ASHOK PARMAR vs STATE AND ORS

The pivotal issue in this batch of writ petitions revolves around the validity of report dated 30.05.2008 submitted by the J&K State Accountability

Commission (hereinafter referred to as „the Commission‟) to the State Government. The writ petitions were, therefore, heard analogously and are

being decided by this common order. For the facility of reference, facts from OWP No.726/2008 are being referred to.

Factual Bacground:-

The genesis of the report dated 30.05.2008 submitted by Commission lies in a complaint made by one Mangotam Dass. He filed a complaint before

the Commission, in which it was stated that he has leased out 3 kanals and 4 marlas of land in favour of one Jeet Singh and entered into a lease

agreement with him. Since Jeet Singh did not adhere to terms and conditions of the lease, therefore, the Mangotam Dass cancelled the lease deed,

which even otherwise was null and void. It was further averred in the complaint that Jeet Singh forcibly tried to dispossess him, therefore, the

complainant filed a civil suit in the Court of Chief Judicial Magistrate, Udhampur. In the aforesaid proceeding, an order of status quo was passed, by

the trial Court. It was also stated in the complaint that even though Basant Ram, the then Tehsildar, was not competent to attest the change of any

entry in the revenue record, in view of various standing orders, yet Om Parkash, the then Girdawar and one Saleem Banday, the then Patwari,

changed the entries in the revenue record which were duly attested by Basant Ram, as a result of which, Jeet Singh dispossessed the complainant

from the land in question. The complainant, thereafter, made a written complaint to the Vigilance Organization, which instead of investigating the

matter forwarded the same to the Deputy Commissioner, Udhampur, who, in turn directed the Assistant Commissioner (Revenue) to investigate the

matter.

The Assistant Commissioner, as per the complaint submitted a report dated 04.02.2003, in which it was stated that Om Prakash, the then Girdawar,

changed the entries in the revenue record of Rabi 2002 and entered the name of Jeet Singh and he was not competent to do, and no enquiry was

conducted while attesting Mutation. Despite receipt of report, neither the Deputy Commissioner, Udhampur nor the Vigilance Organization took any

action against the delinquent officials. Thereupon the complainant filed OWP No.910/2003 before this Court for registration of case against delinquent

officials, which was dismissed in default and was restored.

Subsequently, the writ petition was withdrawn by the complainant. Thereafter, he filed the complaint before the Commission.

It is pertinent to mention here that Basant Ram, the then Tehsildar, on the basis of report submitted by the Patwari, which was endorsed by the

Girdawar, attested the mutation in terms of Section 28-A of the J&K Agrarian Reforms Act vide order dated 14.05.2002, which was upheld in appeal

by the appellate authority vide order dated 27.07.2002. However, on a revision being preferred, J&K Special Tribunal remitted the case to the

Tehsildar for further enquiry on the ground that adequate opportunity of being heard was not afforded to the complainant Mangotam Dass.

The Commission in its report dated 30.05.2008, inter alia, held that transfer of any title or interest in immovable property on the basis of an

unregistered deed cannot vest the land or any rights in the transferee. Thus, the transfer was made in violation of provisions of Transfer of Property

Act. It was also held that Basant Ram, the then Tehsildar, without giving an opportunity of hearing to the complainant and in stark contravention of

Section 28-A(2) of J&K Agrarian Reforms Act, attested the mutation to divest the complainant of his rights in the property. Thus, the Tehsildar acted

in hot haste and his action amounts to „allegation‟, as defined in Section 2(3) of the Accountability Commission Act (hereinafter referred to as

„the Act). It was further held that the Act does not bar Commission‟s jurisdiction to consider a complaint in respect of quasi-judicial order. It was

also held that Girdawar acted in violation of Section 138 of Transfer of Property Act, as he changed the entry on the basis of unregistered deed. The

Patwari also recorded mutation in the Mutation Register notwithstanding the fact that lease was not registered. It was held that Tehsildar, Girdawar

and Patwari, therefore, deserve punishment in accordance with Rule 30 of Civil Services (Classification, Control & Appeal) Rules, 1956. Accordingly,

recommendations were made to terminate services of Basant Ram, the then Tehsildar; Om Prakash the then Girdawar; Saleem Bandey, the then

Patwari and in respect of two Deputy Commissioners, namely Ashok Parmar and Atal Duloo, who did not take any action for a period of two years, it

was held that they owe an explanation to the State Government and the same will be well advised to look into the matter and to take necessary steps.

