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Jagtu and ors. Vs. Badri and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtJammu and Kashmir High Court
Decided On
Case NumberLetters Patent Appeal No. 14 of 1972 and Second Appeal Nos. 49 of 1973, 19, 63 etc. of 1974, 37 of 1
Judge
Reported inAIR1980J& K1
ActsJammu and Kashmir Agrarian Reforms Act, 1976 - Sections 19(3) and 25
AppellantJagtu and ors.
RespondentBadri and ors.
Appellant Advocate R.N. Bhalgotra, Adv. (in L.P.A. No. 14 of 1972),; Inderjeet Gupta, Adv. (in S.A. No. 49 of 1973),;
Respondent Advocate T.S. Thakur, Adv. (in L.P.A. No. 14 of 1972),; R.P. Sethi, Adv. (in S.A. Nos. 49 of 1973, 37 of 1976,
Cases ReferredR. v. Income
Excerpt:
- mian jalal-ud-din, c.j. 1. these bunch of cases in the nature of appeals, revisions, and references have been referred to the full bench and raise common questions of law of general importance relating to interpretation of section 19 (3) (e) and section 25 of the jammu and kashmir agrarian reforms act of 1976, (act no. xvii of 1976), for short, to be referred to as the 'act of 1976'. it has been debated that by virtue of the operation of the above mentioned sections, jurisdiction of civil courts to decide all causes relating to land as defined in the act of 1976 is barred as the law aims at completely ousting the jurisdiction of civil courts from taking cognizance of all such cases. it will be appropriate to give a brief sketch of the facts of each case:(i) jagtu v. badri and ors. is l......
Judgment:

Mian Jalal-Ud-Din, C.J.

1. These bunch of cases in the nature of appeals, revisions, and references have been referred to the Full Bench and raise common questions of law of general importance relating to interpretation of Section 19 (3) (e) and Section 25 of the Jammu and Kashmir Agrarian Reforms Act of 1976, (Act No. XVII of 1976), for short, to be referred to as the 'Act of 1976'. It has been debated that by virtue of the operation of the above mentioned Sections, jurisdiction of civil courts to decide all causes relating to land as defined in the Act of 1976 is barred as the law aims at completely ousting the jurisdiction of civil courts from taking cognizance of all such cases. It will be appropriate to give a brief sketch of the facts of each case:

(i) Jagtu v. Badri and Ors. is L. P. A. No. 14 of 1972 against the judgment and decree dated 29-11-1971 of Jaswant Singh, J. (as his Lordship then was). The appeal arises out of a suit for possession of agricultural land based on the right of prior purchase. The plaintiff claimed the right of prior purchase on the ground that he was the tenant of a part of the land. A question has been raised in the appeal that because of Section 25 read with Section 19 (3) (e) of the Act of 1976, the jurisdiction of the civil courts to settle, decide, or deal with any question or to determine any matter arising out of the Act of 1976, is barred. The jurisdiction to decide such matters vests exclusively with the authority appointed and, therefore, the appeal should be transferred to the Collector having jurisdiction in the case. The Division Bench seized of the appeal was of the opinion that in view of the general importance of the question raised, the matter, be referred to Full Bench.

(ii) Mst. Bhadoon v. Sant Singh is Civil Second Appeal No, 49 of 1973. The question raised in the appeal is in regard to the validity of the gift deed pertaining to agricultural land.

(iii) Abdul Rashid v. Mohammad Din, Civil Second Appeal No. 19 of 1974. This appeal raises the question with regard to the cancellation of the gift deed affecting agricultural land.

(iv) Thakur Dass v. Dev Raj and Ors. Appeal No. 63 of 1974 also raises a question regarding the validity of the deed of gift affecting the agricultural land.

(v) Sunder Dass v. Ram Nath is Civil Second Appeal No. 75 of 1974, and arises out of the judgment and decree of the District Judge Poonch/Rajouri in a suit for exercise of right of prior purchase on the ground that the appellant is the co-sharer in the land which is admittedly agricultural land as defined in the Act.

(vi) Gulzar Begum v. Syed Mohammad is Civil Second Appeal No. 37 of 1976 against the judgment of the District Judge, Poonch. The Appeal arises out of a suit for permanent injunction in respect of the land alleged to be in possession of the plaintiff. The case of the plaintiff is that the defendant obstructs and threatens to interfere with her possession on the suit land.

(vii) Habib Ullah v. Chet Ram is Civil Second Appeal No. 8 of 1974 and arises out of an application for execution of the decree for possession. The appellant has raised an objection that he held the land as tenant and that he had purchased the land from one Ghulam Mohamad. He had thus become the owner of the suit land and could not, therefore, be ejected.

(viii) Anand Ram v. Cheeru is Civil Appeal No. 44 of 1974, in which the plaintiff has alleged that the suit land was ancestral property and that the property has vested in the plaintiff. The mutation of the land effected in favour of the Mst. Kali was illegal and ineffective as she was never in possession of the land and the Kotha. The plaintiff also claimed the land on the basis of adverse possession. The plaintiff prayed that the gift deed executed was illegal and, ineffective. He also prayed for possession of the said land.

(ix) Amar Singh v. Sehdev Singh is civil second appeal No. 26 of 1974 and arises out of suit for declaration brought by the plaintiffs claiming to be the reversioners of the deceased. The plaintiff has challenged the validity of the will in regard to the land.

(x) Aziz Joo v. Gani Joo is civil second appeal No. 38 of 1974 and arises out of a suit in which the question with regard to the succession of the plaintiff to claim the suit land is involved.

