Jammu & Kashmir High Court - Srinagar Bench
Abdullah Wani & Anr vs Financial Commissioner & Ors on 30 May, 2022
Bench: Chief Justice, Moksha Khajuria Kazmi
Sr. No. 5
Regular Cause List
IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No. 41/2022
Abdullah Wani & Anr. ...Petitioner(s)
Through: Mr. M. A. Qayoom, Adv.
Vs.
Financial Commissioner & Ors. ...Respondent(s)
Through: None for R-1 to 4.
Mr. H. Furrahi, Adv. for R-5
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MS. JUSTICE MOKSHA KHAJURIA KAZMI, JUDGE
ORDER
30.05.2022
1. The appellants preferred OWP No. 438/2014 Abdullah Wani & Anr.
vs. Financial Commissioner (Revenue) and others for the quashing of the order dated 23rd July 2012 passed by the Divisional Commissioner, Kashmir, Srinagar and the order dated 26th March 2014 passed by the Financial Commissioner, Revenue J&K Government, Srinagar/Jammu.
2. The aforesaid writ petition was dismissed vide judgment and order dated 10th March 2022. Therefore, the appellants have preferred this appeal under Clause 12 of Letters Patent.
3. Mr. M. A. Qayoom, learned counsel for the appellants has argued that the orders impugned in the writ petition are patently without jurisdiction and that the officers concerned could not have taken cognizance in the matter after the mutation proceedings have become final and conclusive with the dismissal of the appeals against the mutation orders with no further challenge. Secondly, the order of the learned Single Judge is non-speaking in nature as it does not record any reasons for dismissing the writ petition except for the fact that the MOHAMMAD ALTAF NIMA 2022.06.03 14:40 LPA I attest to the No.and accuracy 41/2022 Page 1 of 5 integrity of this document dispute projected therein needs deep and meticulous analysation of the basic point which is not possible in writ jurisdiction.
4. The appellants claim that they are owners in possession of land measuring 10 kanals and 17 marlas covered by Survey No. 2 Min Jumla situate at Bandpahoo, Shopian. However, revenue entries in context with the above land were not properly recorded in accordance with the provisions of the Agrarian Reforms Act (hereinafter referred to as the 'Act'). In view of the above, the appellants approached the concerned authorities for rectifying the revenue entries. The concerned authorities vide Mutation order 138 dated 1st April 1982 and Mutation order 143 dated 3rd March 1983 reflected the appellants as the tenants of the aforesaid land from the Kharif year 1971.
5. In terms of Section 4 and 8 of the Act, Mutation Order No. 164 dated 6th June 1985 and Mutation Order No. 165 dated 7th June 1985 came to be passed in favour of the appellants declaring and recording them as absolute owners of the aforesaid land.
6. The aforesaid mutation order Nos. 138 and 143 were challenged by the private respondents before the Additional Deputy Commissioner, having powers of the Collector/Commissioner, Agrarian Reforms by means of a statutory appeal. The appeals were dismissed as barred by time after holding that there is no sufficient cause for condoning the delay in filing the appeals vide judgment and order dated 16 th August 2011.
7. The aforesaid judgment and order dated 16th August 2011 was not challenged by the private respondents in any further forum either by means of an appeal or a revision as provided under Section 21 of the Act. There was never any challenge to the mutation orders No. 164 and 165 aforesaid. In this view of the matter, the orders of mutation attained finality and became final and conclusive.
8. The private respondents instead of assailing the above mutation entries in any higher forum moved an application before the Divisional Commissioner, Srinagar for the release of the aforesaid land from the clutches of the appellants. The Divisional Commissioner, acting upon the said application vide one of the impugned orders in the writ petition dated 23rd July 2012 recommended the matter to the Financial MOHAMMAD ALTAF NIMA 2022.06.03 14:40 LPA I attest to the No.and accuracy 41/2022 Page 2 of 5 integrity of this document Commissioner, Revenue with the recommendation that the mutation entries Nos. 138 and 143 be set aside and the Tehsildar concerned be directed to take further action in the matter in accordance with law.
9. Upon such reference, the Financial Commissioner, Revenue vide order dated 26th March 2014 accepted the recommendation of the Divisional Commissioner and ordered for setting aside all the four mutations and directed the Tehsildar concerned for de-novo enquiry and to pass a fresh mutation orders.
