Jammu & Kashmir High Court
Mst. Azizi vs Mst. Fata on 31 July, 2003
Equivalent citations: 2003(3)JKJ626
JUDGMENT Syed Bashir-ud-Din, J.
1. This writ petition is directed against the order dated 9.8.2000 in file No. 103 of 2000 of Financial Commissioner Revenue where-under mutation 189 of Village Behama is annulled in revision after condoning the delay.
2. Respondent mst. Fata filed a revision before settlement Commissioner against mutation 189 of village Behama of Tehsil Ganderbal, whereby her name was removed from revenue record. The revision was resisted by present writ petitioner, respondent before the Settlement Commissioner on the ground that the revision was time barred. However, the Settlement Commissioner overruled the objections and set the revision petition for hearing on merits.
3. Petitioner mst. Azizi filed a revision against the order of Settlement Commissioner. The Financial Commissioner summoned the record and once seized of the record, he upon hearing the counsel for the parties set aside the mutation order of Tehsildar after condoning the delay and disposed of the revision on merits. This was done after Revision was withdrawn from Settlement Commissioner to its file by the Financial Commissioner.
4. The order is challenged on the ground that the Financial Commissioner condoned a delay of over 60 years and has disposed of the main revision when only application was to be decided without giving the writ petitioner adequate opportunity of being heard. Provision of Section 15 of Land Revenue Act have been violated in as much as the mutation proceedings have been reversed without giving the effected person any opportunity of being heard. The Financial Commissioner has committed jurisdictional error in passing the order in question.
5. It merits to be noted that Mst. Fata and Mst. Azizi the two daughters Succeeded to the 'Matrooqa estate' of their father as only issues and heirs. By mutation 126 of 17 Badoon 1997 B.K. both daughters succeeded in equal shares to the heritable estate of their father viz Mohd. Parray. However, by a subsequent mutation 189 of village Behama Tehsil Ganderbal, the name of Mst. Fata was removed from records and she was shown as married Berun-i-Khana', whereas mst. Azizi recorded as 'Khana-Nisheen' got this share also Mutated in her name When the father of these two daughters died, they were both Unmarried and minor and the revenue authorities came to the conclusion that in such circumstances status of 'Khana Nisheen' daughter cannot be conferred on one daughter under Customary law to the exclusion of other daughter, and therefore, the Financial Commissioner found that the above subsequent mutation was a fraud and non-est. He also came to the conclusion that no limitation period is prescribed for filing a revision under Section 15 of the Land Revenue Act, apart from that the impugned order was without jurisdiction and void ab initio not to attract any limitation. He has referred some of the decision of the court. He heard the parties on condonation as well as on merits of the case and concluded as:
"Keeping in view the above legal position, the case is in hand is a fit case for revision and such a case can not be ousted on the ground of limitation. There is absolutely no doubt about the fact that the order of Naib tehsildar on mutation No. 189 is without jurisdiction. It is also against Principles of natural justice, and hence a nullity. In such cases this Court has, consistently held that the mutating officer cannot remove the name of a daughter who has already inherited as in absolute owner. With regard to this issue the court has given a detailed judgment in Revision No. 107/AP/FC of 1996-97 dated 13.8.1997 (Mst. Hajra v. Mst. Jana) also. In view of all what has been discussed above I accept the revision petition filed against mutation No. 189 of village Behama and set-aside this mutation No. 189. The record position prior to impugned mutation restored. The revision against order of Settlement Commissioner, J&K Srinagar granting condonation of delay is also disposed of accordingly."
6. The Financial Commissioner has passed the impugned order within jurisdiction. The order does not suffer from any jurisdictional error or legal infirmity. No title or right to "Matrooqa estate" is conferred, acquired attained or otherwise dealt with by the mutation in question, Whether petitioner or respondent is to succeed to the entire or part "Martrooqa Estate" of the last estate, holder, under personal or customary Law is not a matter for the Revenue officers to determine while exercising powers to enter/record, alter or annul the mutations. For laying claim to title and ownership rights to heritable estate, on the death of last estate holder, remedy is not to contest the matter, as in this case, before Revenue authorities/officers.
7. The contention that petitioner has not been given an opportunity of being heard in the matter is negated by the impugned order itself which shows that the parties were heard not only on question of limitation but also on merits of the case in detail and the Revisional Forum has given reasons to accept the revision While setting aside the mutation No. 189 in question.
8. While exercising writ jurisdiction under Article 226, this Court is not to examine the matter as an Appellate or Revisional Court. Decision even if, erroneous cannot be corrected in writ jurisdiction.
9. In above view of the matter, the petition is dismissed at threshold.