Vishwa Mitter & Ors. vs Balbadhar Singh & Anr.

Rendering its opinion on a reference made to it by a Single Bench of the Jammu and Kashmir Special Tribunal, a Full Bench of the Tribunal,

had, taken the view, that land measuring 83 kanals situated in Village Hakkal Tehsil Jammu leased out by Dharam Singh to Hans Raj for purposes

of a Dairy Farm, was outside the scope of the Jammu and Kashmir Agrarian Reforms Act, 1976. It had accordingly vide its order of January 2,

2008, referred the case back to Bench No. II for deciding the Revision, out of which the reference had arisen, on its merits.

Opinion rendered by Full Bench vide its order of January 2, 2008 has been questioned by the petitioners, the predecessorsininterest of Hans

Raj, in this writ petition.

Respondent No.1's counsel Mr. R.S. Thakur questions the maintainability of petitioner's writ petition saying that the Jammu and Kashmir

Special Tribunal had yet to decide the case sent to it, on remand, by Hon'ble Supreme Court of India, on merits, and in that view of the matter,

Extraordinary Civil Writ Jurisdiction of this Court cannot be invoked by the petitioners to question the opinion of the Full Bench.

Before dealing with the objection, few facts need to be noticed.

Subedar Dharam Singh had leased out land measuring 83 kanals comprised in Khasra nos. 544/47, 48, 91/681/53 and 654/53 situated in village

Hakkal Tehsil Jammu to Hans Raj, the predecessorininterest of the petitioners, in the year 1964 for a period of 20 years.

Tehsildar (Agrarian Reforms), Jammu had attested Mutation no. 504 of Village Hakkal Tehsil Jammu vesting the land in question in favour of the

State with Hans Raj as its prospective owner, under the Agrarian Reforms Act, 1976. Dharam Singh's appeal against the mutation having failed

before Commissioner, Agrarian Reforms, the Appellate Authority, had led him to approach the Jammu and Kashmir Special Tribunal, which while

allowing his revision petition, had set aside mutation no. 504 holding that the land was not covered by the provisions of Jammu and Kashmir

Agrarian Reforms Act, 1976. Writ Petition no. 690/1986, filed by Hans Raj against Tribunal's order had failed. He, thereafter, approached

Hon'ble Supreme Court of India by Civil Appeal No. 4130 of 1989.

While allowing Hans Raj's appeal, the Supreme Court of India had remanded the case to the Tribunal requiring it to give a detailed judgment

determining as to extent of the area actually put to cultivation or agricultural use and what had remained to be put to nonagricultural use towards

working out the lease. Tribunal had been desired by Hon'ble Supreme Court of India to keep in mind that lease having commenced in the year

1964 and durated for 25 years, its period had expired and its effect had to be seen for fresh computation of the excess lands.

After the remand of the case, the matter appears to have been listed before a Single Bench of the Tribunal, which came to the conclusion that as

an important question of law and public interest had arisen so the matter would require consideration by a Full Bench. The question which

according to the Single Bench of the Tribunal had arisen for consideration of the Full Bench, reads thus:

Whether the land set apart on lease for dairy farming is outside the scope of the Jammu and Kashmir Agrarian Reforms Act, 1976 on the sole

premises that dairy farming is not agriculture.

The Single Bench of the Tribunal accordingly recorded the following order while referring the matter to Full Bench:

In view of the important question of law and of public interest the matter is required to be considered by the Full Bench. Therefore, the file be

placed before the Hon'ble Chairman for orders for constituting Full Bench so that the direction of the Hon'ble Apex Court is complied with most

expeditiously.

Considering the formulated question, the Full Bench of the Tribunal had taken the view that land measuring 83 kanals situated in village Hakkal

Tehsil Jammu which had been let in favour of Hans Raj for purposes of Dairy Farm was outside the scope of Agrarian Reforms Act, 1976. It

accordingly referred the case back to Bench No.II for passing appropriate orders on merits.

Petitioners' writ petition has thus arisen, in the background of aforementioned facts.

Perusal of the Opinion rendered by Full Bench of the Tribunal on reference made to it by a Single Bench, indicates that the Full Bench had not

dwelt on all those matters on which remand had been effected by the Hon'ble Supreme Court of India, and it was because of this reason the Full

Bench had sent the case back to the Single Bench for decision of the Revision Petition on its merits.

Opinion given by the Full Bench, does not, in my opinion, decides all those questions which the Tribunal is required to deal with while deciding

the Revision Petition, in terms of the remand order of the Supreme Court. Although, opinion of the Full Bench is binding on the Single Bench

insofar as one of the issues answered by it was concerned, yet rest of the issues, in terms of the remand order of Supreme Court of India, are still

required to be gone into and decided by the Tribunal.

In this view of the matter, the opinion rendered by the Full Bench, cannot be said to be a judgment which may finally decide the rights of the

parties providing cause to the petitioners to question the opinion of the Full Bench by a writ petition.

The petitioners have, therefore, hastened to approach this Court rather than waiting for the outcome of the final decision of the Tribunal on

respondent No.1's revision petition.

That apart, the petitioners have not approached this Court for seeking adjudication and determination of any of their rights in the land and all

that they have questioned in the writ petition is the opinion, rendered by the Full Bench on which final judgment of the Tribunal is yet to come.

Jurisdiction under Article 226 of the Constitution of India is neither appellate nor revisional and in that view of the matter, orders passed by the

subordinate Revenue Agencies or for that matter, the opinion of the Full Bench, may not be open to question by a litigant who does not, otherwise,

seek adjudication of any of his enforceable rights in the writ petition.

That being the position, objection raised by Mr. R.S. Thakur, learned counsel for the respondent No.1, as to the nonmaintainability of the writ

petition when the Tribunal had yet to decide the case on merits, succeeds and is sustained.

This writ petition is, accordingly, dismissed as not maintainable. Dismissal of this petition shall not, however, in case the judgment of the

Tribunal goes against the petitioners, be an impediment in their questioning the final decision of the Tribunal in any Forum which may be available to

them under law.