Jammu & Kashmir High Court - Srinagar BenchMohammad Amin Thoker And Others vs J&K; Special Tribunal And Others on 28 September, 2017Author:Mohammad Yaqoob MirBench:Mohammad Yaqoob MirSerial No.17
Regular List
                     HIGH COURT OF JAMMU AND KASHMIR
                               AT SRINAGAR


       OWP No.1956/2015
       MP No.01/2015
                                                     Date of decision:28.09.2017

       Mohammad Amin Thoker & Ors.          v.      J&K Special Tribunal & ors.

       Coram:
               Hon'ble Mr Justice Mohammad Yaqoob Mir, Judge.


       Appearance:
       For the Petitioner(s):   Mr. M. R. Thakur, Adv.
       For the Respondent(s): None for R1 to R4.Mr. S. A. Qadiri, Adv.-for R5.i)      Whether approved for reporting in             Yes
               Law journals etc.:
       ii)     Whether approved for publication
               in press:                                       No1.      Order dated 19.10.2015, passed by the Revisional Authority (J&K

       Special Tribunal, Srinagar), is sought to be quashed.2.      Precise factual matrix which has given rise to hectic litigation

       between the parties is that land measuring 01 kanal of 1 marla covered by

       survey No.378/108 situated at Village Agroo Tehsil Kulgam, of whichOWP No.1956/2015                                                Page 1 of 8petitioners claim to be owners, has been mutated under Section 4 of the

Agrarian Reforms Act in favour one Mst. Zeba, mother of respondent No.5,

vide mutation No.338 dated 28.04.1981.3.    Mst. Zeba having been shown as tiller has been conferred prospective

ownership rights. Aggrieved thereof, Sona Thoker, the actual owner, of

whom petitioners claim to be the legal heirs, filed an appeal before the

Court of Joint Agrarian Reforms Act, Kashmir. On appearance, Mst. Zeba

filed an application accepting possession of the owner by stating therein

that the land in question is under the possession of the appellant (Sona

Thoker) and she has no right or connection with the said land, the position

in revenue records showing her as tenant runs contrary to the spot position.

In support of the said application styled as compromise, the statement of

Mst. Zeba has been recorded wherein she has stated that she has heard the

contents of the compromise, admits the same word by word.4.    Learned Joint Agrarian Reforms Commissioner in view of said

compromise accepted the appeal, order recorded on mutation to the extent

of said land was set aside and the case was remanded to the Tehsildar

concerned for denovo enquiry on spot with a further direction that he willOWP No.1956/2015                                                   Page 2 of 8make sure that the parties under the garb of compromise may not make any

sale deed.5.    Extract of Girdawari has been placed on record in its column No.7,

vis-à-vis said land covered by survey No.378/108, it has been recorded that

in pursuance to order of Tehsildar bearing No.785/SQ dated 29.01.1997,

remand case Sona Thoker Vs. Zeba wife of Samad Bhat, under survey

No.378/108, land measuring 1 kanal 1 marla is recorded in cultivation of

Sona Thoker adopted son of Wali Sheikh. In the note beneath the entries of

Khasra Girdawari, it is also recoded that Mohammad Amin (petitioner) S/o

Sona Thoker, as per petitioner and other villagers on spot, is in possession

of the said land.6.    Mst. Zeba, mother of respondent No.5, subsequently in the year 1997

filed an application for grant of temporary injunction and protection before

Assistant Commissioner General (Collector), Anantnag, which application

has been decided on 03.09.1997. In the said order it has been recorded that

on presentation of the application, interim injunction dated 19.03.1996 was

issued restraining the non-applicants from causing any interference with the

possession of the applicant, same order is in operation. It is further

mentioned that the non-applicants therein, Sona Thoker and others, haveOWP No.1956/2015                                                   Page 3 of 8pleaded in their objections that though mutation was attested but the

applicant Mst. Zeba was not in possession. Mutation was challenged before

Agrarian Reforms Commissioner where the parties have entered into a

compromise, therefore, application be dismissed. Assistant Commissioner

General (Collector) has mentioned that the non-applicants had not produced

any proof in support of their objections, they were proceeded in ex-parte.

As per entries in the extract of Girdawari, land in question has been mutated

vide mutation No.338 in favour of applicant as prospective owner. Finally,

application has been allowed. Non-applicants therein have been directed

not to cause interference with the land in question subject to condition that

regarding land in question, there is no other order passed by any competent

Court.7.    Aggrieved by the order of Collector (Assistant Commissioner

General), Anantnag, dated 03.09.1997, Sona Thoker filed an appeal before

the Additional Deputy Commissioner with powers of Agrarian Reforms

Commissioner, Anantnag, titled Sona Thoker & others Vs. Mst. Zeba.

