Beli Ram vs Chairman, Special Tribunal on 17 November, 1999

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169
Jammu High Court
Beli Ram vs Chairman, Special Tribunal on 17 November, 1999
Equivalent citations: 2004 (3) JKJ 492
Author: O Sharma
Bench: O Sharma


JUDGMENT

O.P. Sharma, J.

1. The only question involves in this petition challenging the order of the Special Tribunal dated 31.10.94 is whether Beli Ram was the tenant or an unauthorised occupant of the land measuring 34 kanals and 2 marlas comprising kh. No.90-min, 11-min, 12-min, 17-min and 2-min of khewat No. 30 situate in village Sair Mangala Tehsil Ramnagar. This question has arisen because the Tehsildar Ramnagar by his order dated 15.07.83 allowed the application filed Under Section 19/27of the Agrarian Reforms Act, 1976 (for short Agrarian Act) filed by the landlord and directed eviction of the petitioner on the ground that his possession became unauthorised after kharif 1966 when three years period of fixed term tenancy fixed by an agreement executed between him and the owner Ganga Ram in March 1964 expired. This finding was returned notwithstanding the fact that the petitioner was in occupation in kharif 1971. This order was challenged by the petitioner before the Joint Commissioner, Agrarian Reforms, but he also dismissed the appeal and confirmed the order of the Tehsildar.

2. The petitioner approaches the Special Tribunal by filing the revision Under Section 21 of the Agrarian Act which the latter dismissed on 31.10.94. All these orders have been challenged by the petitioner mainly on the grounds that the official respondents right from the Tehsildar to the Member of Special Tribunal failed to apply the law on the admitted facts of the case. The contention of Mr. Gupta is that the Tehsildar has no jurisdiction to entertain the application Under Section 19 of the Agrarian Reforms Act because he is not a collector and an application Under Section 19(3) (d) of the Agrarian Reforms Act could be decided only by the Collector appointed under the Act. He next argued that the petitioner had been recorded as protected tenant of the land vide order dated 17.05.79 and, therefore, was a prospective owner under the Act. This aspect of the case according to him was ignored by the appellate authority while dismissing the appeal and the Special Tribunal also fell in error while rejecting the revision. Mr. Bhat, appearing for the private respondents submitted that the petitioner was let in possession of the land in question only for a period of three years on payment of the l/3rd of the produced. This period of three years having been expired in 1966, his continued occupation of the land was unauthorised and, therefore, The Tehsildar was right in directing his eviction which order has been rightly upheld by the appellate and revisional authorities.

3. The admitted factual position is that the petitioner was let in possession of the dispute land in the year 1964 for a period of three years by the owner Ganga Ram. The period of three years both according to the Tehsildar as well as Joint Commissioner Agrarian Reforms expired in kharif 1966. The petitioner admittedly continued possession of the land during the lifetime of the landlord Ganga Ram who never initiated any action to evict him. There is no plea that he is not paying the rent i.e. share of the produces to the landlord from 1966 to kharif 1971. It is also not disputed that by order dated 17.05.79, the petitioner was declared protected tenant of the land. The Tehsildar and the joint Agrarian Reforms Commissioner have concurrently found that since the fixed term of tenancy created by the landlord vide agreement dated March 10, 1964 came to an end in kharif 1966, therefore, he became unauthorised occupant. In terms of this agreement as noted by the Joint Commissioner, Agrarian Reforms, the petitioner was to pay 20 pais wheat, 10 paise maizcd and 40 paise paddy “pais a local measure equivalent to about 3 kg” as rent(Lagaan). Since he was not evicted, therefore, as long as he would remain in possession, the petitioner was liable to pay rent at this rate. However, attention of neither of these revenue officers including the Special Tribunal was invited to section 15-(A) of the Tenancy Act which was substituted by Act No. XII of 1955 by substituting 1965 for 1955. This section reads as under:-

“15-A.protected tenants.-(1) All tenants other than occupancy tenants and such fixed terms tenants as hold maliari all vegetable growing land shall be deemed to be protected tenants and recorded as such in respect of such land as is held by them in their cultivating occupation at the time of the commencement of the Jammu and Kashmir tenancy (Amendment) Act, 1965.

Provided that the right of protected tenancy of a tenant shall cease when a landlord presumes land for personal cultivation Under Section 49 of Act:

Provided further that the right of protected tenancy of a tenant holding under a lease or mortgagee shall also cease on the expiry of the lease or mortgagee, as the case may be if the lesser or the mortgager was in self cultivating occupation of such land immediately before such land was leased or mortgaged and such land including the other land in his personal cultivation does not exceed the size of the holding specified for a landlord in clause(a) of section 45 of the Act.

Provided also that the right of protected tenancy shall not accrue to a tenant admitted by a protected tenant;

Provided further that a tenant admitted after the coming into force of Act XII of 1955 shall not be entitled to such right in respect of such portion of the land as together with what he helds in ownership right or in tenancy right as an occupancy or protected tenant or both does not exceed 2 acres of Abi or 4 acres of khuskki land in the Kashmir province including the Districts of Ladakh and Gilgit and 4 acres of Abi or 6 acres of khuskki in the Jammu province.

Explanation. For the purposes of this provise 1 acre of land held in ownership right shall be deemed to be equal to 2 acres of land held in tenancy right)

2. Notwithstanding anything contained in chapter-IV of the J&K Land Revenue Act, Samvat 1996, the recording of the right of protected tenants under sub-section (l) shall be made by an entry in the Girdawari register at the time of the crop inspection following the coming into force of the J&K tenancy (Amendment) Act, 1965 and shall immediately thereafter to taken to the current quadrennial jamabandi in such manner as may be notified by the Govt. in this behalf.”

