Jammu & Kashmir High Court
Mohd Shafi Dar vs State And Ors. on 19 October, 2006
Equivalent citations: 2007(2)JKJ48
JUDGMENT Bashir A. Kirmani, J.
1. Under mutation no. 4399 of Rawalpora estate, the concerned Revenue Officer mutated land measuring 28 kanals 7 marlas under survey Nos. 12, 13, 14, 11, 117, & 122, previously recorded in the ownership of Akhada Basimia through Baba Sant Rajender Sadu and tenancy of Rajab, Lasoo, Sulla, and Gulla as protected tenants to the extent of their respective shares, in the name of petitioner herein on the ground that attorney holders of tenants and Dashmani Akhada namely one Mohd Yousuf Kuchai and Mohd Yaqoob Shah respectively, stated jointly that they had no objection in change of entries in respect thereof in favour of petitioner-Society, and attested the mutation. This mutation was challenged by Mohd Yaqoob attorney holder of Dashmani Akhada through a revision petition before Financial Commissioner who set aside the mutation on the ground that it had been attested by Naib Tehsildar who interms of Section 121 of Land Revenue Act was not competent to attest the same, and while further observing that land in question was a migrant property directed, District Magistrate Budgam to take possession thereof under Migrant Immovable Property (Preservation, Protection and Restraint on Distress sales) Act, 1997, (hereinafter called the Act). Pursuant thereto the District Magistrate ordered attachment of the land in question and directed Settlement Tehsildar, Budgam, to take possession thereof and prepare an inventory of all movable and immovable structures existing thereupon.
2. Aggrieved by aforesaid order of Financial Commissioner and the consequential order of concerned District Magistrate passed on 20.10.2002 the petitioner-society challenges both on the ground that Financial Commissioner set aside the mutation in ex-parte and without notice to them which rendered his order and the consequential order of District Magistrate bad, as both of them have been passed without following the procedure established under law, while petitioner society had acquired title over the land in question under the overset mutation whereafter it had allotted it to its members for construction of houses, who were not parties before the Financial Commissioner etc.
3. The writ petition appears to have been admitted on 3rd April 2004 after respondents persistent default in filing their objections, when Mr. N.H. Shah, Dy. AG, accepted post admission notice on behalf of respondents 1 to 6 while respondent No. 7 was directed to be summoned, who too did not appear till 4th July 2005 despite issuance of summons through registered post, whereupon he was proceeded against in an ex-parte. Meanwhile other respondents who had entered appearance on 03.04.2004 did not file their counter affidavit till date, consequent whereupon their right to file counter stands closed, and the matter comes up for hearing. During course of his brief submissions petitioners counsel while reitera ting the contents of writ petition also submitted that both the orders of Financial Commissioner and that of District Magistrate concerned were bad for being violative of law as they have been passed in dis-regard to the procedure prescribed in the matter. The counsel for otherside has however defended the impugned orders.
4. I have heard learned Counsel and considered the matter. As already said the respondents have not filed any reply due to which the matter is required to be considered on the materials available on file as annexures to the writ petition. First in the row is the attested copy of mutation No. 4399 purporting to have been attested on 21st Nov. 1993. What is gatherable from perusal thereof is that the land in question was admittedly the proprietary land of Dashmani Akhada on whose behalf respondent No. 7 is stated to have claimed to be an attorney holder, and on whos statement, coupled with that of one Mohd Yousuf Kuchai, the alleged attorney holder of tenants, the mutation appears to have been attested Under Section 121 of the Land Revenue Act. Incidentally however the attesting officer has not mentioned anything to suggest as to under what instrument, if any, the ownership of land vested in the petitioner-society, particularly while no such instrument/document has been claimed by any body. In absence of any such document or any other positive act on behalf of the owners and tenants of the land how did the attesting officer consider the ownership to have been transferred to petitioner-society is not gatherable from contents of the mutation, particularly while except survey No. 12 comprising of 11 marlas of land the whole land in question is recorded as agricultural land.