10. In the facts and circumstances narrated above, there is no dispute that the mutation orders 138 of 1982, 143 of 1983, 66 of 1985 and 76 of 1985 were final and conclusive after the appeals against them stood dismissed with no further agitation in the higher forum as prescribed under Section 21 of the Act.
11. The private respondents had simply moved an application for the release of the above land from the possession of the appellants and for its restoration to them claiming it to be their ancestral property. In the said application, there was no challenge to the mutation entry Nos. 138 and 143 of 1982 and 1983 respectively. The Divisional Commissioner conveniently ignoring the objection of the appellants that he is not competent to adjudicate the matter, observing that the substantial justice require that the said entries be set-aside recommended the matter to the Financial Commissioner, Revenue.
12. A reading of the order passed by the Divisional Commissioner on 23 rd July 2012 clearly reveals that the counsel for the appellants had resisted the application of the private respondents and had taken a clear stand that the court is not competent to adjudicate upon the matter, but the Divisional Commissioner failed to consider it and to record his opinion thereto. In view of the above, the order of the Divisional Commissioner suffers from non consideration of the argument of the appellants. Moreover, he does not record any reason for recommending for setting aside the above two mutation entries.
13. Learned counsel for the respondents on repeated queries could not point out and satisfy the court as to the provisions under which the Divisional Commissioner had taken cognizance of such an application of the private respondents. He simply submitted that he can take suo-
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moto action in such a matter, but we are afraid that the aforesaid action was taken by him on the application of the private respondents and not in suo-moto exercise of power as is clearly reflected from the order dated 23rd July 2012 passed by the Divisional Commissioner.
14. Learned counsel for the respondents could not even place before us any provision empowering the Financial Commissioner, Revenue to set aside the mutation orders with direction to the Tehsildar to take de- novo action.
15. It may be pertinent to mention here that the Financial Commissioner, Revenue in his order dated 26th March 2014 has observed that the appeals against the mutation having been decided, those orders cannot be challenged before his court and technically the proceedings are not maintainable before him. He has further observed that the Divisional Commissioner has exceeded his jurisdiction in dealing with the case. He however only for the reason that the aforesaid mutation entries were made within a gap of a day only doubting their correctness ordered for the setting aside of not only of the two entries recommended to be set aside, but all four of them.
16. In view of the aforesaid facts and circumstances, when the mutation entries have attained finality, and the Divisional Commissioner was having no jurisdiction to take cognizance of the matter on the above application of the private respondents, he could not have passed the order dated 23rd July 2012. This aspect of the matter has been admitted by the Financial Commissioner, Revenue also in his order dated 26th March 2014. Moreover, the application of the private respondents was for the release of the land with no prayer to set-aside the mutation entries 138 and 143, therefore, the Divisional Commissioner could not have recommended for setting aside the two entries. Consequently, the Financial Commissioner, Revenue was denuded of the power to accept the recommendation of the Divisional Commissioner particularly when he had observed that he had exceeded his jurisdiction. The Financial Commissioner (Revenue) not only set- aside the two mutation entries but all the four including 66 of 1985 and 76 of 1985 which were not even the subject matter before him in view of the recommendatory order of the Divisional Commissioner.
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17. The writ court in passing the impugned order has not assigned any reason for dismissing the writ petition. It could not have dismissed the writ petition by simply stating that the matter in the writ petition needs deep and meticulous analysation of the basic point without even pointing out to the factual aspect which needed deep and meticulous examination.
18. It is important to mention that mutation proceedings are summary in nature and the mutation entries are only for fiscal purposes. They do not confer or extinguish any right or title of any party over the land in question. Therefore, it is always open for the parties to get their right/title over the land settled taking recourse of civil proceedings.
19. In view of the totality of the facts and circumstances, we are of the opinion that none of the orders passed by the writ court dated 10 th March 2022 and those dated 23rd July 2012 and 26th March 2014 passed by the Divisional Commissioner and the Financial Commissioner, Revenue respectively are tenable and sustainable in law.
20. Accordingly, all three of them are set-aside and the appeal is allowed leaving it open for the answering respondents to take appropriate measures/recourse of law as may be advised to them under law.
(MOKSHA KHAJURIA KAZMI) (PANKAJ MITHAL)
(JUDGE) CHIEF JUSTICE
SRINAGAR
30.05.2022
Altaf
Whether the order is reportable? Yes/No
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