J&K Agrarian Reforms Act | Land Ownership Entry In Khasra Girdawari Can't Be Unilaterally Changed Or Altered Without Hearing: High Court

Citing Rule 4 of the J&K Agrarian Reforms Rules, 1976 a bench of Justice Sanjeev Kumar explained that disputes relating to Girdawari entries raised in the course of attestation of mutations under clause IV of the Act can be corrected by the Revenue Officer not below the rank of Tehsildar, however the same can only be done after conducting an inquiry on spot and providing an opportunity of being heard to all the concerned.

Justice Kumar made these observations in a case where petitioner Ali Mohammad Mir and others challenged an order passed by the Jammu and Kashmir Special Tribunal that had upheld the correction of a Khasra Girdawari entry related to 5 Kanals of land in village Bidder Hayatpora.

The petitioners' father had approached the Tehsildar in 1987, seeking correction of the Khasra Girdawari entry for the year 1971 to show him in possession of the land. The Tehsildar corrected the entry and subsequently attested a mutation under Section 4 of the Jammu and Kashmir Agrarian Reforms Act, 1976, making the petitioners' father the prospective owner.

However, the daughter of another co-sharer in the land challenged this order through an appeal. Both the appellate authority and the Tribunal ruled in her favor, cancelling the mutations on the grounds that the Tehsildar had not followed proper procedure and had not heard all the stakeholders.

The petitioners argued before the High Court that the authorities below had erred in not considering the locus standi of the respondent to challenge the order and had wrongly condoned a delay of 37 years in filing the appeal.

The High Court, while acknowledging that the land was not amenable to vesting in the State under Section 4 of the Act, observed that this provision only applies when the owner is not in cultivating possession.

“That being the recorded position, the land was not amenable to be vested in the State by operation of Section 4 of the Act. Section 4 of the Act comes into action only when an owner of land, as defined under the Agrarian Reforms Act, is found not in cultivating possession in Kharif 1971”, the bench recorded.

Emphasising the presumption of correctness attached to Khasra Girdawari entries and the need for following proper procedure for corrections the bench said that there is a presumption about the correctness of the Khasra Girdawari entries, and the person who disputes such entry/entries has to demonstrate by leading evidence to the contrary.

The Court further noted that Rule 4 of the Rules of 1976 mandates a proper inquiry by a Revenue Officer (not below the rank of Tehsildar) with an opportunity to be heard for all concerned parties before changing a Khasra Girdawari entry.

Elaborating as to who constitutes “concerned parties” as per the rules Justice Kumar elucidated that all concerned would necessarily include the owner/owners and the person/persons who is/are recorded in personal cultivation of the land in the particular Girdawari entry or are otherwise likely to be adversely affected by change or alteration of the Girdarwari entry.

It added, “Not only that the Revenue Officer is required to conduct an inquiry, but he is also required to return his findings either in support of confirming the impugned entry or indicating what entry should be made. However, when an entry objected to by a party is corrected in terms of Rule 4 (1) by a revenue officer higher in rank than a Tehsildar, then the Tehsildar disposing of mutations under clause IV of the Act shall abide by such corrected/altered entry”.

Upon scrutinising the mutation under Section 4 in the instant case the court pointed that no co-sharer other than Shyam Lal Koul were present at the time of attestation of mutation and added, “There is nothing on record to show that they were ever put on notice before correction of entry/entries of Girdawari Kharif 1971 and attestation of mutation under Section 4”.

“In the instant case, the whole procedure laid down in Rule 4 was thrown to the wind by the Tehsildar concerned”, the bench remarked.

The bench thus upheld the cancellation of the mutations but disagreed with the direction to remand the matter under the Jammu and Kashmir Migrant Immovable Property Act 1997. Instead, the Court directed the Tehsildar to conduct a fresh inquiry following proper procedure and considering all stakeholders, including the original owners and the petitioners.

Case Title: Ali Mohammad Mir and Ors Vs State Of J&K

Citation: 2024 LiveLaw (JKL) 94

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