Jammu & Kashmir High Court
Mohd Qayoom & Ors vs Ut Of J&K & Ors on 15 October, 2025
Author: Sanjay Dhar
Bench: Sanjay Dhar
Serial No. 12
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
WP(C) No. 283/2022
Mohd Qayoom & Ors.
.....Petitioner
Through: Mr. H.A. Siddiqui, Advocate
Vs
UT of J&K & Ors.
.....Respondents
Through: Ms. Nazia Fazal, Advocate vice
Mrs. Monika Kohli, Sr. AAG
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
ORDER
(15.10.2025)
1. The petitioners, through the medium of the present
petition, have challenged order No. DCP/SQ/1184-87 dated
30.12.2020 issued by Deputy Commissioner, Poonch by
virtue of which inter-alia mutation No. 400 dated
08.12.1992 in respect of land measuring 49 kanals and 04
marlas in khasra No. 455 situated at village Mankote,
District Poonch has been cancelled by declaring the said
mutation as void ab-initio.
2. According to the petitioners they are owners of the land in
question which has been allotted to them in terms of
Government Order No. 394 of 1962 dated 03.10.1962. It
has been submitted that mutation No. 400 came to be
attested in favour of the petitioners in respect of the
aforesaid land on 08.12.1992. The petitioners have further
submitted that the said mutation was challenged before
Additional Deputy Commissioner, Poonch by way of an
appeal but the appeal was dismissed by the Additional
Deputy Commissioner vide his judgment dated 15.09.2004.
It has been further submitted that the said order was
affirmed by Divisional Commissioner, Jammu as well.
3. According to the petitioners, the impugned order whereby
the aforesaid mutation attested in favour of the petitioners
has been cancelled by declaring it as void ab-initio, has
been made without issuing notice to the petitioners or
without giving an opportunity of hearing to them.
4. The writ petition has been contested by the respondents by
filing their reply thereto. In their reply, it has been
submitted that entry in the name of petitioner No. 1 as
illegal occupant was made for the first time in Khasra
Girdawari in Kharif 1966 for an area measuring 15 Kanlas
out of 49 Kanlas 4 Marlas by the then Patwari Halqa. It has
been further submitted that in Kharif 1973, the entry of 15
Kanals was changed in the name of father of the petitioner
No. 5 and 6 with half share along with half share of
petitioner No. 1 as illegal occupants by then Naib Tehsildar.
5. The respondents have further submitted that in Kharif
1984, an entry for an area measuring 8 Kanals was made
by then Patwari Halqa in the name of father of petitioner
No. 5 and 6 and Mohd. Qayoom with equal shares as illegal
measuring 26 Kanals 4 Marlas was also entered in the
name of father of petitioner No. 5 and 6 and Mohd. Qayoom
with equal shares as illegal occupants in Rabi 1992 by then
Girdawar Circle. According to the respondents there was no
entry in the name of petitioners or their forefathers prior to
the entry made in Kharif 1966.
6. The respondents have admitted that vide mutation No. 400,
the ownership rights under Government Order No. 394/C
of 1962 for the land measuring 49 Kanals 4 Marlas have
been conferred upon the petitioners but according to them
it has been made against the statutory provisions. It has
been submitted that the land in question could not have
been mutated in the name of the petitioners. It is being
urged that the petitioners could have been declared as legal
occupants in revenue record only if authorization or
approval of „Notour‟ of State land would have been accorded
in their favour by the Maharaja Bahadur of Poonch. Had it
been so, it would have been reflected in the Records of
Rights 1961-62 but in the instant case, the petitioners or
their forefathers have been recorded as illegal occupants in
Rabi 1966 and thereafter. Thus, the mutation attested in
their favour is against the statutory provisions and has
rightly been declared as void ab-initio.
7. It has been contended that the impugned order has been
passed after following due procedures of law. It has been
further submitted that the land in question has been
recorded as "Ghair Mumkin Jungle" in the Record of
Rights 1961-62, therefore, it could not have been allotted
in favour of petitioners or their forefathers. It has been
submitted that it would be of no use to grant an
opportunity of hearing to the petitioners in the facts and
circumstances of the present case as the same would be a
mere ritual because the mutation attested in favour of the
petitioners is illegal and not recognized under law.
8. I have heard learned counsel for the parties and perused
the pleadings of the case.