Additional Deputy Commissioner (Commissioner Agrarian Reforms), vide

order dated 20.07.2007, while allowing the appeal held that the order

passed by the Collector is without jurisdiction, as such, has been set aside.OWP No.1956/2015                                                    Page 4 of 8At the same time, order of Joint Agrarian Reforms Commissioner, Srinagar,

shown as order dated 04.07.1995, which, in fact, is 06.04.1995, was

directed to be forwarded to Tehsildar for necessary immediate action.8.    Aggrieved by this order, Mst. Zeba filed a revision petition before

J&K Special Tribunal, Srinagar. The Revisional Authority allowed the

revision petition and while setting aside order dated 20.07.2007 passed by

Additional Deputy Commissioner (Commissioner Agrarian Reforms),

restored order dated 03.09.1997 passed by Assistant Commissioner General

(Collector) Anantnag. Aggrieved whereof, instant petition has been filed.

In the meantime, Sona Thoker as well as Mst. Zeba died, that is why

Mohammad Amin Thoker (son) has filed this petition and in place of Mst.

Zeba, her son Abdul Salam has been impleaded as party/respondent No.5.9.    The Revisional Authority has passed the order impugned quite

contrary to the factual position without noticing the above referred facts

and circumstances, has passed the order in an arbitrary manner, lack of

applicant of mind is apparent.10.   Admitted fact is that the dispute is with regard to land measuring 1

kanal 1 marlas covered by survey No.378/108. Mutation under Section 4 ofOWP No.1956/2015                                                 Page 5 of 8Agrarian Reforms Act was attested on 28.04.1981 in favour of Mst. Zeba,

prospective owner.11.   The appellate authority i.e. Joint Agrarian Reforms Commissioner,

on the basis of a compromise wherein Mst. Zeba had admitted that she is

out of possession and it is Sona Thoker who is in actual possession, has set

aside the mutation and Tehsildar concerned was directed to conduct fresh

enquiry and to ensure that under the garb of compromise, sale is not made.12.   Tehsildar, has passed order on 29.01.1997, position of which has

been given effect in the records reflecting Sona Thoker adopted son of Wali

Sheikh in personal cultivation of the land. This order of Tehsildar has not

been challenged anywhere.13.    How could Mst. Zeba file an application for grant of temporary

injunction and protection and then how could Assistant Commissioner

General pass order dated 03.09.1997, on the face of it, suggests non-

application of mind by the Assistant Commissioner General. It has been

brought to the notice of the Assistant Commissioner that mutation under

Section 4 has been set aside by Joint Agrarian Reforms Commissioner.OWP No.1956/2015                                                   Page 6 of 8How he has covered up the same is that he has mentioned in the order that

no such order or compromise entered into by the parties before Joint

Agrarian Reforms Commissioner was produced. Finally, while issuing

restraint order has incorporated a condition to the effect "provided

regarding land in question there is no other order passed by any other

competent court". This suggests that Assistant Commissioner has been

conscious about order of Joint Agrarian Reforms Commissioner and the

compromise which had been entered into and despite that he has passed the

order which was successfully challenged by Sona Thoker before Additional

Deputy Commissioner with powers of Commissioner Agrarian Reforms,

Anantnag.14.   Learned Revisional Authority without looking into the stated facts

and without looking into the cryptic order passed by Assistant

Commissioner General (Collector) has restored the same order when

Additional Deputy Commissioner while disposing of the appeal has clearly

mentioned that mutation No.338 dated 28.04.1981 was set aside and also

recorded a finding that the application for injunction could not lie, rightly

so because it is Mst. Zeba who had admitted before the appellate authority

on 24.02.1988 that she is not in possession of the land. When there is a clearOWP No.1956/2015                                                    Page 7 of 8admission of Mst. Zeba that she was not in possession, how could there be

a restraint order against the actual owner.15.    The order passed by the Revisional Authority (J&K Special Tribunal)

dated 19.10.2015, on the face of it, is perverse, as such, quashed, as a result

whereof, order passed by Additional Deputy Commissioner with powers of

Agrarian Reforms Commissioner, Anantnag dated 20.07.2007 is restored.16.    Writ petition succeeds, shall stand disposed of as above.(Mohammad Yaqoob Mir)
                                                     Judge


Srinagar
28 .09.2017
"Bhat Altaf, PS"OWP No.1956/2015                                                     Page 8 of 8