In the aforesaid factual background, this batch of writ petitions was filed before this Court.

Submissions:

Learned Senior Counsel for the petitioner in OWP No.539/2008, Mr. P N Raina, submitted that on receipt of the report dated 04.02.2003 by the

Assistant Commissioner (Revenue), the petitioner, who was posted as Deputy Commissioner, on 04.02.2003 directed the Assistant Commissioner

(Revenue) to put up the draft charge-sheet against the officials whose action was found to be irregular in the enquiry. Therefore, the finding recorded

by the Commission that the petitioner did not take any action is perverse and is factually incorrect. It is also submitted that in view of the order

passed on 06.02.2003, a formal charge sheet was issued against the delinquent officials and an enquiry is pending, in which the officials have filed their

reply. It is further submitted that the petitioner was functioning as Deputy Commissioner, Udhampur and was transferred vide order dated 28.10.2003

and was posted as Secretary to Government, Public Health Engineering, Irrigation and Flood Control Department. The petitioner was succeeded by

one Ashok Parmar as Deputy Commissioner, Udhampur, who was also transferred and was succeeded by one O P Kalandria as Deputy

Commissioner, Udhampur. It is also pointed out that the aforesaid O P Kalandria has filed the status report on 04.12.2006 before the Commission. It is

also argued that exercise of jurisdiction of the Commission depends upon the conditions, which essentially rest on the nature of „allegations‟ and

„grievances‟, as defined in Section 2(3) and (9) of the Unamended Act and the impugned recommendations of the Commission are without any

jurisdiction, as there is no averment in the complaint made by the complainant, which amounted to either allegation, grievance or mal administration.

Mr. Rahul Pant, learned counsel for the petitioner in OWP No.502/2008, has adopted the submissions made by learned Senior Counsel for the

petitioners.

Mr. D C Raina, learned Senior Counsel for the petitioners in OWP No.552/2008, submitted that it was incumbent on Basant Ram, the then

Tehsildar, to attest the mutation in view of Section 28-A of the J&K Agrarian Reforms Act especially in view of perpetual lease deed and the

affidavit sworn in by respondent No.3 as well as the fact that the report was submitted by the Patwari, which was duly endorsed by the Girdawar. It

is also argued that the order passed by the then Tehsildar Basant Ram, was upheld by the appellate authority vide order dated 27.07.2002. It is also

urged that the Commission has failed to appreciate the scope of Section 2 of the Act insofar as it defines the expression „allegations‟ and

complainant being a tenant had been conferred the right of prospective owner under Section 8 of the Act and, as such, the complainant was not

competent to transfer the land in view of Section 28 read with Section 28-A of the Act. It is also submitted that the Commission has failed to

appreciate that Section 32 of the Act has an overriding effect on the other provisions of law, namely, Sections 107 and 138 of the J&K Transfer of

Property Act. It is also submitted that no illegal motive or misuse of power was attributed to the petitioners and, therefore, the provisions of Section 2

of the Act were not attracted to the fact situation of the case. It is also submitted that recommendations made by the Commission are erroneous in

law and are beyond the scope and purview of the Act. It is also urged that the Commission erred in invoking Section 107 and Section 138 of the J&K

Transfer of Property Act to arrive at the conclusion that the perpetual lease deed was not a registered document and, therefore, the same could not be

relied upon by the petitioner No.1 for invoking Section 28-A of the Act. It is also argued that express language in Section 28 and Section 28-A of the

Act read with Section 32 of the Act leaves no room for any doubt that provisions of J&K Transfer of Property Act were not applicable to the fact

situation of the case and a bare perusal of the contents of the perpetual lease deed would indicate that the same was for indefinite period for a

consideration, by which all rights were transferred in favour of the lessee. Mr. Adarsh Sharma, learned counsel for the petitioner in OWP

No.726/2008 has adopted the submissions made on behalf of the learned Senior Counsels.

