Bashir Ahmad Wani vs State Of J&K And Anr
2023 Latest Caselaw 536 j&K/2

                                                   S. No. 05
                                                   Final hearing matters
      HIGH COURT OF JAMMU &KASHMIR AND LADAKH
                 AT SRINAGAR
                                                        OWP No. 287/1999

Bashir Ahmad Wani                                        .....Petitioner(s)

                        Through:      Mr. G. A. Lone, Adv.
                                      Mr. M. A. Wani, Adv.
                                      with Mr. Z. A. Wani, Adv.
      V/s
State of J&K and anr.                                    ..... Respondent(s)

                        Through:      Mr. M. A. Qayoom, Adv.
CORAM:
            Hon'ble Mr. Justice Sanjeev Kumar, Judge.

                              Judgment(Oral)
                                 02.05.2023

1. The petitioner (Bashir Ahmad Wani) who claims to be adopted son

of Mst. Sajda and Shams-ud-din Wani has filed this petition under

Article 226 of the Constitution of India to assail the order dated

25.05.1999 passed by the Financial Commissioner, J&K, Srinagar in

a revision No. 105 of 1998 titled Mst. Sajda Vs. Bashir Ahmad

Wani whereby the Financial Commissioner has set aside the order of

Naib Tehsildar dated 10.10.1991 as upheld by the Deputy

Commissioner, Kupwara vide its order dated 09.06.1998

2. Briefly stating the facts leading to the filing of this petition are that

Naib Tehsildar vide its order dated 10.10.1991 ordered correction of

Girdawari entries of Kharif, 1971 to show the petitioner herein, in

cultivating possession of three parcles of land measuring 01 kanal 16 Page |2 OWP No. 287/1999

Marlas falling under Khasra No. 2577/276, 5 Kanals 06 marlas

falling under Khasra No. 1506 and 04 kanals and 15 Marlas falling

under Khasra No. 1507 situated in village Batergam (subject land).

This entry was made by Naib Tehsildar on the basis of application

submitted by the petitioner supported by a deed of adoption claimed

to have been executed by Mst. Sajda Begum and her husband

Sonaullah Wani on 28.01.1991. This correction of Girdawari entry

in favour of the petitioner became subject matter of challenge in an

appeal filed by Mst. Sajda before the Deputy Commissioner,

Kupwara. The Deputy Commissioner, Kupwara vide order dated

09.06.1998, dismissed the appeal and upheld the order of Naib

Tehsildar dated 10.10.1991. Mst. Sajda challenged the order of

Deputy Commissioner, Kupwara dated 09.06.1998 by way of

revision petition before the Financial Commissioner, J&K, Srinagar.

The Financial Commissioner considered the entire matter in light of

legal position obtaining on the subject and vide its order dated

25.05.1999 allowed the revision petition. Both the orders i.e, order

passed by Naib Tehsildar dated 10.10.1991 and order passed by

Deputy Commissioner, Kupwara dated 09.06.1998 were set aside. It

is this order of Financial Commissioner which is called in question

in this writ petition on multiple grounds.

Page |3 OWP No. 287/1999

3. Having heard learned counsel for the petitioner and perused the

material on record, I am of the considered opinion that the order

passed by Financial Commissioner, J&K, Srinagar is perfectly legal

and falls within four corners of law and therefore does not call for

any interference in exercise of extra ordinary writ jurisdiction. It

may be relevant to note that under Land Revenue Act and the Rules

framed there under, particularly Standing Order 23A elaborate

procedure for attestation of mutation of different kinds has been laid.

The Girdawari entries made in the revenue record cannot be

challenged or altered by Mutating Officers of their own or on a

simple application made by the applicant who claims such

change/correction of such entries. Learned counsel for the parties

are not at variance with regard to the fact that for change of revenue

entries, including Khasra Girdawari entries, attestation of mutation

by the competent authority is a sine quo non. It is only that during

the harvest inspection if some change in rights including change in

possession of the land is brought to the notice of the Patawari, a

report in this regard is made to the competent authority through

proper channel. The report made by the Patwari and the entries

proposed to be varied are verified by the Girdawar of the concerned

circle and if he is of the opinion that the change in revenue record is

required, he makes recommendation to the Mutating Officer for Page |4 OWP No. 287/1999

attesting the relevant mutation. Admittedly, this procedure has not

been followed in this case. The impugned entry also does not

indicate as to whether any enquiry was conducted by the Naib

Tehsildar to ascertain the claim of the petitioner that he was in

cultivating possession in Kharif 1971. There is another fatal defect

in the impugned entry made by the Naib Tehsildar vide its order

dated 10.10.1991 i.e, entry has been varied to prejudice the rights of

the respondents without even affording them an opportunity of being

heard.

4. Viewed from any angle, order of Naib Tehsildar dated 10.10.1991

making entry of possession in Kharif 1971 in respect of subject land

is contrary to the law. The Deputy commissioner, Kupwara could

not appreciate the controversy in right perspective and landed in

serious error in upholding the order of Naib Tehsildar dated

09.06.1998. The Financial Commissioner has very correctly

appreciated the entire issue and has rightly come to the conclusion

that neither impugned entry made in terms of the order dated

10.10.1991 passed by Naib Tehsildar nor order of Deputy

Commissioner, Kupwara dated 09.06.1998 are sustainable in law. I

fully agree with the view taken by the Financial Commissioner

while deciding revision petition in terms of order impugned.

Page |5 OWP No. 287/1999

5. In view of the aforesaid and for the reasons elaborately given by the

Financial Commissioner in the impugned order, this writ petition is

found to be without any merit and is accordingly dismissed. The

parties are left free to explore their remedies before the appropriate

Forum in accordance with law. I am told that the parties are already

litigating in civil court where the suit filed by the petitioner seeking

declaration of his status as adopted son of Mst. Sajda is pending

adjudication. The petitioner has also called in question some gift

deed executed by Mst. Sajda in favour of one Ghulam Hassan Wani

in the said suit. Be that as it may, the civil litigation between the

parties has to proceed in accordance with law and nothing is

required to be said by this Court.

(Sanjeev Kumar) Judge SRINAGAR 02.05.2023 "Aasif"