Abdul Majeed Dar And Another vs Ut Of J&K And Others
2021 Latest Caselaw 869 j&K/2

                                                        Serial No. 107



   IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                             AT SRINAGAR

CJ Court


                          Case: LPA 97/2021

Abdul Majeed Dar and another
                                               ... Petitioner/Appellant(s)
Through: Mr. M. Y. Lone, Advocate

                       V/s
UT of J&K and others
                                                       ... Respondent(s)

Through: Mr. D. C. Raina, AG, with Mr. Sajad Ashraf, GA
         Mr. A. Haqani, Sr. Advocate, with Mr. Shakir Haqani, Advocate


CORAM: HON'BLE THE CHIEF JUSTICE
       HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                 ORDER

09-08-2021

1. Heard Mr. M. Y. Lone, learned counsel for the petitioners/

appellants, and Mr. D. C. Raina, learned AG who is assisted

by Mr. Sajad Ashraf, GA.

2. Impugned in this appeal is the judgment and order dated

15.7.2021 of the learned Single Judge dismissing WP(C) No.

982/2020 titled Abdul Majeed Dar and another versus Union

Territory of J&K and others.

3. The contention of the learned counsel for the petitioners/

appellants is that the writ court has completely failed to

consider that the order impugned in the writ petition passed

by the SDM Chadoora, Budgam, was completely without Page |2 LPA 97/2021

jurisdiction, and secondly that the order was passed behind

the back of the petitioners/appellants. Apart from the above

contentions, it is also alleged that there was a proper exchange

of land and, therefore, the orders of mutation were not liable

to be set aside that too without holding a proper inquiry in

accordance with the rules.

4. The respondents have submitted that there was no valid

exchange of land. The petitioners/appellants despite alleged

exchange retained their land and never parted with it and,

thus, have managed the mutation entries which have been

rightly set aside by the SDM who is fully authorized to pass

the said order. The petitioners/appellants directly approached

the High Court by means of the writ petition so as to

challenge the above order without exhausting the statutory

remedy of appeal provided under section 11 of the J&K Land

Revenue Act. The aforesaid order was passed after due

opportunity of hearing to the petitioners/appellants and they

have even participated in the proceedings.

5. Before dealing with the respective contentions of the parties,

it is appropriate to state in brief the facts leading to the filing

of the writ petition.

6. The petitioners/appellants allege that in exchange of 19

marlas of their proprietary land falling under survey Nos. 745

and 334 in village Ranger, Chadoora, district Budgam, they

have obtained 9 marlas of kahcharie land. On the basis of the Page |3 LPA 97/2021

said exchange, mutation numbers 110 and 111 were carried

out by the Revenue department in the name of the

petitioners/appellants. However, the SDM by the impugned

order dated 25.6.2020 has ordered for setting aside the

aforesaid mutation entries, thus restoring back the land as the

kahcharie land, and the land under survey Nos. 745 and 334

of the petitioners/appellants in their own name.

7. A reading of the order of the SDM dated 25.6.2020 indicates

that the mutation entries were set aside as it was found that

there was no valid exchange inasmuch as there was no

approval to it by the competent authority and that despite the

alleged exchange, the petitioners/appellants never parted with

their land and remained in its occupation.

8. It is pertinent to mention that the dispute raised in the writ

petition from which this appeal arises, was with regard to the

mutation entries.

9. It is settled law that mutation entries are only for fiscal

purposes and are not documents of title. The mutation neither

extinguishes nor confers rights in the immovable property and

that the ultimate title, if necessary, is to be adjudicated upon

by the Civil Court. The courts have repeatedly laid down that

as mutation entries are not documents of title, any entry, even

if incorrectly made, would not affect the rights and titles of

the parties over the land and, as such, ordinarily such change Page |4 LPA 97/2021

in entries/mutation would not be amenable to the

extraordinary jurisdiction of this court.

10. In Sawarni Vs. Inder Kaur, AIR 1996 SC 2823, the Apex

Court held that mutation of a property in the revenue record

does not create or extinguish title, nor has it any presumptive

value of title. It only enables the person in whose favour the

mutation is entered, to pay the land revenue. Similar view has

been expressed by the Supreme Court in several of its

decisions subsequent to the above one, and the latest appears

to be that in the case of Suman Verma Vs. Union of India,

AIR 2004 SC 4800, and Prem Nath Khanna Vs. Narinder

Nath Kapoor, AIR 2016 SC 1433.

11. This apart, J&K Land Revenue Act, which is a complete code

in itself, provides for the maintenance of the record-of-rights

as well as annual records and for the appeals against the

various orders passed thereunder.

12. Section 21 of the Act provides that there shall be a record-of-

rights of each estate which shall indicate a statement showing

the names of persons who are landholders, tenants or

assignees of land revenue in the estate, or who are entitled to

receive any of the rents, profits or produce of the estate or to

occupy land therein; the nature and extent of the interests of

those persons; and the conditions and liabilities attaching

thereto; and the rent, land revenue, rates, cesses or other

payments due from and to each of those persons and to the Page |5 LPA 97/2021

State; a statement of customs respecting rights and liabilities

in the estate; a map of estate; and such other documents as the

Financial Commissioner with the previous sanction of the

Government may prescribe.

13. Section 22 of the Act gives special powers to the government

to direct by notification the preparation of the record-of-rights

where no such records exist or to revise the records-of-rights.

14. In addition to the record-of-rights as required to be maintained

aforesaid, now passbooks commonly known as "Kissan Bahi"

have also been directed to be prepared containing the name of

the landholder and the land held by him and all other essential

information in relation thereto.

