Ahad Reshi vs Joint Financial Commissioner And Others

Sanjeev Kumar, J

1 On the basis of an oral gift by one Abdullah in favour of the petitioner, a mutation No. 281 dated 15.11.1996 was attested by Tehsildar Kreeri, Baramulla in respect of land measuring 10 kanals, 15 marlas covered under Survey No. 902 (05 k, 18 m) and Survey No. 905 (04 k, 17 m) [‘the subject land’] of Estate Dandmoh, Tehsil and District Baramulla. The said mutation was assailed by respondent No.4 in a revision petition filed before Additional Commissioner (with powers of Divisional Commissioner), Kashmir on the ground that the donor Mr. Abdulah, who was himself the owner of only 02 kanals and 03 marlas of land out of the subject land, was not competent to make the gift of entire subject land and that while attesting the mutation, the Attesting Officer had not followed the procedure prescribed under Standing Order 23-A. The Additional Commissioner, Kashmir accepted the revision petition and recommended the mutation dated 15.11.1996 (supra), to be set aside in a Reference made to the Joint Financial Commissioner (with powers of Financial Commissioner, Revenue) J&K, Srinagar. The aforesaid mutation was set aside by the Additional Commissioner, Kashmir, Srinagar primarily on the ground that the mutation was in disregard to Section 123 of the Transfer of Property Act Svt., 1977 and in violation of Standing Order 23-A having been attested on the basis of an oral gift at the back of respondent No.4.

The Reference before the Joint Financial Commissioner was contested by the petitioner as well as by respondent No.4. The Joint Financial Commissioner, vide his order dated 18.08.2021 [‘the impugned order’], did not accept or reject the Reference, but instead, invoked suo motu revisional powers and set aside the impugned mutation. The Jt. Financial Commissioner also directed to restore the entries existing prior to attestation of the mutation aforesaid. Respondent No.4 was, however, left to seek the partition to claim his recorded share by approaching the competent authority. It is this order dated 18.08.2021 passed by the Jt. Financial Commissioner which is called in question by the petitioner in this petition.

The impugned order is assailed by the petitioner, primarily, on the ground that the Jt. Financial Commissioner, Revenue, J&K, Srinagar, hearing a Reference made to it by the Additional Commissioner, Kashmir with the recommendation to set aside the mutation, could have either accepted the Reference or rejected the same. It is submitted that the Jt. Financial Commissioner, while hearing the aforesaid Reference, was not competent to exercise suo motu revisional powers to pass the impugned order. It is contended by learned counsel for the petitioner that even if it is assumed that the Jt. Financial Commissioner was competent to exercise the suo motu revisional powers, yet, it was incumbent upon him to give the petitioner and other affected parties an opportunity of being heard on the action proposed to be taken in exercise of such power.

Per contra, learned counsel appearing for respondent No.4, submits that the Additional Commissioner, Kashmir as well as the Jt. Financial Commissioner, Revenue, Srinagar has rightly set aside the impugned mutation, for, Mr. Abdullah, being one of five co-sharers vis-a-vis the subject land, was entitled to transfer by way of a gift or otherwise only his share and, therefore, the mutation pertaining to the entire land was illegal and incapable of conferring any right on the petitioner.

Having heard learned counsel for the parties and perused the material on record, the admitted position obtaining from the record is that Mr. Abdullah along with four other co-sharers is recorded as owner in cultivating possession of the subject land. All the five co-sharers, as per the revenue record, have been shown entitled to one share each i.e., 1/5th of the total land. That being the position, the share of Mr. Abdullah in the subject land was only to the extent of 2 kanals and 3 marlas.

