1. Impugned in the instant petition, filed under Article 226 of the Constitution, is order dated 24.12.2014 passed by Respondent 1 ( for short the Tribunal) in revision petition filed by the private respondents herein against order dated 12.05.2010 passed by Respondent 1.

Before adverting to the controversy involved in the petition, it would be proper to give a brief background of the facts hereunder:

Facts:-

• Perusal of the record would reveal that the case in hand has had a chequered history and has landed before the Tribunal on three occasions and remanded back therefrom on three occasions.

It is pertinent to note here that detailed facts have been narrated in the judgment/order dated 03.08.2006 passed by Tribunal while disposing of an earlier revision petition which forms part of record as Annexure-(III) with the writ petition, as such, the facts are, therefore, taken from the said judgment/order which has attained finality.

• Subject matter of dispute is land measuring 29 kanals 11 marlas covered under Survey No. 314/300/101 situated at village Sheikhpora, Budgam. The said land had been admittedly owned by Mst. Fata and Mst. Mehtaba (Respondents 5 and 6 herein) since 1967. The said land was under the recorded tenancy of Sula Dar & Others-the predecessors in interests of the petitioners herein as per the entries of Kharif 1971.

• In 1974, the possession qua the land of Respondent 7 (Karim Khan) herein was recorded and he was described as tenant in the revenue records vide Mutation No. 321 dated 05.08.1982. The genesis of the controversy lies in said Sehat Kasht Mutation No. 321 of 1982, whereby Respondent 7 was ordered to be recorded as tenant of the land in question in the year 1971 in place of Sula Dar and Others, who as already stated, were recorded as tenants in Kharif 1971.

• The entry of Kharif 1971 is significant and important because under Agrarian Reforms Act, 1976 (for short the of 1976), a person shown as tenant in Kharif 1971, is supposed to be invested with the ownership rights under Section 8 of theof 1976 in place of a recorded owner, whose rights got extinguished by application of Section 4 of the said Act, in case he/she is shown to be not personally cultivating the land in Kharif 1971. Thus, for the purposes of determining the person who was personally cultivating the land during Kharif 1971, entries in the Khasra Girdawari of that year are deemed to be correct, unless contrary is shown.

• The aforesaid Sehat Kasht Mutation 321 of 1982 in favour of Respondent 7, was initially challenged by the owners (Respondents 5 and 6) before the Joint Agrarian Reforms Commissioner, Kashmir, on the ground that Respondent 7 (Karim Khan) had never been their tenant. The said Mutation 321 of 1982 came to be set-aside by the Joint Agrarian Commissioner and the matter was remanded back to Tehsildar, Budgam for denovo enquiry.

• Upon aforesaid enquiry, it came to be established, that Sula Dar & Others as was already borne by the records before disputed Mutation 321 of 1982, had been cultivating the land since 1971 as tenants, as such, the Tehsildar passed fresh order with respect to the land in question vide Mutation No. 790 dated 06.02.2001, wherein a reference was also made to the Mutation 321 of 1982. The Tehsildar while attesting the said Mutation 790 supra, observed that entry as originally recorded in Kharif 1971 reflected true state of affairs and that Sula Dar & others were tenants in 1971 and continued to be so.

The Respondents 5 and 6 herein, the owners of the land had appeared before the Tehsildar during denovo enquiry supra and on one hand admitted in no uncertain terms that Respondent 7 (Karim Khan) was never their tenant, and on the other hand, admitted that Sula Dar & others were tenants in 1971 and continued to be so.

• The order dated 06.02.2001 passed by the Tehsildar, Budgam, while attesting Mutation No. 790 supra, came to be challenged by Respondent 7 (Karim Khan) in an appeal which, however, came to be dismissed by Joint Agrarian Reforms Commissioner, Budgam, on 13.08.2001, with the observation that the proceedings have been conducted properly. The Commissioner in the process of passing of order dated 13.08.2001, had visited the spot in order to ascertain actual factual position and examined the Nambardar, Chowkidar and adjacent land holders on spot.

