Jammu & Kashmir High Court - Srinagar Bench
Farooq Ahmad Naikoo & Anr vs State Of J&K & Ors on 2 September, 2022
Author: Wasim Sadiq Nargal
Bench: Wasim Sadiq Nargal
S.No. 20
Final Hearing
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
OWP No. 783/2016
Farooq Ahmad Naikoo & Anr. ...Petitioner/Appellant(s)
Through: Mr. Bilal Ahmad Malla, Advocate
V/s
State of J&K & Ors. ...Respondent(s)
Through: Mr. Sheikh Mushtaq, AAG
For R-1 to 3
Mr. S.N. Ratanpuri, Advocate for R-4
CORAM: HON'BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE.
ORDER
02.09.2022 Heard learned counsel for the parties, the matter is taken up for final hearing with the consent of both the parties.
Through the medium of the present writ petition petitioners is calling in question order dated 17.03.2016, passed by the respondent no. 2 forming annexure-A to this writ petition, besides, seeking writ of prohibition, restraining respondent no. 3 and 4 from causing any unlawful, unwarranted and illegal interference with the possession of the land of the petitioners situated at Village Babapora Zainapora, which as per the petitioners they have inherited and obtained through Sale, Hibba and Will Deeds.
From the perusal of the order impugned, it is apparent that the aforesaid order has been passed in pursuant to the application filed by Mst. Naseema D/o Late Ghulam Naik R/o Khanayar, regarding implementation of order issued by the then Revenue Minister, JK dated 25th November 1983, and also mutated vide mutation No. 457 dated 10th September 1983. The Additional Commissioner, Kashmir, in pursuant to the aforesaid application and after hearing at length applicant, his counsel as well as non-applicant, who were present has observed in his order as under:-
"Case came up for hearing. Applicant and his counsel, non-applicant present, Tehsildar Zainapora, Patwari concerned present along-with the record. The case was discussed/argued at length. It came to fore that as per the order of Hon'ble Revenue Minister the mutation be attested as per the Muslim Personal Law and the applicant should get the seven shares of the property to her father. The same has been impressed upon the mutation No. 474. But the applicant has not been handed over the possession of the share of her ancestral proprietary land and the orders passed by the Revenue Minister dated 25.11.1983 has not been implemented on ground in letter and spirit. As such it is impressed upon the Patwaries and Tehsildar Zainapora that the orders passed by Revenue Minister dated 25.11.1983 impressed upon mutation No. 474 be implemented on ground. The Tehsildar is directed to hand over the possession of her share of land, but 04 kanals of land be deducted from her share which the applicant has sold to other parties. Any other mutation attested regarding this land be treated as set-aside".
The short grievance which has been projected by the petitioners before this Court is that the Additional Commissioner, Kashmir, has no power to consider the said application by way of remand order, wherein, he has impressed upon the Patwari and the Tehsildar Zainapora, that the order passed by the Revenue Minister on 25.11.1983, impressed upon mutation No.474 be implemented on ground.
I have perused the aforesaid order and the specific query was put to the learned counsel for the petitioners whether he is aggrieved of the order passed by the Revenue Minister dated 25.11.1983, and accordingly he has replied that he is not aggrieved of order passed by the Revenue Minister or Mutation No. 474 which has been implemented in pursuant to the aforesaid order.
How and under what circumstances the petitioners are aggrieved of the aforesaid order is not forth coming from the record as by virtue of the order impugned a direction was issued to the concerned Patwari and Tehsildar Zainpora, to implement the order passed by the Revenue Minister dated 25.11.1983 impressed upon the mutation No. 474 which was required to be implemented on ground, besides issuing a direction to the concerned Tehsildar to hand over the possession of the share of land of the applicant therein, besides deducting 4 kanals of land from her share which the applicant had sold to other parties. It has also been observed in the aforesaid impugned order that any other mutation attested regarding this land be treated as set aside.