On the other hand, Mr. Pranav Kohli, learned counsel for the Commission while placing reliance on decision of the Supreme Court in the case

of    Sh. JogendraSingh VijaySinghji v. State of Gujarat and ors, 2015 (7) SCALE 494 has submitted that a quasi judicial authority can defend

its order. It is further submitted that the Commission while passing the impugned order has recorded the finding that there are allegations against the

delinquent officials and has properly appreciated the material available on record while recording the findings, which do not call for any interference. It

is also submitted that the writ petitions are premature as the same have been filed only against the recommendations made by the Commission. It is

further submitted that the action on the report is yet to be taken by the State Government in view of Section 21(3) of the Act and only thereafter, the

cause of action would have accrued to the petitioners to approach this Court. Therefore, the writ petitions filed by the petitioners are liable to be

dismissed on this ground alone. Mr. K S Johal, learned Senior Counsel for the complainant submitted that the document in question is a lease deed and

the acts of omission and commission fall within the definition under Section 2 of the Act. It is further submitted that the lease was not covered under

Section 28-A of the J&K Agrarian Reforms Act and the Commission while recording the findings has taken the legal possible view.

Statutory Provisions:

Before proceeding further, it is apposite to take note of the relevant statutory provisions. Section 2(3) of the Act which defines the expression

„allegations‟ reads as under:

Sub-section (3) of Section 2:’

(3) “allegationsâ€​ in relation to a public functionary includes any affirmation that such public functionary in his capacity as such-

(a) is guilt of corruption, favouritism, nepotism or lack of integrity;

(b) was actuated in the discharge of his function by personal interest or improper or corrupt motive;

(c) has abused or misused his position to obtain any gain or favour to himself or to any other person to cause loss or undue harm or hardship to any

other person;

(d) has failed to act in accordance with the norms of integrity and conduct which ought to be followed by the public functionaries of the class to which

he belongs; or

(e) any person on his behalf is in possession or has at any time during the period of his office been in possession, for which the public functionary

cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

The relevant extract of Section 21 of the Act reads as under:

(1) After the conclusion of inquiry under Section 13, the Accountability Commission shall determine whether all or any of the grievances or allegations

made in the complaint have or has been proved to its satisfaction and by report in writing shall communicate its findings to the complainant, the public

functionary and the competent authority [and such report shall be published in Govt. Gazette besides other manners and modes as may be deemed fit

by the Accountability Commission].

(2) The Accountability Commission shall in its report recommend to the competent authority concerned that such injustice or hardship shall be

remedied or redressed in such manner and within such time as may be specified in the report;

(3) The competent authority shall examine the report forwarded to it under sub-section (1) and communicate to the Accountability Commission, within

a period of ninety days from the date of receipt of the report, the action taken or proposed to be taken on the basis of the report.

Section 28 and Section 28-A of the J&K Agrarian Reforms Act, 1976 reads as under:

Section 28.

Rights and liabilities of prospective ownerâ€

(1) Notwithstanding anything contained in any law-

(a) a prospective owner of land eligible by or under this Act to acquire ownership rights in land under his personal cultivation shall continue to have all

rights and be subject to all liabilities (including the payment to the State of the rent which was payable by him to the ex-landlord before the

commencement of the Jammu and Kashmir Agrarian Reforms Act, 1972) as a tenant under the Jammu and Kashmir Tenancy Act, 1980, until he is

vested with ownership rights in such land:

provided that he shall be governed by the rules of succession applicable to occupancy tenants until he becomes owner of such land;

(b) no prospective owner of land shall, save as otherwise provided in the proviso to clause (a) or in this clause transfer his rights in such land by sale,

gift, exchange, mortgage, will or by any other means whatsoever, and any transfer of such rights made after the first day of May, 1973 shall be null

and void and such rights shall vest in the State and such prospective owner and his transferee shall, after being given an opportunity of being heard, be

dispossessed of such land by a Revenue Officer [xxxx]:

2 Proviso inserted by Act No.IX of 1981, section 2. [Provided that a prospective owner shall have the right to transfer land in the form of simple,

mortgage subject to the provisions of the Alienation of Land Act, for securing loan to liquidate the amount of levy payable by him under this Act; and]

(c) no document purporting to effect transfer by a prospective owner of his rights in land shall be admitted to registration, [except in respect of

transfers effected under the proviso to clause (b) of this section.

