Jammu & Kashmir High Court
Abdul Gani Wani vs Financial Commissioner And Ors. on 4 December, 2006
Equivalent citations: 2007(3)JKJ162
Author: Mansoor Ahmad Mir
Bench: Mansoor Ahmad Mir
JUDGMENT Mansoor Ahmad Mir, J.
1. Through the medium of this writ petition, petitioners have sought writ of certiorari for quashing order No. S/Misc/80 dated 20-9-1980 passed by respondent No. 1 in the capacity as Financial Commissioner, J&K Government, on the grounds taken in the writ petition.
2. It appears that original writ petitioner; Abdul Gani Wani had filed a suit for permanent injunction. There-after he filed another suit for declaration and permanent injunction, claiming title in respect of land measuring 21 kanals falling under khasra No. 1162 of village Novvhatta, known as Khashkhashbagh, on the basis of adverse possession. The said suit is pending adjudication before the trial Court till date. It appears that during pendency of the suit, petitioner had moved an application for grant of ad-interim relief which came to be dismissed and feeling aggrieved, the writ petitioner filed appeal before Additional District Judge, Srinagar, it dismissed the appeal, affirming the order of the trial court. Feeling aggrieved of the said order, the writ petitioner filed a revision before this Court which came to be allowed vide order dated 16-9-1978 and directions came to be passed. In terms of those directions passed by this Court, the file came up before the trial Court and it again dismissed the application for grant of interim relief. Feeling aggrieved, the petitioner again preferred appeal against the said order before District Judge, Srinagar which came to be assigned to Additional District Judge, Srinagar, it dismissed the said appeal vide order dated 22-8-1990. Feeling aggrieved of the said order, the writ petitioners filed revision petition No. 19/1990 which came to be allowed vide order dated 20-7-2005 with the direction to the appellate Court to hear the appeal afresh. The said appeal is still pending adjudication before the Additional District Judge, Srinagar.
3. Original petitioner, in this petition had pleaded that the impugned order came to be passed at his back which has seriously affected his rights, because the revenue entry which was existing in his name came to be rectified and his name came to be removed from the revenue records. Further he has prayed that the matter was subjudice before the civil Court and so many orders came to be passed by the trial court, appellate Court and the revisional court, respondent No. 1 should not have passed the impugned order. He has accordingly prayed that the impugned order be quashed and the entries which were existing prior to the passing of the impugned order vis-a-vis land in dispute be restored.
4. Respondent No. 1 has resisted the writ petition op the grounds taken in the counter. It is profitable to reproduce paras 6 and 8 of the reply hereunder:
6. As regards para 6 of the writ petition, it is submitted that as per true record, it is revealed that the land in question was in the possession of the Jail authorities, being Nazool land. Vide Government order No. 46 of 1973 dated 28-1-1973, the suit land among other pieces of land was transferred to Srinagar Development Authority. The said authority made plots of it and sold it to various persons for residential purposes. The possession was also transferred. It was not known to the deponent if any suit has been filed by the petitioner against the persons mentioned in this para. Assuming it to be so, it will not bind the answering respondents, because they are not parties to the said so called decree.
x x x x x x x x x x x x
8. As regards para 8 of the writ petition, it is submitted that the impugned order makes it amply clear that tampering and interpolations which have taken place have not been carried over to Khatooni which is prepared from the Khasra Paimaish in respect of each land holder. It is after preparation of the Khatooni that the record of rights for a village is prepared in which also no change has been made. In view of the glaring and un-answerable discrepancies that petitioner was not at all entitled to a hearing
5. Learned Counsel for the respondents while advancing his arguments stated that during the pendency of the writ petition and the suits, land in question came to be allotted to the Srinagar Development Authority who after developing it into residential plots allotted the same to so many persons. He further argued that the order came to be passed by respondent No. 1 in administrative capacity, as such writ petition is not maintainable.
6. Petitioner has pleaded that he has title over the property by way of adverse possession. The said question can not be gone into by this Court in its writ jurisdiction and more so when already several suits are pending adjudication on the Said issue and prayed that the writ petition be dismissed.
After considering the pleadings and rival contentions of the parties, following two points emerge which warrant consideration:
1) Whether the impugned order is an order under Section 8 or 15 of the Land Revenue Act?
2) Whether the disputed questions of fact are involved in this writ petition?
7. In order to determine the issue-1, it is necessary to notice Section 8 of the Land Revenue Act (for short the Act):
8. Control.--(1) The general superintendence and control over all Revenue Officers shall be vested with the Government.
(2) The Divisional Commissioner, the Collector and Assistant Collectors shall be subordinate to and under the control of the Financial Commissioner.
(3) Subject to the control of the Financial Commissioner, the Collectors shall be subordinate to and under the control of a Divisional Commissioner.
(4) Subject as aforesaid and to the control of the Divisional Commissioner, all other Revenue Officers in his district shall be subordinate to and under the control of a Collector.
(5) Subject as aforesaid and to the control of Collector, an Assistant Collector of the second class shall be subordinate to and under the control of an Assistant Collector of the first class.
