Jammu & Kashmir High Court - Srinagar Bench
Haji Muhammad Jaffar vs Financial Commissioner on 24 September, 2024
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
OWP 1369/2013
Reserved on: 23.08.2024
Pronounced on: 24.09.2024
Zamindaran village Shey Leh through
1. Haji Muhammad Jaffar, age 70 years,
S/O Haji Ghulam Muhammad,
R/o Shey, Tehsil Leh, Ladakh.
2. Thupstan Tsering, age 52 years,
S/O Tsering Saplbar,
RIO Shey, Tehsil Leh, Ladakh.
... Petitioner/Appellant
Through: Mr. Z. A. Shah, Sr. Adv. with Mr. A. Hanan, Adv.
V/s
1. Financial Commissioner, Revenue,
Government of Jammu and Kashmir,
Srinagar.
2. Tashi Phunchok S/O Tundup Namgial
3. Mst. Spazes D/O Tashi Punchok
4. Tashi Punchok S/O Nasang Namgial
5. Rinchen Giatso S/O Phunchok Namgial
6. Rinchen Tundup S/O Tashi Stobdan
7. Lobazang Tsewang S/O Tsering Phunchok
8. Chinmet Namgial S/O Thinles Dorjay
9. Sonam Loldan S/O Ishey Tsering
10. Punchok Namgial S/O Thinkles Dorjay
11. Lobzang Angchuk S/O Ishy Wangbo
12. Tsersing Angchuk S/O Phunchok Wangial
13. Nawng Tsering S/O Tundup Namgial
14. Mst. Norzin Angmo D/O Tsering Nurbu
15. Mst. Chimet Chhondol D/O Lobzang Chhonjor
16. Nawang Chhultim S/O Ishyn Tsering
17. Tsering Angchuk S/O Lobzang Tsettar
18. Mst. Rigzin Ladol D/O Tashi Stobdan,
All residents of Village Saboo Tehsil Leh.
... Respondent
Through: Mr. P. N. Raina, Sr. Advocate with Mr. Sheyikh Umar, Adv.
CORAM: HON'BLE MR. JUSTICE RAJNESH OSWAL, JUDGE
JUDGEMENT
1. The mutation bearing no. 793 dated 30.10.1987 attested in favour of the private-respondents in respect of land measuring 195 kanals and 5 marlas comprising survey no. 2858 situated at village Saboo Tehsil Leh, came to be assailed by the petitioners through the medium of a OWP 1369 of 2013 Page |2 revision petition before the respondent No. 1, and it needs to be taken note of, that the revision petition began with the very first averment made in the para- (a) that the petitioners have rights/interests over the land which is pasture of village Shey. The revision petition was preferred on the following grounds:
a) That the impugned mutation has not been attested in conformity with Council Order No. 21-C of 1936 which pertains to lands broken up (Nautor) and the mandate of Standing Order No. 23-A also has not been followed.
b) That the land in question is a grazing ground of village Shey.
c) That the mutation has been attested at the back of the petitioners, as no opportunity of hearing was afforded to the petitioners at the time of attestation of mutation.
2. The revision petition was dismissed by the respondent No.1 vide order dated 10.09.2013, thereby holding that the land which forms the subject matter of mutation falls within the village Saboo and the natives of the Village Shey have no right or claim over the land forming part of another village and there is no record available to show that the land in question is identified as 'pasture' for village Shey. The said findings were recorded by the respondent No. 1 by placing reliance upon the report of the Assistant Commissioner, who was tasked to furnish the detailed report after visiting the spot.
3. The petitioners have now approached this court through the medium of this writ petition thereby assailing the order dated 10.09.2013 passed by the respondent No.1 on the following grounds:
a) That the land which is the subject matter of the mutation in question was part of village Saboo is absolutely incorrect, as the same falls 5 kms away from hillock Takna, and the village Shey is hardly 1 km from hillock Takna. The petitioners are using the slope of hillock Takna and OWP 1369 of 2013 Page |3 the adjoining land, for grazing of their cattle, and the record maintained by the Revenue authorities clearly shows that the grazing field on the east side extends from "Baida Shey" to "Shey Manla Takna" of village Saboo" meaning thereby that beyond the place Takna, village Saboo has no grazing ground.
b) That the private respondents could not have sought the attestation of mutation in their favour in respect of grazing land because the grazing rights are available to all the villagers whether they belong to village Saboo or Shey.
c) That the respondent No.1 has relied upon the report of the Assistant Commissioner, Revenue which was factually incorrect.
