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Tara Chand and ors. Vs. State and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtJammu and Kashmir High Court
Decided On
Case NumberWrit Petition No. 1146 of 1991
Judge
ActsJammu and Kashmir Tenancy Act, (1980 Svt.) - Section 41
AppellantTara Chand and ors.
RespondentState and ors.
Appellant Advocate V.R. Wazir, Adv.
Respondent Advocate H. Rehman and; C.M. Gupta, Advs.
DispositionPetition allowed
Cases ReferredSecretary of State v. Hindustan Co
Excerpt:
- .....dass died in the year 1981 and his sons thereafter challenged the aforesaid mutation before the deputy commissioner, who, transferred the appeal to the asstt. commissioner for disposal according to law. the appeal was returned back to the deputy commissioner stating therein that as it pertained to correction and should report to the agrarian reforms commissioner, who was competent to hear the appeal. on receipt of the appeal the deputy commissioner sentthe same to the joint agrarian reforms commissioner for necessary action. the joint agrarian reforms commissioner again returned the case to the deputy commissioner for disposal under law. the deputy commissioner thereafter heard the parties and vide his order dated 15-1-1987, set aside the mutation no. 93 and remanded the case to the.....
Judgment:
ORDER

R.P. Sethi, J.

1. Petitioners' father, namely, Charan Dass alias Changru, who was a tenant of Mst. D.D. Rani, predecessor-in-interest of respondents 2 to 5, is stated to have relinquished his tenancy in favour of said Mst. D.D. Rani, on 18-7-1972 before the Asstt. Commissioner, Kathua. On the basis of relinquishment deed, mutation is stated to have been attested by Tehsildar, Kathua, on 20-2-1973 under No. 93. Charan Dass died in the year 1981 and his sons thereafter challenged the aforesaid mutation before the Deputy Commissioner, who, transferred the appeal to the Asstt. Commissioner for disposal according to law. The appeal was returned back to the Deputy Commissioner stating therein that as it pertained to correction and should report to the Agrarian Reforms Commissioner, who was competent to hear the appeal. On receipt of the appeal the Deputy Commissioner sentthe same to the Joint Agrarian Reforms Commissioner for necessary action. The Joint Agrarian Reforms Commissioner again returned the case to the Deputy Commissioner for disposal under law. The Deputy Commissioner thereafter heard the parties and vide his order dated 15-1-1987, set aside the mutation No. 93 and remanded the case to the Tehsildar. The order of the Deputy Commissioner was challenged in appeal before the Divisional Commissioner, who, vide his order dated 6-6-1988 dismissed the appeal against which the revision petition was filed before the Financial Commissioner, who, vide the order impugned in this petition, set aside the order of the Deputy Commissioner and that of the Divisional Commissioner by maintaining the order of Tehsildar passed on mutation No. 93. The impugned order has been challenged on the ground that the same was in violation of the provisions of the Tenancy Act as well as the Standing order No. 23A. It is submitted that the application for the recovery of rent filed by said Mst. D.D. Rani, was not maintainable under the provisions Order 32, C.P.C. It is further submitted that the Asstt. Commissioner should have recorded his satisfaction and passed the order of relinquishment of tenancy by the tenant, then forwarded the same to the Tehsildar for attesting the mutation which had not been done. No order of relinquishment is stated to have been passed nor there exists any satisfaction recorded by the Asstt. Commissioner. It is further submitted that as per the Tenancy Act relinquishment is to be made under Section 41 of the said Act by a tenant and the procedure prescribed therein has to be strictly followed which was not done in the case. It is also submitted that the Financial Commissioner has passed the order completely ignoring the mandatory provisions of law applicable in the case.

In the objections filed on behalf of the contesting respondents it is submitted that as no constitutional or legal right of the petitioner has been violated, the petition was not maintainable. The tenancy of Charan Dass is not disputed but it is submitted that he was merely a prospective owner on whom rights of ownership had not been conferred underthe provisions of the Agrarian Reforms Act. Charan Dass is stated to have voluntarily surrendered his tenancy rights vide submission through an application dated 18-7-1972 relinqushing his rights to the extent of 24 kanals in favour of his landlady. On the basis of the application, statement of said Charan Dass is stated to have been recorded by the Asstt. Commissioner and upon satisfaction the orders were passed. It is submitted that the averments made in the petition and the grounds agitated are not applicable to the case in hand. The order of the Financial Commissioner is stated to be legal, valid and according to law.

2. I have heard learned counsel for the parties who submitted that instead of formally admitting the petition, same may be disposed of at this stage on merits. I have also perused the record.

3. Chapter IV of the Tenancy Act relates to the relingquishment, abandonment and ejectment of the tenancy rights of the tenants. Under Section 40 a tenant holding for a fixed term under a contract or a decree or order of a competent authority, can relinquish his tenancy without notice at the end of the term. Section 41 deals with the relinquishment of the tenancy rights by any other tenant and provides:

'41. Relinquishment by any other tenant.

(1)Any other tenant may relinquish his tenancy by giving orally or in writing to his landlord or to his landlord's agent, on or before the date fixed by Appendix B of this Act, notice of his intention to relinquish the tenancy after the harvesting of the current crop.

