- (1.) THE only question involves in this petition challenging the order of the Special Tribunal dated 31.10.94 is whether Beli Ram was the tenant or an unauthorised occupant of the land measuring 34 kanals and 2 marlas comprising kh.no.90 -min, 11 -min, 12 -min, 17 -min and 2 -min of khewat No.30 situate in village Sair Mangala Tehsil Ramnagar. This question has arisen because the Tehsildar Ramnagar by his order dated 15.07.83 allowed the application filed u/s 19/27of the Agrarian Reforms Act, 1976 (for short Agrarian Act) filed by the landlord and directed eviction of the petitioner on the ground that his possession became unauthorised after kharif 1966 when three years period of fixed term tenancy fixed by an agreement executed between him and the owner Ganga Ram in March 1964 expired. This finding was returned notwithstanding the fact that the petitioner was in occupation in kharif 1971. This order was challenged by the petitioner before the Joint Commissioner, Agrarian Reforms, but he also dismissed the appeal and confirmed the order of the Tehsildar.
(2.) THE petitioner approaches the Special Tribunal by filing the revision u/s 21 of the Agrarian Act which the latter dismissed on 31.10.94. All these orders have been challenged by the petitioner mainly on the grounds that the official respondents right from the Tehsildar to the Member of Special Tribunal failed to apply the law on the admitted facts of the case. The contention of Mr.Gupta is that the Tehsildar hs no jurisdiction to entertain the application u/s 19 of the Agrarian Reforms Act because he is not a collector and an application u/s 19(3) (d) of the Agrarian Reforms Act could be decided only by the Collector appointed under the Act. He next argued that the petitioner had been recorded as protected tenant of the land vide order dated 17.05.79 and, therefore, was a prospective owner under the Act. This aspect of the case according to him was ignored by the appellate authority while dismissing the appeal and the Special Tribunal also fell in error while rejecting the revision. Mr.Bhat, appearing for the private respondents submitted that the petitioner was let in possession of the land in question only for a period of three years on payment of the 1/3rd of the produced. This period of three years having been expired in 1966, his continued occupation of the land was unauthorised and, therefore, The Tehsildar was right in directing his eviction which order has been rightly upheld by the appellate and revisional authorities.
(3.) THE admitted factual position is that the petitioner was let in possession of the dispute land in the year 1964 for a period of three years by the owner Ganga Ram. The period of three years both according to the Tehsildar as well as Joint Commissioner Agrarian Reforms expired in kharif 1966. The petitioner admittedly continued possession of the land during the lifetime of the landlord Ganga Ram who never initiated any action to evict him. There is no plea that he is not paying the rent i.e. share of the produces to the landlord from 1966 to kharif 1971. It is also not disputed that by order dated 17.05.79, the petitioner was declared protected tenant of the land. The Tehsildar and the joint Agrarian Reforms Commissioner have concurrently found that since the fixed term of tenancy created by the landlord vide agreement dated March 10, 1964 came to an end in kharif 1966, therefore, he became unauthorised occupant. In terms of this agreement as noted by the Joint Commissioner, Agrarian Reforms, the petitioner was to pay 20 pais wheat, 10 paise maized and 40 paise paddy "pais a local measure equivalent to about 3 kg" as rent(Lagaan).Since he was not evicted, therefore, as long as he would remain in possession, the petitioner was liable to pay rent at this rate.However, attention of neither of these revenue officers including the Special Tribunal was invited to section 15 -(A) of the Tenancy Act which was substituted by Act No.XII of 1955 by substituting 1965 for 1955. This section reads as under: - "15 -A.protected tenants. -(1) All tenants other than occupancy tenants and such fixed terms tenants as hold maliari all vegetable growing land shall be deemed to be protected tenants and recorded as such in respect of such land as is held by them in their cultivating occupation at the time of the commencement of the Jammu and Kashmir tenancy (Amendment) Act, 1965. Provided that the right of protected tenancy of a tenant shall cease when a landlord presumes land for personal cultivation u/s 49 of Act: Provided further that the right of protected tenancy of a tenant holding under a lease or mortgagee shall also cease on the expiry of the lease or mortgagee, as the case may be if the lesser or the mortgager was in self cultivating occupation of such land immediately before such land was leased or mortgaged and such land including the other land in his personal cultivation does not exceed the size of the holding specified for a landlord in clause(a) of section 45 of the Act. Provided also that the right of protected tenancy shall not accrue to a tenant admitted by a protected tenant; Provided further that a tenant admitted after the coming into force of Act XII of 1955 shall not be entitled to such right in respect of such portion of the land as together with what he helds in ownership right or in tenancy right as an occupancy or protected tenant or both does not exceed 2 acres of Abi or 4 acres of khuskki land in the Kashmir province including the Districts of Ladakh and Gilgit and 4 acres of Abi or 6 acres of khuskki in the Jammu province. Explanation. -For the purposes of this provise 1 acre of land held in ownership right shall be deemed to be equal to 2 acres of land held in tenancy right ) 2. Notwithstanding anything contained in chapter -IV of the J&K Land Revenue Act, Samvat 1996, the recording of the right of protected tenants under sub -section (1)shall be made by by an entry in the Girdawari register at the time of the crop inspection following the coming into force of the J&K tenancy (Amendment) Act, 1965 and shall immediately thereafter to taken to the current quadrennial jamabandi in such manner as may be notified by the Govt.in this behalf." Since the land in question is neither maliari or vegetable growing.The petitioner admittedly being in possession in 1966 as a fixed term tenant became protected tenant provided other requirements of this section were satisfied.However, it is admitted that no application for the ejectment of the petitioner was ever filed by the landlord u/s 49 of the Tenancy Act.The petitioner is also not a tenant admitted by a protected tenant so as deny him the right of protected tenancy in terms of 3rd provise to section 15(A).However, assuming that he was not recorded as protected tenant as required under sub -section (2) of section 15(A) yet his possession in kharif 1971 is admitted. It is also admitted that he was let in possession of the land by the owner on payment of the share of the produces.He was, therefore, a tenant for all intents and purposes.The right of the landlord would thus extinguish u/s 3 of the Agrarian Reforms Act.as he was in occupation as a tenant.Though he was recorded as protected tenant as per mutation No.433 dated 17.05.79.The Joint Commissioner Agrarian Reforms thus acted without jurisdiction and quite illegally to set aside this mutation.The Tehsildar also acted without jurisdiction and illegally as well while allowing the application and directing the eviction of the petitioner be in flagrant disregard to section 15 -A of the Tenancy Act.;