was remanded to Tehsildar Billawar for de novo enquiry taking into account 4 failed the case. The Court of all the relevant factors for determining the eligibility for resumption by way of fresh enquiry in learned Joint Commissioner only made a passing reference of some ration card produced by the appellant but has not substantiated this fact as it has not been clarified that the ration card so produced was original genuine or fake or whether it pertained to the year 1971 or thereafter such questions were left to be determined by the Court below in the said remand order by way of de novo enquiry. The appellant to produce any such documentary evidence before the court below and before this court to vindicate his claim for forming a separate family during 1971. Copy of form No. 4 so produced before the court passing the impugned order is not conclusive evidence because the said form was to be prepared on the basis of ration card, voter list, chowkidara and such other revenue documents which could indicate the incident of separation of appellant in kharif 1971 while no such document supports contention of the appellant. Therefore, the basis for preparing the form No. 4 being non-existent. The enteries of for no. 4 prepared by the field agency subsequently after the year 1980 cannot be relied upon. In view of the above, I am inclined to believe that the appellant did not form a separate family in 1971 was included in the family of his father and as held by the court below he along with his father was holding land under personal cultivation in kharif 1971 in excess of the limit prescribed under sub section 3rd of section 7 of the Act supra, as held by the Tehdildar as such, was not found entitled for resumption”. 6. A perusal of the aforesaid para would show that a ration card was produced to prove separate dwelling unit in order to succeed in resumption under Sec. 7 of the Act. In addition another piece of evidence was brought on record showing that Form No. 4 was 5 prepared by the revenue officer in accordance with the application filed by the writ petitioner-respondent in Form no. 5 as per the requirement of Rule 10 of Agrarian Reforms Rules, 1977. 7. In view of the above, the appeal is dismissed. However, we clarify that the Agrarian Reforms Commissioner or any other authority would not be influenced by any of the observations made by the Writ Court in judgment and order dated 01.08.2002 or in this order. Any observation made in the proceedings before the High Court shall not be construed as an expression of opinion by the writ Court or this Court. The revenue authority shall proceed to decide the matter dispassionately uninfluenced by the observations made in these proceedings. It shall be appreciated if the matter is decided expeditiously and preferably within a period of six months from the date a copy of the order is received by Agrarian Reforms Commissioner, Kathua. 8. A copy of this order be sent to Agrarian Reforms Commissioner, Kathua at the earliest. (Hasnain Massodi) (M. M. Kumar) Judge Chief Justice Jammu, 06.11.2013 Vijay 6