Ali Shan Khan & Anr vs State Of Jk & Ors
2021 Latest Caselaw 461 j&K/2

                                                                           Sr. No. 206
                                                                           Advance List
                 IN THE HIGH COURT OF JAMMU AND KASHMIR
                               AT SRINAGAR

                                      (Through Virtual Mode)
                                        OWP No. 1058/2016
       Ali Shan Khan & Anr.                                               ...Petitioner(s)

       Through: Mr M. M. Iqbal, Adv.

                                                 Vs.
       State of JK & Ors.                                                ...Respondent(s)

       Through: Mr B. A. Dar, Sr. AAG for 1 to 4.
                Mr. Shuja-ul-Haq, Adv. for 5.

       Coram:         HON'BLE MR. JUSTICE SANJEEV KUMAR

                                            ORDER

21.04.2021

1. Learned counsel for the petitioners at the outset submits that petitioner No. 1 has expired during the pendency of this petition and the cause of action to maintain this petition has survived to petitioner No. 2 and therefore the necessity to move an application for substitution of legal heirs of petitioner No. 1 is obviated. Statement of learned counsel is taken on record and petitioner No 1 is struck off from array of petitioners.

2. The petitioner in this petition seeks Writ of Certiorari for quashing the order of Assistant Commissioner (Revenue) Kupwara dated 31 st May 2016 passed in File No. 53 titled Mst. Zatooni vs. Ali Shan and another. Impugned order has been assailed by the petitioner primarily on the ground that:-

(i) In terms of Section 11 of the J&K Land Revenue Act Svt. 1996 (hereinafter referred to as the 'Act'), Assistant Commissioner (Revenue) Kupwara was not vested with the powers of Collector and, therefore, was not competent to hear the appeal against the order of mutation passed by Tehsildar

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Karnah (Kupwara) in his capacity as Assistant Collector of 1st Class.

(ii) That petitioner No. 2 who had acquired interest in property after having purchased the same from petitioner No. 1 (now deceased) was not arrayed as party in the appeal before the Assistant Commissioner (Revenue) Kupwara and therefore the appeal was bad for non-joining of necessary party and, therefore, not competent in law.

(iii) That under Section 12 of the J&K Land Revenue Act, 60 days period of limitation is prescribed for filing an appeal before the Collector. But in the instant case, a huge delay of 16 years was condoned by the appellate authority without any reason or justification.

3. The writ petition is opposed by respondent No. 5.

4. Having heard the learned counsel for the parties and perused the record, I am of the considered view that in the face of statutory remedies, which are equally efficacious, being available, resort to writ petition under Article 226 of the Constitution of India by the petitioner is not permissible.

5. Impugned order has been passed by the Assistant Commissioner (Revenue) in his capacity as Collector while hearing the appeal against the order passed by Tehsildar, Karnah who is ex-officio of Assistant Collector 1st Class.

6. Section 6 of the Act provides five different classes of Revenue Officers. The Financial Commissioner being at the top is followed by Divisional Commissioner, the Collector, the Assistant Collector of 1st Class and Assistant Collector of 2nd Class. The Deputy Commissioner of the District is ex-officio the Collector and Assistant Commissioner and the Tehsildar are ex-officio the Assistant Collector 1st Class, whereas Naib-Tehsildar is Assistant Collector of 2 nd Class. In terms of Section 11 of the Act, an appeal from the order of Assistant Commissioner of the either Class lies before the Collector and the MOHAMMAD ALTAF NIMA 2021.04.22 17:06 I attest to the accuracy and OWP integrity of this No. 1058/2016

order of the Collector is appealable before the Divisional Commissioner. Similarly, the order passed by the Divisional Commissioner can be appealed against before the Financial Commissioner. This is how the hierarchy of adjudicatory revenue authorities is laid down in Section 11 of the Act.

7. The plea of the learned counsel for the petitioner is that Assistant Commissioner (Revenue) Kupwara was not vested with the powers of Collector and therefore was not competent to hear the appeal against the order of mutation passed by learned Tehsildar, Karnah in his capacity as Assistant Collector 1st Class, is not tenable in view of SRO 461 dated 19th November 1985 issued by the Government in exercise of powers conferred by Section 6 Sub-Section 5 (a) of the Act.

