Jammu & Kashmir High Court
Om Parkash vs Union Territory Of Jammu And on 2 March, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Reserved on 19.02.2024
Pronounced on 02.03.2024
WP(C) No. 2360/2021
c/w
CCP (S) No. 293/2021
OWP No. 549/2019
1. Om Parkash, Age 76 years, ...Appellant(s)/Petitioner(s)
S/o Mool Raj, R/o Sakta
Chack, Tehsil and District
Kathua. Mobile No.
9522333033
2. Madan Lal, Age 70 years, S/o
Mool Raj R/o Sakta Chack
Tehsil and District Kathua.
3. Surinder Kumar, Age 68 years
S/o Mool Raj R/o Sakta Chack
Tehsil and District Kathua
4. Shiv Kumar, age 58 years, S/o
Mool Raj R/o Sakta Chack
Tehsil and District Kathua.
5. Bishamber Dass, Age 78 years
S/o Jagan Nath R/o Sakta
Chack Tehsil and District
Kathua.
Through: Mr. Ankur Sharma, Advocate
Vs.
1. Union Territory of Jammu and ..... Respondent(s)
Kashmir, through its
Commissioner/Secretary Revenue
Department, Civil Secretariat,
Jammu/Srinagar.
2. Mr. Rahul Yadav, IAS, Deputy
Commissioner, Kathua
3. Deputy Commissioner, Kathua.
\
Through: Mrs. Monika Kohli, Sr. AAG
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
WP(C) NO. 2360/2021,
OWP NO. 549/2019 &
01. The petitioners through medium of the present writ petition have
challenged order No. DCK/SQ/2021-22/1090-93 dated 17.07.2021 issued by
respondent No. 2, whereby respondent No. 2, Deputy Commissioner, Kathua
has set aside mutation Nos. 171, 422, 423 and 440 of village Chak Sagta,
Tehsil and District, Kathua and restored the land measuring 58 kanals under
khasra No. 310/24, situated at village Chak Sagta, Tehsil and District Kathua
to the State.
02. According to the petitioners, in terms of mutation No. 457, the
ownership rights in respect of land measuring 4 kanals under khasra No. 27
min, situated at village Sakta Chack, Tehsil and District Kathua were attested
in favour of the petitioners. Similarly vide mutation No. 171, the petitioners
were recorded as tenants at will in respect of land measuring 01 kanal 18
marlas under Khasra No. 24 min, situated in the same village in terms of
Government Order No. LD-6/C of 1958, whereafter vide mutation Nos.
422/423, the petitioners were recorded as owners in respect of the aforesaid
land in terms of Government order No. S-432 of 1966. It has been submitted
that by virtue of the impugned order, respondent No. 2 has declared all the
above-referred mutation orders as void ab-initio and restored the land in
question to the State.
03. The petitioners have challenged the impugned order passed by
respondent No. 2 on several grounds, but the main grounds, on which, the
learned counsel for the petitioners has laid emphasis during the course of
arguments, are that respondent No. 2 was not competent to pass the impugned
WP(C) NO. 2360/2021,
OWP NO. 549/2019 &
order, as neither he had any power to exercise the revisional jurisdiction in
respect of the mutations attested by the Tehsildar, nor did he had power to
review the said mutation orders. It has been further contended that even
otherwise, it was not open to respondent No. 2 to cancel the mutations
attested in favour of the petitioners without hearing them.
04. The writ petition has been contested by the respondents by filing
reply thereto. In their reply, the respondents have taken a stand that illegal
entries in the revenue record were made in respect of the land in question in
favour of the petitioners on the basis of illegal mutation orders. It has been
submitted that respondent No. 2, while preparing parawise reply/objections in
another writ petition bearing OWP No. 549/2019 filed by the petitioner-Om
Parkash against the respondents, came to know about the aforesaid
illegalities/irregularities, which compelled him to pass the impugned order in
exercise of his administrative powers. According to the respondents, there
was no requirement of adhering to the principle of natural justice before
cancelling the mutation orders passed in favour of the petitioners and that
respondent No. 2, Deputy Commissioner, Kathua being the head of the
Revenue Officers of the District, was well within his jurisdiction to pass the
impugned order so as to correct the illegalities/irregularities.
05. I have heard learned counsel for the parties and perused the pleadings
and record of the case.
06. It is not in dispute that mutation Nos. 171, 422, 423 and 440 of
village Sakta Chack Tehsil and District Kathua were attested in respect of the
land in question in favour of the petitioners and the said attestation was
WP(C) NO. 2360/2021,
OWP NO. 549/2019 &
undertaken by the concerned Tehsildar. It is also not in dispute that by virtue
of the impugned order, the aforesaid mutation orders have been set aside by
respondent No. 2, Deputy Commissioner, Kathua, thereby restoring the land
measuring 58 kanals under khasra Nos. 310/24, situated at the aforesaid
village to the State. Two issues that are required to be determined are that as
to whether respondent No. 2, Deputy Commissioner, Kathua was competent
to cancel these mutation orders without there being any application or appeal
from any interested person before him and secondly, whether the mutation
orders attested in favour of the petitioners could have been set at naught
without hearing the petitioners.
07. If we have a look at the provisions contained in the Jammu and
Kashmir Land Revenue Act, 1996 (1939 A.D.), Section 6 of the Act classifies
the Revenue Officers and these include the Financial Commissioner, the
Divisional Commissioner, the Collector, the Assistant Collector of the first
class and the Assistant Collector of the second class. It also provides that the
Deputy Commissioner of a District would be the Collector of a District and an
Assistant Collector and a Tehsildar would be an Assistant Collector of the
first class, whereas a Naib Tehsildar would be an Assistant Collector of the
second class.
