Shabir Hussain Bhat and others V. UT of J&K and others

WP(C)/2885/2022

AI Insights

The case revolves around the administrative and procedural challenges faced by the Jammu & Kashmir Special Tribunal in adjudicating revision petitions under the Agrarian Reforms Act, 1976, following the amendment that deleted the provision for revision. The petitioners, legal representatives of Mohammad Akbar Bhat, challenged an appellate order which had already been subjected to a revision petition that remained pending due to the amendment. The court took suo moto notice of the situation, highlighting the abdication of the Special Tribunal in handling these cases and the resultant legal helplessness of the litigants. The judgment clarified the applicability of the amendment to ongoing cases and reaffirmed the substantive nature of the right to revision.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 816253 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 19-12-2022
• Assessment Year: misc
• Other Referred Cases: General Finance Co. & An. V/s Assistant Commissioner of Income Tax, Kolhapur Sugarcane Works Ltd. & An V/s Union of India & Ors., Thirmalai Chemicals Ltd. Vs UOI
• Laws Referred To: Agrarian Reforms Act, 1976, Jammu and Kashmir Reorganization Act, 2019, General Clauses Act, 1897
• Result in Favour of: Others
• Court: HIGH COURT
• Assessee Lawyers: ASMA RASHID
• Keywords: Agrarian reforms; Revision petition; Substantive Right; Jammu & Kashmir Special Tribunal; Legal Helplessness
• Section: 21(2)

Judgement Text

"1 Sr. No. 102 Regular Cause List IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH AT SRINAGAR WP (C) No.2885/2022 CM No.7259/2022 Shabir Hussain Bhat and others …Appellant(s)/Petitioner(s) Through: Ms. Asma Rashid, Advocate Vs. UT of J&K and others ...Respondent(s) Through: CORAM: HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE. ORDER 19-12-2022 1) This writ petition, co-incidentally, presents a situation which this court cannot afford to let go unattended except at the cost of extending the continuing failure of administration of justice taking place by the stand-still approach of the Jammu & Kashmir Special Tribunal viz-a-viz the pending revision petitions under the Agrarian Reforms Act, 1976 in the wake of coming into operation of the amendment with respect to section 21 (2) of the Agrarian Reforms Act,1976 w.e.f 26/10/2020 whereby the provision providing the remedy of revision which used to be cognizable by the Jammu & Kashmir Special Tribunal has been deleted to be no more a remedy available under the Agrarian Reforms Act, 1976. 2) Indulgence of this court, on suo moto notice, is warranted to put into place corrective command for the consumption of and compliance by the Jammu & Kashmir Special Tribunal which otherwise has put itself 2 on mode of abdication of adjudication of the pending revision petitions filed under the Agrarian Reforms Act, 1976 leaving the litigants in a lurch. 3) In fact, this court has come to be taken by repulsion on finding the writ petitioners to challenge through the present writ petition in the year 2022 an appellate order dated 17/09/2011 of the Commissioner Agrarian Reforms (Additional Deputy Commissioner), Budgam when the same very order stood already challenged in a revision petition filed before the Jammu & Kashmir Special Tribunal by the writ petitioners but only to be retorted by the petitioner’s learned counsel that said revision has been abandoned of its adjudication by the Jammu & Kashmir Special Tribunal on the pretext of amendment by way of deletion of section 21 (2) of the Agrarian Reforms Act, 1976. 4) The petitioners herein are legal representatives of one Mohammad Akbar Bhat who was the sole respondent in an appeal filed by respondent nos.4 to 8 challenging two mutations i.e., mutation no. 93 dated 09-06-1983 under Section 4 and a mutation no.616 dated 23-04-1984 under Section 8 of the Agrarian Reforms Act, 1976, both attested in relation to and in favour of said Mohammad Akbar Bhat thereby vesting ownership of the agrarian land in favor of said Mohammad Akbar Bhat. 5) Against these two mutations, the respondent nos.4 to 8 herein came to file a statutory appeal under section 21(1) of the Agrarian Reforms Act, 1976 on file no. 266/CARB instituted on 14-02-2008 before Commissioner Agrarian Reforms (Additional Deputy Commissioner) Budgam which came to be allowed by him in terms of a judgment dated 17-09-2011. 3 6) Against the said judgment dated 17-09-2011 of the Commissioner Agrarian Reforms (Additional Deputy Commissioner), Budgam as being the final judgment, the sole respondent-Mohammad Akbar Bhat came to resort to remedy of revision by preferring on 17.11.2011 a revision petition under Section 21 (2) of the Agrarian Reforms Act, 1976 then maintainable before the Jammu and Kashmir Special Tribunal. This revision petition is reported to be still pending before the Jammu and Kashmir Special Tribunal. During the pendency of this revision Mohammad Akbar Bhat-the revision-petitioner came to demise on 26.09.2019. 