8. This provision clearly provides that the Financial Commissioner has administrative control and can examine, peruse revenue record and pass necessary administrative directions. In the given case, it appears that the revenue agency and the appellate agency detected tampering in the revenue record and accordingly matter was enquired into and report was submitted to the Financial Commissioner who after perusing the report and me record passed administrative directions that the entries be rectified and erring officials be brought to book. This is clearly and purely an administrative action and could be passed under Section 8 of the Land Revenue Act. By no stretch of imagination, it could be said that the impugned order has been passed under Section 15 of the Act. It is beaten law of the land that when an order is passed on administrative side, that can not be questioned by way of a writ petition. I am fortified in my view by a judgment of this Court in case Ghulam Rasool Dar v. State and Ors. 2004 (2) JKJ 43 (HC), para 3 whereof, in so far it is relevant for the present case reads as under:
...From record and in the light of the submissions of Ld. Counsel for the parties, it is seen that respondent No. 4 filed revision against some entries made in Girdawari in the year 1999 in respect of land measuring 3 kanals and 10 mar las situated at estate Batamaloo Tehsil Srinagar., While dismissing this Revision on 3-7-2001 as not maintainable, the Financial Commissioner treated the application as one required to be processed under Section 8 of the Land Revenue act under General Superintendence and Control over revenue officers by the Financial Commissioner. Treating the application so when the matter came before Financial Commissioner, the Financial Commissioner passed above referred impugned order on 24-8-2001. Obviously the direction inter-alia with regard to possession is in exercise of powers of General Superintendence and control over revenue officers on administrative side. The Financial Commissioner who is heading the revenue Department has passed order under Section 8 and not under Section 15 of the Lands Revenue act. Even so the direction is expressly made subject to out come of the civil suit between the parties. Both Counsel for the parties are agreed that the parties are litigating before the 2nd Additional D&S Judge, Srinagar. Obviously the question of title and/or possession is to wait the finding and decision of competent Civil Court. Any direction given or observation made with regard to possession or any entry in records with regard to such possess ion is by way of an administrative action and that too expressly made subject to out come of the decision of the civil court. The Counsel agree that question of title and possession or possessory title is to be independently gone into and determined by the competent civil Court on enquiry on evidence as envisaged under law. Any observation on administrative side or any direction like the one in this case, cannot be regarded as a decision of a forum authorized by law including Lard Revenue act, to decide the matter. Obviously entries in revenue records if any made pursuant to above direction under Section 8 of the Land Revenue Act is subject to the decision of the civil court. With regard to other limb of the impugned order touching the enquiry against the erring officials within the canopy of disciplinary action no objection can be taken, as rightly so submitted by Mr. Z.A. Shah. The competent authority/officer is free to take actions as per law
9. Applying the test to this case, the writ petition is not maintainable on this count. It is made clear that Section 8 of the Act gives ample powers to the Administrative Officers to make inspections and pass necessary administrative instructions. If a person or an official makes a false and fictitious entry and tampers with the record, is the Administrative Officer or the competent authority is competent to make corrections in the record and can take necessary action against the erring officer(s). Could such a direction be challenged by way of a writ petition. The answer is in negative. If such an administrative action would be challenged by way of a writ petition, then there will be no end to the litigation and the tampering, fictitious entries and fraudulent entries could not be rectified.
10. Admittedly, the writ petitioner has based his claim on adverse possession, which is a question of proof and can not be gone into by this Court in its writ jurisdiction. I am fortified in my view by a judgment of the apex Court delivered in case State of Karnataka v. KGSD Canteen Employees 2002 AIR SCW 212. Again the apex Court in case Antonio S.C. Pereira v. Richardina Noronha (D) 2006 AIR SCW 5155, held that disputed question of title can not be gone through by the writ Court and it is for the civil Court to decide the disputed question(s) of fact and title. It is profitable to reproduce relevant portion of the judgment hereunder-
...It is now trite that ordinarily a writ Court would not go into a disputed question of title. We have noticed some of the issues pending before different courts only for the purpose of showing that the parties are at loggerheads as regards the title of the property and in particular the legality or validity of the alterations in the terms of the Will....
11. Apex Court in cases titled State of Karnataka and Ors. v. KGSD Canteen Employees Welfare reported in 2006 AIR SC W 212 and State Bank of India v. State Bank of India Canteen Employees Union held and observed that writ Court would not go into the disputed questions of fact.
12. It is an admitted fact that civil suits are pending wherein same plea of adverse possession is taken and the civil Court has to decide the said matter. Thus disputed question of fact are involved in this writ petition. Accordingly this writ petition is not maintainable on this count also.
13. If the petitioners succeed in the suit, then the decree of civil Court is binding on the revenue courts. In terms of standing order 23-A read with Land Revenue act and the Rules, Civil Court decree is binding on the revenue officers courts and are bound to make necessary entries in the revenue record in terms of the directions of the civil court.
14. Any entry made in the revenue record is rebuttable in terms of Section 31 of the Land Revenue Act. Thus if the plaintiff succeeds in the civil suit, any direction/order passed by the revenue officer/court is subject to the decision of the trial court.
15. Whether plaintiff was recorded in the revenue records rightly or wrongly, whether it was a fictitious entry, that will not come in the way of the plaintiffs in seeking relief from the civil court.
16. With the above observations, the writ petition is dismissed. Interim direction, if any, also stands vacated.