3. The private respondents have filed the response, stating therein that the writ petition is not maintainable, as this court cannot convert itself to the court of appeal and indulge in the reappreciation or re-evaluation of evidence. It is also averred that the petitioners have again raised questions of facts, already taken note of, discussed threadbare and decided by the respondent No.1. It is further stated that the petitioners had challenged mutation no. 793 dated 30.10.1987 after a delay of 18 years and during that period the private respondents cultivated the land, raised plantation thereon, the government also sanctioned irrigation scheme, and the respondents fenced the land partly with walling and partly with barbed wire, and the petitioners never raised any objection. In the year 1996, the petitioners filed a complaint before the Tehsildar in respect of the impugned mutation and the Tehsildar vide order dated 28.9.1996 rejected the complaint/objection, thereby holding that the inhabitants of village Shey have no right over the land. There is absolutely no evidence to show that even a small part of land in question is either of village Shey or the villagers of Shey have any right over it. The mutation attested in one village cannot operate for the land OWP 1369 of 2013 Page |4 in another village. The private respondents have denied that the part-i- sarkar of the impugned mutation was not deposited in the Record Room, as alleged by the petitioners. The land in question was barren land and not reserved for grazing purpose as alleged by the petitioners. In a nutshell, the stand of private respondents is that the Financial Commissioner, Revenue, after considering the factual report submitted by the ACR and the revenue record, has rightly come to the conclusion that the villagers of Shey have no right whatsoever qua the land in respect of which the mutation has been attested in their favour.
4. The petitioners have also filed the supplementary affidavit, thereby stating that during the pendency of this petition, the petitioners submitted a representation to C.E.O, LAHDC, that was marked to Deputy, Commissioner. Pursuant to the representation, demarcation report was prepared and was submitted to Deputy Commissioner, Leh. All the three villages i.e. Shey, Saboo and Chemdray have separate grazing fields. As per the demarcation report, the village Saboo is 4 kms. away from the grazing field. Village Saboo has different grazing field measuring 10 miles in length and 4 miles in width. Village Chemdray has separate grazing filed, and if the grazing filed is not made available to the petitioners, they will have no grazing field.
5. Mr. Z A. Shah, learned Senior Counsel for the petitioners has argued that the land in question was reserved for grazing purpose and as such could not have been mutated in favour of the private respondents, without affording opportunity of hearing to the petitioners. He has further submitted that it is immaterial whether the land falls in village OWP 1369 of 2013 Page |5 Saboo or Shey, as the villagers of village Shey have grazing rights over the same.
6. Mr. P.N Raina, learned senior counsel for the respondents has submitted that the factual aspects of the case have already been settled by the respondent No.1 and the private respondents, now cannot reopen the controversy by raising disputed question of facts in the writ petition. He has vehemently argued that the Assistant Commissioner in his factual report clarified each and every fact, thereby demonstrating that the petitioners have no right qua the land situated in Village Saboo and the land which is the subject-matter of mutation was not the grazing land but barren, made cultivable by the private respondents.
7. Heard and perused the record.
8. The whole controversy hinges around on the following two factual aspects of the case:
a. Whether the land in question falls within the Village Saboo? b. Whether the land in question was reserved as grazing land for villagers of village Shey and could not have been mutated in favour of the private respondents?
9. It is worthwhile to take note that during the pendency of the revision petition, the respondent No.1 vide order dated 20.05.2008 directed the Assistant Commissioner, to submit report after verification of spot on the following two issues:
a. What was the use of land in question?
b. Who is in the possession of the land?