No grievances was ever raised by the petitioner for all along these years and the petitioner has gladly and voluntarily accepted the order passed by the Revenue Minister dated 25.11.1983 and this Court is of the view that no, such direction by virtue of the order impugned has been issued which is against the interest of the petitioners rather a direction has been issued to implement the aforesaid order to which the petitioners have no objection.
Per Contra, the learned counsel for the respondents have taken a specific stand that the present writ petition is not maintainable against the remand order and that too on vague grounds. Besides that it has been specifically mentioned in para 5 & 6 of the reply that as per the mutation no. 904, land measuring 2 kanals under Khasra Nos. 460 min belonging to Mst. Naseema was sold and attested in favour of Shabir Ahmad. It is further stand of the respondents that by virtue of mutation No. 876 the proprietary land of Mst. Zeba was inherited to and attested in favour of Farooq Ahmad and Showkat Ahmad in equal shares. In so far as mutation No. 877 is concerned, the proprietary land of Mr. Hassan was attested in favour of Mst. Syeda and the rest of the proprietary land in favour of Farooq and others in equal shares. Besides that, the respondents have specifically projected that the Additional Commissioner, Kashmir, by virtue of order impugned has simply directed that the order of the Revenue Minister J&K be implemented and the land, apart from 4 kanals, be brought under the physical possession of Mst. Naseema, besides setting aside all the mutations if any in the instant matter.
The petitioners have taken a specific objection with regard to the jurisdiction of the concerned Additional Commissioner, Kashmir, to decide the said application by way of remand.
The petitioners have failed to justify their objections of jurisdiction in the light of fact that petitioners have pleaded that they have no objection, in case, if the direction issued by the concerned Revenue Minister is implemented in letter and spirit and anything contrary to the aforesaid direction, they may be given liberty to challenge the same before the appropriate forum.
The concerned Additional Commissioner, Kashmir, has taken cognizance in pursuant to the application filed by Mst. Naseema regarding implementation of the order already issued by the concerned Revenue Minister dated 25.11.1983.
The petitioners on one hand has no grievance with regard to the direction issued by the Additional Commissioner, Kashmir, and on the other hand they have raised objection with regard to his jurisdiction. However, the petitioners are at liberty to call in question any mutation which has been attested which is contrary to the direction issued by the order of the Revenue Minister dated 25.11.1983 before the appropriate forum.
The issue of the jurisdiction was never raised by the petitioners before Additional Commissioner Kashmir, when the order impugned came to be passed. Since the ground of jurisdiction was never raised before the respondent no. 2 by the petitioners or their counsel nor there is any specific mentioned in the order impugned with regard to the jurisdiction part which tantamount that the petitioners have acquiesced their right and the petitioners have gladly and voluntarily submitted to the jurisdiction of Additional Commissioner Kashmir, and in absence of any objections being raised before the respondent no. 2, the petitioners are estopped under law to question the said order on the ground of jurisdiction.
Having waived of their right, it does not lie in the mouth of the petitioners to agitate through the medium of the present writ petition that the respondent no.2 has no jurisdiction when they have gladly and voluntarily submitted themselves before the said authority and the order impugned came to be issued.
Since, the order impugned in no way effects the rights of the petitioners nor the petitioners have any grievance/grouse against the aforesaid order in so far as the direction issued by the respondent no. 2 to the extent of implementing of the order passed by the Revenue Minister dated 25.11.1983, is concerned and thus the challenge thrown by the petitioners is ill founded and the writ petition as such deserves dismissal being not maintainable.
Besides that, the petitioners through the medium of the present writ petition is raising disputed questions of fact which cannot be gone into while exercising writ jurisdiction Article 226 of the Constitution. However, the petitioner is at liberty to seek appropriate remedy under law in case, if anything contrary to the order passed by the Revenue Minister dated 25.11.1983 is being done.
This petition is dismissed as not maintainable. Interim direction, if any, shall stand vacated.
(WASIM SADIQ NARGAL) JUDGE SRINAGAR 02.09.2022 "Nuzhat"
Whether approved for reporting: Yes/ No