(xi) Harbans Singh v. Bohola Singh is civil second appeal No. 80 of 1974 against the judgment and decree of the District Judge, Poonch/Bajouri by which the suit of the plaintiff for possession and declaration of the agricultural land has been dismissed. The plaintiff filed the suit claiming possession of the suit land and also declaration to the effect that the sale deed be declared null and void.

(xii) Chain Singh v. Gian Singh is civil second appeal No. 25 of 1974 against the judgment and decree of the Sub-Judge (C. J. M.) Jammu, decreeing in appeal the plaintiff's suit for declaration and possession of the land measuring 25 kanals. The plaintiff claimed possession of the suit land on the basis of their proprietary rights.

(xiii) Feroza v. Jamal Din and Ors., is Civil Second Appeal No. 65 of 1974 and arises out of judgment and decree of the Sub-Judge, Poonch, in a suit for declaration that the plaintiffs have become the owners of the suit land, inter alia, on the ground of adverse possession.

(xiv) Punnu v. Kirpal Singh, Civil Second Appeal No. 38 of 1977, arises out of a suit for permanent injunction restraining the defendant from interfering in the possession of the land held by the plaintiff. The defendant contested the suit on the ground that he has been cultivating the suit land for a pretty long time as tenant under the plaintiff. He denied the possession of the plaintiffs on the said land and pleaded that the land stands entered in their name and that he is in possession of same.

The above mentioned cases referred to the Full Bench undoubtedly do not give an exhaustive list of all conceivable cases which call for an interpretation of the relevant provisions of the Act of 1976. It is not possible to deal exhaustively with the large number of conceivable cases different and varied in their nature in which questions with regard to the applicability of the Act of 1976 may arise. However, an attempt will be made in the judgment to express opinion on the broad questions posed before us affecting the jurisdiction of civil courts and also to give guidelines to the courts to proceed in a particular manner while taking cognizance of the cases.

2. It is appropriate to mention here that a Full Bench of this Court has also had an occasion to hear some other similar cases pending in the Kashmir Wing of the court. These cases also raise identical questions of law. Brief synopsis of these cases will, however, appear in the other judgment to be delivered in those cases. The law that will be laid down and the principles that will be enunciated in this judgment will equally apply to those cases as well.

3. Needless to say that in none of the cases has the vires of the Act been challenged before us. Nor does such a question fall within the ambit of any of the references made to the Full Bench, We are given to understand that the question regarding the constitutional validity of some of the provisions of the Act is pending before the Supreme Court of India in some other cases.

4. Various contentions have been advanced for and against the proposition whether Sections 19 (3) (e) and 25 of the Act of 1976 do or do not oust the jurisdiction of civil courts to hear and decide suits in which the subject-matter involved is agricultural land as defined in the Act of 1976. Counsel enunciating the proposition that the jurisdiction of the civil courts is not absolutely barred have urged that the word 'dispute' should receive a limited interpretation and should be construed in the light of the scheme of the Act. Only such questions may be classed as 'disputes' under Section 19 (3) (e) as arise under the Act itself. Suits involving disputes relating to declaration of title, succession, inheritance, specific performance, injunction or partition of agricultural land cannot be termed as disputes within the meaning of Section 19 (3) (e). The cognizance of such cases by the civil courts cannot be said to be barred under the Agrarian Law. The Act does not expressly or by implication create any bar to the hearing and adjudication of such disputes by the civil courts. Similarly suits involving prayer for cancellation of documents, for instance, deeds of gift, deeds of will, instruments of sale, or mortgage and other documents including a decree challengeable on the ground of fraud are not ousted from the cognizance of the civil courts. Only those categories of suits which involve questions relating to tenancy of agricultural land are referable and transferable to the Collector. If the Legislature intended to oust the jurisdiction of civil courts in all cases of disputes affecting the agricultural land then it should have given clear expression to that intention by using appropriate words in the section; otherwise by virtue of Section 9 of the Code of Civil Procedure the above mentioned categories of suits continue to remain within the cognizance of the civil courts and by no stretch of imagination can it be said that the jurisdiction of the civil courts has been taken away.

5. Another view propounded is that even in suits for possesion which involve declaration of title and succession or right of prior purchase, the civil courts must decide the ancillary rights and the main relief of possession should be left to the Collector who will decide it in accordance with the provisions of the Act and the rules made thereunder.

6. The third view is that Section 19 (3) (e) must be read ejusdem generis to Clauses (a) to (d) of the section. The genus is the scheme underlying Section 19 (3). Cases contemplated by Sub-Clauses (a) to (d) to Section 19 (3) are those cases where possession is ab initio void. For instance Sub-clause (a) relates to the category of the cases of wrongful dispossession. Sub-clause (b) has reference to the category of cases where transfer has been effected in violation of the provisions of Sections 67 and 68 of the Land Revenue Act and possession has been obtained on the basis of illegal transfer; Clause (c) refers to those cases where land is illegally occupied or illegally transferred. The dispute envisaged by this sub-clause is analogous to disputes under Section 68 of the Jammu and Kashmir Tenancy Act. Again Clause (d) refers to cases of illegal possession. Therefore, in view of the scheme of Section 19 (3) Sub-Clauses (a) to (d), the word 'dispute' in Clause (e) should receive the same meaning as is assigned to questions arising under Clauses (a), (b), (c) and (d).

7. The fourth view is that even assuming that all suits involving disputes of all kinds relating to the agricultural land are triable by the Collector, the latter is not a court which can try those cases and can give effective decisions thereon and can also pass decrees. The Collector is only an officer against whose order an appeal is provided. Any matter raised before him touching upon the rights of the parties cannot be determined by him as a civil Judge.

