NISSAR HUSSAIN Vs. STATE OF J&K

JUDGEMENT

(1.) THE facts in brief, are as under: The petitioner preferred an application under Section 27 of the J&K Agrarian Reforms Act, 1976. According to him, he was dispossessed in an unauthorized manner from the land in question and that he was entitled to the restoration of the possession. This application was preferred before the Additional Deputy Commissioner, Poonch. The Additional Deputy Commissioner found merit in the submission made by the petitioner. An order as prayed for, was passed in favour of the petitioner. This order was challenged before the J&K Special Tribunal. The Tribunal came to the conclusion that Additional Deputy Commissioner was not a Revenue Officer for the purposes of exercising jurisdiction under Section 27 of the J&K Agrarian jurisdiction. Taking note of this fact, matter stands remanded to the Assistant Settlement Officer. It is this order which is subject matter of challenge in this petition. It is submitted: i. That the respondent who moved the Special Tribunal had acquiesced to the jurisdiction of Additional Deputy Commissioner and, therefore, he could not raise the argument that Additional Deputy Commissioner had no jurisdiction in the matter; ii. That the Additional Deputy Commissioner is a revenue officer and, therefore, he could deal with a matter arising under Section 27 of the Agrarian Reform Act.

(2.) SO far as the first argument is concerned all that is required to be said is that if there is total lack of jurisdiction, then merely because the parties have consented or have continued pursuing a forum, that would not confer any jurisdiction on the said Officer. Total of lack of jurisdiction cannot be ignored. Therefore, the plea raised on the principle of acquiescence would be of no assistance to the present petitioner.

(3.) THE merits of controversy is to be examined. The term "revenue officer" has not been defined in the J&K Agrarian Reform Act, 1976 (hereinafter referred as 1976 Act). As such this would have the same meaning as is given to it in the Jammu and Kashmir Land Revenue Act. This becomes clear when Section 2 (18) of the J&K Agrarian Reform Act of 1976 is taken note of. This provision as also Section 27 of this 1976 Act are reproduced below: - 2(18). Words and expressions not defined in this Act shall have the meaning as assigned to them in the Jammu and Kashmir Majority Act, Samvat 1977 the Jammu and Kashmir Land Revenue Act, Samvat 1996, and the Jammu and Kashmir Displaced Persons (Permanent Settlement) Act, 1971. Explanation: - For purposes of clauses (8) and (11) where a person, governed by Mitakshara School of Hindu Law, is recorded as owner of intermediary of ancestral property, his male lineal descendence in the male line of decent shall not, where he was alive on the first day of September, 1971, be deemed to be owners or intermediaries, as the case may be, of such property."