There is no dispute with regard to the proposition of law that donor can gift away only his own property and not the share of others. In the instant case, on the basis of an oral gift made by Mr. Abdulalh in favour of the petitioner, entire subject land measuring 10 kanals and 15 marlas has been mutated in favour of the petitioner. It is true that the mutation, impugned before the Additional Commissioner, Kashmir was attested by the Attesting Officer without putting the other co-sharers to notice and providing them an opportunity of being heard. This is a clear infraction of not only the procedure prescribed in the Standing order 23-A, but is also a violation of principles of natural justice. The Additional Commissioner, Kashmir was, thus, correct in recommending the setting aside of the impugned mutation. The Jt. Financial Commissioner in a Reference before him has also correctly concurred with the view of the Additional Commissioner, Kashmir, but has unnecessarily invoked the suo motu revisional powers and restored the entries existing prior to the attestation of mutation. The Jt. Financial Commissioner, having taken note of the fact that, other than respondent No.4, no other co-sharers had challenged the impugned mutation, could have set aside the mutation to the extent it was challenged by respondent No.4. There was absolutely no warrant to invoke the suo motu revisional powers as the impugned order could have been passed by the Jt. Financial Commissioner in the said Reference itself.

I am in agreement with the leaned counsel for the petitioner that, if the Jt. Financial Commissioner, during any proceedings including reference proceedings before him, is of the view that he needs to invoke suo mutu revisional jurisdiction to take a particular action, it is incumbent upon him to put both the sides to notice with regard to his proposal to invoke suo motu revisional jurisdiction and pass a particular order. This would comply with the mandate of proviso appended to Section 15 of the J&K Land Revenue Act, 1996 [‘the Act of 1996’] providing unequivocally that the Financial Commissioner shall not pass any order reversing or modifying any proceedings or order of a subordinate officer affecting any question of right between private persons without giving those persons an opportunity of being heard.

In the instant case, the Jt. Financial Commissioner, while hearing a Reference under Section 15(3) of the Act of 1996 certainly decided to invoke suo motu revisional jurisdiction to expand the scope of his jurisdiction without any notice to the parties and thereby depriving them of their valuable right to be heard in support of or against the proposed decision. For the said reason, the order of the Jt. Financial Commissioner cannot sustain and the same deserves to be aside. In these circumstances, one course that is open to this Court is to remand the matter to the Jt. Financial Commissioner (with powers of Financial Commissioner), Revenue Srinagar to reconsider the Reference and pass appropriate orders or this Court may put a quietus on the controversy having regard to the admitted facts scenario obtaining from the undisputed revenue record.

As noticed above, out of the subject land measures 10 kanals and 15 marlas, Mr. Abdullah, who made an oral gift in favour of the petitioner, was entitled to only 1/5th share in the subject land i.e 2 kanals and 3 marlas, whereas, the rest of the land belonged to other co-sharers. Mr. Abdullah has erroneously and illegally made a gift of entire land, thus, divesting respondent No.4 of his 1/5th share in the subject land. Since the other co-sharers, who were none other than the brothers of Mr. Abdullah, have not objected to the transaction and attestation of mutation, as such, it is not necessary to set aside the mutation to the extent of share of his brothers. Viewed thus, Mr. Abdullah can be said to have validly transferred his share along with shares of his three brothers in the subject land in favour of the petitioner, however, the mutation tothe extent of share of respondent No.4 is not sustainable and deserves to be set aside.

In view of the above, this petition is disposed of by providing as under:

(i). Mutation No. 281 dated 15.11.1996 impugned before the Additional Commissioner, Kashmir and which was subject matter of challenge before the Jt. Financial Commissioner (with powers of Financial Commissioner), Kashmir is set aside to the extent of share of respondent No.4 i.e. land measuring 2 kanals, 03 marlas out of the subject land. The mutation with regard to rest of the land shall remain intact and would inure to the benefit of the petitioner, unless challenged by the other co-sharers in accordance with law; and,

(ii). Since respondent No.4 is admittedly out of the possession, therefore, it would be open for him to claim his share in the subject land from the petitioner by filing appropriate proceedings for partition and possession before the competent forum in accordance with law.