AB RAHIM RATHER Vs. SPECIAL TRIBUNAL, J&K

JUDGEMENT

(1.) ON the ground of lack of jurisdiction of the Joint Agrarian Reforms Commissioner Srinagar (hereinafter referred to first appellate authority) this petition is filed seeking to quash order dated 15th July 2000 passed by the said authority as also order dated 4th July 2002 passed by J&K Special Tribunal Srinagar. Further prayer is made that writ of prohibition be issued to restrain the Additional Deputy Commissioner Budgam from proceeding in the appeal filed against order on mutation No.489 dated 11th Sept. 2000 titled "Abdul Rahim Rather and ors v. Mohd. Akbar and ors".

(2.) THE facts in brief are summarized which have given rise to filing of this writ petition. The petitioners claim that they were recorded tenants in possession of land measuring 15 Kanals and 12 -1/2 marlas covered by survey Nos. 15 min, 27, 63 min, 98 min, 142 min, 147 min, 202 min, 288 min and 290 min situated at Village Garind Kalan Tehsil and District Budgam. The petitioners further claim that orders on mutation No.383 dated 12.2.1975 and 384 dated 15.2.1975 were passed by then Circle Officer Budgam which had the effect of making correction of Girdawari entries in the revenue records and such exercise undertaken favoured the petitioners and they were shown to be in possession of the abovesaid land w.e.f 1971 and through these mutation orders rent of the land was also charged. The two orders of mutation however, were challenged by one Mohammad Qazi predecessor -in -interest of the respondents 4 to 7 by filing two appeals before Commissioner Agrarian Reforms J&K Sriangar and by composite order dated 27.09.1980 the appeals were accepted and order of mutations were set -aside and Tehsildar Budgam was directed to conduct fresh enquiry in presence of concerned parties and pass fresh orders in accordance with Agrarian Reforms Laws. It is further pleaded by the petitioners that Tehsildar Budgam passed orders in accordance with provisions of Agrarian Reforms Act of 1976 and declared that out of land measuring 15 Kanals and 12 -1/2 marlas, the petitioners were tillers of land measuring 13 Kanals and 18 Marlas from Kharief 1971 and remaining land measuring 1 Kanal 4 -1/2 marlas covered under Survey Nos. 63 and 98 being barren land was not covered under the provisions of Act of 1976. The enquiry of the Tehsildar resulted in passing of orders on mutation No. 489 u/s 4 of the Act of 1976 in favour of the petitioners declaring them as prospective owners of the land measuring 13 Kanals and 18 marlas. Against the said order of mutation No.489 appeal was filed by respondents 4 to 7 before Joint Agrarian Reforms Commissioner Kashmir and the appeal remained pending on the files of the said authority till 15th July 2002. It is further pleaded by the petitioners that during pendency of the appeal before Joint Agrarian Reforms a notification under SRO 59 dated 3.2.1997 was issued by Government in exercise of powers conferred by Sub Sec. 1 of Sec. 18 read with Sec. 19 of the Agrarian Reforms Act of 1976 hereinafter referred to Act of 1976, which notification had affect of appointing various revenue officers for the purpose of discharging their duties under the Act of 1976. The Joint Agrarian Reforms Commissioner (Settlement Officer) Jammu/Srinagar was authorized to hear appeals, as Commissioner in the areas notified and taken up for settlement operations falling within their respective jurisdiction. Every additional Dy. Commissioner was authorized to hear appeals, as commissioner within his respective jurisdiction excluding the areas notified and taken up for settlement operations. Further case of the petitioners is that notification SRO 511 dated 19.11.1999 was issued and the Government in exercise of powers conferred by Sub Section (1) of Sec. 18 read with Sec. 19 of the Act of 1976 made amendments in notification SRO 59 dated 3.2.97. For the disposal of this case the amendments relevant are referred to; in Sr. No. 2 in Column 2 words "(Settlement officer)" were deleted, likewise for words "falling within their respective jurisdiction" appearing against serial No.2 in column (4) "falling within Jammu/Srinagar" were substituted. The words "excluding the areas notified and taken up for settlement operations" appearing against serial No.3 in column (4) have also been deleted. The words "excepting Additional Deputy Commissioner Jammu/Sriangar" were added after the words "every Additional Deputy Commissioner" appearing against serial No.3 in column (2).

(3.) THE petitioners further case is that the Joint Agrarian Reforms Commissioner Srinagar on 19.04.2000 observed in the interim order that in view of the SRO 511 of 1999 the appeal is required to be send to Additional Dy. Commissioner Budgam for disposal and the date for appearance of parties was fixed on 26.04.2000. However, immediately after dictating said order the ld. counsel for the parties appeared before the Joint Agrarian Reforms Commissioner (appellate authority) and requested him to retain the case on his files and decide the same, as same being old one and its disposal as such could not brook further delay. The Joint Agrarian Reforms Commissioner Srinagar accepted the appeal of the respondents and set aside the order on mutation No. 489 dated 29. 06.1982 and case was remanded to Tehsildar settlement Budgam for fresh enquiry. The Tehsildar settlement Budgam as is pleaded in the writ petition has already passed fresh order on mutation No.489 dated 11.09.2000 which has favoured the respondents, and petitioners have challenged the said order by filing statutory appeal before Additional Dy Commissioner Budgam. After giving all these details in the writ petition, petitioners submit that after passing of the order on mutation No.489 in compliance to the orders dated 15th July 2000 passed by Joint Agrarian Reforms Commissioner and after having challenged the same by filing statutory appeal before Additional Deputy Commissioner Budgam revision petition was filed on 5th Oct. 2000 before J&K Special Tribunal Srinagar calling in question order dated 15th July 2000 passed by Joint Agrarian Reforms Commissioner. The J&K Special Tribunal however, dismissed the revision petition of the petitioners on 4th July 2002, and the petitioners have thus filed this petition before this court. Notices were issued to the otherside, and private respondents have filed the objections to the maintainability of the writ petition. The respondents besides taking other pleas have also raised objection that order dated 19th April 2000 vide which Joint Agrarian Reforms Commissioner retained the appeal case on its files at the request of the ld. counsel for parties having not been challenged the petitioners had thus waived the objections, if any, about the jurisdiction of the Joint Agrarian Commissioner to hear and decide the appeal. It has been further pleaded that the petitioners after filing appeal against the order of mutation No. 489 dated 11.09.2000 had assured the Additional Dy. Commissioner Budgam (appellate authority) that they will withdraw the revision petition pending before Special Tribunal. The respondents have further stated that the objection so raised about jurisdiction of the Joint Agrarian Reforms Commissioner to hear and decide the appeal is not available to the petitioners in the fact situation of the case. They further stated that appeal against mutation order having been filed by petitioners, the present proceedings are misconceived.