HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. LPAOW No. 29 OF 2001 Shashi Pal. Petitioners Kamloo & anr Respondent ! Mr. M. L. Sharma, Advocate ^None. Honble Mr. Justice Dr. Aftab H. Saikia, Chief Justice Honble Mr. Justice Mohammad Yaqoob Mir, Judge Date: 18.08.2010 :J U D G M E N T :
Dr. Saikia, CJ:
Heard Mr. M. L. Sharma, learned counsel for the appellant.
None appears for the respondents despite notice.
By means of this Letters Patent Appeal, the appellant has challenged the judgment and order
dated November 30, 1999 passed by the Writ Court in OWP no. 138/1995 whereby the writ
petition preferred by respondent no. 1 herein as the writ petitioner was allowed by the Writ
Court holding that conferment of his proprietary right on the respondent no.1 was held to be in
accordance with law and resultantly the findings arrived at by the Jammu and Kashmir
Special Tribunal, Jammu rendered by its order on 2.9.1993 in file no. STJ/845/92-93 were
interfered with.
The basic facts needed to be noticed herein for proper resolution of the appeal are that
respondent no. 1 was cultivating, being in possession of the land in question as a tenant, before
and till Kharif 1971. Meanwhile, the said land was requisitioned by the Armed Forces with
effect from 1.4.1974. However, even after requisition, the respondent no.1 continued to be in
possession of the land with the Armed Forces.
It was not in dispute that the respondent no. 1 was in cultivating possession of the land up to
Kharif 1971 and till date of its requisition by the Armed Forces. Under such circumstances, it
was pleaded in the writ petition that she was entitled to get the benefit of Sections 4 and 8 of
the Jammu and Kashmir Agrarian Reforms Act, 1976 (hereinafter referred to as the Act).
Learned Single Judge accepted the submissions so made on behalf of respondent no. 1, and,
accordingly, granted the relief as already indicated above.
Impugning the judgement and order of the writ Court, Mr. Sharma has strenuously argued that
the benefit given to respondent no. 1 by the writ Court is not permissible under the law.
According to him, the Act is not applicable to the instant case so as to give the relief granted
under the Act to respondent no. 1. His basic contention is that the land being requisitioned by
the Army, it falls in the category of exception so contemplated under Section 3 of the Act. He
has drawn our attention to Section 3 (h) (i) in support of his submission.
For the sake of convenience, the relevant provisions of the Act, to be dealt with herein, may be
reproduced as under:-
3. Exception:
(h) Land:-
(i) requisitioned under any law for the time being in force; or
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4. Vesting in the State of rights in land not held in personal cultivation
(1) Notwithstanding contained in any law for the time being in force, but subject to the
provisions of this Chapter, all rights, title and interest in land of any person, not cultivating it
personally in Kharief 1971, shall be deemed to have extinguished and vested in the State, from
encumbrances, with effect from the first day of May, 1973.
8. Vesting of ownership rights in land in
prospective owner
Notwithstanding contained in any law, for the time being in force, but subject to the provisions
of Sections 5 and 14, where an ex-landlord resumes land under Section 7, the tiller, from whom
land is so resumed, or his legal heirs shall be bested with ownership rights in land left with him
or his heirs, as the case may be, after resumption in the following manner, namely:-
Where the ex-landlord resumes the entire land permissible under clause (f) of sub-Section (2) of
Section 7, without payment of any levy and as soon as the ex-landlord is given possession of
resumed land; and
Where the ex-landlord does not resume the entire land permitted by clause (f) of sub-Section
(2) of Section 7 because of the provisions of sub-Section (3) of Section 7:-
after payment of such levy in such manner as is provided in Schedule III for the portion of such
land which, though resumable by such ex-landlord under clause (f) of sub-Section (2) of
Section 7; and
without payment of any levy and after the ex-landlord is given possession of the resumed land,
for the portion of such land left with such tiller other than that mentioned in sub-clause (i)
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(4)Where such land as is mentioned in sub-Section (10) has been or is cleared for acquisition by
the Government under any law for the time being in force and the prospective owner thereof
has not acquired ownership rights until the date of such declaration, besting of ownership rights
in such land in such person shall not be effective and the instalments of levy, if any, paid shall
be refunded to such person in lump sum with interest at five per centum per annum.
Relying on the above provisions of law, Mr. Sharma has placed his limited argument that since
Section 3 (h) (i) has completely barred the benefit to the tiller, over his land on being
requisitioned the same under any law for the time being in force, the learned Writ Court
committed an error apparent on the face of record in granting relief to the respondent no.1 and,
as such, the impugned judgment and order deserves interference by this Court.
Due consideration was given to the extensive argument so canvassed by Mr. Sharma, learned
counsel for the appellant.
We have also closely perused the impugned judgment and order as well as the relevant laws so
reproduced hereinabove.
In the instant case, respondent no. 1, admittedly, was occupying the land since 1971 and till
date of requisition of the same by the Armed Forces on 1.4.174. On the other hand, Section 4
clearly and emphatically contemplates that the land shall be vested with the Government with
effect from May 1, 1973 if the land in question is not in cultivating possession by any person in
Kharif 1971. What transpires herein that respondent no. 1 was cultivating the land since 1971
and she continued to do so even after the requisition by the Armed Forces in the year 1974,
under the Armed Forces.
It is clear from the provisions of Section 4 that the effective date of extinguishing the right of
cultivation of a person and vesting the land with the Government is May 1, 1973. Be it
mentioned herein that the Act came into force with effect from 13.7.1978 providing the cut off
date of May 1, 1973, as clearly reflected under Section 4 of the Act.
Having considered the above mentioned factual position also upon hearing learned counsel for
the appellant, we are of the firm view that no illegality or irregularity having been committed by
the writ Court in arriving at a finding so recorded in the impugned judgment.
Consequently, we are of the view that this Letters Patent Appeal is bereft of any merit and,
accordingly, the same stands dismissed.
(Mohammad Yaqoob Mir) (Dr. Aftab H. Saikia) Judge Chief Justice Jammu: 18.08.2010 Tilak, Secy.