5. However, the mutation was set aside by Financial Commissioner for an entirely different reason i.e it was attested by Naib Tehsildar who not being Assistant Collector of first class could not exercise power Under Section 121 of Land Revenue Act to attest the mutation in question. It may be appropriate to mention that under Section 121 if during a revision of the Record of rights in any local area as ordered by Government through notification Under Section 22 a question of title arises, it would be attested summarily by Assistant Collector of first class whose decision subject to such orders as may be passed in the appeal by Collector shall be binding on all parties till it is set aside by a civil court decree. From attested copy of mutation appended with the memo of petition it appears to have been attested by Settlement Tehsildar of Budgam and since no material whatsoever has been filed by otherside there is nothing on record to suggest as to how did the Financial Commissioner find the mutation to have been attested by an incompetent officer. That aspect of the matter however does not appear to have been challenged by petitioners as no plea has been taken regarding that. Instead the whole thrust of the petition is that Financial Commissioner entertained the revision petition after considerable delay and that too from an incompetent person and allowed the same without notice to them. Nothing has however been brought on record or argued to show that F.Cs order suffers from lack or wrong exercise of jurisdiction. Needless to say that Under Section 15 of the Land Revenue Act the Financial Commissioner has ample power to call for the records of any case pending before or disposed of by any Revenue Officer under his control at any time and pass such orders thereupon as he thinks fit, with of course, notice to effected parties where he intends to over set any order passed by any such Revenue Officer. That present petitioner was summoned by him through registered post and proceeded against in ex-parte only after he failed to appear is borne out from Financial Commissioners order regarding which no dispute has been raised by petitioner-society.
6. Be that as it may, the question of Dashmani Akhadas ownership over the land and how the attesting officer thought it to have been transferred to petitioner-society still remains, particularly because even under Section 121 of Land Revenue Act whereunder the mutation is shown to have been attested, it is only when during a revision of the record of rights a question of title arises, that the power of Assistant Collector first class to decide the same comes in. In the instant case no such revision appears to have been going on. The attesting officer just out of blue appears on the scene and believing the alleged attorney holders of the owner and tenants ordered change of entry in favour of petitioner-society without even trying to know as to how the ownership of land was transferred in favour of petitioner-society, which vitiates the exercise of power by him Under Section 121 and renders the mutation bad.
7. As if that bungling committed by attesting officer was not enough, the Financial Commissioner while setting aside the mutation on an apparently un-pleaded ground, walked a step further and holding the land in question to be migrant property directed concerned District Magistrate to take possession thereof under the Act which perhaps was neither the case before him nor in the capacity in which he was dealing with the matter any of his business, simply because his power under the Act is restricted to hear appeals preferred Under Section 7 in disposal whereof he may pass necessary orders. Otherwise than while acting as the appellate forum the Financial Commissioner does not appear to have any other power under the Act. In other words he could assume and exercise jurisdiction only when an appeal would be preferred before him which however was not the case. Neither an appeal was pending before him nor has as a matte of fact an appealable order been passed by the concerned District Magistrate even to attract suomoto exercise of appellate power by the Financial Commissioner, much less to pass a direction for attachment of the property in question which, therefore, appears to be quite bad. In fact by assuming the land to be a migrant property- though perhaps rightly so-and passing the direction in the mode and method it has been passed, the F.C appears to have acted as a complainant, the prescribed authority and the appellate forum, all the three in one.
8. Then comes the consequential order of concerned District Magistrates order passed pursuant to F.Cs order, whereunder he directed attachment of the land in question by Settlement Tehsildar and asked him to take over possession thereof. Since the order of Financial Commissioners whereunder it was passed has already been held to be bad, the follow up order of District Magistrate impugned herein would automatically go, but for the fact that F.Cs incompetent direction does not perse take away the D.M.s inherent power and jurisdiction vested in him under the Act itself, and pass such an order for which F.Cs direction can be treated as a mere information; but only after satisfying himself about existence of three elements in the situation; first, that the land in question belongs to a migrant; secondly, that it is in possession of an unauthorized occupant; and thirdly, that such unauthorized occupant refused or failed to surrender possession thereof to him on demand. At this state, it may be apt to mention that under Section 3 of the Act, custody of all migrant properties is deemed to have vested in the concerned D.M from the date of commencement of the Act, regarding which he can exercise power as indicated above, and to that, therefore, no objection can be taken. Incidentally however while in the backdrop of attending factual background the land could perhaps safely be assumed to be a migrant property, there is nothing in District Magistrates impugned order to show that he tried to satisfy himself on existence of the other two requisites before passing the impugned order.
9. Before proceeding ahead it would be profitable to quote from a judgment of this bench passed in case Jagger Nath v. State and Ors. on 03.04.2006 (owp No. 271/05) wherein while laying down the contours of District Magistrates power under this Act, necessary guide lines were laid down for exercise thereof in following terms:
(a) On receipt of an application from or on behalf of a migrant, the concerned District Magistrate must subjectively satisfy himself about the status of applicant as a migrant; the nature of property involved, as migrant property, and occupants possession as being unauthorized within meanings of the Act.
