Jammu & Kashmir High Court
Mohd Latif Son Of Wali Mohd vs Ut Of Jammu And Kashmir Through on 30 October, 2024
Author: Sanjay Dhar
Bench: Sanjay Dhar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No.1458/2020
Mohd Latif son of Wali Mohd .....Petitioner(s)
resident of village Gursai Tehsil
Mendhar District Poonch.
Through: Mr.R.P.Sharma Advocate.
Vs
1 UT of Jammu and Kashmir through ..... Respondent(s)
Commissioner Secretary to
Government, Revenue Department.
2. Collector, Deputy Commissioner
Poonch
3. Tehsildar Mendhar
4. Divisional Forest Officer Poonch.
Through: Mrs Monika Kohli Sr. AAG
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT(ORAL)
1 The petitioner has challenged order dated 16.12.2019 passed by
the District Collector (Deputy Commissioner), Poonch whereby the entries
in the revenue record with respect to survey No. 2312 min measuring 14
kanals, 07 marlas and survey No. 2271 min measuring 09 kanals situated
at village Gursai, Tehsil Mendhar, District Poonch for which mutation No.
990 under Government Order No.LB-6/C of 1958 and mutation No.999
under Government Order No. S-432 of 66 dated 03.06.1966 stood attested
in his favour, have been declared as null and void.
2 According to the petitioner, the order impugned has been passed
by respondent No.2-Deputy Commissioner, Poonch without issuing any
notice to him and without following the procedure prescribed under the
provisions of Land Revenue Act. It has been submitted that mutation
No. 990, in respect of the aforesaid land under Government Order No. LB-
6/C of 1958, was attested in favour of the petitioner, declaring him as a
tenant at will. Subsequently, vide mutation No.999, dated 16.12.1988 was
attested by the Tehsildar/Assistant Collect 1st Class, Mendhar, in favour of
the petitioner in respect of the aforesaid land thereby conferring
proprietary rights upon him in terms of Government Order No.S-432 of 66
dated 03.06.1966. It has been contended that it was not open to the
respondent-Deputy Commissioner, Poonch to declare the aforesaid
mutation orders as null and void without even issuing notice to the
petitioner and without following the procedure prescribed by law.
3 The respondents have contested the writ petition by filing a
reply thereto. In their reply, it has been submitted that the land in question
is actually a forest land as reflected in the record of rights. Thus, no
mutation under Government Orders No. LB-6/C of 1958 and No.S-432 of
66 dated 03.06.1966 was permissible under any circumstances. It has been
submitted that both the mutations aforesaid, attested in respect of the land
in question, in favour of the petitioner, are totally illegal and non est in the
eyes of law. Accordingly, the same were set aside by respondent No. 2 in
terms of the impugned order. It has been contended that the natural justice
is to be followed for doing substantial justice, but it would be of no use if
it amounts to completing a mere ritual of hearing without possibility of
any change in the decision of the case on merits. It has also been
contended that mutations attested in favour of the petitioners are fake and
illegal and, as such, the same are of no use. The respondents have gone on
to contend that the impugned order has been passed in terms of the various
interim directions passed by the Division Bench of this Court in
WPPIL No. 19/2011 titled 'Prof. S.K.Bhalla vs. State and others.
4 I have heard learned counsel for the parties and perused
record of the case.
5 It is not in dispute that mutation Nos.990, under Government
Order No. LB-6/C of 1958, and mutation No. 999, under Government
Order No. S-432 of 66 dated 03.06.1966, were attested in respect of the
land in question in favour of the petitioner by the concerned Tehsildar. It
is also not in dispute that, by virtue of the impugned order, the aforesaid
mutation orders have been declared null and void by respondent No. 2,
Deputy Commissioner, Poonch, thereby restoring the land in question to
the State. Two issues that are required to be determined are that, as to
whether respondent No. 2, Deputy Commissioner, Poonch 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 petitioner could have been set at
naught without hearing the petitioner.
6. If we have a look at the provisions contained in the Jammu
and Kashmir Land Revenue Act, 1996 (1939 A.D.) ('Act of 1996' for
short), 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.
07. Section 11 of the Act of 1996 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. Section 13 of the 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.
08. Section 15 of the Act of 1996 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 along with his opinion to the Financial Commissioner. Proviso
to Section 15 of the Act further lays down that in case an order is required
to be reversed or modified, the same cannot be done without giving to the
affected person an opportunity of hearing.
09. In the instant case, respondent No. 2 has set aside the mutation
orders passed in favour of the petitioner. The said mutation orders were
passed by the concerned Tehsildar. A Deputy Commissioner is vested
with appellate powers against an order of the Tehsildar (Assistant
Collector). It is not the case of the respondents that an appeal against the
mutation orders attested in favour of the petitioner had been filed before
the Deputy Commissioner. 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 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, Poonch has exercised his
revisional jurisdiction.
10 The power to attest a mutation as also the power to set aside the
mutation, is quasi judicial in nature. This power is to be exercised by a
Revenue Officer 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.
11. In the instant case, respondent No. 2, Deputy Commissioner,
Poonch 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 has been done by respondent No. 2 without even
putting the affected party to notice. The respondents cannot assume that
giving a right of hearing to the petitioner would not make any difference
to the case. It is quite possible that the petitioner may be able to satisfy the
respondents that his version of the case is correct and that the directions
passed by this Court in S. K. Bhalla's case
(supra) are not applicable in the facts and circumstances of his case, but
respondent No.2 has assumed every fact against the petitioner without
hearing him. 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.
12. 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 petitioner herein. The
impugned order is, therefore, not sustainable in law. The same, as such,
deserves to be set aside.
13. For the foregoing reasons, the writ petition is allowed and
impugned order dated 16.12.2019 passed by the District Collector (Deputy
Commissioner), Poonch is set aside. It shall, however, be open for the
respondents to take recourse to appropriate remedy available under law.
(SANJAY DHAR)
JUDGE
Jammu
30.10.2024
Sanjeev
Whether approved for reporting? Yes
