SYED MOHD SYED Vs. MINISTER OF REVENUE

JUDGEMENT

(1.) IN this writ petition under Art. 226 of the Constitution of India read with Sec. 103 of J and K State. Constitution, it has been prayed that the Government order No. Rev. (BLA) 175/79 dated 27 -7 -1979 be quashed as the order is illegal and against the principles of Natural justice affecting the rights of the petitioner without he having been given an opportunity of being heard.

(2.) BRIEFLY stated the facts of the case are that the respondent No. 3 Mohd Ashraf Durrani is the owner of a piece, of land measuring 4 kanals comprised in Khasra No. 373/min situated in Umerhair near Srinagar. The petitioner alleges that respdt. No. 3 entered into an agreement of sale with him in respect of this piece of land. Accordingly the petitioner as, well as the respdt. No. 3 jointly submitted an application to the Revenue Minister (Respondent No. 1) in terms of Sec. 8 of the J and K Agrarian Reforms (Suspension of Operation,) Act, 1975 for permission to sell and purchase the land respectively as the piece of land sought to be alienated by respondent No. 3 was entered in revenue records, as agricultural land and in view of the provisions of the Agrarian Reforms Act, the permission for its sale had to be necessarily obtained from the respondent No. 1. The petitioner alleges that the matter was jointly pursued and. got processed by him and the respdt. No.

(3.) AND various formalities as required, by the Act and the Rules were observed by both of them together. In pursuance of their efforts it was on 30 -9 -77 that the respondent. No, 1 accorded sanction to the alienation of land aforementioned in favour of the petitioner, a copy of the order is attached as Annexure -A to the petition. The petitioner then alleges that keeping him in dark respdt. No. 3, the owner of .the piece of land, negotiated another sale of the same property with respdts. Nos. 4 and 5. The matter was again processed under the provisions of the Agrarian Reforms Act. 1976 (hereinafter referred to as the ËœACTâ„¢) and the respondent No. 1, the Revenue Minister again accorded sanction to the sale of the same piece of land in favour of respondent Nos. 4 and 5. The impugned order, also contained a clause, rescinding the earlier order sanctioning the sale in favour Of the petitioner. This was done by respdt. No. 1 in spite of the fact that the earlier order sanctioning the sale in favour of the petitioner was within his knowledge, It has been alleged that the impugned, order has been passed by respdt. No. 2 in violation of principles of Natural Justice. No notice was issued to the petitioner before the earlier order was rescinded by respondent No. 1. It has been further alleged that the rules of Natural Justice are necessarily to be read into the provisions of the Statute and the statutory authority exercising powers under the Stature is bound to observe these principles before an order in the nature of the impugned one b £ passed. It has been admitted in the petition that sec. 31 of the Act of 1975 does not as such embrace the rules of natural justice but it would be only just and equitable and in accordance with the interpretation of these Statutes to read the requirements of rules of Natural justice so far as sanction for sale u/s 31 of the Act is concerned. The petitioner should have been given an opportunity of being heard before cancellation of the earlier order. It is being next contended that the respdt. No. 1 was not competent to rescind the earlier order sanctioning the sale in favour of the petitioner as by rescinding the same the petitioner has been deprived of his right to institute a suit for specific performance of the contract against the respondent No. 3. Also it is contended; that the respondent No. 1 in such an eventuality himself became a party to the breach of contract. The next contention raised by the petitioner was that no reasons have been given in the impugned order for rescinding the earlier order and on this ground, the impugned order deserves to be quashed as it was a non -speaking one. The rescinded order has in view of the petitioner created a legal right in favour of the petitioner which was capable of being enforced through a civil court but the impugned order has deprived him of this right. By rescinding the earlier order, the respondent No. 1, exceeded the jurisdiction vested in him and has acted in a manner which offends the very concept of justice. It has been further alleged that the petitioner has no other alternative remedy under the Act and therefore, has invoked the extraordinary jurisdiction of this court. 3. The respondent No. 3 has admitted that he applied to the respondent No. 1 (Revenue Minister) for permission to sell the disputed piece of land as required under the provisions of the Act and also mentioned therein the name of the prospective purchaser as that too was required to be given in view of the provisions of the Act and the Rules made thereunder. He has denied that there was any agreement between him and the petitioner that the property in question would necessarily be sold to him in case the permission was granted by respdt. No. 1. He has however, admitted that there were some inconclusive negotiations of a transaction about the sale of the piece of land between the petitioner and himself but the same fell through and did not mature and therefore, no agreement, for sale in respect of the said land was executed between the petitioner and himself. He thereafter got an offer for the sale of the same piece of land from respdts. 4 and 5. In this context an application seeking permission to amend the names of the would be purchasers was made and the same was granted in accordance with the provisions of the Act. It has been denied that the petitioner has any right or locus standi to challenge the same It has next been categorically denied that by mentioning his name as the intending: purchaser in the rescinding order, the petitioner had acquired any legal right the infringement of which could confer on him a right to file and maintain a writ petition of this nature. The respondent No. 3, further deposed that the land in question belongs to him and it was open to him to sell the same to any one he likes provided such a person could be A competent purchaser under the Act it has flately been denied that there was an agreement to sell between the petitioner and the respondent No, 3 executed either before or after obtaining the permission from the Revenue Minister (Respdt. No. 1). Reference in this regard has been made to Sec. 54 of the Transfer of Property Act of the J and K State which was in this context quite distinguishable from the law prevailing in the rest of the country. According to a sub -clause of section 54 of the T. P. Act, no contract for sale is to be taken into consideration unless it was 111 writing. According to the respondent there was no agreement for sale between him and the petitioner in terms of section 54 of the State Transfer of Property Act and therefore, the petitioner had obtained no right whatsoever to maintain either a civil suit or this writ petition. Respondent No. 3 has further maintained that the petitioner had earlier taken recourse to a civil court and had filed a suit against the same respondents for breach of contractual obligations but he having pursued that course for some time and having failed therein, the instant petition was filed and as such is liable to be dismissed on this ground alone. It has been contended that the grant of permission for sale of the agricultural land under S. 31 of the Act was not a quasi -judicial proceedings where the authority was bound to hold a regular enquiry, hear the parties, determine the rights and disputes inter -se and then pass orders thereon. The action of the respondent No. 1 under Sec. 31 of the Act was simply in the nature of an executive one prima facie to arrive at a conclusion as to whether by the intended transaction the basic purpose of the Act is or is not affected or subverted and check the violation of the provisions of the Act if any, According to the respondent No. 3 it was wrong to say that the order passed by respondent No. 1 was in violation of the rules of Natural Justice as the subsequent, order before its issuance did not require a notice to the petitioner. It has been next contended that in view of  £he circumstances appearing in the case the only, appropriate form for deciding such matters in case of a dispute was a civil court, where questions of fact could be gone into and where a thorough enquiry could be held without which a dispute of this nature may not get decided.