Bashir Ahmad Wani vs State Of J&K And Anr

Sanjeev Kumar, J

The petitioner (Bashir Ahmad Wani) who claims to be adopted son of Mst. Sajda and Shams-ud-din Wani has filed this petition under Article 226 of the Constitution of India to assail the order dated 25.05.1999 passed by the Financial Commissioner, J&K, Srinagar in a revision No. 105 of 1998 titled Mst. Sajda Vs. Bashir Ahmad Wani whereby the Financial Commissioner has set aside the order of Naib Tehsildar dated 10.10.1991 as upheld by the Deputy Commissioner, Kupwara vide its order dated 09.06.1998

Briefly stating the facts leading to the filing of this petition are that Naib Tehsildar vide its order dated 10.10.1991 ordered correction of Girdawari entries of Kharif, 1971 to show the petitioner herein, in cultivating possession of three parcles of land measuring 01 kanal 16 Marlas falling under Khasra No. 2577/276, 5 Kanals 06 marlas falling under Khasra No. 1506 and 04 kanals and 15 Marlas falling under Khasra No. 1507 situated in village Batergam (subject land). This entry was made by Naib Tehsildar on the basis of application submitted by the petitioner supported by a deed of adoption claimed to have been executed by Mst. Sajda Begum and her husband Sonaullah Wani on 28.01.1991. This correction of Girdawari entry in favour of the petitioner became subject matter of challenge in an appeal filed by Mst. Sajda before the Deputy Commissioner, Kupwara. The Deputy Commissioner, Kupwara vide order dated 09.06.1998, dismissed the appeal and upheld the order of Naib Tehsildar dated 10.10.1991. Mst. Sajda challenged the order of Deputy Commissioner, Kupwara dated 09.06.1998 by way of revision petition before the Financial Commissioner, J&K, Srinagar. The Financial Commissioner considered the entire matter in light of legal position obtaining on the subject and vide its order dated 25.05.1999 allowed the revision petition. Both the orders i.e, order passed by Naib Tehsildar dated 10.10.1991 and order passed by Deputy Commissioner, Kupwara dated 09.06.1998 were set aside. It is this order of Financial Commissioner which is called in question in this writ petition on multiple grounds.

Having heard learned counsel for the petitioner and perused the material on record, I am of the considered opinion that the order passed by Financial Commissioner, J&K, Srinagar is perfectly legal and falls within four corners of law and therefore does not call for any interference in exercise of extra ordinary writ jurisdiction. It may be relevant to note that under Land Revenue Act and the Rules framed there under, particularly Standing Order 23A elaborate procedure for attestation of mutation of different kinds has been laid. The Girdawari entries made in the revenue record cannot be challenged or altered by Mutating Officers of their own or on a simple application made by the applicant who claims such change/correction of such entries. Learned counsel for the parties are not at variance with regard to the fact that for change of revenue entries, including Khasra Girdawari entries, attestation of mutation by the competent authority is a sine quo non. It is only that during the harvest inspection if some change in rights including change in possession of the land is brought to the notice of the Patawari, a report in this regard is made to the competent authority through proper channel. The report made by the Patwari and the entries proposed to be varied are verified by the Girdawar of the concerned circle and if he is of the opinion that the change in revenue record is required, he makes recommendation to the Mutating Officer for attesting the relevant mutation. Admittedly, this procedure has not been followed in this case. The impugned entry also does not indicate as to whether any enquiry was conducted by the Naib Tehsildar to ascertain the claim of the petitioner that he was in cultivating possession in Kharif 1971. There is another fatal defect in the impugned entry made by the Naib Tehsildar vide its order dated 10.10.1991 i.e, entry has been varied to prejudice the rights of the respondents without even affording them an opportunity of being heard.

Viewed from any angle, order of Naib Tehsildar dated 10.10.1991 making entry of possession in Kharif 1971 in respect of subject land is contrary to the law. The Deputy commissioner, Kupwara could not appreciate the controversy in right perspective and landed in serious error in upholding the order of Naib Tehsildar dated 09.06.1998. The Financial Commissioner has very correctly appreciated the entire issue and has rightly come to the conclusion that neither impugned entry made in terms of the order dated 10.10.1991 passed by Naib Tehsildar nor order of Deputy Commissioner, Kupwara dated 09.06.1998 are sustainable in law. I fully agree with the view taken by the Financial Commissioner while deciding revision petition in terms of order impugned.

In view of the aforesaid and for the reasons elaborately given by the Financial Commissioner in the impugned order, this writ petition is found to be without any merit and is accordingly dismissed. The parties are left free to explore their remedies before the appropriate Forum in accordance with law. I am told that the parties are already litigating in civil court where the suit filed by the petitioner seeking declaration of his status as adopted son of Mst. Sajda is pending adjudication. The petitioner has also called in question some gift deed executed by Mst. Sajda in favour of one Ghulam Hassan Wani in the said suit. Be that as it may, the civil litigation between the parties has to proceed in accordance with law and nothing is required to be said by this Court.