Jammu & Kashmir High Court - Srinagar Bench
Manzoor Hussain And Another vs Ut Of Ladakh And Others on 7 July, 2022
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
NISSAR A BHAT
2022.07.08 11:47
Regular Cause list
Serial No. 82
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP (C) 1408/2022
CM (3382/2022)
Caveat 1160/2022
Manzoor Hussain and another
... Petitioner/Appellant(s)
Through: Mr. Shuja ul Haq, Advocate
V/s
UT of Ladakh and others
Through: Mr. T. M. Shamsi, Advocate
Mr. S. A. Makroo, Sr. Adv. with Mr. Mohammad Iqbal, Adv.
Mr. Basharat A. Wani, Adv.
... Respondent(s)
CORAM: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
ORDER
07-07-2022
1. Caveat discharged.
2. The petitioners are aggrieved of and have challenged the order dated 28.6.2022 passed by Principal District Judge Kargil in exercise of powers of Divisional Commissioner, Kargil, conferred upon him under SRO 1 of 1981 dated 1.1.1981, whereby the appeal preferred by the petitioners against notices dated 12.4.2022, 24.3.2022 and 29.3.2022 issued by Assistant Commissioner Revenue, Kargil, has been dismissed.
3. Briefly stating, the facts leading to the filing of the instant petition are that respondent no. 5 feeling aggrieved by the mutation order passed by tehsildar Kargil filed an appeal before the Additional Deputy Commissioner, Kargil. The Additional WP (C) 1408 of 2022 Page 2 of 8 Deputy Commissioner, Kargil has been conferred upon the powers of Collector under SR0 536 dated 13.12.1996.
4. The appeal was entertainment by the Additional Deputy Commissioner, Kargil. It appears that later on, an application was moved by private respondent no. 5 before the Deputy Commissioner, Kargil, seeking transfer of the appeal to any competent revenue court of jurisdiction. The application was allowed and the appeal filed by respondent no. 5, which was pending adjudication before the Additional Deputy Commissioner, Kargil, was transferred to Assistant Commissioner Revenue, Kargil. The Assistant Commissioner Revenue Kargil initiated the process of hearing the appeal and issued several notices to the petitioners herein to appear before him.
5. The petitioners instead of responding to the notice issued by Assistant Commissioner Revenue, Kargil, filed an appeal before the Principal District Judge, Kargil, (with the powers of Divisional Commissioner, Kargil having the jurisdiction in the district of Kargil). The appeal was filed by the petitioners primarily on the ground that the Assistant Commissioner Revenue Kargil is not competent to hear the appeal against the mutation attested by tehsildar in his capacity as Assistant Collector class-I. It was contended by the petitioners that the appeal against the order of the Assistant Collector class-I or class-II lies before the Collector, and the Assistant Commissioner WP (C) 1408 of 2022 Page 3 of 8 revenue Kargil being only Assistant Collector class-I is not a designated authority to hear the appeal.
6. The Principal District Judge did not agree with the learned counsel for the petitioners and accordingly dismissed the appeal of the petitioners. This is how the petitioners are before this court.
7. Having heard learned counsel for the parties and perused the record, I am of the view that the impugned order passed by the Principal District Judge Kargil in exercise of powers of Divisional Commissioner Kargil having jurisdiction in relation to district Kargil, is not maintainable in law. Indisputably the tehsildar has attested the mutation under the Land Revenue Act in his capacity as Assistant Collector first class, and, therefore, under section 11 of the Jammu and Kashmir Land Revenue Act, Samvat 1996, ["The Act"]of the order passed by the Assistant Collector of either classes, is appealable before the Collector.
