Sec.31 Of Agrarian Reforms Act Is Mandatory In Nature; Would Prevail In Matters Of Alienation Of Land: Jammu and Kashmir & Ladakh High Court

The Appellant had approached the High Court challenging the order of the Single Judge whereby the order of Financial Commissioner (Revenue) had been quashed, thereby upholding the Mutation of land drawn on the strength of oral gift made by the predecessor-in-interest of the appellant in favor of private respondent.

The Division Bench of Justice Sanjeev Kumar and Justice Sanjay Parihar said, “Applying the aforesaid construction, since the Act of 1976 has come much after the enactment of Alienation of Land Act of 1995 (1938 AD) and given the mandatory nature of Section 31, the later Act would prevail in matters of alienation of land and Mst Mugli before proceeding to record oral gift in favour of her only son was required to seek permission from the competent authority in terms of Section 31 of the Agrarian Reforms Act read with Rule 60.”

“Considering the scheme and purpose of the Act, the restriction imposed on utilization and alienation in terms of Section 28, 28-A and 31 have withstood the constitutional schemes and would definitely mean that the later Act would prevail upon the Act of 1995”, it added.

Advocate M. Amin Khan represented the Appellant while Advocate Javid Ahmad Parray represented the Respondent.

Factual Background

The mother of the appellant Mst. Mugli was stated to be the estate holder in respect of land measuring 35 Kanals 7 Marlas of village Nihalpora Tehsil Pattan District Baramulla, who was having three daughters and one son, the appellant being one of them. The private respondent herein was the only son. The mother died in the year 2015. After the demise of Mst Mugli, her estate was said to have devolved on her daughters and the only son, for which the mutation of inheritance came to be attested.

According to the appellant, at the time of attestation of the mutation, the respondent did not divulge the oral gift or the attestation of the Mutation. She claimed the gift to be a fictitious one as no such oral gift could have taken place before July 11, 1996 as at that time, there was a complete ban on alienation of land. She questioned the mutation before the Financial Commissioner, Agrarian Reforms, Srinagar, by way of revision, and the said mutation was set aside. The private respondent filed the writ petition, and the writ Court took a view that Section 31 of the Agrarian Reforms Act had no application to the matter in hand and that the Financial Commissioner (Revenue) had passed the order in a mechanical manner and without recording any reasons.

Reasoning

Referring to Section 31 of the Agrarian Reforms Act, the Bench noted that this provision proposes to impose a restriction on alienation of land and this provision begins with a non-obstante clause and forbids alienation of land by act of parties except under such conditions as may be prescribed, wherein conditions are laid in Rule 60. Further, in terms of Section 31(b), alienation of land made on or after the first day of May, 1973 in contravention of the provisions of the “Act” has been held to be null and void and land so alienated would, after such enquiry as may be prescribed, vest in the State. It was also noted that given the mandate of Section 31, which stood in the statute book during the time of attestation of mutation, clearly forbade alienation of land by way of gift or otherwise.

It was further explained that Section 42 of the Agrarian Reforms Act categorically makes provisions that with the commencement of Agrarian Reforms Act, the provisions of Jammu and Kashmir Alienation of Land Act Samvat 1995 and the rules, standing orders, orders, instructions issued thereunder as far as they are inconsistent of the provisions of this Act and the rules framed and instructions issued there under cease to apply to the land to which this Act applies.

“In that background, the Act of 1996 would override the Act of 1995, which normally being later Act and its provisions having overriding effect would prevail. Having not applied in prescribed mode, any such mutation recorded on the strength of such transfer (by way of gift) is forbidden by Section 31 of the Act”, the Bench held.

As per the Bench, once the transfer by way of oral gift was forbidden by law, then any such transfer could not have been given effect to by the revenue authorities in terms of Standing Order 23-A. This was so because Section 32 of the Agrarian Reforms Act provides for the overriding effect of its provision over all other laws. Thus, allowing the appeal, the Bench set aside the impugned order.

“...the order of Financial Commissioner Revenue dated 21-07-2022 is upheld with further direction to the revenue authorities to conduct an enquiry on the impugned mutation and after providing reasonable opportunity of being heard to the beneficiaries, shall to recast the mutation in accordance with law. The revenue authorities, while conducting the enquiry in terms of the Act, shall follow the mandate of Rule 60 of the Rules of 1977”, it added.

Cause Title: Saja Begum v. Financial Commissioner Revenue J&K Govt. (Cause Title: LPA 169 of 2024)

Appearance:

Appellant: Advocate M. Amin Khan

Respondent: Advocate Javid Ahmad Parray

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