• Aggrieved of the orders supra dated 06.02.2001 and 13.08.2001, the Respondent 7 (Karim Khan) filed a revision before the Tribunal who upon consideration of the same, set aside the impugned orders on 07.10.2003 on the ground of lack of jurisdiction on one hand but on the other hand, refused to allow Mutation No. 321 of 1982 to subsist and consequently, remanded the matter back to the Joint Agrarian Reforms Commissioner for disposal of the appeal filed by the Respondent 7 (Karim Khan).

• On remand, Agrarian Reforms Commissioner while considering the appeal, set aside the Mutation No. 790 dated 06.02.2001 and upheld Mutation 321 of 1982 with certain modifications vide order/judgment dated 18.11.2004 and aggrieved of the said order/ judgment dated 18.11.2004, the legal heirs of Sula Dar being Gula Dar and Others (Petitioners 12 and 13 herein), challenged the same before the Tribunal. The Tribunal on 03.08.2006 set aside the order dated 18.11.2004, observing that the Commissioner had not decided the matter in accordance with the law, as the Commissioner was required to return a finding on the validity or otherwise of Mutation 321 of 1982, whereby the recorded entry of Kharif 1971 had been altered. The Tribunal, thus remanded the matter back to the Agrarian Commissioner with the direction to adjudicate upon the dispute afresh keeping in view the observation made by it.

• Thereafter the proceedings before the Commissioner Agrarian Reforms, Budgam, culminated into order dated 12.06.2010, wherein it came to be held that excepting 1 kanal and 11 marlas, rest of the land has been in cultivating possession of Gula Dar & Others, since Kharif 1971. It appears from order dated 12.06.2010 supra passed by the Commissioner that during course of the proceedings before him, he had visited the spot in presence of parties and locals and upon enquiry, found that excepting 1 kanal and 11 marlas out of the disputed land, remaining land had been in occupation of the petitioners right from 1971 and continued to be so. The said position even had been admitted by the concerned Lambardar. The Commissioner observed that the entry made by way of Mutation 321 of 1982 in favour of Respondent 7 was not in consonance with the ground situation and did not coincide with the occupancy on spot. Thus, taking note of the ground situation as also the possession on spot and after perusing the record inasmuch as there was no proof to the contrary, the Commissioner returned a finding to the effect that the petitioners had been in possession of 28 kanals of land in Kharif 1971 as tenants and that the Respondent 7 (Karim Khan) had been in cultivating possession of remaining 1 kanal and 11 marlas only. Consequently, the Commissioner directed the Tehsildar to record and attest mutation under Section 4 of theafter completing legal formalities and since a portion of the land has been acquired under Land Acquisition Act for the railways, the Commissioner left it for the Collector Land Acquisition to proceed further in the matter for disbursement of compensation as per award available with the Collector.

• According of the order of the Commissioner dated 12.06.2010 supra, Respondent 7-Karim Khan as well as the owners of the land being petitioners 5 and 6 herein, challenged the same before the Tribunal in two separate revision petitions, which revision petitions came to be disposed of on 24.12.2014, while allowing the same and setting aside order impugned dated 12.06.2010 passed by the Commissioner, remanding the matter back to the Additional Deputy Commissioner, Budgam for denovo inquiry, besides directing recovery of the compensation having been paid to the petitioners in terms of award of the Collector and its disbursement to the ex-owners-Respondents 5 and 6 herein.

2. The order dated 24.12.2014 passed by the Tribunal is impugned in the instant petition and challenged by the petitioners on the grounds urged in the petition.

Heard learned counsel for the parties and perused the record.