4. Since the land in question is neither maliari or vegetable growing. The petitioner admittedly being in possession in 1966 as a fixed term tenant became protected tenant provided other requirements of this section were satisfied. However, it is admitted that no application for the ejectment of the petitioner was ever filed by the landlord Under Section 49 of the Tenancy Act. The petitioner is also not a tenant admitted by a protected tenant so as deny him the right of protected tenancy in terms of 3rd provise to section 15(A). How- ever, assuming that he was not recorded as protected tenant as required under sub-section (2) of section 15(A) yet his possession in kharif 1971 is admitted. It is also admitted that he was let in possession of the land by the owner on payment of the share of the produces. He was, therefore, a tenant for all intents and purposes. The right of the landlord would thus extinguish Under Section 3 of the Agrarian Reforms Act as he was in occupation as a tenant. Though he was recorded as protected tenant as per mutation No. 433 dated 17.05.79.The Joint Commissioner Agrarian Reforms thus acted with- out jurisdiction and quite illegally to set aside this mutation. The Tehsildar also acted without jurisdiction and illegally as well while allowing the application and directing the eviction of the petitioner be in flagrant disregard to section 15-A of the Tenancy Act.

5. It was faintly suggested by Mr. Bhat that section 42 of the Agrarian Reforms Act repeals Tenancy Act to the extent of repugnancy and, therefore, section 15-A is not attracted. This argument is quite erroneous because rights which have accrued under the Tenancy Act in favour of a tenant in fact makes him a prospective owner under the Act. The Agrarian Reforms Act, in fact does not permit creation of lease or tenancy to avoid intermediaries. The main object of the Act was to remove intermediaries and confer ownership rights on the tillers as defined under the Act. The petitioners squarely fell in the definition of tiller because he was a fixed term tenant as defined Under Section 15-A and became a protected tenant because he was in possession of the land in 1965. So the Tehsildar as well as appellate and revisional authorities failed to take notice of section 15-A of the Tenancy Act while deciding application, appeal and revision which has resulted in grave injustice to the petitioner who though entitled to retain the possession has been denied the benefit of the social legislation. This takes us to the question whether Tehsildar was competent to entertain and decide the application of the landlord that petitioner was not tenant, but in unauthorised occupation of the land. Tehsildar in his order dated 15.07.83 states that Ganga Ram has instituted a suit for recovery of possession on 08.01.70 which was consigned to record by the collector, Udhampur on 13.06.73 because of enforcement of Agrarian Reforms-Act. Ganga Ram, according to him died in the year 1975 and his son Krishan Kumar applied for restoration of possession Under Section 27 on 30.10.79. This application was presented to the Assistant Commissioner (Collector) under the Agrarian Reforms Act who transferred the same to the Tehsildar on 25.08.80. This is how the matter came to be entrusted to the Tehsildar who passed the order dated 15.07.83. Admittedly, the question involved before him was whether the petitioner is a tenant or an unauthorised occupant. Tehsildar has also noted that the petitioner was wrongly recorded as tenant by the Patwari, so the question before him was whether the petitioner is or is not tenant. This question was to be decided by the collector Under Section 19(3J(d) of the Agrarian Reforms Act which reads as follows :-

“(3) The following applications, suit and proceedings shall be disposed of by a Collector:-

(d) application by an owner or an intermediary that the person, who claims to be cultivating the land as a tenant, is not a tenant but a trespasser.”

6. The application was rightly entertained by the Assistant Commissioner with power of Collector, Agrarian Reforms, but it was wrongly transferred by him to the Tehsildar, Ramnagar. The Tehsildar should have returned the application to the Assistant Commissioner because he admittedly was not the Collector appointed under the Act.

7. Moreover, Section 27 provides for implementation of the provisions of the Act and not for determining the rights under the Act. The Tehsildar has thus no jurisdiction to pass this order. His order, therefore, is without jurisdiction. This aspect of the case was not noticed by either the appellate authority or the Special Tribunal. So the order of the Commissioner Agrarian Reforms rejecting the appeal is contrary to law as it is against the mandate of Section 15-A of the Tenancy Act. The illegality had to be corrected by the Special Tribunal Under Section 21(2) of the Agrarian Reforms Act, but it failed to redress the grievance of the petitioner. The Tribunal has thus failed to exercise jurisdiction vested in it. Hence petition is allowed and the order impugned is quashed. The order of the Joint Commissioner, Agrarian Reforms as well as the Tehsildar, Ramnagarare also quashed. It is further directed that the possession shall be restored to the petitioner and consequential orderUnder Sections 4 and 8 of the Agrarian Reforms Act passed in his favour as he was in the possession of the dispute land as a protected tenant. I make the order accordingly. No Costs.

Hindu Succession Act. The appellants/plaintiffs could not show that Smt. Suman Mirakhur during her lifetime and after her death the plaintiffs/ appellants claiming under her claimed partition of the dwelling house by metes and bounds. Such being the case, the view expressed by the Learned District Judge, Jammu that the plaintiffs could not succeed to make out a prima facie case nor the balance of conveniences lies in their favour so as to sustain their position to petition for ad-interim relief, cannot be faulted. I do not find any infirmity, legal or factual in the order impugned, warranting interference in this appeal in what has been said and discussed above in my opinion, there is no merit in this appeal and is accordingly dismissed.

8. Any observation made hereinabove however, shall remain confined to the disposal of this appeal, having no bearing on the merit of this case.

The record shall be remitted back forthwith to the trial court, where the parties through their counsel are directed to cause their appearance on 14.06.2003.

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