(2) The tenant may, instead of, or in addition to, giving the notice in the manner mentioned in Sub-Section (1), apply to a Revenue Officer on or before the date aforesaid to cause the notice to be served on the landlord, and the Revenue Officer, on receiving the cost of service from the tenant, shall cause the notice to be served as soon as may be.

(3) If the tenant does not give notice in the manner prescribed in this section, he shall beliable to pay the rent of his tenancy for any part of the ensuing agricultural year during which the tenancy is not let by the landlord to some other person, or is not cultivated by the landlord himself.'

It is settled position of law that if a statute directs a thing to be done in a certain way, that thing shall not, even if there be no negative words, be done in any other way. The Supreme Court in Patna Improvement Trust v. Lakshmi Devi, AIR 1963 SC 1077 held (at page 1081):

'The law on the subject is very well settled and, in my view the learned Judges of the High Court have correctly appreciated it and applied it to the facts of the case. Two principles noticed by the High Court are opposite. The first principle is generalia specialibus non derogant. This principle is exemplified by the decision of the Privy Council in Secretary of State v. Hindustan Co-operative Insurance Society Ltd., AIR 1931 PC 149. The second principle is that if a statute directs a thing to be done in certain way that thing shall not, even if there be no negative words, be done in any other way. This principle is illustrated by the decision in Ex-parte Stephens (1876) 3 ChD 659. A combined effect of the said two principles may be stated thus: a general Act must yield to a special Act dealing with a specific subject matter and that if an Act directs a thing to be done in a particular way, it shall be deemed to have prohibited the doing of that thing in any other way.'

The provisions of Section 41 have asocial objective to be achieved, namely, that that the tenants are not illegally evicted from the land in their possession or forced to surrender possession to their landlords. A duty is cast upon the law enforcing authorities under the Tenancy Act, to strictly and punctually abide by the directions and the procedure as contained in Section 41 of the Act. Before attracting the applicability, of the provisions of Section 41, it has to be proved that (i) the tenant has given a notice orally or in writing to his landlord intimating his intention to relinquish the tenancy; (ii) such notice has to be given on or before the date fixed by Appendix B of the Act;

(iii) notice of intention to relinquish has to be given after the harvesting of the current crop or that the tenant may apply to a revenue officer on or before the date aforesaid to cause the notice to be served on the landlord; and (iv) the revenue officer on receiving the cost of service from the tenant has served the notice upon the landlord. Last date for the service of notice or relinqishment under Section 41(2) of the Act for the district of Kathua, as specified in Appendix B of the Act is 15th Phagun and time for ejectment from 1st Jeth to 15th Har of the Samvat year. If in any case it is proved that the provisions of Section 41 were not complied with in their letter and spirit and strictly-according to the procedure prescribed under the Act, the alleged relinquishment shall be deemed to be void ab initio which cannot be directed to be acted upon. In the instant case, the application of Chanran Dass (An-nexure P4) is dated 18th July, 1972 (AD) which is admittedly after the last date prescribed for filing such applications under Annexure B of the Act. The revenue officer is not shown to have issued any notice to the landlady regarding the intended notice of the tenant for relinquishment of his rights Statement of the tenant is also shown to have been recorded on the same day when the Asstt. Commissioner, Kathua is reported to have come to the conclusion that the tenant had relinquished the tenancy voluntarily. The alleged relinquishment seems to have recorded and proved in suspicious and completely ignoring the mandatory provisions of Section 41 of the Act which has to be deemed to be void ab initio. It has also come in the evidence that the said mutation was never acted upon and the petitioners continue to remain in possession of the land which was allegedly relinquishment in favour of the landlady.

4. Without referring to the provisions of Section 41 of the Act, respondent No. 7 erroneously held that the relinquishment recorded on the basis of the statement of the tenant was legal and valid and as the mutation was attested on the basis of the statement of the said tenant, same could not be challenged. He wrongly held that the basic thing in the case was relinquishment statement attested by the Assistant Commissioner and that thereappeared nothing wrong in the relinquishment. The Financial Commissioner adopted a very hyper-technical approach by observing that mutation order could not be questioned unless basic order of the Asst. Commissioner was challenged. The attestation of the mutation was an act in which the order of satisfaction of the Assistant Commissioner had merged. The petitioners had rightly challenged the order of mutation passed on the basis of the alleged relinquishment to which they were not parties. As the mutation has been held to be void ab initio, the only order which affected the petitioners, was mutation attested in favour of the landlady. The Deputy Commissioner and the Divisional Commissioner had reportedly dealt with the matter and had come to correct conclusions of facts and law.

5. Accordingly this petition is allowed by setting aside the order of the Financial Commissioner and upholding the orders of the Deputy Commissioner and Divisional Commissioner. The case shall stand remanded to Tehsildar, Kathua, in terms of the directions of the Deputy Commissioner as incorporated in his order dated 15-1 -1987 and appropriate orders shall be passed in terms of the directions incorporated therein.

6. Interim direction of the Court dated 12-12-1991 shall stand vacated and C.M.P. No. 4016/91 disposed of.


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