3. The perusal of the impugned order tends to show that Tribunal has set aside the order under challenge dated 12.06.2010 passed by the Commissioner on the grounds that same has been passed in hot haste and in a mechanical manner and that same was glaring example of non-application of mind and that the concerned Commissioner has failed to apply Rule 50 of Agrarian Reforms Rules, 1976, and also failed to conduct detailed enquiry as mandated by the said Rules. According to the Tribunal, the Commissioner was required to address various issues that arose in the matter and only thereafter decided the case and also to have conducted an enquiry into the kind of land and matters connected therewith. According to the Tribunal, further it is the ex-owners alone who are entitled to receive compensation of the land if it is acquired before its mutation in favor of prospective owners and, therefore, payment of compensation to the petitioners was illegal, while placing reliance on a judgment of this Court passed in case titled as "Nissar Hussain & Ors vs State of J&K and Ors" reported as "SLJ (II) 2003 414".

The aforesaid observation made by the Tribunal patently appear to be without any basis as the perusal of the order dated 12.06.2010 under challenge before the Tribunal would tend to show that the Commissioner has appreciated the facts and controversy involved in the matter, which was limited to the determination and identification of persons who were in possession of the land in question in Kharif 1971 and the genuineness of Mutation 321 of 1982 whereby Respondent 7 (Karim Khan) was substituted in place of Sula Dar & Others-the predecessors in interest of petitioners. The said order would further show that the Commissioner had gone on spot and heard the village body for determining and identifying the persons who were in possession of the property in Kharif 1971 and in the process, the Commissioner examined Lamberdar of village to find out the truth and after completing the said formality on a thorough enquiry, came to the conclusion that Mutation 321 of 1982 was not in conformity with the ground situation and that while Respondent 7 (Karim Khan) has been in cultivating possession of 1 kanal and 11 marlas, the remaining land had been continuously in possession of the petitioners since 1971, as there had been no evidence to the contrary. The said order of the Commissioner is detailed one and the finding of facts are well reasoned, as such, there was no occasion for the Tribunal to hold that the Commissioner has acted in hot haste and has failed to follow Rule 50 of Agrarian Reforms Rules, 1976. The said observations of Tribunal ex-facie are perverse and without any basis and the Tribunal appears to have been unduly and excessively concerned about the kind of the disputed land, which was not at all relevant for the determination of the controversy, as having regard to the genesis of the controversy, the scope of proceedings before the Commissioner in the case was limited to determine the legality of the Sehat Kasht Mutation 321 of 1982 and to identify the person/s who was in fact cultivating the land in question as tenant in Kharif 1971.

It is significant to mention here that the kind or nature of land assumes importance and may be relevant at the time of attestation of mutation under section 4 of thefor the purposes of determination of rights under the. The identification of the person/s who was a tenant in Kharif 1971 may be a prelude to the attestation of mutation under section 4 of thebut is not itself an order of mutation under section 4 of the. Whether a person who is found to have been cultivating the land as tenant in 1971, should be recorded as prospective owner or said land should be shown in personal cultivation of the owner for the purposes of taking benefits under the even if the land was under the tenancy of another person, would be dependent on nature and kind of land and may require an investigation in these issues at the time of attestation of mutation under section 4 and 8 of the. However, same is totally irrelevant and unnecessary for the purposes of identifying the person who was actually cultivating the land as tenant at the commencement of the.

In the instant case, after recording a finding regarding the persons who have been in possession of land in question in Kharif 1971, the Commissioner has left it to Tehsildar to attest a mutation under section 4 of theafter fulfilling all legal formalities which would include enquiry into kind of land, if required. If respondents had any grievance against mutation subsequently attested by the Tehsildar under section 4 and 8 of theon the ground that having regard to the kind of the land, the same ought to have been entered in the personal cultivation of the owners notwithstanding the fact that same was in possession of the tenants at the commencement of the, they would be free to challenge the mutations, but failure to determine the kind of land, could be basis to interfere with the finding of fact about the person who was actually cultivating the land at the relevant time.