8. The fifth view is that just as Section 111-A of the Land Revenue Act envisages that the Collector may ask the Civil Court to decide disputed rights between the parties and, thereafter, decide the main cases, in the same way the civil court should decide the rights between the parties and, thereafter, ask the Collector to decide the question of possession of the land in the light of the provisions of the Act. Attention is invited to Sections 21, 45, 8 and 15 of the Land Revenue Act. Unless the cognizance of the suit by the civil court is expressly barred the suit cannot be decided by the Collector. Also where the civil court has jurisdiction to try the main case but only ancillary matters raised are triable by the other forum then the civil court must hear the case and decide it.

9. Again, it is pointed out that there is no provision in the Act giving any guideline in regard to the forum for deciding disputes that may arise in future, in which court or forum such future suits be instituted. Section 25 (2) is not legally worded. The salutary principle of jurisprudence that where a Tribunal acts illegally in contravention of the provisions of the Act or the Rules made thereunder, its action can be challenged in the civil court, has been completely set at naught by inserting in Section 25 (2) the following words:

'(b) No order of any officer or authority passed under the Act or the Rules made thereunder shall be called in question in any civil court on any ground whatsoever including that relating to non-compliance with the provisions of this Act or the fundamental provisions of judicial procedure.'

The insertion of this latter part of the clause violates the very fundamental structure of jurisprudence and is against the letter and spirit of the decisions of the Privy Council and also the Supreme Court.

10. Counsel appearing for the side opposite have canvassed that it is implied in Section 25 that all suits raising any question or matter under the Act of 1976, will be decided by the Collector. As all suits relating to agricultural land do raise in some form a question or questions, they are, therefore, to be heard by the Collector. That this is the intention of the legislature can be gathered from the unambiguous language used in this section as also in Section 19 (3) (e) of the Act. In fact, the language employed in Section 25 is more precise, more clear and of wider amplitude in its application to all disputes than what the language of Section 36 of the old Act of 1972 intended to convey. Legislature in its wisdom has thought fit to bring all categories of disputes within the cognizance of the Collector and oust the jurisdiction of the civil courts and it is, therefore, that we find Section 19 (3) (e) engrafted in the Act of 1976. It is also disputed that there is any common genus between clauses (a) to (d) and (e) of Section 19 (3), therefore, the principle of ejusdem generis will not apply. Moreover, cases that fall under Clauses (a) to (d) of Section 19 (3) were already triable by the Revenue Officers and not by the civil courts; but the Legislature by saying in Sub-clause (e) that even the suits which involve the question of adverse possession and which are otherwise triable by civil court will now be triable by the Collector is quite significant, There can be no common genus between the two categories of suits, those falling under Clauses (a) to (d) and those falling under Clause (e). The question of jurisdiction is to be decided with reference to the reliefs claimed. The question of deciding any ancillary matter or of granting any ancillary relief is of no import. It is the substance of the cause that will determine the jurisdiction in a case. Ancillary relief can also be granted by the forum which can grant the principal relief. As in all cases of disputes affecting the agricultural land final order is to be passed by the Collector, therefore, all cases must go to him for decision; otherwise it will create anomalies and will give rise to serious conflict of decisions. It is submitted that even in cases in which right to succession, inheritance, and partition is involved, they must also go to the Collector as the reliefs claimed are linked with the question of possession and the question of possession is itself linked with the question of ceiling of the land. Under the Act of 1076, ceiling area has been fixed for a tiller who will hold the land in personal cultivation. It is urged that Section 3 divests all those from the ownership of the land who did not hold the land in personal cultivation on 1st September, 1971 or who are merely intermediaries. Because of this legal fiction of divesting of ownership and vesting it in the State created by the section no action for possession of the land or even for the matter of that, no suit claiming any right in the land can be maintained in the civil court as in all such cases the right will either be deemed to have been destroyed or if otherwise intact, the remedy to pursue the legal action would be barred in the civil court and would be available before the forum newly created.

11. The questions that, therefore fall for our consideration are;

(a) The scope of the Act of 1976?

(b) The meaning of the word 'dispute' occurring in Section 19 (3) (e) of the said Act,

(c) Whether Section 19 (3) (e) and Section 25 of the Act of 1976 oust the jurisdiction of the civil courts in respect of all civil disputes relating to agricultural lands)

(d) Whether there are sufficient guidelines in the Act which could guide the courts as also the officers appointed under the Act to implement the provisions of the Act?

Questions more or less similar to those raised before us engaged the attention of a Full Bench of this court in Rahim v. Amma Bar, AIR 1975 J & K 33, when the court considered the application of the Jammu and Kashmir Agrarian Reforms Act of 1972, in short to be referred to as 'The Act of 1972' to the cases pending before the civil courts. The Full Bench observed that from the scheme of the Act, it was clear that the Act has taken away or abridged vested rights acquired in respect of land under the existing laws, It has created new rights or obligations, has provided new remedies and has prescribed new procedures and conferred new jurisdiction. The Act applied to pending actions in civil courts. The Full Bench while interpreting Section 36 (g) of the Act of 1972 observed that a pending action will survive in a civil court if by or under the new Act right be not acquired and even if so acquired, it be not lost or destroyed either and the remedy too be not barred or changed. Therefore, if a question was raised before the civil court or an officer or authority in the State whether or not a particular land has vested in the State or in any other person under the Act such court, or officer or authority shall have no power and jurisdiction to decide this question or even determine the collateral facts on which the decision of that question rests. Where, therefore, any such question is raised in a pending action or in an action instituted after the Act became operative, the court or officer or authority before whom such question is raised may stay its hands in the matter pending determination of that question by the competent authority under the Act. Section 36 of the Act of 1972 provided that notwithstanding anything contained in any other Act for the time being in force no civil court shall have jurisdiction to settle, decide or deal with any question or to determine any matter which is under this Act or the Rules made thereunder required to be decided, settled, or dealt with or determined by an officer or authority appointed under this Act or the rules made thereunder. No order of any such officer, or authority appointed under this Act shall be called in question in any civil court. The Full Bench further expressed the view that where an officer appointed makes or refuses to make an order declaring the particular land to have vested in the State or in any other person, the order can be challenged before a civil court on merits, if it is shown that it was passed in violation of fundamental rights or judicial principles.

