AMAR NATH Vs. STATE OF J&K

JUDGEMENT

(1.) PETITIONER and respondent No. 5 migrated during the partition of 1947 alongwith Ram Saran their uncle. They approached the Rehabilitation Department for allotment of land being refugees. Ram Saran being the eldest member was made Head of the Family comprising of petitioner, respondent No. 5 and his family. Land measuring 32 Kanals comprising Kh No. 86, 122/ 37, 34 & 37 -Min situated at Kotli Galabana, Tehsil R.S. Pura was allotted to them under Cabinet order No. 578 -C of 1954. The possession of the same was also delivered and the same was being cultivated by the petitioner, respondent No. 5 and Ram Saran. Ram Saran died in the year 1977. Respondent No. 5 approached the authorities after the death of Ram Saran and got himself declared as head of the family comprising of members of his family excluding the petitioner as member of the family. Consequently a mutation under section 3 -A of the Jammu and Kashmir Agrarian Reforms Act being mutation No. 304 came to be attested in favour of respondent No. 5. Petitioner on acquiring the knowledge of the same challenged the said mutation before the Agrarian Reforms Commissioner in appeal which was accepted and vide order dated 22 -11 -1983 the mutation was set aside. Respondent No. 5 challenged the order of the Agrarian Reforms Commissioner by way of revision before the Government (the then Honble Minister) and later on with the constitution of the Special Tribunal, the same was decided by the J&K Special Tribunal, who dismissed the same vide judgment dated 16 -1 -1987 up -holding order dated 22 -11 -1983 passed by the Agrarian Reforms Commissioner. Respondent No. 5 filed writ petition No. 272/ 1987 challenging the order passed by the Tribunal. However, the writ petition was withdrawn on 2 -4 -1987 with liberty to file a fresh petition. After some time respondent No. 5 filed another writ petition challenging the afore -said order under the liberty granted by the writ Court and the writ Court vide its order dated 22 -2 -1992 allowed the writ petition and remanded the case back to the Special Tribunal for re -hearing after giving the reasonable opportunity to the parties. On remand the case was again heard by the Special Tribunal and the Tribunal passed the order dated 31 -10 -2000 impugned in this petition. Vide the impugned order Tribunal set aside the order passed by the Agrarian reforms Commissioner dated 22 -11 -1983 and restored the mutation No. 304 attested in favour of respondent No. 5.

(2.) PETITIONER has challenged this order on the ground that the petitioner being a Member of the family of Ram Saran could not have been deprived of his right in the land allotted to the family. It is also stated that the petitioner was in possession of 8 Kanals of land and was in exclusive possession thereof after separation during the life time of Ram saran. He is cultivating the said land since 1965. He approached the Revenue Minister in the year 1967 for allotment of more land for livelihood of his family. The Revenue Minister accordingly allotted 18 Kanals of more land in 1967 to the petitioner having the family of six members and the total land held by the petitioner comes to 24 Kanals which is less than the scale permissible under rules. According to the petitioner he cannot be deprived of his right over the land allotted to the family of Ram saran under law.

(3.) FROM the impugned order it appears that the Tribunal was persuaded to accept the revision petition primarily on the ground that the petitioner separated from the family of Ram saran and secured 18 Kanals of land as a separate family and thus lost his right in the land allotted to the original family of Ram saran some where in 1965 but continued to cultivate and occupy 8 Kanals of land out of total 32 Kanals. The possession of the petitioner over the said land is also admitted by respondent No. 5 who made an application to Tehsildar R.S. Pura in Nov 2000 for seeking possession of 8 Kanals of land under Kh No. 5 of village Kothi Gulaba from the petitioner. This application was on the basis of the impugned judgment. There is another admitted fact that respondent No. 5 got himself declared as Head of the Family after the death of Ram saran and excluded the petitioner and his family from the list of the members of the family while seeking such declaration.