4. Be that as it is, the record reveals that out of disputed land of 29 kanals and 11 marlas, 18 kanals and 9 marlas are recorded as Aabi Awal Nambal; 9 kanals and 16 marlas are recorded as Gair Mumkin Nambal; and 16 marlas as Kahi Krisham.

Section 2(12) (v) of theof 1976 provides that, "Patches of gair-mumkin and zeri-sayah land existing in a survey number shall be deemed to have been in personal cultivation of the person cultivating the rest of the land in such survey number personally in Kharif, 1971." Since it has been established that the petitioners have been in possession of Aabi Awal Land in Kharif 1971 and thus, in view of aforesaid provision, the remaining land that is recorded as gair-mumkin nambal, in any case was deemed to be in personal cultivation of the petitioners. Thus, requiring holding of an enquiry as to the kind of the land unnecessary and irrelevant. Insofar as remaining 16 marlas of land is concerned, recorded as Kahi Krisham, same is also belied on spot visit by the Commissioner as no such portion of the land has been seen in the nature of Kahi Krisham as the whole of the land was found to be cultivated either by the petitioners or by Respondent 7 (Karim Khan). Since an enquiry into the kind of land was irrelevant for determining the real controversy, the findings returned by the Commissioner could not be faulted by the Tribunal on the ground that kind and nature of the land has not been determined. The said observation of the Tribunal is based on fallacious and erroneous assumption and is not sustainable.

Even otherwise as well, it is seen that the petitioners were recorded as tenants of the whole land in 1971 and entry of Kharif 1971 has presumption of correctness attached to it in view of Section 2(12) (v) of theof 1976, unless contrary is proved. It is by virtue of Sehat Kasht Mutation 321 of 1982 that Respondent 7 (Rahim Khan)had been entered and introduced as tenant w.e.f. 1971 in place of already recorded tenants and the said mutation has been placed on record by Respondent 7 (Karim Khan) to show that the mutation has been attested after hearing of ex-owners. Perusal of the said order of mutation, however, would reveal that the persons who were already recorded as tenants i.e. Sula Dar & Others, have not been associated in the said process whereby they were sought to be denuded of their status and apparently no notice has been issued to them as it is only they whose rights were getting affected by the said Mutation 321 of 1982, as whether owners were present or not, will not make any difference, but the presence of the party whose rights were affected by the mutation was mandatory before attestation of said Mutation 321 of 1982. Since Sula Dar & Others had not been heard before attestation of Mutation 321 of 1982, the same is rendered nullity which in effect would revive previous mutation attested in favor of the predecessors in interest of petitioners.

The Commissioner instead of restoring the previous position in view of above, choose to conduct spot inspection as required by Rule 50 of the Rules of 1976 and after examining village body and Lamberdar, had come to the conclusion that the petitioners i.e. legal heirs of Sula Dar & Others are in possession of 28 kanals of land and that remaining land measuring 1 kanal and 11 marlas has in possession of Respondent 7-Karim Khan. Insofar as 28 kanals of land are concerned, same have been to be in possession of the petitioners and the Commissioner has simply maintained the entry that was held existing before Sehat Kasht Mutation 321 of 1982, which as aforesaid was nullity, therefore, no fault can be found or attributed in the course adopted by the Commissioner.

5. Insofar as the observation and direction made and passed in the impugned order by the Tribunal directing recovery of compensation paid to the petitioners in terms of the award of the Collector Land Acquisition and its payment to the ex-owners is concerned, same apparently is without any basis and jurisdiction. The said observation and direction seemingly has been passed by the Tribunal on the assumption that the amount of compensation has been released in favour of the petitioners on the directions of Commissioner when it is not so, as the perusal of the order of the Commissioner would show that he simply observed that Collector shall proceed further in the matter for disbursement of compensation as per award available with him. The award in terms whereof compensation has been paid, is passed under the J&K Land Acquisition Act, 1990, and if anybody was aggrieved of the award, be its disbursement or apportionment or its entitlement, the only recourse was to seek reference in terms of the said Land Acquisition Act or to challenge the award in the competent court of law. Recovering the amount of compensation from the persons who have been found entitled to the compensation by the Collector under the Land Acquisition Act, 1990 and directing its payment to anybody else, would amount to altering the award without following the procedure provided in the said Land Acquisition Act. That being so, the Tribunal had no occasion or reason to order recovery of compensation from the petitioners or its disbursement to the ex-owners. The observation and direction per se is perverse, misconceived and without jurisdiction.

