Abdul Hamid And Others vs Divisional Commissioner on 10 February, 2020

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Jammu & Kashmir High Court

Abdul Hamid And Others vs Divisional Commissioner on 10 February, 2020

1. Aggrieved against the order of the learned Single Judge, whereby the writ petition filed by the appellants was dismissed by giving them liberty to avail alternative remedy of appeal, the present intra-court appeal has been filed.

2. The challenge in the writ petition was to the order dated 11.06.2016 passed by the Divisional Commissioner, Jammu vide which the order passed by the Tehsildar, Udhampur was upheld with certain observations.

3. The learned Single Judge was of the opinion that against the order impugned in the writ petition there was equally efficacious alternate remedy of appeal in terms of Section 11 of the Jammu and Kashmir Land Revenue Act, 1996 ( for short „the Act‟). It was left open to the appellants to avail the remedy of appeal before the Financial Commissioner (Revenue). The period 2 LPA 193/2019 spent in pursuing the writ petition was directed to be excluded for the purpose of limitation.

4. The facts of the case, as are available on record are that an application was filed by the residents of village Rehmbal against appellant No.1 regarding demarcation of the land falling under Khasra No. 458 in village Mouza Rehmbal, Udhampur. An order was passed by the Assistant Collector 1st Class-Tehsildar, Udhampur on 17.06.2015. The issue regarding demarcation and identification of the land was resolved. The aforesaid order was challenged by the appellants by filing revision petition before Divisional Commissioner, Jammu on 19.06.2015. The same was dismissed vide order dated 11.06.2016. To challenge the aforesaid two orders, the writ petition was filed in this Court on 26.02.2018. Vide order dated 10.07.2019 the appellants were given liberty to file appeal before the Financial Commissioner (Revenue) against the order passed by the Divisional Commissioner. It is the aforesaid order which is under challenge in the present appeal.

5. While challenging the order impugned, learned counsel for the appellants submitted that the view expressed by the learned Single Judge, that there is remedy of appeal against the order passed by the Divisional Commissioner, is erroneous. Section 11 of the Act does not provide for any such remedy, hence the writ petition was maintainable. There was no error committed by the appellants in invoking the jurisdiction of the Divisional Commissioner. The order passed by the Assistant Collector 1 st Class was totally illegal as he could not have entertained the dispute on which he had adjudicated upon.

6. On the other hand, learned counsel for the respondents supported the order passed by the Assistant Collector 1st Class (Tehsildar), Udhampur 3 LPA 193/2019 by submitting that the appellants wanted to cause interference in the shamlat deh land on which they did not have any right. The matter was examined by the Assistant Collector 1st Class (Tehsildar) and the order did not call for any interference by the appellate court or any other authority. Even though, the appellants had wrongly invoked the jurisdiction of Divisional Commissioner, however, still he did not find any error in the order passed by the Assistant Collector 1st Class (Tehsildar).

7. Heard learned counsel for the parties and perused the paper book.

8. Section 6 of the Jammu and Kashmir Land Revenue Act, 1996 provides for classes of revenue officers, namely, the Financial Commissioner; Divisional Commissioner; the Collector; the Assistant Collector of the first class and the Assistant Collector of the second class. It also defines the areas of jurisdiction to be exercised by each of the officer.

9. Sections 11 to 13 and 15 which have relevance in the case in hand are extracted below:-

"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 Divisional Commissioner when the order is made by a Collector;

(c) to the Financial Commissioner when the order is made by a 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;

4 LPA 193/2019

(2) where any such order is modified or reversed on appeal by the 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.

12. Limitation for appeals, revisions and reviews.-- (1) Save as otherwise provided in this Act the period of limitation for an appeal under the last foregoing section shall he as follows:

    (a)    When the appeal lies to the Collector or an
           Assistant Collector of the first class        .... 60 days;
    (b)    When the appeal lies to the Financial

Commissioner or Divisional Commissioner .... 90 days; Provided that, in the Districts of Ladakh and Gilgit twice the ordinary period of limitation for appeals under this section shall be allowed.

(2) Such provisions of the Limitation Act as apply to appeals, applications for revision and review in civil suits shall also apply to appeals, applications for revision and review under this Act.