7) The situation which constrained the petitioners herein, as being legal representatives of Mohammad Akbar Bhat, to approach this Court with the present writ petition for challenging the order dated 17.09.2011 of the Commissioner Agrarian Reforms (Additional Deputy Commissioner) Budgam is the fact that Jammu and Kashmir Special Tribunal has purportedly abdicated, in an unannounced manner, its jurisdiction to adjudicate the revision petition so filed by Mohammad Akbar Bhat against the impugned order dated 17.09.2011 of the Commissioner Agrarian Reforms. 8) The abdication on the part of Jammu and Kashmir Special Tribunal in hearing and adjudicating the revision petition is being attributed to the amendment of Section 21 of the Agrarian Reforms Act, 1976, after coming into operation of the Jammu and Kashmir Reorganization Act, 2019. Section 21 of the Agrarian Reforms Act, 1976 has been amended by Jammu and Kashmir Reorganization (Adaption of State laws) Fifth of 2020 deleting the provision of sub section 2 of section 21 which used to provide for 4 remedy of revision. By reference to said Order of 2020, the Chairperson of the Jammu and Kashmir Special Tribunal has gone to the extent of seeking instructions from the Government in the matter and which are reported to be still awaiting and so the revisions are lying in limbo without any proceedings towards adjudication. 9) This Court is taking judicial notice of the fact that a number of cases in the form of revision petitions under the pre amended Agrarian Reforms Act, 1976, pending adjudication before the Jammu and Kashmir Special Tribunal are being accorded no adjudication on the part of the Jammu and Kashmir Special Tribunal. This Court is perturbed at the approach of the Chairperson of the Jammu and Kashmir Special Tribunal in seeking instructions from the Government while the Jammu and Kashmir Special Tribunal is a statutory quasi judicial authority which is not to be governed by the executive side instructions of the Government of the day but by understanding of the statutory provisions. 10) Before coming to deal with and relieve the petitioners of the legal helplessness underlying the filing of the writ petition, and which is predicament of number of similarly placed litigants, it would be very apt to bear in sight the provision in reference which is section 21 of the Agrarian Reforms Act, 1976 as it stood in original composition of the Agrarian Reforms Act, 1976 before its deletion by amendment. 11) Section 21 of the Agrarian Reforms Act, 1976 was as under : “ Section 21. Appeals and revisions. — (1) Any person aggrieved by a final order of a Collector or a Revenue Officer of a class lower than that of a Collector may prefer an appeal to the Commissioner having jurisdiction in the area to which the appeal relates. [(2) The Revenue Minister may at any time call for the record of any case in which a Tehsildar or an Assistant commissioner has passed orders in respect of any evacuees 5 land or State land or of any case in which Commissioner has passed final order and if he finds that a question of law or public interest is involved in the case, he may pass such orders thereon as he thinks fit: Provided that no order shall be passed against any party without affording that party an opportunity of being heard.] (3) No application for review shall lie against any order passed under Act or the rules made there under, but clerical or arithmetical mistakes in orders or errors arising therein from any accidental slip or omission may, at any time, be corrected by the authority which has made such order. (4) First appeal against a final order passed under the Jammu and Kashmir Agrarian Reforms Act, 1972 or the rules framed there under pending at the commencement of this Act, shall be transferred to the Commissioner having, jurisdiction in the area to which such appeal relates and the Commissioner shall thereupon dispose of such appeal in accordance with the provisions of this Act. (5) Second appeal against a final order pending before the Financial Commissioner or any revision against a final order pending before the Revenue Minister under the Jammu and Kashmir Agrarian Reforms Act, 1972 or rules framed there under shall be disposed of in accordance with the provisions of this Act by the Revenue Minister, the second appeal before the Financial Commissioner being treated as an application for revision under this Act. (6) Any appeal or revision against any other order passed under the Jammu and Kashmir Agrarian Reforms Act, 1972 or the rules framed there under, pending at the commencement of this Act, shall abate, but nothing herein shall deprive an aggrieved party from contesting such order in an appeal or a revision against a final order that may be passed in the proceedings from which such appeal or revision had arisen. (7) (a) Where in an appeal or revision, an application for stay is made, the appellate or the revisional authority, as the case may be, shall in all cases, except where it appears that