Section 28-A.

Prohibition on transfer of certain lands-

(1) No person who is vested with ownership rights in land under this Act, shall transfer such land or rights therein in any manner whatsoever to any

person other than the Government of Jammu and Kashmir:

Provided that such owner shall have the right to transfer land in the form of simple mortgage subject to the provisions of the Alienation of Land Act,

Samvat 1995 for securing loan for purposes of improvement of the land.

(2) Any transfer of land or rights therein made in contravention of sub-section (1) shall be null and void. The person who has contravened the

provisions of sub-section (1) shall after being given an opportunity of being heard, be dispossessed of such land by a Revenue Officer not below the

rank of Tehsildar and the land shall vest in the State and shall be disposed of in accordance with the provisions of section 15.

(3)Â

Section 107 and Section 138 of the J&K Transfer of Property Act, 1970 reads as under:

Section 107:

Lease how made

A lease of immovable property for any term exceeding one year, and reserving a yearly rent, exceeding rupees fifty can be made only by a registered

instrument.

All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession:

Provided that Government may, from time to time, by notification in the Jammu and Kashmir Government Gazette,

direct, direct that leases of immovable property, other than leases for any term exceeding one year, and reserving a yearly rent, exceeding rupees fifty

or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.

Section 138:

Transfer of immovable property after due registration

(1) No transfer of immovable property, except in a case governed by any special law to the contrary, shall be valid unless and until it is in writing

registered and the registration thereof has been completed in accordance with sub-section (3) of Section 61 of the Registration Act, 1977;

(2) No Court shall entertain a suit for pre-emption in respect of transfer of any such immovable property unless the transfer complies with the

provisions of sub-section (1).

(3) No person take possession of, or commence to build or build on, any land in the Province of Kashmir which has been transferred or has been

contracted to be transferred to him unless and until such transfer becomes valid under the provisions of sub-section (1).

(4) No person who has obtained a transfer of immovable property referred to in sub-section (1) shall apply for an obtain from any Revenue or

Settlement Officer or Court any alteration in any existing entry in any Settlement Record or paper, unless such person produces before such officer or

Court a duly executed registered instrument the registration whereof has been completed in the manner specified sub-section (1).

And no such officer or Court shall alter or cause to be altered any such entry except upon the production of an instrument registered in the aforesaid

manner.

Legal Principles:

The Supreme Court in the case of Union of India and Others v. K K Dhawan, (1993) 2 SCC 56, inter alia, has held that an officer, who exercises

judicial or quasi judicial powers, acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. It has further

been held that where the officer acts in a manner as would reflect on his reputation or integrity or good faith or devotion to duty or there is a

prima facie material to show recklessness or misconduct in the discharge of duty and where he acts in a manner, which is unbecoming of Government

servant, the disciplinary action can be taken against such an officer. In Zunjarrao Bhikaji Nagarkar v. Union of India and Others, (1999) 7 SCC 409, it

was held by the Supreme Court that wrong application/ interpretation of law itself is not a misconduct because wrong decision is subject to judicial

supervision in an appeal. It was also held that if every error of law was to be constituted a charge of misconduct, it would impinge upon independent

functioning of quasi judicial officers. The decision in the case of K K Dhawan (supra) was followed in the cases of P C Joshi v. State of U.P., (2001)

6 SCC 490 and Rourkela Shramik Sangh v. Steel Authority of India Ltd. And Another, (2003) 4 SCC 317 and was affirmed in the case of Union of

India and Others v. Duli Chand, (2006) 5 SCC 680.