12. Some of the views so expressed and the principles enunciated by the Full Bench may not be wholly relevant now in view of the drastic changes effected in the Land Reforms by the Act of 1976. Many far reaching changes have been introduced in the definition of the word 'land'. Within its ambit orchards have been included which were left out from the operation of the old Act. In the same way personal cultivation has been explained by adding Explanation thereto making it more comprehensive and broad based. Additional provisions have been made to broad base the land reforms ousting the jurisdiction of the civil courts in all matters that are to be dealt with by the Collector under the Act. Previously in the Act of 1972, there was only Section 36 which prohibited the civil courts from deciding any matter or question that was determinable by the Circle Officer. However, in the new Act, the civil courts have been asked to stay their hands in matters that fall within the ambit of Section 19 (3) Sub-clauses (a) to (d) and Section 25 of the Act.

13. These sections oust the jurisdiction of the civil courts in large number of cases including disputes between the parties. There is also a change discernible in the preamble of the two Acts.

14. In order to examine the respective positions taken up by the parties before us and also in order to appreciate the true and correct legal position, it is appropriate to expatiate in brief upon the purpose and the object of Act of 1976 so that it helps us in comprehending the scheme of the Act and its various provisions. In this connection it may be noticed that the Preamble of the Act of 1976 is differently and widely worded than the Preamble of the Act of 1972 and this undoubtedly, furnishes a clue to the object and purpose of the Act, According to the Preamble of the new Act it is designed to provide for transfer of land to the tillers thereof subject to certain conditions and for better utilization of the land in the State. It follows that the purpose of the Act is three-fold, viz.:

(i) To transfer land to tillers for their personal cultivation.

(ii) To abolish absentee landlordism and give land to the actual tillers (who are the mainstay of the economy of the State) subject to the ceiling area provided.

(iii) To create granary of land to be kept at the disposal of the State for effective distribution amongst the landless so that the land is utilized in the most beneficial way in order to achieve the goal of welfare State set before it by the founding fathers of the Constitution.

The primary object of the Act is to bring about revolutionary changes in the land reforms. As compared to this the Preamble of the Act of 1972 merely stated that this Act was to provide for comprehensive legislation relating to land reforms without stating the broad purpose which it wanted to achieve as has now been made clear by the Act of 1976. The Act of 1976 as stated above, has broad based the scope of the land reforms in the State to achieve something more than what it intended to achieve under the Act of 1972.

15. According to the scheme of the new Act ownership rights in the land are to be given to the tillers who hold Land in personal cultivation. All rights, titles, and interest in the land of any person including intermediary who was not cultivating the land personally in Kharif 1971, shall be deemed to have been extinguished and vested in the State with effect from 1st of May 1973. The golden thread which runs through the scheme of the Act is in the feature of personal cultivation of the land. The Act aims at seeing that the tillers of the land are provided with land for the purpose of personal cultivation. Even the owners who would personally cultivate the land are allowed to do so subject to the ceiling fixed by the Act. Excess land held by a tiller is to vest in the State and will be distributed among the landless according to the rules made and instructions issued by the Government in this behalf. The rights of the tenants have been recognized as heritable. The restriction on the right of ownership has not been made applicable to the lands held by Gumpas of Ladakh district and the lands held by other institutions and bodies as enumerated in Section 3 of the Act. No law for the time being in force or no custom or an instrument is to affect the operation of the scheme of the Act. This is clear from the language of Section 32 of the Act of 1976, which provides:

'The provisions of this Act and the rules made and the instructions issued thereunder shall have effect notwithstanding anything contained in any other law or any custom or usage or in any contract express or implied or in any instrument inconsistent with the provisions of this Act.'

16. This section, therefore, overrides all other Acts and rules including customs, contracts and instruments executed between the parties. This rule has been engrafted in the section for the purpose of carrying into effect the scheme of the Act so that it is effectively implemented. Under Section 27 a Revenue Officer is given power to take necessary steps for implementing the transfer of eviction from or delivery of possession of land notwithstanding anything contained in any other law for the time being in force. He has been given power to evict any person even though he may have acquired the land either by the act of the parties or by operation of law, if that transfer or acquisition is invalid under the Act. Section 31 does not recognize any alienation of land whether by the Act of parties or by a decree or an order of a court or by a revenue officer and makes the same invalid if it is not brought about in accordance with the provisions of the Act. Under Section 42 all applications, suits and proceedings pending before any revenue officer, civil or revenue court under any of the provisions of the Act mentioned in that section shall abate if these are inconsistent with the provisions of this Act.

