Baldev Raj vs Financial Commissioner (Revenue) J&K

Sanjeev Kumar, J

The petitioner is aggrieved of and has challenged order/judgment dated 16.02.2023 passed by respondent No.1 in file No. 614-15/FC-ACR/AP whereunder and whereby mutations No. 4192 and 4210, both dated 08.08.2016 attested by respondent No.9 have been set aside. Apart from challenging the impugned order on merits, the petitioner alleges conspiracy also between respondents No. 2 to 5 and respondents 6 to 8.

2 The dispute between the parties in respect of land measuring 40 kanals, 19 marlas covered by khasras No. 16 and 17 of estate Toph Sherkhania, Tehsil and District Jammu [‘the subject land’] has a chequered history. Earlier, there was litigation between the ex-landlords and the predecessor-in-interest of the parties, namely Ghasitoo which ended with an order dated 05.11.1986 passed by the J&K Special Tribunal [‘the Tribunal’]. The Tribunal held the predecessor-in-interest of the aforesaid parties, namely Ghasitoo entitled to get ownership rights qua the subject land under the Jammu and Kashmir Agrarian Reforms Act, 1976 [‘the Act’]. Resultantly, on the basis of a Will executed by Ghasitoo in favour of the petitioner, mutation No. 4192 dated 06.05.1987 and mutation No. 4210 dated 04.06.1987 under Sections 4 and 8 of the Act were attested and the ownership rights qua the subject land were vested upon the petitioner to the exclusion of other co-sharers. Both the mutations became the subject matter of challenge in two appeals filed by respondent No.6. The said appeals were dismissed by the Commissioner, Agrarian Reforms, J&K vide its order dated 16.02.2000 on the point of limitation. Respondent No.6 took the matter to the Tribunal by way of a revision petition and the Tribunal vide its order dated 30.12.2009 set aside the order of Commissioner, Agrarian Reforms, J&K as also the mutations, the subject matter of challenge in the appeals. The matter was remanded to the Tehsildar concerned for attestation of mutations afresh after giving an opportunity of being heard to the parties and considering evidence on record. The order passed by the Tribunal was challenged by the petitioner herein before this Court by way of a writ petition filed under Article 226 of the Constitution of India. The writ petition was dismissed by the Writ Court and the appeal preferred also met the same fate. This is how the matter landed before the Hon’ble Supreme Court in SLP No. 18466/2014. The Supreme Court disposed of the SLP vide its judgment dated 04.04.2016 and directed the competent Authority to adjudicate the mutation proceedings in terms of Division Bench Judgment of this Court after issuance of notice to all the interested parties in accordance with law. The Apex Court further directed that the Competent Authority shall adjudicate and adjudge all the aspects as propounded before it and a decision shall be taken within six months. The aforesaid order came to be passed by the Supreme Court in the background of observations made in the order that the High Court should not have expressed any opinion on the tenability of the ‘Will’ as it had remanded the matter to the Competent Authority for fresh adjudication.

3 Be that as it may, pursuant to the directions of the Supreme Court, the Tehsildar concerned passed fresh orders on mutations No.4192 and 4210, both dated 08.08.2016 whereby the ownership rights qua the subject land were conferred upon the petitioner and his three brothers i.e respondents No. 6 to 8 in equal shares. The petitioner, who, on the basis of a ‘Will’ executed by late Ghasitoo was clamouring for vesting of ownership rights qua the subject land upon him to the exclusion of his other brothers, challenged both the mutations by way of two separate appeals filed before the Additional Deputy Commissioner (with powers of Commissioner Agrarian Reforms), Jammu. While the aforesaid appeals were pending adjudication, the sisters of the petitioner i.e respondent Nos. 2 to 5 also challenged both the fresh mutations attested on 08.08.2016 by filing an appeal directly before the Financial Commissioner (Revenue) [with powers of Commissioner, Agrarian Reforms, J&K]. The said appeal was entertained by the Financial Commissioner and disposed of vide order impugned by holding that the appellants (respondents 2 to 5 herein), who were also co-sharers qua the subject land, had not been heard in the matter. The Financial Commissioner, exercising the powers of the Appellate Authority, set aside both the aforesaid mutations being violative of the principles of natural justice. It is this order of the Financial Commissioner (Revenue) dated 16.02.2023 which is assailed by the petitioner before this Court.

4 Having heard Mr. P.N.Raina, learned Senior Counsel appearing for the petitioner and perused the record of the case, I am of the considered opinion that the petitioner cannot be said to be a person aggrieved by the order dated 16.02.2023 and, therefore, has no locus to challenge the same by invoking the extraordinary writ jurisdiction of this Court.