Even otherwise as well, the Respondents 5 and 6-the ex-owners of the land who were not personally cultivating the land in kharif 1971 had already lost their title to the property by operation of Section 4 of theof 1976. Their status is that of ex-owners, who does not have any existing interest in the land acquired. It is the tenants who are prospective owners under the, who suffer any loss by acquisition of the land and, therefore, would be entitled to compensation, if any. The ex-owners-Respondents 5 and 6 in whose favour the amount of compensation has been directed to be disbursed by the Tribunal after its recovery from the petitioners admittedly have not suffered any loss by acquisition of the land, as their rights had got already extinguished by operation of Section 4 of the. The Tribunal while making the aforesaid observation and direction, appears to have been influenced by the judgement passed by this Court in case titled as "Nissar Hussain & Ors vs State of J&K and Ors" reported as "SLJ (II) 2003 414", wherein after referring to Section 8 (4) of the Agrarian Reforms Act, it has observed that if land is acquired before attestation of mutation under Section 8 in favour of prospective owner, then it is the original owner who shall be entitled to receive compensation and not the tenant. A deeper and closer examination of the judgement supra with respects, does not lay down correct law, as same has been passed without taking note of an earlier judgment passed by this Court in case titled as "Lal Chand vs Collector" reported as "1999 SLJ 574" wherein it has observed that, "the owners who have been granted propriety rights under section 8 or the prospective owners will be entitled to compensation in the same manner as any other owner of the property to whom act does not apply, and that, "no other view is possible without doing violence to the concept of the ownership of the property." Thus, the judgment relied upon by the Tribunal passed in case of "Nissar Hussain & Ors" (supra) cannot but said to be per incuriam and not constituting a binding precedent.

Furthermore, no doubt Section 8(4) of theprovides that in the event land is acquired before vesting of ownership rights in prospective owner in terms of Section 8 of the Act, then vesting of rights in favour of such prospective owner shall not be effective and that amount of levy shall be refunded to the prospective owner, however, it is one thing to say that vesting of ownership in favour of prospective owner shall not take place but quite another thing to say that since vesting of rights does not take place, he will not be entitled to any compensation and that same shall be paid to ex owner. The Act does not say so. Whether prospective owner should or should not get any compensation is not dependent upon the provisions of the Agrarian Reforms Act, 1976 but upon the provisions of J&K Land Acquisition Act, 1990. If it is found that he has an interest in the property which has suffered by acquisition, he would definitely be entitled to compensation for loss of that interest, regardless of the fact that the ownership rights may not get vested in him because of its acquisitions before vesting but the fact remains that he suffers when such property is acquired, in that, he is deprived of his right to be vested with its ownership rights and the right to remain in possession of such property as tenant, thus, he would be entitled to receive compensation for the said loss. To the contrary risking repetition, the ex-owner does not lose anything by acquisition of property in respect of which his right has already got extinguished by operation of Section 4 of theof 1976.

6. For what has been observed, considered and analyzed hereinabove, the impugned order dated 24.12.2014 of Tribunal seen from any angle cannot sustain and same being based on erroneous assumptions, is rendered perverse and liable to be quashed, leaving aggrieved parties to workout remedy against orders of mutation attested under section 4 or 8 of the of 1976 or award passed under the J&K Land Acquisition Act, 1990.

7. Resultantly, the petition succeeds and consequently, the impugned order dated 24.12.2014 passed by Respondent 1 (Tribunal) is quashed with the aforesaid observations.

8. Writ Petition disposed of.