13. Review by Revenue Officers.--(1) A Revenue Officer may, either of his own motion or on the application of any party interested, review and on so reviewing modify, reverse or confirm, any order passed by himself or any of his predecessors in office:

Provided as follows:-

(a) when a Divisional Commissioner or Collector thinks it necessary to review any order which he has not himself passed, and when a Revenue Officer of a class below that of Collector proposes to review any order, whether passed by himself or by any of his predecessors in office, he shall first obtain the sanction of the Revenue Officer to whose control he is immediately subject;

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(b) an application for review of an order shall not be entertained unless it is made within ninety days from the passing of the order, or unless the applicant satisfies the Revenue Officer that he had sufficient cause for not making the application within that period;

(c) an order shall not be modified or reversed unless reasonable notice has been given to the parties affected thereby to appear and be heard in support of the order;

(d) an order against which an appeal has been preferred shall not be reviewed.

(2) For purposes of this section the Collector shall be deemed to be successor in office of any Revenue Officer of a lower class who has left the district or has ceased to exercise powers as a Revenue Officer, and to whom there is no successor in office.

(3) An appeal shall not lie from an order refusing review or confirming on review a previous order.

[14. Omitted.]

15. Power to revise orders.-- (1) The Financial Commissioner may at any time call for the record of any case pending before or disposed of by any Revenue Officer under his control. (2) The Divisional Commissioner may call for the record of any case pending before or disposed of by, any Revenue Officer subordinate to him.

(3) If in any case in which, the Divisional Commissioner has called for a record he is of opinion that the proceedings taken or order made should be modified or revised he shall report case with his opinion thereon for the orders of the Financial Commissioner. (4) The Financial Commissioner may, in any case called for by him under sub-section (1) or reported to him under sub-section (3), pass such order as he thinks fit:

Provided that, he shall not under this section pass an order reversing or modifying any proceeding or order of a subordinate officer 6 LPA 193/2019 affecting any question of right between private persons without giving those persons an opportunity of being heard."

10. As per the scheme of the Act, appeal is provided against the order passed by different authorities mentioned therein. An appeal lies before the Collector in case order has been passed by the Assistant Collector of either class; to the Divisional Commissioner against the order passed by the Collector and to the Financial Commissioner when the order is made by the Divisional Commissioner. However, no 2nd appeal is maintainable, in case the order impugned in the appeal is confirmed except on the grounds as mentioned in clauses (a), (b) and (c) in Sub-Section (1) of Section 100 CPC or in case the order is modified or reversed in appeal by the Collector. An order passed by the Divisional Commissioner in appeal is final.

11. Limitation to file appeal and review has been provided under Section 12.

12. Section 13 provides for power of review.

13. A perusal of the aforesaid provision shows that power of review can be exercised by a Revenue Officer either on his own motion or on the application of any party interested. Such an application can be filed within 90 days. The delay, if any, has to be explained. An order against which appeal has been preferred cannot be called in question in the review proceedings. No appeal is provided against an order refusing review or confirming on review a previous order.

14. The reason for which a Financial Commissioner or Divisional Commissioner have been authorized to exercise the power of revision have not been enumerated under this Section which are normally prescribed in all the statutes providing for such power, namely, „to satisfy himself as to its 7 LPA 193/2019 regularity, correctness, legality or propriety of any decision taken, order passed or proceedings made in respect thereof'.

15. It is further relevant to note a distinction between the language used in Section 13 providing for review and in Section 15, power of revision.

Section 13 provides that the power of review can be invoked even by the party by filing an application whereas there is no such enabling provision giving right to the party to invoke revisional jurisdiction.

16. Section 15 provides for power of revision. Sub Section (1) thereof provides that the Financial Commissioner may at any time call for the record of any case pending or dispose of by any Revenue Officer under his control. Whereas, in terms of sub-section (2), Divisional Commissioner has been empowered to exercise that power pertaining to the officers subordinate to him. Sub-section (3) provides that wherever Divisional Commissioner had called for the record and if he is of the opinion that the order deserves to be modified or revised, a report with his opinion is to be sent to the Financial Commissioner. The Financial Commissioner can pass any order. Opportunity of hearing is mandatory in case any order affecting the rights of any person is to be passed.

17. As per the scheme, ultimately any order passed by the Assistant Collector is revisable by Divisional Commissioner. However, in case he is of the opinion that the order needs to be revised the matter has to be reported to the Financial Commissioner for his opinion. Finally, it is Financial Commissioner who has to pass the order.

