SUNDER SINGH Vs. NASIB SINGH

JUDGEMENT

(1.) SUNDER Singh, petitioner, is the owner of 29 -kanals 5 -marlas of land covering khasra Nos. 307 and 624 situate in village Maheen Charkan, Tehsil Samba. Nasib Singh, respondent No. 1 was his tenant at will in the said land, paying him one half of the produce of crop. The petitioner moved an application before the Assistant Commissioner, Collector, Jammu for recovery of his share of crop pertaining to Rabi 1973 against respondent No. 1 and a decree was passed in his favour. Petitioner afterwards filed another application U/S 48(2) of the Tenancy Act before the Assistant Commissioner, Jammu alleging that respondent No. 1 had not made him payment of the decree and as such he was liable for eviction. This application was also allowed and an order was passed for eviction of respondent No. 1 from the above said land. Respondent No. 1 filed an appeal before the Collector, Jammu against the above said order of the Assistant Commissioner which appeal was also dismissed on Sept. 18, 1972. Respondent No. 1 preferred a second appeal before the Divisional Commissioner, Jammu who also dismissed the same on 24 -2 -1973 upholding the decision of the Courts below. Respondent No. 1 was not satisfied with this decision of the Divisional Commissioner and he preferred a revision petition before the Financial Commissioner who placing reliance on Sections 51 & 52 of the Agrarian Reforms Act reversed the findings of the Court below and held the proceedings to have abated. Petitioner in this petition has challenged the finding of the Financial Commissioner mainly on the ground that the Agrarian Reforms Act, the provision of which were invoked by the Financial Commissioner, had been suspended and illegality committed in abating the proceedings in accordance with the provisions of a suspended Act.

(2.) MR . H. S. Dogra appeared for respondent No. 1 but afterwards no body appeared nor counter filed on his behalf and the case was -proceeeed ex -parate against him. Similarly respondent No. 2 was also served but no body appeared for him which resulted in initiation of exparte proceedings against him also.

(3.) THE Assistant Commissioner, Jammu passed the order of eviction against respondent No. 1 on 3 -3 -1972. This order was confirmed in appeal by the Collector Jammu on 18 -9 -1972 afterwards in a second appeal before the Divisional Commissioner Jammu the orders of both the Courts below were confirmed on 24 -2 -1973. Mr. R K. Takkar, Divisional Commissioner with powers of Financial Commissioner however, on 30 -10 -1975 set aside the orders of the Courts below after placing reliance on sections 51 & 52 of the Agrarian ž Reforms Act which according to him provided for abatement of such like proceedings. The operative portion of his order reads as under: - "This argument is well taken. Sections 51 & 52 of the Agrarian Reforms Act clearly provide for the abatement of such proceedings. The fact that specials orders to that effect have not been passed in this office after the Act came to be suspended is not of much significance. What is crucial is that on the prescribed date the applicant was admittedly a tenant under the non -applicant and therefore, he cannot be evicted once the Agrarian Reforms Act came into force. Hence it is ordered that the present proceedings shall abate." It appears from the order of the Financial Commissioner that he wag aware of the Act kept under suspension. The J & K Agrarian Reforms (Suspension of operation) Act, (in short Act) of 1975 came into force on March 25, 1975. In accordance with Sec. 3 of the Act the operation of the provisions of the principal Act and all proceedings there under or relating thereto and pending on the date of commencement of the Act have to remain in suspension till such date as the Government may by notification in the Govt, Gazettee appoint. The preamble of this Act contains that whereas with a view to providing for more equitable distribution and better utilization of land stituated to the circumstances of the State so as to sub serve the common good and to amend the existing law in so far as it is inconsistent with that object it has become necessary to review the existing law. Sec. 4 of the Act, however provides that the provisions of Sections 15, 25, 26, 27, 28 and 51 and the provisions of Chapter V of the principal Act in so far as they relate to these sections and any rules, notifications, orders and instructions issued there under, including any proceedings instituted or actions taken under the said provision and pending on the date of commencement of the Act shall be continued. Sec. 51 of the principal Act relates to repeal and savings. Sec. 52 of this Act, however, pertains to abatement of proceedings. The Financial Commissioner ordered for abatement of proceedings in accordance with Sec. 52 of the principal Act. Sec. 52 had been in suspension in accordance with the provisions of the Act. It is general principle of law that the provisions of the suspended Act cannot be invoked in coming to a certain conclusion. When Sec. 52 of the principle Act, which has been taken into consideration while giving the decision of abatement by the Financial Commissioner, had been suspended, there was no reason for the Financial Commissioner to have invoked such provision. The Financial Commissioner has thus committed illegality and passed the order quite contrary to law.