According to the scheme of the Act every matter and every question including all other disputes arising under the Act are to be settled and decided by a forum created for this purpose. The Act creates new rights, destroys some subsisting rights and imposes new obligations. It also provides new procedure to be followed by the officers or authorities appointed under the Act and they have been given power to adjudicate upon the disputes between the parties. The decision of the authority or the officer appointed will be deemed to be final subject to the decision in appeal. While implementing the provisions of the Act, the officer or authority appointed has to ignore all other laws in force, all contracts between the parties and all usages and all the orders of the civil and revenue courts. No civil or revenue court shall have power or jurisdiction to hear and decide any of the matters required to be settled or decided under the Act. Section 25 reads as under:--

'(a) No civil court shall have jurisdiction to settle, decide, or deal with any question or to determine any matter arising under this Act or the rules made thereunder, and

(b) No order of any officer or authority passed under this Act or the rules made thereunder shall be called in question in any civil court on any ground whatsoever including that relating to non-compliance with the provisions of this Act or the fundamental principles of judicial procedure.' Again, legislature in its wisdom has imposed further restrictions on the civil or revenue courts to hear and decide the matters specified in Section 19 (3) of: the Act. This Sub-clause from (a) to (e) has ousted the jurisdiction of the civil and revenue courts in the following matters:

(a) proceedings under Section 56 of the Jammu and Kashmir Tenancy Act, Samvat 1980.

(b) proceedings under Sub-section (2) of Section 68-A of the Jammu and Kashmir Tenancy Act, Samvat 1980.

(c) Proceedings under Section 24 of the Jammu and Kashmir Big Landed Estates Abolition Act, Samvat 2007.

(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.

(e) All other cases of dispute including those where the party in possession pleads adverse possession against the recorded owner/intermediary. The above two sections are, however, to be read conjointly with Section 41 which saves the operation of personal, statutory or customary law of succession in respect of ownership rights applicable to a person.

17. A review of the foregoing provisions highlighting scheme of the Act will enable us to spell out as to in what matters and disputes the jurisdiction of the civil courts has been barred and what are the matters and questions which have been made exclusively cognizable by the special forum created under the Act.

18. The language of Section 25 leaves no room for doubt that the civil court shall have no jurisdiction to settle, decide, or deal with any question or to determine any matter arising under the Act or the rules made thereunder. The question whether a particular land is held in personal cultivation or it has vested in the State or it is exempted from the operation of the Act, or whether a person, cultivating the land holds it in excess of the ceiling area, or whether he can claim possession of the land on the basis of right or title, established or recognized if the possession of the land claimed by him exceeds the ceiling area, the question whether the right and title in a dwelling house occupied by a tiller or a scheduled caste member has vested in him by operation of the statutory provisions of law; whether a person is a tenant of the land or has inherited the right of tenancy are matters that do arise, under the Act. Similarly, the question whether in the case of a person who has been given land but fails to utilize the same in accordance with the provisions of the Act and, therefore, his title and right in the land have extinguished; also the question whether an alienation made in respect of land and possession taken pursuant thereto or possession taken in anticipation of sale which has been effected in contravention of the Act and can give rise to an actionable claim, these are all matters which are required to be settled and decided by the authority appointed under the Act and not by the civil court.

19. If we were to interpret Section 25 only then this would not have created any difficulty for us. As already stated above, legislature has not remained content with merely enacting Section 25, but by inserting Section 19 (3) (e) which did not find place in the old Act of 1972, it has gone a step further in declaring its manifest intention to deprive the civil and the revenue courts of their jurisdiction to hear the matters specified in Section 19 (3) (a) to (e). Section 19 makes it obligatory on all civil and revenue courts to transfer all applications, suits, or proceedings of the kind specified therein to the Collector having jurisdiction in the matter. This Section, therefore, takes away jurisdiction from the civil and revenue courts and confers it on the revenue officers or authorities appointed under Section 19 of the Act.

20. In so far as suits or applications mentioned in categories (a) to (d) are concerned, there is no dispute involving any interpretation. However, Sub-clause (3) (e) has sparked off controversy at the bar as there is divergence of opinion expressed on the words 'all other cases of dispute' occurring in the sub-clause. The question is what are the other cases of dispute that are referable to the Collector and are required to be decided by him.

21. Before a categorical answer to this question can be given, it is necessary to find out as to what kind of proceedings before a civil or a revenue court are required to be transferred and decided by the Collector. Section 19 (3) reads:

'The following applications and proceedings shall be disposed of by the Collector:

(a) Proceedings under Section 56 of the Jammu and Kashmir Tenancy Act, Samvat 1980.

(b) Proceedings under Sub-section (2) of Section 68-A of the Jammu and Kashmir Tenancy Act, Samvat, 1980.

(c) Proceedings under Section 24 of the Jammu and Kashmir Big Landed Estates Abolition Act, Samvat, 2007.

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

(e) All other cases of dispute including those where the party in possession pleads adverse possession against the recorded owner/intermediary. It is not disputed that the categories of cases envisaged from (a) to (d) are precisely those in which disputes relating to possession are involved. The words 'other cases of dispute' in Section 14(3)(e) are of wide amplitude and must cover all cases in which right to possess the land is claimed or disputed. These words must receive the ordinary meaning as having reference to all such other disputes of possession relating to land. These words can have no application to disputes of mere title and succession. The words 'all other' are significant and are to be read in the background of the scheme of the Act as also Sub-clauses (a) to (d). These sub-clauses also refer to questions of possession of land either claimed or disputed under different Acts and which were heretofore cognizable by the Revenue courts. Therefore where in a suit or proceedings right to possession is claimed or disputed, it is referable to the officer or the authority appointed under the Act and the civil court is debarred from settling or deciding such a dispute. This interpretation of the expression receives support from the language used in the latter portion of Clause (e) according to which 'all other cases of dispute' include those cases as well where the plea of adverse possession is set up in a suit by the adverse party. This dispute which was otherwise triable by the civil court heretofore is now referable to the Collector. The word 'including' occurring in the sub-clause has an extending force and postulates that all other disputes fall under its ambit. The expression is only enumerative and illustrative but not exhaustive. In my view as the scheme of the Act goes no suit for possession can be conceived where the dispute is not either principally, collaterally, or incidentally referable to the Act of 1976 as the final adjudication is to be made by the authority consistent with the Act and the rules made thereunder. There is no warrant for the view that the 'dispute(s)' envisaged by Sub-clause (e) are those as arise under the Act. If that were the intention of the legislature then it would definitely have added those words as it has done under Section 25 (a). By not deliberately using these words in the sub-clause, it has manifested its clear intention by bringing all other cases of disputes which may arise under different Acts under the jurisdiction of the new forum created under Section 19. Section 19 (3) (e) is an extension on Section 25 (a) enlarging its scope and extent.