10. The Assistant Commissioner, Revenue, besides obtaining report from the Tehsildar/field staff also visited the site of the land in OWP 1369 of 2013 Page |6 question along with the Tehsildar concerned and conducted the inquiry. He also examined the relevant records of villages Saboo, Shey and Choglansar, and thereafter he submitted a detailed report dated 1.8.2008 and the relevant part of the report is extracted as under: "The report of the Tehsildar/field staff has also been obtained in this behalf. The report reveals that the land under Khasra no. 2858 measuring 195 kanals and 5 marlas has been mutated in favour of Tashi Punchok, etc. vide mutation no. 793 and the land under Khasra No. 2859 measuring 163 kanals and 16 marlas stands mutated in favour of Janfan Lamzang Tsogaspa, Society Chemday; that the land in question is in possession of Tashi Phunchok, etc. and Janfan Lamzang Tsogaspa Society Chemday continuously on the spot; that the land in question is recorded in Mouza Saboo; that as per map of "Haqooq Nallahjat Charagah Mouza Saboo Tehsil Ladakh", the land in question is situated within the boundary limits of village Saboo as the said map clearly 'mentions in its entry at S.No. 2 that from Shey Manla Takna in the south along the road up to Tiarey Rong are the territorial limits of village Saboo; that this is not the identified pasture land of Mouza Shey; that from the ancient times this pathway/road has been in use for traffic towards Leh town; that the existence of pathway/road is evident and traceable from the existence of Chortan Stupa and Maney Manthang on the spot; that from the spot verification the land measuring 195 Kanals and 5 marlas comprising Khasra no. 2858 is indicated in Khaka Dasti as "A". Out of this 195 Kanals and 5 Marlas of land, a portion of land measuring 9 kanals and 16 Marlas is in the shape of fields having been brought under cultivation irrigation in the past and land measuring 34 Kanals and 13 Marlas is under compound walling; that further a pucca water reservoir tank is also OWP 1369 of 2013 Page |7 found to have been constructed on the spot on 31x22 feet land; that further towards the south of the TR (Tibetan Refugees) Khul, a motor house of 15 HP for lift irrigation is also found to have been constructed on the spot and 1150 feet long pipeline is also laid on the spot for water supply from the machine to the reservoir which is presently lying defunct; that further a well also is seen to have been constructed on the spot towards the north side of the land in question; that the land in question is presently in possession of Tashi Phunchok, etc.; that the land measuring 163 kanals and 16 marlas comprising Khasra No. 2859 has been shown as B in Khaka Dasti and in respect whereof it has been reported that a compound wall measuring 1021 feet has been constructed on the spot by Janfan Lamzang Tsogspa Society Chemday and that the ruins, remnants of as many as six number of structures along with one/two structures of Kacha bricks are also existing on the spot but that presently none of the lands is under cultivation; that the land is presently under the possession of Janfan Lamzang Tsogspa; that both these two chunks of land are situated within the boundary limits of village Saboo and that village Chemday is situated at a distance of 32 Kms from the land in question; that the land in question was Beroon line Sarkar (the report of Tehsildar/field staff along with its enclosures 5 leaves enclosed).
I have personally along with the Tehsildar Leh visited the land, conducted the enquiry and have verified the facts on the spot. I have also examined the relevant records of villages Saboo, Shey and Choglamsar. As per the record of Naksha Hakook Mutaliq Nallah Jat Charagah Mouza Saboo tehsil Ladakh entry no. 1 identifies the pasture land where the villagers of village Saboo have the right of pasture whereas entries No. 2 and 3 mention the locational position and limits of the boundary of village Saboo as;
In east from Beda Sehy Choti to Shey Smanla Tankna in the south; from Shey Samanla Tagna to Tiarey OWP 1369 of 2013 Page |8 Rong along the road / pathway in the west, from Tiarey Rang to Namkah, in the north, from Namkha to Charkatk; Thang Sang Sang is situated towards the north west of Mohalia Ayu. The pasture lands are 10 miles in length and 4 miles in breadth. Further, it is mentioned under entry at serial no. 4 of the said record that the villagers of Saboo have exclusive rights of pasture over the pasture lands from serial no. 1 to 4 as mentioned at S. No. 1 of the said map. The map in its entry at S. No. 5 further reveals that the residents of villages Choglamsar, Shey, Ladakh bring their cattle for grazing over the plain which is situated south west and that no cess/compensation is recovered from the residents of these villages for grazing; that the residents of other villages who are not entitled to pasture/grazing are also permitted to graze their cattle without charges over the said pasture land of village Saboo. From entry at S. No. 5 of the said map of Saboo, it is clear that the inhabitants of other villages are not entitled to the right of pasture over the identified pasture lands of village Saboo even though they are permitted to graze their cattle on some limited areas without charges. Similarly, the record of map of pasture lands/Nahlla of village Choglansar identifies the pasture land of the village and mentions that the other villagers have no right of pasture over the pasture lands so identified even though the inhabitants of other villages
- Chochot Yokrna - are permitted to graze their cattle there."