9. It is not in dispute that Mutation No. 400 of village
Mankote, District Poonch was attested in respect of land in
question in favour of the petitioners and the said Mutation
Order was passed by the competent authority. It is also not
in dispute that by virtue of the impugned order, aforesaid
Mutation Order has been set aside by respondent No. 4,
Deputy Commissioner, Poonch thereby declaring inter-alia
the aforesaid Mutation Order, as void ab-initio. Two issues
that arise in the present petition for determination are as to
whether respondent No. 4, Deputy Commissioner, Poonch
was competent to cancel the Mutation Order without there
being an application or appeal from any interested person
and secondly, whether the Mutation Order attested in
favour of the petitioners could have been set aside without
hearing them.
10. Similar questions came up for determination before this
Court in another writ petition bearing WP(C) No.
2360/2021 titled Om Parkash and ors. Vs. UT of J&K and
ors., decided on 02.03.2024, This Court after analyzing
the various provisions of the J&K Land Revenue Act, made
the following observations:-
"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.
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 revere
modified, the same cannot done without giving to the
affected person an opportunity of hearing."
11. In the face of the aforesaid legal position, let us now
analyse the facts of the present case. Respondent No. 4,
Deputy Commissioner, Poonch has set aside the Mutation
Order passed in favour of the petitioners by the Naib
Tehsildar concerned. The Deputy Commissioner is vested
with appellate powers against an order of Tehsildar/Naib
Tehsildar. It is not the case of the respondents that an
appeal against the Mutation Order attested in favour of the
petitioners had been filed before him. Thus, it cannot be
stated that while passing the impugned order, respondent
No. 4 has exercised its appellate powers in terms of Section
11 of the Act. Since the order of mutation was passed by
the Naib Tehsildar and not by the Deputy Commissioner,
Poonch, as such, it can also not be stated that Deputy
Commissioner, Poonch can exercise his suo-motto power of
review as contemplated under 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 can also not be
stated that while passing the impugned order, respondent
No. 4 has exercised his revisional jurisdiction.
12. In the present case, respondent No. 4, Deputy
Commissioner, Poonch has not spelled out in the impugned
order as to under which provision of law, he has passed the
impugned order. It appears that respondent No. 4 has
exercised the power of review in respect of orders passed by
the Naib Tehsildar, who is subordinate revenue officer. The
same could not have been done by respondent No. 4. Thus,
the impugned order passed by respondent No. 4 is without
jurisdiction.
13. Apart from the above, admittedly, no prior notice has been
given to the petitioners before passing the impugned order.
Thus, the principles of natural justice have been breached
by respondent No. 4 while passing the impugned orders
against the petitioners. The power to attest the mutation as
also to set aside the mutation is quasi judicial in nature.
The said power has to be exercised by revenue officer
strictly according to the provisions contained in J&K Land
Revenue Act that too after affording an opportunity of
hearing to the affected parties by adhering to the principles
of natural justice. While passing an order which affects
rights of a person, a quasi judicial authority is obliged to
give an opportunity of hearing to the affected party.
14. It is being contended by the respondents that giving right of
hearing to the petitioners would have been an empty
formality as the Mutation Order which is subject matter of
the impugned order is void ab-initio and contrary to law
because the name of the petitioners does not exist in record
of rights of 1961-62 and also because the land in question
could not have been allotted to the petitioners as the same
was not cultivable land. In this regard, it is to be noted that
if the petitioners would have been granted an opportunity
of hearing, it is quite probable that they would have been
able to convince respondent No. 4 to take a different view.
At least, the petitioners should have been given an
opportunity to produce the record before respondent No. 4
so as to controvert the ground on which Mutation Order
passed in their favour have been set aside. Without
adhering to the principles of natural justice, the impugned
order of respondent No. 4 is rendered unsustainable in law.
15. For the foregoing reasons, the writ petition is allowed and
the impugned order No. DCP/SQ/1184-87 dated
30.12.2020 issued by respondent No. 4-Deputy
Commissioner, Poonch so far as it relates to the petitioners
is set aside. It shall, however, be open to the respondents to
take recourse to appropriate remedy available under law.
(SANJAY DHAR)
JUDGE
JAMMU
15.10.2025
SUNIL
Whether the order is speaking ? : Yes
Whether the order is reportable ? : No