08. Section 11 of the J&K Land Revenue Act provides that an appeal
from an order passed by the Assistant Collector of either class shall lie to the
Collector; an appeal from an order passed by the Collector shall lie to the
Divisional Commissioner and an appeal shall lie to the Financial
Commissioner from an order passed by the Divisional Commissioner.
WP(C) NO. 2360/2021,
OWP NO. 549/2019 &
09. Section 13 of the J&K Land Revenue Act provides that a Revenue
Officer has power to review his own order either of his own motion or on the
application of any interested party. Clause (c) of sub section (1) of Section 13
of the Act postulates that while exercising the powers of review, an order
cannot be modified or reversed unless reasonable notice has been given to the
parties affected thereby to appear and be heard in support of the order.
10. Section 15 of the J&K Revenue Act vests powers of revision with the
Financial Commissioner and the Divisional Commissioner. In case, the
Divisional Commissioner feels that the order against which revision petition
has been filed is required to be modified or revised, he has to send a report
alongwith his opinion to the Financial Commissioner. Proviso to Section 15
further lays down that in case an order is required to be reversed or modified,
the same cannot done without giving to the affected person an opportunity of
hearing.
11. In the instant case, respondent No. 2 has set aside the mutation orders
passed in favour of the petitioners and the said mutation orders had been
passed by the Tehsildar. A Deputy Commissioner is vested with appellate
powers against an order of the Tehsildar (Assistant Collector). It is not case of
the respondents that an appeal against the mutation orders attested in favour
of the petitioners had been filed before him. Thus, it cannot be stated that
while passing the impugned order, respondent No. 2 has exercised its
appellate power in terms of Section 11 of the Act. Since the orders of
mutation were passed by the Tehsildar and not by the Deputy Commissioner,
as such, it can also be not stated that the Deputy Commissioner has exercised
WP(C) NO. 2360/2021,
OWP NO. 549/2019 &
his suo moto powers of review as contemplated in Section 13 of the Act. The
Deputy Commissioner is not vested with powers of revision in terms of
Section 15 of the Act, as such, it cannot be stated that while passing the
impugned order, respondent No. 2, Deputy Commissioner, Kathua has
exercised his revisional jurisdiction.
12. The stand taken by the respondents is that respondent No. 2, Deputy
Commissioner, Kathua has exercised his administrative powers. I am afraid,
there is no such administrative power vested with the Deputy Commissioner
that would give him jurisdiction to set aside the mutation orders passed by the
Tehsildar. The power to attest a mutation as also the power to set aside the
mutation, is quasi judicial in nature. The said power can never be termed as an
administrative power of the Revenue Officer. This power is to be exercised by
the Revenue Officers strictly in accordance with the provisions contained in
the J&K Land Revenue Act and that too after affording an opportunity of
hearing to the affected party by adhering to the principles of natural justice.
As has been already noted, even while reviewing its own order, a Revenue
Officer has to give an opportunity of hearing to the affected party. The same
is the position when Divisional Commissioner or Financial Commissioner
exercises his revisional powers under Section 15 of the Act. A Revenue
Officer is obliged to adhere to the principles of natural justice before setting at
naught a mutation order attested in favour of a person.
13. In the instant case, respondent No. 2, Deputy Commissioner, Kathua
has adopted a novel approach by exercising powers of review in respect of the
orders passed by the Tehsildar, who is a subordinate Revenue Officer. This
WP(C) NO. 2360/2021,
OWP NO. 549/2019 &
has been done by respondent No. 2 without even putting the affected party to
notice. The manner in which respondent No. 2 has proceeded to set at naught
the mutation orders attested in favour of the petitioners, clearly exhibits
arbitrariness on his part.
14. In view of the above, it is clear that respondent No. 2 had no authority
to pass the impugned order. Besides this, he has not afforded any opportunity
of hearing to the affected party, i.e. the petitioners herein. The impugned
order is, therefore, not sustainable in law. The same, as such, deserves to be
set aside.
16. For the foregoing reasons, the writ petition is allowed and impugned
order No. DCK/SQ/2021-22/1090-93 dated 17.07.2021 passed by respondent
No. 2 is set aside. It shall, however, be open for the respondents to take
recourse to appropriate remedy available under law.
17. The present contempt petition has been filed in respect of the interim
order dated 01.11.2021 passed in WP(C) No. 2360/2021. Since the main writ
petition has been decided in terms of the afore-noted order, as such, the
interim order has merged with the final judgment. Thus, the contempt
proceedings do not survive. The same are, accordingly, closed.
18. One of the contentions raised by the petitioner in the instant petition
is that instead of paying full compensation of Rs. 22,11,000/- as per the
WP(C) NO. 2360/2021,
OWP NO. 549/2019 &
award, the respondents are offering to pay 1/3rd of the assessed compensation
to the petitioner.
19. The respondents have taken a definite stand against the aforesaid
claim of the petitioner on the basis of order No. DCK/SQ/2021-22/1090-93
dated 17.07.2021, which has been set aside in terms of the judgment passed in
the connected writ petition bearing No. WP(C) 2360/2021.
20. In view of the above, the respondents may file a fresh reply
explaining the basis on which the petitioner is being offered only 1/3rd of the
assessed compensation.
21. Be listed on 03.04.2024.
(SANJAY DHAR)
JUDGE
Jammu
02.03.2024
Karam Chand/Secy.
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No.