11. It is evident that mutation no. 793 has been attested in favour of private respondents in respect of land comprising survey no. 2858 of village Saboo. From the documents placed on record by the petitioner in the form of record pertaining to grazing land of village Saboo, it is not OWP 1369 of 2013 Page |9 forthcoming that the land comprising survey no. 2858 which has been mutated in favour of the private respondents is a grazing land. The ACR after visiting the spot and obtaining the record from Tehsildar concerned as extracted above has categorically returned a finding of fact that the land in question is situated within the boundary limits of village Saboo and is in possession of private respondents although the same is lying barren on the spot as the source of irrigation has dried up. It is also observed that the Village Chemday is about 35 kms away from the land in question which is the shape of plain.
12. It is pertinent to mention here that the petitioners in their representation dated 15.09.2014, admittedly filed during the prudency of this writ petition, had categorically stated that land between Shey Manla Takna and Shey Manla Naga measuring 1200 Kanals belong to Village Shey, out of which land measuring 195 kanals and 5 marlas and 163 kanals and 16 marlas have been illegally mutated in favour of 17 persons of village Saboo and a request was also made in the representation to conduct the demarcation of the grazing land strictly in accordance with relevant rules. It appears that a demarcation was conducted by the Naib-Tehsildar, Leh-Territorial and he only expressed his opinion which was not the scope of reference. In the representation as stated above the petitioners are claiming the land measuring 195 kanals and 5 marlas to be the land of village Shey, the fact which has been negated by the report of the Assistant Commissioner, Revenue and even in the demarcation report prepared by the Naib-Tehsildar Leh-Territorial it OWP 1369 of 2013 P a g e | 10 has not been established that the land in question belongs to the village Shey.
13. The respondent no. 1 after placing reliance upon the report submitted by the Assistant Commissioner, has rightly arrived at the conclusion that the petitioners have no right or claim on the land which is part of another village Saboo and also that there is no record available to show that the land in question is identified as pasture of Village Shey.
14. The other contention raised by the petitioners that the land could not have been mutated being a grazing land in terms of the Council Order no. 21-C of 1936 pales into insignificance particularly in view of the finding recorded by the respondent 1 that the land in question is not grazing land.
15. The factual findings have been returned on the basis of record and this court cannot don the role of appellate court while examining the validity of the order passed by the respondent No.1. The Hon'ble Supreme Court of India in "Central Council for Research in Ayurvedic Sciences v. Bikartan Das", 2023 SCC OnLine SC 996 has examined the scope of Writ of Certiorari and has observed as under:
51. The first cardinal principle of law that governs the exercise of extraordinary jurisdiction under Article 226 of the Constitution, more particularly when it comes to the issue of a writ of certiorari is that in granting such a writ, the High Court does not exercise the powers of Appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior tribunal purports to be based. It demolishes the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior tribunal. The writ of certiorari can be issued if an error of law is apparent on the face of the record. A writ of certiorari, OWP 1369 of 2013 P a g e | 11 being a high prerogative writ, should not be issued on mere asking.
52. The second cardinal principle of exercise of extraordinary jurisdiction under Article 226 of the Constitution is that in a given case, even if some action or order challenged in the writ petition is found to be illegal and invalid, the High Court while exercising its extraordinary jurisdiction thereunder can refuse to upset it with a view to doing substantial justice between the parties. Article 226 of the Constitution grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the writ court, exercising this flexible power to pass such orders as public interest dictates & equity projects. The legal formulations cannot be enforced divorced from the realities of the fact situation of the case. While administering law, it is to be tempered with equity and if the equitable situation demands after setting right the legal formulations, not to take it to the logical end, the High Court would be failing in its duty if it does not notice equitable consideration and mould the final order in exercise of its extraordinary jurisdiction. Any other approach would render the High Court a normal court of appeal which it is not.
(emphasis added)
16. If the claim of the petitioners is examined on the parameters of the law laid down as above, by the Hon'ble Apex Court, this court does not find any reason or cause to show indulgence.
17. Viewed thus, this court does not find any merit in the writ petition and the same is accordingly dismissed.
(RAJNESH OSWAL) JUDGE Srinagar 24-09-2024 N Ahmad Whether the order is reportable: Yes Whether the order is speaking: Yes Nissar Ahmad Bhat I attest to the accuracy and authenticity of this document 24.09.2024 11:20