the object of granting stay would be defeated by the delay, before granting the stay, direct notice of the application for the same to be given to the opposite party. (b) Where the appellate or revisional authority grants a stay, such stay shall be granted on such terms as to the duration thereof, keeping an account, giving security or otherwise as the authority thinks fit. (8) A stay, granted by an appellate or a revisional authority in an appeal or revision shall, in cases where such appeal or revision stands transferred by sub-section (4) to the Commissioner or by sub-section (5) to the Revenue Minister, stand vacated after a period of twenty days from the date of such transfer unless such stay is in the meanwhile re-affirmed in accordance with the provisions of sub-section (7). 6 12) Upon coming into effect and operation the J&K Reorganization Act, 2019, the erstwhile State of Jammu & Kashmir came to have transformation into two Union Territories one being Union Territory of Jammu & Kashmir and the other being of the Union Territory of Ladakh. Jammu & Kashmir Agrarian Reforms Act, 1976 was a statute enacted by the legislature of the then State of Jammu & Kashmir, and is one of the Acts which has been retained to operate in both the UTs. However, the legislative power to deal with the Acts, retained to continue in both the UTs, is now as per the legislative scheme laid out in the Reorganization Act, 2019 acting where under number of amendments including by way of deletion with respect to different sections of the Agrarian Reforms Act, 1976 have been effected one of which being to section 21 of which sub section 2 came to be deleted by S.O no. 3808(E) of 2020 w.e.f 26/10/2020. It is this deletion of the provision which has purportedly come to freeze the adjudication of the pending revision petitions before J&K Special Tribunal. 13) S.O.3808 (E) of 2020 has been issued in exercise of power vested under section 96 of the J&K Reorganization Act, 2019. S.O. no. 3808 (E) of 2020 needs to be reproduced to the extent of relevance for reference. “1. (1) This Order may be called the Union Territory of Jammu and Kashmir Reorganization (Adaptation of State Laws) Fifth Order, 2020. (2) It shall come into force with immediate effect. 2. The General Clauses Act, 1897 applies for the interpretation of this Order as it applies for the interpretation of laws in force in the territory of India. 3. With immediate effect, the Acts mentioned in the Schedule to this Order shall, until repealed or amended by a competent Legislature or other competent authority, have effect, subject to the adaptations and modifications directed by the said Schedule, or if it is so directed, shall stand repealed. 4. Where this Order requires that in any specified section or other portion of an Act, certain words shall be substituted for certain other words, or the certain words shall be omitted, such substitution or omission, as the case may be, shall, except where it is otherwise expressly provided, be made wherever the words referred to occur in that section or portion. # 7 5. The provisions of this Order which adapt or modify or repeal any law so as to alter the manner in which, the authority by which or the law under or in accordance with which, any powers are exercisable, shall not render invalid any notification, order, commitment, attachment, bye-law, rule or regulation duly made or issued, or anything duly done before the 31st October, 2019; and any such notification, order, commitment, attachment, bye-law, rule, regulation or anything may be revoked, varied or undone in the like manner, to the like extent and in the like circumstances as if it had been made, issued or done after the commencement of this Order by the competent authority and in accordance with the provisions then applicable to such case. 6. The repeal or amendment of any law specified in the Schedule to this Order shall not affect— (a) the previous operation of any law so repealed or anything duly done or suffered there under; (b) any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed; (c) any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or (d) any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the Jammu and Kashmir Reorganization Act, 2019 (34 of 2019) or this Order had not been passed or issued.” 