8. Admittedly the Assistant Commissioner Revenue Kargil is not a „Collector‟ under the Act. To appreciate the point in issue in a better manner, it is necessary to advert to section 6 of the Land Revenue Act, which enumerates the classes of revenue officers. For facility of reference, section 6 of the Land Revenue Act is reproduced hereunder:
[6. Classes of Revenue Officers. -- (1) There shall be the following classes of Revenue officers namely: --
(a) the Financial Commissioner;
(b) the 2[Divisional Commissioner;]
(c) the Collector;
(d) the Assistant Collector of the first class;WP (C) 1408 of 2022 Page 4 of 8
(e) the Assistant Collector of the second class. (2) The Deputy Commissioner of a District shall be the Collector thereof; and an Assistant Commissioner and a Tehsildar shall be an Assistant Collector of the first class and a Naib-Tehsildar an Assistant Collector of the second class.
Unless the Government issues a notification to the contrary, the jurisdiction of the Financial Commissioner shall extend to the whole of the State and of 2[Divisional Commissioners] to the Provinces and of Collectors and Assistant Collectors to the Districts and Tehsils respectively in which they are employed.
(3) The Government may by notification confer on any person--
(a) all or any of the powers of a Financial Commissioner, 1 [Divisional Commissioner] or Collector under this Act, or
(b) all or any of the powers with which an Assistant Collector maybe invested thereunder; and may by notification withdraw any powers so conferred.
(4) A person on whom powers are conferred under sub-section (4) shall exercise these powers within such local limits and in such classes of cases as the Government may direct and, except as otherwise directed by the Government, shall, for all purposes connected with the exercise 1 thereof, be declared to be a Financial Commissioner, [Divisional Commissioner], Collector or Assistant Collector, as the case may be.
[(5-a) The Government may, by notification in the Government Gazette, confer on an Assistant Commissioner or Assistant Settlement Officer the powers of Collector and such Collector shall exercise those powers in respect of such cases under this Act or any other law for the time being in force as may be transferred to him by the Collector from time to time.] (5) The [Divisional Commissioner] and the Collector, shall respectively include the Settlement Commissioner and Settlement Officer and the Assistant Collector of the first class shall include Assistant Settlement officer and the Settlement Tehsildar, and Assistant Collector of the second class shall include the Settlement Naib Tehsildar:
Provided that, the jurisdiction of Settlement Commissioner Settlement officers, Assistant Settlement officers, Settlement Tehsildars and Naib Tehsildars shall extend only to the tracts under settlement:
Provided further that, the officers other than those specified in the first proviso shall, unless otherwise directed by the Government, not exercise jurisdiction in regard to cases arising out of Settlement operations.]
9. From bare reading of section 6, it is evident that neither the tehsildar nor the Assistant Commissioner Revenue Kargil are the revenue officers for the purpose of implementation of provisions of the Act. Even the Deputy Commissioner, does not figure amongst the revenue officers indicated under section 6 of the Act. As is apparent from sub-section 2 of section 6, the Deputy WP (C) 1408 of 2022 Page 5 of 8 Commissioner of the district is ex officio Collector of the district and similarly the Assistant Commissioner and Tehsildar are ex- officio Assistant Collector of Class-I. The Naib Tehsildar is however an Assistant Collector of Class-II. At this juncture it is necessary to refer to provisions of section 11 dealing with the appeal. For facility of reference, section 11 too is reproduced here under, which reads:
[11. Appeals. -- Save as otherwise provided by this Act, an appeal shall lie from an original or appellate order of a Revenue officer as follows, namely: --
(a) to the Collector when the order is made by an Assistant Collector of either class;
(b) to the 2[Divisional Commissioner] when the order is made by aCollector;
(c) to the Financial Commissioner when the order is made by a 2 [Divisional Commissioner]:
Provided that,--
(1) where an original order is confirmed on first appeal, no further appeal shall lie except on the grounds mentioned in clauses
(a), (b) and
(c) of sub-section (1) of section 100 of the Code of Civil Procedure,1977;
(2) where any such order is modified or reversed on appeal by the 2 Collector, the order made by the [Divisional Commissioner] on further appeal, if any, to him shall be final;
(3) the Government may especially empower an Assistant Collector of the first class to hear appeals against the orders of an Assistant Collector of the second Class.]