18. The distinction between an appeal and a revision is real one. A right of appeal carries with it a right of rehearing on law as well as facts, unless such a power is limited by the statutes conferring that power. The power of revision is normally given to a superior authority-court so as to enable it to 8 LPA 193/2019 satisfy itself about legality or propriety of the order passed or the proceedings undertaken. The power is vested in the superior officer to enable him to review work of the lower authorities so that they exercise the power conferred on them in accordance with law.

19. On a conjoint reading of Sections 11 and 15 of the Act, which provide for appeal and revision it can be safely opined that the normal remedy provided to any person aggrieved of an order is the appeal, because in any case if the order is reversed or modified in appeal, the party has further right of appeal. Whereas, if in any case the original order, as in the present case passed by the Assistant Collector, is challenged by filing the revision petition, the final order would be by the Financial Commissioner. Meaning thereby that the same is by highest authority in the revenue department, leaving no statutory remedy with the party aggrieved, if such an order goes against him. As against the order under Section 15, no further remedy as such has been provided, such person can only invoke extra ordinary writ jurisdiction of the High Court under Article 226 of the Constitution of India. Scope of judicial review under Article 226 of the Constitution of India is far limited if considered against the scope of a statutory appeal.

20. The matter needs to be examined from another angle, that is to say that, if any party as per his choice is left open to avail the remedy of appeal or revision, same may result in forum hunting. Against the same order the aggrieved party may choose a forum more suitable to him. This cannot be left to the parties aggrieved. A definite system has to be in place which is well defined and applicable to one and all, not leaving it to the option of the party concerned. This has serious ramification even on the opposite party as his remedy to appeal against the order passed by the appellate authority in 9 LPA 193/2019 case an order goes against him is taken away, if at the very first instance revisional jurisdiction is invoked by the opposite party.

21. If the aforesaid scheme of the Act is seen, any order passed by the Assistant Collector of either class, is appealable before the Collector. It is only thereafter an appeal is maintainable before the Divisional Commissioner against the order passed by the Collector, in case the order is modified or reversed in appeal by the Collector.

22. If the facts of the present case are considered, admittedly the order of demarcation was passed by the Assistant Collector 1st Class against which appeal was maintainable before the Collector. However, leaving that regular remedy, the appellant No. 1 invoked the extra ordinary remedy of suo-moto revisional power vested with the Financial Commissioner and the Divisional Commissioner in terms of Section 15 of the Act. The bar created under Section 11 of the Act specifies that an appeal lies to the next higher authority against the order passed by a lower revenue authority only against an original or appellate order. As in the case in hand, order passed by the Divisional Commissioner was neither original nor appellate. Hence, the appeal was incompetent and not maintainable.

23. As far as this contention raised by the learned counsel for the appellants is concerned, there is merit in the argument raised. The learned Single Judge had erroneously opined that the appellant had a remedy of appeal before the Financial Commissioner against the order passed by the Divisional Commissioner, for which there is no provision. In fact filing of appeal is limited only against the original or appellate orders. Hence, an appeal against the order of Divisional Commissioner in revisional jurisdiction is not maintainable before the Financial Commissioner. 10 LPA 193/2019

24. We have not opined on the issue as to whether in the absence of any enabling provision, the party can invoke the revisional jurisdiction as no arguments were heard on the same.

25. Before parting with this case, we deem it appropriate to direct that, to avoid generation of unnecessary litigation and forum hunting by the parties, all the authorities under different statutes in the State, who pass the quasi-judicial order or even administrative orders against which a statutory remedy is provided under the applicable law and a period of limitation also prescribed, shall mention on the preface of the order itself about the authority before whom the order can be challenged in appeal or by way of any other remedy and also the period of limitation for the purpose. As there is a widespread practice prevalent here in the Union Territory amongst officers to exercise powers, which are not vested in them, it shall also be mandatory for them to specify in the order, the provisions of the relevant Statutes/Rules under which the order has been passed.

26. The present appeal is disposed of, accordingly.

27. A copy of the order be sent to the Chief Secretary of the Union Territory of Jammu and Kashmir, and Ladakh for circulation to the concerned officers for compliance.

                                        (RAJESH BINDAL)                   (GITA MITTAL)
                                                JUDGE                     CHIEF JUSTICE

         Jammu
         10.02.2020
         Bir
                                       Whether the order is speaking?     : Yes/No
                                       Whether the order is reportable?   : Yes/No.




PARAMJEET SINGH
2020.05.01 15:38
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Jammu & Kashmir High Court