Jammu & Kashmir High Court - Srinagar Bench
Abdullah Wani And Another vs Financial Commissioner on 10 March, 2022
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
OWP no. 438/2014
CPOWP no. 230/2018
Pronounced on: 10.03.2022
Abdullah Wani and another
.........Petitioner(s)
Through: Mr M. A. Qayoom, Advocate
Versus
Financial Commissioner, Revenue, and others
......Respondent(s)
Through: Mr H. Furrahi, Advocate
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. In this writ petition, filed under Article 226 of the Constitution of India, issuance of Writ of Certiorari to quash Order dated 23rd July 2012, passed by respondent no. 2 as also Order dated 26th March 2014, by respondent no. 1, is sought for; and a Writ of Mandamus to direct respondents 2 to 4 not to make any change in the revenue entries of the land in question pursuant to impugned orders in any manner whatsoever, is also prayed for by petitioners.
2. The case set up by petitioners in the instant writ petition is that they are owners and in possession of land measuring 10 Kanals and 17 Marlas covered by Survey no. 02 Min, situate at Bandipora, Shopian, but revenue entries were not correctly recorded and, therefore, after passing of Agrarian Reforms Act, they approached concerned Page 1 OWP no.438/2014 CPOWP no.230/2018 authorities for correcting revenue entries, and accordingly, Mutation Order no. 138 dated 1st April 1982 and Mutation Order no. 143 dated 3rd March 1983 were attested in their favour, reflecting them as tenants of the land from the year Kharief 1971 in the revenue records. It is also stated by petitioners that in terms of Section 4 and 8 of the Agrarian Reforms Act, Mutation Order no.164 dated 6 th June 1985 and Mutation Order no.165 dated 7th June 1985 were attested in their favour, declaring and recording them as absolute owners of the aforesaid land. However, Mutation Order nos. 138 and 143 were challenged by respondent no.5 before Additional Deputy Commissioner with powers of Collector/Commissioner, Agrarian Reforms, Shopian, in the Appeals. Being time barred, applications for condoning delay in filing the Appeals were also filed by respondent no.5. Applications as also Appeals filed by respondent no.5 were dismissed vide Order dated 16th August 2011. Petitioners maintain that order dated 16th August 2011 was not challenged by respondent no.5 before any forum, but he made an application on 22nd February 2012, which was entertained by respondent no.1, and by order dated 23rd July 2012, submitted the matter to respondent no.1, with recommendation to set-aside Mutation Order no.138 and 143. Besides, respondent no.5 filed two Appeals against Mutation Order nos.164 and 165 before respondent no.1, who vide order dated 26th March 2014 held both the Appeals not maintainable and also held that by making recommendation dated 23rd July 2012, respondent no.2 has exceeded his jurisdiction. It is also submitted that after holding so, Page 2 OWP no.438/2014 CPOWP no.230/2018 respondent no.1 set-aside all four mutation orders and remanded the case to Tehsildar concerned for de novo enquiry and thereafter to attested mutation after hearing all the parties. Petitioners are aggrieved thereof and have filed the instant writ petition.
3. Reply has been filed by respondent no.5, wherein he has stated that parties are co-sharers. It is averred that Shaban and MstKhurshi were cousins and members of single-family unit. MstKhurshi was married as KhanaNisheen daughter and she in connivance with her husband took undue advantage of naïve and straightforwardness of respondent no.5 and managed to grab his share in the property as they entered into conspiracy with subordinate revenue agencies and managed entries by way of Saht-i-Kasht in their favour, which action of theirs was totally illegal and against spot position. They are said to have managed two mutations in their favour under Section 4 and 8 of Agrarian Reforms Act, 1976, as provisions of Agrarian Reforms Act has no application in a single-family unit and one family member cannot claim possession of land as against another family member and possession of one family member is deemed as possession of all family members under the provisions of Agrarian Reforms Act. It is also submitted by respondent that subordinate revenue agencies had made mess of all proceedings and divested respondent from his lawful share in ancestral property.