15. Section 23 of the Act contemplates for annual records in

addition to the record-of-rights, and it is the duty of the

Collector to get the annual records prepared by the Patwari

annually or at such intervals as the Commissioner directs, but

with the previous sanction of the Financial

Commissioner/Government. Such annual records are

supposed to contain all information which is required to be

recorded in the record-of-rights as mentioned in section 21(2)

of the Act. It is for the above purposes that the Collector is

required through the Patwari to maintain register of mutations.

16. Section 26 of the Act provides for the mode of determination

of the dispute in relation to the entries in the record-of-

rights/annual records. It provides that if during the preparation Page |6 LPA 97/2021

or revision of any record or in the course of inquiry a dispute

arises as to any entry made in the record or in the register of

mutations, a Revenue Officer may on his own motion or on

the application of any party interested, make a summary

inquiry into the title as may be necessary, to determine the

entry to be made in the record of that land. It also provides

that the order passed by the Revenue Officer declaring the

party best entitled to the property shall be subject to any

decree or order that may be passed by the Civil Court of

competent jurisdiction. In other words all disputes regarding

the entries in the land records/mutation are required to be

decided by the Revenue Officer who is authorised to exercise

the said power even suo moto in a summary manner and that

the order passed by him is subject to the decision of the

competent Civil Court.

17. The Revenue Officer entitled to resolve the disputes in

accordance with Section 26 of the Act has been defined under

section 3 (12) of the Act to mean an officer having authority

under the Act to discharge the functions of Revenue Officer.

Section 6 of Chapter-II of the Act classifies the Revenue

Officers, which includes the Financial Commissioner; the

Divisional Commissioner; the Collector; the Assistant

Collector of the first class; and the Assistant Collector of the

second class.

Page |7 LPA 97/2021

18. It further provides that the Deputy Commissioner of a district

shall be the Collector thereof and an Assistant Commissioner

and a Tehsildar shall be Assistant Collector of the first class

and Naib Tehsildar shall be an Assistant Collector of the

second class. In short, in addition to the classes of officers

enumerated above, a Deputy Commissioner, an Assistant

Commissioner, a Tehsildar and a Naib Tehsildar are also

Revenue Officers.

19. The government vide Land Revenue Act, Samvat 1996 i.e.

SRO 142 dated 26.4.2011 of the Revenue Department in

exercise of powers under sub-section (4) and (5) of section 6

of the Act has conferred upon all Sub Divisional Magistrates

of the State the powers of the Collector to be exercised by

them within the respective jurisdiction. It means that Sub-

Divisional Magistrates have been authorized to discharge the

powers of the Collector under the Act meaning thereby that

Sub Divisional Magistrates have been delegated with the

power of the Collector and, as such, are also Revenue

Officers.

20. In view of the above discussion, the basic submission of

learned counsel for the petitioners/appellants that the SDM

was not competent to pass the impugned order dated

25.6.2020 is unsustainable in law and cannot be accepted. The

SDM in passing the said order has exercised the power of the Page |8 LPA 97/2021

Collector as Revenue Officer in accordance with the

provisions of Section 26 of the Act.

21. As far as the argument that the SDM has passed the aforesaid

order behind the back of the petitioners/appellants, it would

be necessary to refer to the order of the SDM. The said order

in unequivocal terms states that the parties were summoned

and after hearing the matter, the order is being passed. It

further records that Mr. Ab. Majeed son of Gh. Mohd Lone

and Mr. Ab. Ahad son of Gh. Mohd Bhat provided two

communications both dated 08.7.2013 regarding action to be

taken under section 133 (II) (C) of the Land Revenue Act. It

was on consideration of these documents that the SDM came

to the conclusion that there is no explicit order for the

exchange of the land as alleged by the petitioners/appellants

and that there is no approval to it as required in law. The

petitioners/appellants have continued to remain in possession

of the land which they alleged to have been given in

exchange. The said recitals in the order of the SDM clearly

establish that the petitioners/appellants had the notice of the

proceedings and that they have even participated therein.

Accordingly, it cannot be said that the aforesaid order was

passed in violation of principles of natural justice without

affording any opportunity of hearing to the petitioners/

appellants.

Page |9 LPA 97/2021

22. In view of the aforesaid facts and circumstances, we are of the

opinion that the learned Single Judge has rightly come to the

conclusion that the petitioners/appellants have no right to get

their names mutated in respect of aforesaid kahcharie land and

that the mutation numbers 110 and 111 of the revenue

authorities are non-est in the eyes of law and have rightly

been set aside by the SDM. We are in full agreement with the

finding and reasoning given by the writ court. The petitioners/

appellants by invoking the writ jurisdiction of this court and

getting the matter decided on merits have undoubtedly lost

their chance of preferring an appeal under section 11 of the

Act before the Divisional Commissioner, but since the matter

has been addressed by the writ court as well as by us on

merits, we are of the considered opinion that no purpose

would now be served by allowing the petitioners/appellants to

avail the remedy of appeal. The dispute regarding mutation as

raised by them is tend to determine in a summary manner

subject to any decision that may be taken by the competent

court of civil jurisdiction.

23. The appeal lacks merit and is dismissed.

                                          (SANJAY DHAR)          (PANKAJ MITHAL)
                                               JUDGE               CHIEF JUSTICE

           Srinagar
           09-08-2021
           N Ahmada

NISSAR A BHAT
2021.08.12 17:17
I attest to the accuracy and
integrity of this document