22. I, however, do not subscribe to the view enunciated by some of the learned Advocates that the words 'all other cases of dispute' should be construed in limited sense so as to mean only those disputes as have semblance to disputes enumerated in categories (a) to (d) of Sub-clause (3). Clause (e) cannot be read ejusdem generies with Clauses (a) to (d) in that sense. There is no common genus. There cannot be any common nexus between Clauses (a) to (d) and (e). By using the word 'including' in Clause (e) legislature has intended that the principle of ejusdem generis be not made applicable to cases of dispute as are envisaged in Sub-clauses (a) to (d). As already stated the word 'including' has an extending force. It is not exhaustive and is not intended to aim at limiting the meaning of the expression.

23. It needs to be appreciated that in suits or proceedings involving claim to possession, questions will fall for determination as regards the capacity of a party to get possession of the land under the Act of 1976 and question will be one determinable under the Act of 1976. A question may be raised before a civil court in a suit for possession that because of the imposition of ceiling area or because of the fact that the land has vested in the State or it has vested in the tiller or for some other reason, the party is debarred to get possession. Now these questions cannot be decided or settled by the civil court as they affect the very relief sought by the plaintiff and are required to be dealt with under the Act by the appropriate authority. In that view of the matter, all such suits pending in courts are required to be transferred to the Collector as they cannot be tried by the civil court. Take a case where a suit for possession is brought by A against B on the basis of possessory title. B raises the plea that A already holds the land up to the ceiling limit and, therefore, he cannot be granted decree for possession in the suit, as it would defeat the very purpose of the Act, as the granting of the relief, would exceed the ceiling in his case; or B may plead that he is the tiller of the land and may become prospective owner of the land under the Act. As suit is, therefore, misconceived. Now these questions cannot be decided by a civil court. Again, take the case of the plaintiff who in exercise of right of prior purchase claims the suit land on the ground that he is the tenant. The defendant vendee denies that the plaintiff is the tenant of the land. As the matter is required to be decided under the Act, therefore, the suit shall have to be decided by the appropriate authority and not by the civil court. Again, take a case where a suit is brought for specific performance of contract in respect of land. The plaintiff relies on the contract for sale. The defendant raises the plea that the contract for sale was made in violation of the Act of 1976, and, therefore, no decree for specific performance of contract can be granted in favour of the plaintiff or that the granting of the coercive process against the defendant to execute the sale deed would enable the plaintiff to have the land in excess of the ceiling area. Or take the case where the plaintiff, a co-sharer out of possession brings suit for right of prior purchase against his other co-sharers, the vendees. Here gain the same questions will arise for determination which are determinable by the authority under the Act. It is not, however, possible to deal exhaustively with all conceivable cases; only the principle is enunciated.

24. As already stated all disputes relating to the possession of the land whether principally, or collaterally, or incidentally involved are required to be decided under the Act. Two cases of the same nature can, however, be distinguished. Take the case where A sues for permanent injunction in respect of the land against B with the allegation that B without any right or reason is interfering with his possession. B raises the plea that he was the tenant of the land and was being wrongfully dispossessed by A and that he wants to re-occupy the land, or he disputes the right of ownership of the plaintiff in the land. Then in that case, the suit is cognizable by the Revenue Officer. But take the case where A in peaceful and personal cultivation of the suit land as an owner thereof is threatened by a wayfarer who has got no right in the land to dispossess him. Here the dispute does not call for any decision under the Act. The suit is cognizable by the civil court.

25. That the new forum created under the Act of 1976 to hear and try disputes and other matters will have all the powers of a civil court, is clear from Sections 20 and 23 of the Act of 1976, for otherwise, take an instance where a suit for adverse possession is heard and tried by the Collector under Section 19 (3) (e). He cannot try and decide it unless he has the powers of civil court. He has to adjudicate upon the rights of the parties and give a definitive judgment. Of course, the procedure for trying these disputes will be according to the Act, the rules made and instructions issued thereunder. But so far his power to summon and examine witnesses and to punish for contempt are concerned, Civil Procedure Code has been made applicable.

26. Sub-clause (e) of Section 19 (3) will not, however, apply to suits or proceedings which merely involve the determination of question of title or right on the basis of succession and inheritance or partition without claiming possession. Where a suit for declaration is brought by A claiming herself to be a Khana Nishin daughter which status is denied by the defendant; she is in possession of the suit land, there is no bar for the civil court to entertain and try the suit and grant decree for declaration. In the same way, where an adopted son in possession of the property of the adoptive father brings a suit for declaration and the other side denies his status as such. Here again as the matter involves purely a question of declaration and not possession, therefore, the suit is triable by the civil court. Section 19 (3) (e) and Section 25 are to be read conjointly with Section 41 which saves the operation of personal or statutory law of succession in respect of ownership rights available to a person. This section guarantees the ownership rights of the parties based on personal or statutory law. There is, therefore, nothing in the Act which can prevent the civil courts from deciding these questions. In the same way suits for mere cancellation of decrees on whatsoever ground are triable by the civil courts. After the civil court decides the rights, if later on any question of possession of the property is raised, it will be decided by the Collector.