4. Heard and considered.
5. Learned counsel for petitioners has stated that order dated 1 st August 2011 passed by Additional Deputy Commissioner, was not put to Page 3 OWP no.438/2014 CPOWP no.230/2018 challenge by respondent no.5 and, therefore, the said order has attained finality and is binding on him. It is stated that respondent no.2 ought to have dismissed the application filed by respondent no.5 as it was actually a suit for possession in disguise, and the said application was entertained and decided by respondent no.2 without having any jurisdiction or legal authority and in terms of impugned order dated 23rd July 2012, respondent no.2 made recommendations to respondent no.1 for quashing mutations. Such recommendations made by respondent no.2, according to learned counsel for petitioners, are legally unwarranted and unjustified as being in violation of provisions of Section 15(2) of the Land Revenue Act. He has also contended that mutation order nos.138 and 143 had been attested in terms of provisions of the Agrarian Reforms Act and after attestation thereof, two more mutations under Section 4 and 8 of the Act were attested in favour of petitioners, whereby they were declared full and absolute owners of the land in question and therefore, respondent had no jurisdiction to set-aside the mutations. According to learned counsel for petitioner, respondent no.5 concealed the fact of having already filed an appeal against mutation order nos. 164 and 165 before Additional Deputy Commissioner, which were dismissed, before respondent no.1, who instead of dismissing appeals and rejecting the order of reference made by respondent no.2, has set-aside the mutations. Learned counsel for petitioners has placed reliance on various judgements, including those reported in AIR 1950 SC 222; AIR 1952 SC 179 on the point of issuance of writ of certiorari to quash Page 4 OWP no.438/2014 CPOWP no.230/2018 judicial or quasi-judicial proceedings; AIR 1954 SC 440; AIR 1955 SC 233; AIR 1958 SC 398; AIR 1960 SC 137; AIR 1963 SC 114-548; AIR 1964 SC 477; AIR 1970 SC 1334-1926; AIR 1971 SC 476; AIR 1976 SC 376; AIR 1972 SC 1903 on the point of issuance of writ of certiorari where the Tribunal or inferior court acts without or in excess of jurisdiction; AIR 1986 SC 302; AIR 1965 J&K 85; AIR 1975 J&K 33 on the point of issuance of writ of certiorari where the order of inferior court or Tribunal suffers from an error or jurisdiction or is vitiated by a manifest or apparent error of law; 1998 (9) SCC 138 on the point where an order if not challenged becomes final and binding on the parties.
6. On the other hand, it is contention of learned counsel for respondent no.5, that Financial Commissioner (Revenue) has done substantial justice and has undone the illegal proceedings undertaken by subordinate revenue agencies. He also contends that purpose and purport of Agrarian Reforms Act was to give ownership rights to the tillers whereas in the present case same is not the position as the parties are relation and belong to one family; thus, application of provisions of Agrarian Reforms Act do not arise at all and that all that has been done at the back of respondent no.5 need to be struck down and it was in view of this fact that Financial Commissioner has directed Tehsildar concerned to proceed in the matter afresh after hearing all the parties and such an order is an innocuous order.
7. Perusal of the file reveals that Mohammad Shaban Wani S/o Rajab Wani was owner of land measuring 07 Kanals 17 Marlas falling under Page 5 OWP no.438/2014 CPOWP no.230/2018 Khasra no.2 min in Village Bandpahoo, Shopian. Mutation no.143 dated 3rd March 1982 was attested by Tehsildar Shopian, declaring MstKhurshi D/o Qadri Wani (cousin of Shaban Wani) as in cultivating possession of land measuring 03 Kanals and 07 Marlas. Besides, another mutation no.138 dated 1st April 1982 was attested by Tehsildar Shopian, by which Ahad Wani S/o Ismail Wani was declared as in cultivating possession of land measuring 03 Kanals and 10 Marlas under same Khasra number.
If one goes through the contents of Reply filed by respondent no.5, MstKhurshi is cousin of Shaban Wani whereas Ahad Wani is husband of MstKhurshi. On 6th June 1985, Mutation No.164 was attested under Section 4 of the Agrarian Reforms Act, extinguishing rights of owner of land measuring 06 Kanals& 17 Marlas and vesting it in the State. Thereafter on 7th June 1985, Mutation no.165 was attested under Section 8 of Agrarian Reforms Act, conferring proprietary rights on prospective owners.
The stand of respondent no.5 before Divisional Commissioner, Kashmir - respondent no.2, is that land measuring 07 Kanals& 17 Marlaswas under the tenancy of one Ama S/o Ismail Bhat R/o Bandpahoo, but petitioners herein grabbed the said land and managed the mutations. Perusal of impugned order dated 23 rd July 2012 unveils that the record pertaining to subject-matter of land was produced by Naib Tehsildar and Patwari concerned and it was stated by Naib Tehsildar that Mutation nos.138 and 143 have been attested by Tehsildar, Shopian, in the year 1982, giving the effect of tenancy Page 6 OWP no.438/2014 CPOWP no.230/2018 against the land in question prior to 1971, whereas according to the entries of Jamabandi of the year 1967-68 as also entries of Girdawariof Kharief 1971, the land had been shown in the name of Ama S/o Ismail Bhat. This fact situation that gives the notion and narration in total contradistinction to the set of the facts projected by petitioners in the instant writ petition, needs deep and meticulous analysation and examination from the basic point.And such an exercise is not open to be adjudicated upon in writ proceedings, but at the proper point/forum, which has been made clear and indicated by the Financial Commissioner (Revenue) while passing impugned order dated 23rd July 2012. In such circumstances, impugned order need not be interfered with and resultantly the instant writ petition is liable to be dismissed.
8. For the reasons discussed above, this writ petition is without any merit and is accordingly dismissed. Interim direction, if any, shall stand vacated.
9. As a consequence of above, contempt petition, being CPOWP no.
230/2018, is closed.
(Vinod ChatterjiKoul) Judge Srinagar 10.03.2022 "Manzoor"
Whether the order is reportable: Yes/No. Page 7 MANZOOR UL HASSAN DAR 2022.03.14 12:30 OWP no.438/2014 CPOWP no.230/2018