5 It is not disputed by Mr. Raina, learned Senior Counsel that the petitioner is himself aggrieved of the attestation of fresh mutations bearing No. 4192 and 4210, both dated 08.08.2016 attested by the Tehsildar concerned and is, therefore, in appeal before the Additional Deputy Commissioner (with powers of Commissioner, Agrarian Reforms), Jammu.

6 Ordinarily, the petitioner should have been happy with the mutations, he wanted to get rid of, having already been set aside by the Commissioner, Agrarian Reforms, J&K though at the instance of his sisters. Perhaps, the petitioner does not wish to give credit to her sisters. The argument of Mr. Raina, learned Senior Counsel that the order passed by the Commissioner, Agrarian Reforms, J&K on the appeals of respondent Nos. 2 to 5 is also an outcome of fraud, in that, the petitioner, though arrayed as respondent No.4 in the appeals was never put no notice and heard in the matter. He argues that had such an opportunity been given, the petitioner would have apprised the Commissioner, Agrarian Reforms, J&K about the unholy nexus between respondents No. 2 to 5 and respondents No. 6 to 8 to grab the land which legitimately belongs to the petitioner. Learned Senior Counsel submits that with the attestation of two mutations which the petitioner is also aggrieved of, the Commissioner, Agrarian Reforms, J&K has provided an escape route to respondents No. 6 to 8 and the officials of the Revenue Department to run away from the criminal proceedings which the petitioner has already launched by filing an application before the concerned Investigating Agency.

7 Having given thoughtful consideration to the arguments, rather, apprehensions voiced by Mr. Raina, learned Senior Counsel appearing for the petitioner, I do not find therein much substance.

8 Indisputably, the appeals filed by the petitioners against the aforesaid two mutations are pending adjudication before the Appellate Authority and the issue as to whether he was proceeded ex parte by the Tehsildar during attestation of the mutations was correct or an outcome of some fraud/conspiracy between respondents No. 5 to 8 and the Revenue Authorities is a question to be determined by the Appellate Authority. As a matter of fact, with the setting aside of both the mutations in the appeals filed by respondents No. 2 to 5 before the Commissioner, Agrarian Reforms, J&K, there is hardly any need to go for adjudication of these arguments by the Additional Deputy Commissioner (with powers of Commissioner, Agrarian Reforms) in the two appeals filed by the petitioner.

9 So far as the allegation of the petitioner that he was proceeded ex parte by the Mutating Authority while attesting the mutations on 08.08.2016 and was also not summoned or heard by the Commissioner, Agrarian Reforms, J&K in the appeals filed by respondents No. 2 to 5, pursuant to the conspiracy hatched by respondents No. 6 to 8 and the officials of the Revenue Department is concerned, the same cannot be said to have been wiped out, diluted or vanished due to setting aside of the mutations by the Commissioner, Agrarian Reforms. The mutations have been set aside on the solitary ground that respondents No. 2 to 5, who are none other than the sisters of the petitioner and respondents No. 6 to 8 had not been heard in the matter and, therefore, violation of principles of natural justice. The Commissioner, Agrarian Reforms, J&K while passing the impugned order, has not commented upon or ruled out the possibility of any fraud having been committed at the time of attestation of mutations No. 4192 and 4210 of 08.08.2016.

10 Viewed from any angle, I do not find any illegality or infirmity in the impugned order, more so, when the same does not effect the petitioner adversely in any manner. Like his sisters, the petitioner is also aggrieved of the mutations aforesaid attested by the Tehsildar Jammu and is in appeal before the Additional Deputy Commissioner, Jammu (the appellate Authority). I am at loss to understand as to what has prompted the petitioner to challenge the impugned order. Two mutations, which the petitioner alleges to be an outcome of fraud and conspiracy, have been set aside and this is exactly what the petitioner wants in his appeal pending before the Additional Deputy Commissioner, Jammu. I, therefore, hold that the petitioner lacks necessary locus to challenge the impugned order and also hold this petition totally uncalled for and not maintainable in law. I would, however, hasten to observe that nothing said by the Appellate Authority i.e the Commissioner Agrarian Reforms, J&K in its order dated 16.02.2023 or by this Court in this judgment would prejudice the right of the petitioner to launch criminal proceedings against those, who, as per the petitioner, have committed a fraud upon him in a bid to grab his property. The concerned Investigating Agency, who has been approached or will be approached by the petitioner, shall proceed in the matter in accordance with law. Since the matter is remitted back to the Tehsildar concerned, he shall pass fresh orders on both the mutations after putting all the stake holders to notice and complying with the directions of the Hon’ble Supreme Court. The Tehsildar shall ensure that apart from others, the petitioner is served in the matter and provided adequate opportunity to present his case as observed by the Supreme Court in the aforesaid SLP. The Mutating Officer shall consider all the questions of fact and law raised before it on merits, notwithstanding the orders/judgments passed by the different Authorities which have culminated into passing of final directions by the Supreme Court. With these observations, this petition is disposed of.