27. Some of the learned counsel have urged that in suits where the main, relief which a party seeks is barred from the cognizance of the civil court and only ancillary matters are determinable by the civil court, then the civil court must decide all such ancillary matters and thereafter refer the cases to the Collector for awarding the main relief. I however, do not agree with this view inasmuch as it is the the main relief that matters. Where the main relief can be granted by another forum then the question of deciding the ancillary matters is of no consequence. In this connection, attention is invited to AIR 1972 All 446, where the view has been expressed that where on the basis of cause of action the main relief is cognizable by revenue court, the suit would be cognizable by revenue court only and the fact that the ancillary reliefs claimed in the suit are cognizable by civil court would be immaterial in determining the proper forum for the suit. Again some of the cases relied upon by the learned counsel, to mention AIR 1973 All 243 (FB) do not help us inasmuch as that case was decided under the U. P. Zamindari Abolition and Land Reforms Act, where Section 331 (1-A) of the Act was made subject of judicial review. But the words of that Section are quite different from the words of Section 19 (3) (e) of Act of 1976, and, therefore, this authority can be no guide for us to lay down a contrary view. Again AIR 1969 SC 439 relied upon by some of the learned counsel for the parties is also distinguishable as in that case the past status of the tenant before the Bombay Tenancy and Agricultural Lands Act of 1948 came into force required to be determined. It was held that the question whether the defendant was a tenant for the past was a subsidiary plea in support of the main plea of statutory ownership and, therefore, jurisdiction of the civil court was not barred. In the same way the observations made in AIR 1971 SC 2251 which dealt with the case under the Bihar Land Reforms Act (30 of 1950) are not applicable to the facts of the case as the case was decided on different facts and is therefore, distinguishable on the peculiar language used by our Act.

28. I, however, do see force in the contention that the language of Section 25 (2) is not legally worded and may give rise to an occasion to a party to seek judicial review of the same by filing a writ petition. According to Section 25 (2), no order of any officer or authority passed under this Act or the rules made thereunder shall be called in question in any civil court on any ground whatsoever including that relating to non-compliance with the provisions of this Act or the fundamental principles of judicial procedure. It has been observed by the Privy Council as also by the Supreme Court that exclusion of jurisdiction of civil courts is not to be readily inferred but such exclusion must either be expressly expressed or implied. Even if jurisdiction is so excluded the civil courts have jurisdiction to examine the case where the provisions of the Act lave not been complied with or the authority has not acted in conformity with the fundamental principle of judicial procedure. It is doubtful if by enacting in the sub-section that no order of an officer can be called in question even on the ground that it has proceeded on non-compliance with the provisions of the Act or the fundamental principles of judicial procedure, the Legislature could oust the inherent jurisdiction of civil courts to entertain a suit where grievance is made by a party that the decision has proceeded in violation of the provisions of the Act or that the fundamental principles of judicial procedure have not been observed I think such a mandate in the Section cuts at the very root of the judicial philosophy, its order, and the concept of rule of law. If this is allowed to continue it will mean that the officers or the authorities appointed under the Act would virtually become little kings within their respective areas of jurisdiction responsible to no civil forum competent to pronounce upon such matters in respect of the performance of these officers. It is, therefore, high time that Legislature should address itself to this important aspect of the matter and pass appropriate legislation by making suitable amendment in the section according to the accepted and established norms and principles of jurisprudence.

29. A question has also been posed as to which forum is competent to entertain a suit in whole or in part when a particular portion of the subject-matter of suit is excluded from the operation of the Act of 1976. In my view this can be done by the civil court by retaining that portion of the subject-matter with it in respect of which its jurisdiction is not debarred under the Act and can refer the other portion to the Collector.

30. Before I conclude, I should, however, like to observe that the Act and the Rules made thereunder require some broad examination in order to make them more workable and effective for the implementation of legislative policy. It is also with a view to seeing that the rights of the parties do not suffer in any way by the unguided discretion to be exercised by the authorities or the officers appointed under the Act. The Act requires that suits, proceedings, and applications pending in civil courts are to be transferred to the new forum created under the Act. There are suits where the rights of the parties in land have been adjudicated upon by the civil courts and the findings recorded by the civil courts have become final. There are also concurrent findings of two courts and second appeal is pending before the highest forum of the land. Now these proceedings, appeals, and applications are required by the Act of 1976, to be sent to the Collector. There is, however, no guideline in the Act or the Rules which would guide the authority appointed under the Act in such cases. Has he to make a fresh start and determine the question of ownership rights in the land between the parties, or is he bound by the concurrent findings of two courts at the appellate stage? This aspect of the matter assumes importance in view of the fact that for the purpose of deciding claims of compensation in respect of lands wherefrom person or persons are required to be divested by the Act of 1976, some guidelines for the guidance of the authority or the officer appointed under the Act, are required to be laid down. In so far as the eviction from or delivery of possession to the appropriate person is concerned, undoubtedly, the Revenue Officer will be guided by the Rules on the subject, but justice demands that broad guidelines should be indicated in the Rules in order to satisfy the claims of those who have won in the civil courts and to whom now compensation is payable under the Act. While laying down the guidelines the Government may bear this in mind that findings recorded by civil courts on ownership rights, which have also been affirmed by various senior judicial officers in appeals; if these are again made the subject matter of review by Revenue Officers under the Act who may have little experience to their credit, this may create complications or result in injustice. Something needs to be done to remedy this situation.

31-32. With the aforesaid observations, answers to the various questions are given as indicated above. The cases will now go to the respective Bench or Benches for taking appropriate action in accordance with the observations made in the judgment.

G.M. Mir, J.

I agree.

Kotwal, J.