10. From plain reading of clause (a) of section 11 it is crystal clear that an appeal shall lie from an original or appellate order of Assistant Collector class-I or class-II before the Collector and Collector alone. True it is that in terms of section 10, the Financial Commissioner, the Divisional Commissioner, or the collector is empowered to withdraw any case pending before any revenue officer under his control and either dispose of the matter WP (C) 1408 of 2022 Page 6 of 8 himself or refer it for disposal to any other revenue officer under his control, it is this provision which is pressed into service by the learned council for respondent no. 5.
11. Before I proceed to deal with the argument of Mr Makroo, learned counsel for respondent no. 5, it is necessary to set out section 10 of the Act as well, which reads as under:
10. Power to withdraw and transfer cases.-- The Financial 2Commissioner or a [Divisional Commissioner] or a Collector may withdraw any case pending before any Revenue officer under his control and either dispose of it himself, or by written order refer it for disposal to any other Revenue Officer under his control].
5[10-A. Exercise of powers by Revenue officers, -- An order under section 9 or section 10 shall not empower any officer to exercise any powers or deal with any business which he would not be competent to exercise or deal with within the local limits of his own jurisdiction.]
12. From the plain reading of section 10 it clearly transpires that the Financial Commissioner, Divisional Commissioner or the Collector has been given the power to withdraw any case pending before any revenue officer under his control, and he can either dispose of the matter himself or by the written order refer it for disposal to any other revenue officer under his control. The expression "any other revenue officer under his control" is required to be understood to mean that an officer who, otherwise has jurisdiction to hear the matter referred to it for disposal.
13. If the interpretation put by Mr. Makroo, learned counsel for the respondent no. 5, is accepted then there is every possibility that the Financial Commissioner, Divisional Commissioner or the Collector, as the case may be, may transfer an appeal against the WP (C) 1408 of 2022 Page 7 of 8 order of Assistant Collector class-I to Assistant Collector class-II. If this is allowed to happen, then the Naib tehsildar would be hearing an appeal against the orders of tehsildar. Such a course cannot be countenanced. We cannot interpret a provision in a manner that gives absurd results and makes provision itself unworkable. Section 10 of the Act is, therefore, required to be understood to mean that the Financial Commissioner or the Divisional Commissioner may withdraw any case pending before any revenue officer under his control and transfer it for disposal to any other revenue officer under his control having jurisdiction to hear such case. Similarly, the Collector too can withdraw any case pending before any revenue officer under his control and either dispose of the matter himself or refer it for disposal to any other revenue officer under his control, provided he has jurisdiction to hear and dispose of such case. Once we understand the provision of section 10 in this manner, there would be left no doubt that the Deputy Commissioner, Kargil, exercising the powers of Collector could not have transferred the appeal from the Additional Deputy Commissioner (Collector) to the Assistant Commissioner Revenue (Assistant Commissioner class-I) for the simple reason that the Assistant Collector class-I does not have jurisdiction to hear the appeal passed by another revenue officer who also exercises powers of Assistant Collector first-class. This is so evident from section 11.
WP (C) 1408 of 2022 Page 8 of 8
14. For the foregoing reasons this petition is allowed. The impugned order dated 28.6.2022 passed by Principal District Judge Kargil is quashed. The Assistant Commissioner Revenue Kargil shall immediately and forthwith transmit the records of the case to the Deputy Commissioner, Kargil, who shall himself hear and dispose of the matter. It would be appreciated if the Deputy Commissioner (Collector of the district), despite his busy schedule, makes an effort to dispose of this appeal on priority and, in any case, within a period of two months.
15. Disposed of.
(SANJEEV KUMAR) JUDGE Srinagar 7-07-2022 N Ahmad