(b) While assuming satisfaction as aforesaid, the District Magistrate must undertake a thorough enquiry, and while giving effective hearing to all concerned parties, maintain a record of his proceedings; and only after subjectively satisfying himself about existence of all these aspects, pass a reasoned order to exercise jurisdiction under the Act.
(c) At the time of announcement of orders, he must in case of anybodys eviction give or cause to be given a certified copy of his order to the evicted person on the day of passing the order.
(d) After eviction order, he may not deliver the possession of property in question, if surrendered by the evicted person, to any other person before expiry of the period of limitation prescribed for filing appeals, whereafter appellate authoritys orders, if any, would hold the filed....
As already said since District Magistrates impugned order does not show anything to suggest that he tried to have a subjective satisfaction regarding existence of all the aforesaid ingredients/essentials for exercise of his power, the order as such appears to have been passed arbitrarily. But that in no case appears to justify petitioners claim over the land in question or regularize their unfounded claim of ownerships the same un-disputably vested in Dashmani Akhada.
10. At this stage would arise the question of the nature of the land and what the D.M would have to do. The Dashmini Akhada is a well known Hindu Religious Institution owing many properties. Since Mahants who managed these properties on behalf of the Akhada have either migrated away or abandoned the Akhada properties, the land can arguably be held to be a migrant property, and custody thereof deemed to have vested in the concerned District Magistrate Under Section (4) of the Act, after expiry of 30 days from commencement of the Act i.e 2nd June, 1997. As such the District Magistrate would be within his powers to take all steps necessary for preservation and protection thereof and would be prohibited from handing over the same to any one except that expressed consent of the migrant in writing. It would be appropriate to mention here that Under Section 2(e) of the Act the expression migrant means any person who has migrated from Kashmir Valley after 1st November 1989 and is registered as such with Relief Commissioner, who, in order to prevent distress sale of property cant sell his properties otherwise than in accordance with Section 3 of the Act and R.5 of the rules whereunder permission for the same is required to be sought from prescribed authority in accordance with the specific procedure laid down therefor. No such permission much-less an accepted mode of the transfer of immovable property or an interest therein, has been in existence,-nor is one claimed to have been, so the change of entries regarding ownership or possession of the land in question would be bad also because even a migrant or has duly constituted attorney would not have the power to agree to change the ownership of migrant property otherwise than as stated above. Viewed thus, in given circumstances there was no question of effecting a change in ownership of the land in question, which renders all actions taken by concerned revenue officer including the mutation relied upon by petitioner's unlawful and hence bad; rendering the claim of possession, if any, on that basis totally un-founded.
11. In conclusion therefore, the writ petition is disposed of with following directions:
(a) The Financial Commissioners impugned order is maintained only to the extent of oversetting the mutation No. 4399 of Rawal pora estate (Akhada Basimia) attested on 21.11.1993.
(b) The District Magistrates order dated 22.10.2002 is set aside. The land in question is, however deemed to be in his custody by force of Section 4 of the Act. He is directed to proceed ahead in terms of Section 5of the Act in respect of the land measuring 28 Kanals 7 Marias situated at Rawalpora estate under survey Nos. 12,13,14,11,117 and 122 after hearing the tenants thereof, if any, while doing so, he shall be at liberty to take a view well founded in law regarding any power of attorney attributed to them, and its application with relation to any claim of the change in possession if alleged, particularly in view of the agrarian nature of the most of land in question.
(c) The Revenue Secretary of the State is directed to identify the revenue officer who attested mutation No. 4399 above mentioned, and conduct a departmental enquiry into circumstances attending attestation of this mutation, and report follow up action within three months from now.
(d) The SSP Crime branch is directed to register a case in the matter and investigate into the factum of the powers of attorney attributed to Dashmani Akhada and tenants of land in question claimed by the holders thereof namely Mohd Yousuf Kouchaie and Mohd Yaqoob Shah, and other circumstances leading to attestation of the above said mutation and report action taken within three months.
(e) Copies of this order be forwarded to the Chief Secretary, Revenue Secretary, Law Secretary, Financial Commissioner, Divisional Commissioner Kashmir, Deputy Commissioner Budgam & SSP Crime Branch, for assuring compliance of the order, and to petitioner-society as also the head of Dashmani Akhada and tenants above said for information.
12. An index of the case be maintained in the registry along with copy of this order to be listed on 29.12.2006, with action taken reports received by them.