Full Judgment
G.D. Sharma, J.
1. The petitioner No. 2 is a Trust known as 'Maa Mai Trust'. Petitioner No. 1, namely, Mr. B. M. Chopra is its Secretary and a resident of Delhi. The petitioners through the medium of this petition purported to be filed under Article 226 of the Constitution of India read with Section 103 of the Constitution of Jammu and Kashmir, have sought the issuance of writ of certiorart quashing the communication bearing No. 601/PA/437-38 dated 20-1-1994 issued by respondent No. 1 (Divisional Commissioner, Jammu) to respondent No. 2 as well as setting aside order No. DC/Udh-PA/94/748-50 dated 16-6-1994 passed by the latter. In the communication issued by respondent No. 1 (supra) a direction has been given for the cancellation of mutation No. 1224. The said mutation was attested by respondent No. 4 in respect of land measuring 5 Kanals comprising of Khasra No. 743/28, Khewat No. 35/36, Khata No. 362/247 situate in village Kund Drorian, Tehsil Reasi. The abovesaid land was taken on lease by the aforesaid Trust in lieu of the lease deeds executed and registered on July 11, 1992 before the Sub-Registrar, Reasi. It is pleaded that the petitioner-Trust was making preparations for utilising the land for commercial purposes, but without any notice, the direction/guideline has been issued for the cancellation of mutation No. 1224 that respondents No. 1, 2 and 3 are not the recognized authorities under the Act to issue any direction or to cancel any mutation or to order that the land in question should be escheated to the State. That all this has been done without any express authority of law as well as in violation of the principles of natural justice and to the provisions of the J. & K. Agrarian Reforms Act. At no point, the petitioner was given any opportunity of being heard. That these orders/communications/directions are illegal and arbitrary and they infringe the fundamental rights of the petitioners and require to be set aside.
2. In their objections, the respondents pleaded that no fundamental, legal or statutory right of the petitioners was involved, and as such, the writ petition was not maintainable. It is also pleaded that in the presence of disabling Section 28-A the land in question could not be given on lease and respondent No. 4 was prohibited from affecting any transfer. That the lessor had purchased the land from the tenant on whom the proprietary rights under Section 8 of the Act were conferred. There was legal inhibition for transferring any such land but the 'prospective owner' affected the transfer against the mandates of law. In view of such void transfer, no right, title or interest could be transferred in favour of the lessor, and consequently, he could not by executing the lease deeds transfer any right or interest. The alienation of the land has been effected by all the concerned parties in violation of the express provisions of law and the land has to escheat to the State. That respondent No. 4 had exceeded his authority and acted without any jurisdiction. The land in question is not 'Banjar Jadeed' and 'Gair Mumkin', but 'Warhal Awal' and 'Gair Mumkin Aar Bana'. It thus falls within the definition of 'agricultural land' as defined under Section 2 of the J. & K. Agrarian Reforms Act, 1976 (hereinafter to be referred to as 'Act'), and could not be made the subject matter of any transfer. It is lastly pleaded that the order for the cancellation of the mutation was validly passed.
3. The case came up for consideration of its admission, but the learned counsel appearing for the parties agreed that it can be decided finally on the pattern of the order passed in O.W.P. No. 481/1994 titled : Babu Ram Dubey and another v. State.
4. On the abovesaid statement, the following order is passed:
'The order cancelling mutation No. 1224 (attested by respondent No. 4) is quashed but the respondents are free to get the inquiry conducted as to whether the land in question was leased out in contravention of the provisions of the Act.'
5. Before parting with this case, it is said by way of an epilogue that respondent No. 1 (Divisional Commissioner, Jammu) in his communication bearing No. 601/PA/437-38 dated 20-1-1994 addressed to respondent No. 2 (Deputy Commissioner/Collector Agrarian Reforms, Udhampur) had made certain observations/ directions which fell beyond his statutory authority. They are found in para No. 7 and are to the following effect:--
'(7) It is clear from the position explained above about the mutations mentioned in para 3, 5 and 6 that there is no need of going into appeal against the orders passed on these mutations which will take years together withno result. However, if necessary the mutations orders can be reviewed by the officer under Land Revenue Act or his successor in office suo moto after seeking permission from the Revenue Officer under whose control he is under Section 13 of Land Revenue Act.'
6. By stating so, respondent No. 1 has stated that there is no need in going into appeal and the mutation orders can be reviewed under the provisions of Land Revenue Act. There are more than forty such mutation orders which are stated to have been attested by respondent No. 4 against the express provisions of the Act.
7. Section 32 provides that the provisions of the Act and the rules made and instructions issued thereunder shall have effect notwithstanding anything contained in any other law or any custom or usage or in any contract, express or implied, or in any instrument inconsistent with the provisions of this Act. Section 21 provides the remedy of appeal and revision. Section 18 deals with appointment, superintendence and control of Revenue officers under the Act, and in the hierarchy the Divisional Commissioner does not figure anywhere. Being a non-entity under the Act (which has the over-riding effect on any other inconsistent law) respondent No. 1 had issued the Instructions/guidelines which had the tendentious effect of rendering the above stated provisions as nugatory or redundant. The statutory rights vested in the parties for filing the appeal or revision could not be taken away by any administrative order, instruction or guideline. The present litigation is an out-come of this mechanical and arbitrary exercise of discretion on the part of respondent No. 1. It may be stated that some other effected persons have also challenged this un-called executive exuberance of respondent No. 1. Had respondent No. 1 been little careful in acquainting himself with relevant law, he would not have issued the guidelines/directions in question in this form and the petitioner herein along with other effected persons saved from being dragged in unnecessary litigation. This act of respondent No. 1 was so palpably wrong and perverse that his counsel could not at the threshold defend it. The maxim higher the post greater the responsibility applies in all fours to the facts of the present case.
8. With these observations, it is reiterated that necessary steps for getting the mutation in question cancelled, be taken by such a person who has locus standi under the Act. All the necessary parties who are going to be effected shall be heard before any order is passed. Such an inquiry be got completed within a period of six months. Copy of this judgment be sent to the Financial Commissioner, J&K; (who is also Commissioner under the Act) for getting the needful done.