14) Before delving into the understanding of the changed position of law borne out of deletion of sub section 2 of section 21 of the Agrarian Reforms Act, 1976, it would be serving the correct course of understanding to bear in perspective that amendment of law in reference is not falling in realm of repeal of statute but in the field of omission of a provision of an existing statute and this aspect bears importance. Effects of a repeal of a statute and an omission of a provision of an existing statute do not proceed on flight of same legal principle of interpretation as has been noticed in 2002 (7) SCC 1 General Finance Co. & An. V/s Assistant Commissioner of Income Tax and 2000 AIR SC 811 Kolhapur Sugarcane Works Ltd. & An V/s Union of India & Ors. 15) How repeal of a statute or an omission of a provision of an existing statute is meant to be appreciated/understood has been spelled 8 out in 2000 (2) SCC 536, Kolhapur Cane Sugar Works Ltd. in para 37 “The position is well-known that at common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statute book as completely as if it had never been passed, and the statute must be considered as a law that never existed. To this Rule, an exception is engrafted by the provisions of Section 6(1). If a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings, all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in Section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the Legislature is that the pending proceeding shall not continue but a fresh proceeding for the same purpose may be initiated under the new provision.” 16) Now by deletion of sub section 2 of section 21 of the Agrarian Reforms Act, 1976, one thing is as clear as sky that is from the date of deletion of said sub section from the text of the Agrarian Reforms Act, 1976, there is to be found no concept of and scope for revision with respect to any order as may now come to be passed under the dispensation of the Agrarian Reforms Act 1976. Any person who may come to feel aggrieved of any original or appellate order passed in any proceeding/s, present or prospective, under the Agrarian Reforms Act, 1976 will have no remedy of revision by any stretch of reference. However whether the deletion of sub section 2 of section 21 of the Agrarian 9 Reforms Act, 1976 meant to efface all the revision petitions already pending in the Jammu & Kashmir Special Tribunal is a situation in which the Jammu & Kashmir Special Tribunal is found to be lost in its way and wisdom needing to be put on track. 17) Repeal/omission of any given statue or any provision thereof, by all necessary implications, carry and create consequences attending or befalling either on the substantive law rights/liabilities given and/or governed by the statue or its particular provision suffering repeal or omission, or on the adjective law by which the substantive law rights/liabilities are enforced/affected through mode and manner prescribed. Thus, repeal/omission of a statue/provision of a statue more often than not germinates issue as to whether repealing/omission operates prospectively or retrospectively. There is no second thought to the proposition that when it is with respect to substantive law specific the repeal/omission is invariably prospective in nature. In 2011 (6) SCC 739, Thirmalai Chemicals Ltd. Vs UOI in para 26 sums up legal position as follow, “Therefore, unless the language used plainly manifests in express terms or by necessary implication a contrary intention a statute divesting vested rights is to be construed as prospective, a statute merely procedural is to be construed as retrospective and a statute which while procedural in its character, affects vested rights adversely is to be construed as prospective.” 18) It is in the light of the legal position so obtaining with respect to a deletion of a provision that the operative effect of deletion of sub section 2 of section 21 vide S.O 3808(E) of 2020 is to be seen and addressed from three scenarios. In the present case, S.O 3808(E) of 2020 itself has taken care to address to the point that in carrying out its interpretations the provisions of the General Clauses Act, 1897 will apply and further that the repeal/amendment specified in the Schedule to the said S.O 10 shall not affect any right/privilege/obligation/liability acquired/accrured/incurred under any law so repealed and any investigation/legal proceeding/ remedy in respect of any such right/privilege/obligation/ liability/penalty/forfeiture or punishment and thus any such investigation/legal proceeding/remedy is to continue as if the said S.O 3808(E) of 2020 has not been passed. 19) First scenario is self-obvious that after S.O. 3808(E) of 2020 now against any final order as may come to be passed in any given case by the Commissioner Agrarian Reforms in exercise of jurisdiction vested under the Agrarian Reforms Act, 1976, then an aggrieved person will no longer have revision as remedy to challenge and get rid of the final order of the Commissioner Agrarian Reforms. 20) Second scenario is that in a case if a final order has already been passed by a Commissioner Agrarian Reforms before coming into operation the deletion of sub section 2 of section 21 by S.O.3808(E) of 2020 but against that an aggrieved person intends to invoke the remedy of revision after deletion of sub section 2 of section 21, then whether the remedy of revision is to be available or not to such an aggrieved person. 21) Third scenario is with respect to the status and fate of already pending revision petition/s under section 21(2) of the Agrarian Reforms Act, 1976 before the coming into play of S.O.3808(E) of 2020 and it is this/these revision petition/s whose fate is in a suspended state before the Jammu & Kashmir Special Tribunal as being the revisional forum. It is with respect this situation that this court intends to purge the confusion. 