33. I have gone through the elaborate and lucid judgment prepared by my lord, the Chief Justice. I fully agree with him that the expression 'all other cases of dispute' occurring in Clause (e), Sub-section (3) of Section 19 of the Act refers to only those disputes which are determinable by the authorities under the Act.

34. It is well settled that as far as possible a presumption has to be made in favour of jurisdiction of Civil Courts and a statute taking away the same has to be strictly construed. A statute ousting the jurisdiction of civil courts must say so expressly or by clear implication to give a clear expression to its intention. It must not only bar a civil court from taking cognizance of a dispute but at the same time confer jurisdiction on any other Court or tribunal to decide the same. As long as a civil right exists a litigant has a right to enforce the same in a civil court. No such situation can be countenanced where a right is created but no remedy to enforce the same is provided.

35. Section 25 of the Act which takes away the jurisdiction of civil courts in certain matters, reads as below:

'25. Bar of jurisdiction of civil court: Notwithstanding anything contained in any law for the time being in force:

(a) no civil court shall have jurisdiction to settle, decide or deal with any question or to determine any matter arising under this Act or the rules made thereunder; and

(b) no order of any officer or authority passed under this Act or the rules made thereunder shall be called in question in any Civil Court on any ground whatsoever including that relating to non-compliance with the provisions of this Act or the fundamental principles of judicial procedure.'

Clause (a) debars civil courts from deciding all such questions or matters which may arise under the Act and Clause (b) takes away the jurisdiction to question the orders passed by the officers or authorities under the Act. Clearly, therefore, the bar is confined to only those questions, matters or orders which have either arisen under the Act or have been decided under the Act. Before the bar created under this section may, therefore, apply it must be shown that the question or the matter is one which is required to be settled or decided under the provisions of the Act or the Rules made thereunder. In other words it must be a question or matter which squarely falls within the four corners of the Act, for any question or matter which is outside the scope of the Act cannot be reasonably said to arise under the Act. This inevitably takes one to various provisions of the Act and the Rules made thereunder to find out whether the officers or authorities under the Act have the power to deal with or decide any such matter or question. If there is any such power then the matter or question may be said to have arisen under the Act but not otherwise. The same principle must apply to orders passed by the officers or authorities under the Act. The order must be one which has been passed in exercise of the powers vested in the officer or authority under the Act. An order which is not covered by any provisions of the Act or the Rules made thereunder cannot be said to have been passed under the Act. In other words the power of the officer or authority to pass such order must be referable to some provisions in the Act or the Rules made thereunder, though the same may not be justifiable on merits. Every civil court has inherent jurisdiction to decide as to whether or not it has jurisdiction to try a particular cause. Jurisdiction of a tribunal to decide a particular dispute may depend upon the existence of certain facts commonly known as jurisdictional or collateral facts. Unless power to decide as to whether or not such facts exist is given to the tribunal itself, a civil court has power to try the dispute by holding that such facts do not exist. Even the finding of the tribunal may in such cases be challenged on the ground that the tribunal had assumed jurisdiction to try the dispute by wrongly holding that the jurisdictional facts existed. This principle is beyond dispute. In Brij Raj Krishna v. S. K. Shaw and Brothers, AIR 1951 SC 115 Fazal AH J. quoted with approval the following observations made by Lord Esher, M. R. in R. v. Income-tax Special Purposes Commissioner, (1888) 21 QBD 313 at p. 319.

'When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The Legislature may entrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the Legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the Legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends, and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction.'

36. This takes us to the provisions of Section 19 which confers jurisdiction on the Collector to try certain disputes. This section comprises of five clauses out of which Clause (e) is somewhat residuary in character. It speaks of 'all other cases of disputes including those where the party in possession pleads adverse possession'. The word 'dispute' has not been defined in the Act. Should then 'dispute' mentioned in this clause be taken to mean and include every kind of dispute pertaining to land? This in my opinion cannot be the correct interpretation of the word. Strictly speaking the disputes mentioned in Clauses (a) to (d) or even a dispute in regard to adverse possession of land are all disputes pertaining to land. Had the intention of the legislature been to include every kind of dispute in the ambit of Clause (e) then instead of enacting five clauses it would have enacted only one clause by simply declaring that every kind of dispute pertaining to land would be disposed of by the Collector. The intention behind enacting Clauses (a) to (d) and referring to adverse possession was only to bring these disputes within the jurisdiction of the Collector which otherwise were not there. The intention was, therefore, to widen his jurisdiction by adding the disputes to those which he was otherwise competent to decide under the provisions of the Act. Viewed thus, 'all other cases of disputes' would imply all such disputes which the Collector is already competent to dispose of under the Act or the Rules made thereunder. Furthermore the Act has been created with the intention of reducing the scale of ownership and making surplus land thus available for distribution among landless tillers, to put an end to absentee landlordism, and to put restriction on alienation of land. This Act is to remain in force even after the object underlying it has been achieved. How can it be then imagined that the Legislature by enacting Clause (e) intended to oust the jurisdiction of civil courts in all matters and for all times to come where the dispute related to land as defined in the Act? The only interpretation which can, therefore, be placed upon the expression 'all cases of dispute' is that this means and includes only those disputes which the Collector is empowered to try under the Act or the Rules made thereunder. [t is impossible to prepare an exhaustive list of all such cases.

37. The language in which Sections 19 and 25 have been couched is undoubtedly not happy. A number of complications are likely to arise during the course of their implementation. The legislature would have surely done well in clearly demarcating the areas of jurisdiction of civil courts and the authorities under the Act. It could have even included provisions in the Act for referring certain disputes to civil courts for their determination during the pendency of proceedings before the authorities under the Act or even vice versa. This would not only hasten the implementation of the Act, but would also ensure its correct implementation.


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