8. In terms of aforesaid SRO, the Government has conferred the power of Collector on various Assistant Commissioners (Revenue) including the Assistant Commissioner (Revenue) Kupwara. For better appreciation of the issue, it is necessary to set out Section 6 (5-a) of the Act which reads thus:-

"The Government, may by notification in the Government Gazette, confer on any Assistant Commissioner or Assistant Settlement Officer the powers of Collector and such Collector shall exercise those powers in respect of such cases under this Act or any other law for the time being in force as may be transferred to him by the Collector from time to time."

9. It is in the exercise of powers conferred by the aforesaid provision, the Government has issued SRO 461 dated 19th November 1985 conferring upon various Assistant Commissioners including the Assistant Commissioner (Revenue) Kupwara the powers of Collector. In that view of the matter, the primary objection of the learned counsel for the petitioner to the sustainability of the impugned order is without substance and deserves to be rejected.

10. The other pleas raised by the petitioner are also not required to be gone into in this petition for, in the face of availability of alternate MOHAMMAD ALTAF NIMA 2021.04.22 17:06 I attest to the accuracy and OWP integrity of this No. 1058/2016

remedy which is statutory in character, this Court may not like to interfere with the impugned order.

11. Admittedly, the order has been passed by the Collector hearing an appeal against the order of mutation passed by Tehsildar, Karnah, and in term of Section 11(b), the appeal lies before the Divisional Commissioner. Even the second appeal against the order that may be passed by the Divisional Commissioner in an appeal is permissible subject to its maintainability only on the grounds mentioned in Clauses (a) (b) (c) of sub-Section 1 of Section 100 of the Code of Civil Procedure 1977.

12. That apart, under Section 15 of the Act, the Financial Commissioner and the Divisional Commissioner have the powers to call for the record of any case pending before or disposed of by the Revenue Officer subordinate to them. Needless to say that J&K Land Revenue Act, Svt. 1966 is a complete Code in itself and has provided complete redressal mechanism; there is hierarchy of appellate authorities as provided under Section 11 of the Act and in addition thereto, there is power of revision conferred upon by the Financial Commissioner and the Divisional Commissioner to revise any order passed by any Revenue Officer subordinate to them. The remedies provided are not only statutory but are equally efficacious. The revenue disputes which invariably involve mixed questions of fact and law can be better determined by the revenue authorities and, therefore, it is always advisable for the aggrieved party to first avail of statutory remedy available under the Act before invoking the jurisdiction of this court.

13. In the case of Titaghur Paper Mills Co. Ltd. vs. State of Orissa (1983) 2 SCC 433, Hon'ble Supreme Court in Para 11 of the said judgment has held thus:-

"Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the prescribed authority under sub-s. (1) of s. 23 of the Act. If MOHAMMAD ALTAF NIMA 2021.04.22 17:06 I attest to the accuracy and OWP integrity of this No. 1058/2016

the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-s. (3) of s. 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under s. 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Art. 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Water Works Co. v. Hawkesford (1) in the following passage:

"There are three classes of cases in which a liability may be established founded upon statute.................But there is a third class, viz., where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it................the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to."

The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspaper Ltd.(2) and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant & Co.(3) and Secretary of State v. Mask & Co.(4) It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine."

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(Also see 2020 SCC Online SC 440, Assistant Commissioner (Ct) Ltu vs. M/s Glaxo Smith Kline Consumer Health Care Limited)

14. For the foregoing reasons, I am not inclined to entertain this petition and the same is accordingly dismissed.

15. The dismissal of this petition, however, shall not come in the way of the petitioner to invoke statutory remedy/remedies available under the Act. Needless to say that in case the petitioner invokes the statutory remedies, the period during which this petition has remained pending in this court shall be set-off while considering the question of delay, if any.

(SANJEEV KUMAR) JUDGE SRINAGAR 21.04.2021 Altaf

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