Analysis:

After having noticed the relevant statutory provisions as well as the well settled legal principles referred to in the preceding paragraphs, we may

advert to the facts of the case. From perusal of the contents of the perpetual lease deed, it is axiomatic that complainant Mangotam Dass had

transferred his rights in the land admeasuring 3 kanals 10 marlas and had duly sworn in an affidavit, which shows that the possession of the land was

handed over to Jeet Singh in the year 1987. Mangotam Dass in the affidavit has stated that entry in revenue records may be effected in favour of Jeet

Singh and he has no objection to the same. Therefore, Basant Ram, the then Tehsildar, on the basis of the report submitted by the Patwari, which was

endorsed by the Girdawar, was required to attest the mutation in view of Section 28-A of the J&K Agrarian Reforms Act. It is also pertinent to

mention here that the order of attestation of mutation dated 14.05.2002 was upheld by the appellate authority vide order dated 27.02.2002 and on a

revision being preferred before the J&K Special Tribunal, the matter was remanded to the Tehsildar for further enquiry on the ground that no

opportunity of hearing was afforded to the complainant. It is also pertinent to mention here that the Deputy Commissioner, Udhampur on the basis of

the report dated 04.02.2003 had directed the Assistant Commissioner (Revenue) to put up the draft charge-sheet against the delinquent officials and,

therefore, the finding of the Commission that no action was taken by the Deputy Commissioners is perverse. The Commission has failed to appreciate

the expression „allegations‟ as used in Section 2(3) of the Act in its proper perspective. It ought to have appreciated that complainant being a tenant

was conferred the rights of prospective owner under Section 8 of the J&K Agrarian Reforms Act and, as such, the complainant was not competent to

transfer the land in terms of the Section 28 read with Section 28-A of the Act. The Commission has also failed to take into account the fact that

Section 32 of the J&K Agrarian Reforms Act has an over-riding effect on the provisions of Sections 107 and 138 of the J&K Transfer of Property

Act. Therefore, the finding recorded that the perpetual lease deed was not a registered document and same could not be relied upon by the then

Tehsildar for invoking Section 28-A of the J&K Agrarian Reforms Act is perverse. In any case, some erroneous interpretation of provisions of law

could not have brought the action of the delinquent officials within the purview of the expression „allegations‟ as defined under Section 2(3) of the

Act.

It is pertinent to note here that there is no allegation of corruption, favourtism, nepotism or lack of integrity in the complaint and neither any corrupt

motive has been attributed to the delinquent officials in the complaint. It is also pertinent to mention here that the Commission has also not recorded

any finding in its recommendations that the delinquent officials, namely, the petitioners are either guilty of corruption, favourtism, nepotism or lack of

integrity or the orders were passed for improper or corrupt motive. In other words, the findings recorded by the Commission do not bring the action of

the petitioners within the meaning of the expression „allegations‟ as defined under Section 2(3) of the Act. In any case, the misinterpretation of a

statutory provision could not have been treated as a misconduct and on the aforesaid basis, it could not have been concluded in law by the Commission

that the petitioners are liable for disciplinary action under Rule 30 of the J&K Civil Services (Classification, Control & Appeal) Rules, 1956.

So far as the submission made by the learned counsel for the Commission that the petitions are premature is concerned, from perusal of Section 21

of the Act, it is evident that after receipt of the report of the Commission, the competent authority shall examine the report within a period of 90 days

from the date of receipt of such report and thereafter, communicate to the Commission the action taken or proposed to be taken on the basis of the

report. In the instant case, the Commission had only submitted the recommendations, on which the action was yet to be taken by the competent

authority, which would have given cause of action to the petitioners to approach the court. However, the petitioners immediately on submission of the

report by the Commission rushed to the court. Therefore, we have no hesitation in holding that the writ petitions filed by the petitioners were

premature. However, it is pertinent to note that all the writ petitions were admitted for hearing in the presence of the counsel for the respondents. The

objection with regard to maintainability of the petitions ought to have been taken by the respondents at the time of admission of the writ petitions. Since

the respondents have failed to take an objection with regard to maintainability of the petitions at the time of admission and the writ petitions were

admitted for hearing, in view of well settled legal proposition, the writ petitions are required to be dealt with on merits. It is also pertinent to mention

here that the petitioners in OWP No.552/2008 have superannuated in the year 2007, therefore, in the peculiar facts of the case, we have dealt with the

issue on merits.

In view of preceding analysis, the report submitted by the Commission dated 30.05.2008 is hereby quashed. In the result, the writ petitions are

allowed. However, there shall be no order as to costs.