TARA CHAND Vs. STATE

JUDGEMENT

(1.) Petitioners' father, namely, Charan Dass alias Changru, who was a tenant of Mst. D. D. Rani, predecessor-in-interest of respondents 2 to 5, is stated to have relinquished his tenancy in favour of said Mst. D. D. Rani, on 18-7-1972 before the Asstt. Com-missioner, Kathua. On the basis of relinquishment deed, mutation is stated to have been attested by Tehsildar, Kathua, on 20-2-1973 under No. 93. Charan Dass died in the year 1981 and his sons thereafter challeng-ed the aforesaid mutation before the Deputy Commissioner, who, transferred the appeal to the Asstt. Commissioner for disposal accord-ing to law. The appeal was returned back to the Deputy Commissioner stating therein that as it pertained to correction and should report to the Agrarian Reforms Commissioner, who was competent to hear the appeal. On receipt of the appeal the Deputy Commissioner sent the same to the Joint Agrarian Reforms Commissioner for necessary action. The Joint Agrarian Reforms Commissioner again re-turned the case to the Deputy Commissioner for disposal under law. The Deputy Commis-sioner thereafter heard the parties and vide his order dated 15-1-1987, set aside the mutation No. 93 and remanded the case to the Tehsildar. The order of the Deputy Commis-sioner was challenged in appeal before the Divisional Commissioner, who, vide his order dated 6-6-1988 dismissed the appeal against which the revision petition was filed before the Financial Commissioner, who, vide the order impugned in this petition, set aside the order of the Deputy Commissioner and that of the Divisional Commissioner by maintain-ing the order of Tehsildar passed on mutation No. 93. The impugned order has been challenged on the ground that the same was in violation of the provisions of the Tenancy Act as well as the Standing Order No. 23A. It is submitted that the application for the re-covery of rent filed by said Mst. D. D. Rani, was not maintainable under the provisions O. 32, C.P.C. It is further submitted that the Asstt. Commissioner should have recorded his satisfaction and passed the order of relinquishment of tenancy by the tenant, then forwarded the same to the Tehsildar for attesting the mutation which had not been done. No order of relinquishment is stated to have been passed nor there exists any satisfac-tion recorded by the Asstt. Commissioner. It is further submitted that as per the Tenancy Act relinquishment is to be made under S. 41 of the said Act by a tenant and the procedure prescribed therein has to be strictly followed which was not done in the case. It is also submitted that the Financial Commissioner has passed the order completely ignoring the mandatory provisions of law applicable in the case. In the objections filed on behalf of the contesting respondents it is submitted that as no constitutional or legal right of the peti-tioner has been violated, the petition was not maintainable. The tenancy of Charan Dass is not disputed but it is submitted that he was merely a prospective owner on whom rights of ownership had not been conferred under the provisions of the Agrarian Reforms Act. Charan Dass is stated to have voluntarily surrendered his tenancy rights vide submis-sion through an application dated 18-7-1972 relinquishing his rights to the extent of 24 kanals in favour of his landlady. On the basis of the application, statement of said Charan Dass is stated to have been recorded by the Asstt. Commissioner and upon satisfaction the orders were passed. It is submitted that the averments made in the petition and the grounds agitated are not applicable to the case in hand. The order of the Financial Com-missioner is stated to be legal, valid and according to law.

(2.) I have heard learned counsel for the parties who submitted that instead of formal-ly admitting the petition, same may be disposed of at this stage on merits. I have also perused the record.

(3.) Chapter IV of the Tenancy Act relates to the relinquishment, abandonment and ejectment of the tenancy rights of the tenants. Under S. 40 a tenant holding for a fixed term under a contract or a decree or order of a competent authority, can relinquish his tenancy without notice at the end of the term. S.41 deals with the relinquishment of the tenancy rights by any other tenant and provides :