22) A bare perusal of the S.O.3808(E) of 2020 would self suggest and recommend that its clause 6 (h) is taking care of the effects and after- 11 effects of the repealing of sub section 2 of section 21 by a clear statement that repeal shall not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, already acquired/earned/suffered. 23) A question begs reference as to whether remedy of revision, under pre-amended section 21(2) of the Agrarian Reforms Act 1976, was a right of substantive nature or procedural nature. Section 21 of the Agrarian Reforms Act, 1976 carried in its womb the appeal and revision remedy as is evident from the text of section 21 as originally framed in the Statute. Section 21 (1) and (2) are reproduced here under : “ Section 21. Appeals and revisions. — (1) Any person aggrieved by a final order of a Collector or a Revenue Officer of a class lower than that of a Collector may prefer an appeal to the Commissioner having jurisdiction in the area to which the appeal relates. [(2) The Revenue Minister may at any time call for the record of any case in which a Tehsildar or an Assistant commissioner has passed orders in respect of any evacuees land or State land or of any case in which Commissioner has passed final order and if he finds that a question of law or public interest is involved in the case, he may pass such orders thereon as he thinks fit: Provided that no order shall be passed against any party without affording that party an opportunity of being heard.]” 24) An appeal is reckoned to be a substantive right whereas the mode and manner with respect to institution of appeal are matter of procedure. In 2011 (6) SCC 739, Thirumalai Chemicals Ltd., it has been held and confirmed that a right conferred on a party to file appeal is a substantive right whereas form & time of appeal are matter of procedure. 25) Now, the revisional power as obtained in terms of sub-section 2 of section 21 of the Agrarian Reforms Act, 1976 was a provision of immense legal import and effect in as much as with respect to any final order passed by the Commissioner Agrarian Reforms with respect to issue of rights and liabilities in the context of extinguishing/vesting/restoration 12 of ownership rights qua the agricultural land, any aggrieved person was entitled to call in question any given final order before the revisional authority of Jammu & Kashmir Special Tribunal on a question of law or public interest. Thus, sub-section 2 of section 21 was a remedial provision of substantive nature akin to the remedial right of appeal under sub-section 1 of section 21. In view of this, the right of revision is to be counted as substantive right having got vested in the aggrieved person who came to suffer passing of any adverse final order, by the Commissioner Agrarian Reforms against which a revision petition by reference to sub-section 2 of section 21 of the Agrarian Reforms Act, 1976 had come to be filed before the Jammu & Kashmir Special Tribunal. If a right of appeal in any given lis is being reckoned and recognized to be a right of substantive nature, which is the position governing the right of appeal as provided under sub-section 1 of section 21 of the Agrarian Reforms Act, 1976 then this Court sees the right of revision under sub-section 2 of section 21 of no less in character and composition to be fully recognized as the right of substantive nature as compared to the right of appeal under the vey said Agrarian Reforms Act, 1976. If question of law or public interest are determinable in all the pending revisions then said revisions cannot be held to be a matter of just procedural one in character and nature. Thus the deletion of sub- section 2 of section 21 will be of prospective in nature quo already acquired/vested right of revision against a final order in the case under the Agrarian Reforms Act, 1976. 26) Thus, the intent and import of S.O no. 3808(E) of 2020 by no stretch of imagination could be seen and meant to be disabling the Jammu & Kashmir Special Tribunal from carrying forward the adjudication of all the pending revision petitions filed under sub-section 2 of section 21 of the Agrarian Reforms Act, 1976. Any law be it 13 procedural or substantive does not intend to create chaos and stalemate particularly when the law pertains to the substantive rights to be attended by adjective side of the legal dispensation and as such, all the pending revision cases under the provisions of the Agrarian Reforms Act, 1976 before coming into operation of the Reorganization Act, 2019 read with S.O no. 3808(E) of 2020, shall be resumed for hearing and adjudication on merits by the Jammu and Kashmir Special Tribunal. Disposed of. Copy of this judgement be forwarded to Registrar, Jammu & Kashmir Special Tribunal for notice and compliance. (RAHUL BHARTI) JUDGE SRINAGAR 19-12-2022 Shameem H. Whether the order is speaking : Yes Whether the order is reportable: Yes "