Bhagat Parshotam Dass vs Financial Commissioner & Ors.

Dr. Anand, CJ.

The petitioner on 11101971 applied to Tehsildar, Chadoora. for correction of Khasra Girdawari in respect of Khasra No. 39/min situate in

village Kursoo, Padshahi Bagh, claiming to be in possession of an area measuring 6 kanals 13 marlas. The Tehsiidar after enquiry on 2841972,

ordered correction of the girdawari in favour of the petition. Respondents 5 to 11 challenged this order of the Tehsildar in revision before the

Financial Commissioner who allowed the same by holding that respondents 5 to 11 having rot been summoned by the Tehsildar, the correction of

the girdawari entries had been ordered in a manner not permitted by Jaw and remanded the case of the Asstt. Commissioner, Srinagar for its

disposal in accordance with law. The Asstt. Commissioner, after a detailed enquiry, vide his order dated 1221976, found the claim of the

petitioner being in exclusive possession of the land and dispute without any basis and accordingly directed that the entries recorded in the name of

respondents 5 to 11 shall remain intact.

The petitioner challenged the order of the Asstt Commissioner in appeal before the Divisional Commissioner, Srinagar, that was dismissed on

441977. A revision petition against the order of the Divisional Commissioner dated 441977 preferred before the Financial Commissioner was

allowed on 121954 and the proceedings were transferred to the Collector, Agrarian Reforms, Badgam. under sec. 19 (4) of the J&K Agrarian

Reforms Act because Mr. R.K. Takkar, the Financial Commissioner was of the view that though the inspection note of his predecessor dated

3061983 and spot verification report of Asstt. Commissioner dated 821975 confirmed that the land was not being used for agricultural purposes

or the purposes subservient to it but since the girdawari entry of the year 1971 recorded the land under crop, the application of the Agrarian

Reforms Act to it was not ousted. Not satisfied with the findings, respondents 5 to 11 applied for review of the order which was to be heard by

the Mr. D.N. Kotwal, who by then had succeeded Mr. Takkar as Financial Commissioner. Mr. Kotwal agreed with the contention that his

predecessor could not have transferred the case under sec. 19 (4) of the Act to the Collector, Agrarian Reforms, because it was not pending

before any Revenue Officer subordinate to the Collector. It was also held by him that even if the land was agricultural, his predecessor as Financial

Commissioner could have transferred the case to Asstt. Commissioner (Collector), Badgam, but not to the Collector, Agrarian Reforms, and this

legal position was conceded on behalf of the petitioner before Mr. Kotwal, who come to the conclusion that there was an error apparent on the

face of record because the land was not agricultural and as such the issues arising out of it fell within the jurisdiction of Revenue Officers and not

the authorities under the Agrarian Reforms Act. He accordingly accepted the revision petition thereby maintaining the order of Divisional

Commissioner dated 441977. It is this order of the Financial commissioner which has been assailed in this petition inter alia on the ground that

power of review vested in the Revenue is unconstitutional for want of guideline and absence of grounds on which it can be exercised. Others

grounds of challenge are about the land being covered or not by the Agrarian Reforms Act, 1976 and being disputed questions of fact, having been

determined by a competent authority under the Act, cannot be gone into by this court in exercise of the writ jurisdiction. Thus, if the order of

review under sec 13 of the Land Revenue Act is held constitutional, the order impugned would be valid.

We have heard learned counsel for the parties.

The petitioner has questioned the virus of the order of the Financial Commissioner mainly on the ground that he could not review his own or the

order of his predecessor, Mr. Takkar, because section 13 (1) of the Land Revenue Act 1996, under which the power of review had been

exercised was ultra virus the constitution in as much as it gives unbridled and unguided powers to the revenue officers to review their orders. Mr.

Hagroo's contention is that since power to review is not inherent and as the statutory power of review contained in subsec, (1) of sec. 13 of the

Land Revenue Act. 1996, does not expressly state the grounds on which it can be exercised, the said section is ultra virus Article 14 of the

Constitution of India.

With a view to appreciate the submission made by Mr. Hagroo, it is profitable to notice the provisions of sec. 13 of the Land Revenue Act.

They read as follows:

Review by Revenue Officers : (1) A Revenue Officer may, either of his own motion or on the application of any party interested, review and

on so reviewing modify reverse or confirm, any order passed by himself or any of his predecessors in office :

Provided as follows:

(a) When a Divisional Commissioner or Collector thinks it necessary to review any order which he has not himself passed, and when a Revenue

Officer of a class below that of the Collector proposes to review any order, whether passed by himself or by any of his predecessors in office, he

shall first obtain the sanction of the Revenue Officer to whose control he is immediately subject ;

(b) An application for review of an order shall not be entertained unless it is made within ninety days from the passing of the order or unless the

applicant satisfies the Revenue Officer that he had sufficient cause for not making the application within that period ;

(c) An order shall not be modified or reversed unless reasonable notice has been given to the parties effected thereby to appear and be heard in

support of the order;

(d) An order against which an appeal has been preferred shall not be reviewed.

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XX XX XX XX

It is true that sub sec. (1) in terms does not mention any circumstances under which a review application can be entertained or upon what

grounds a review petition lies. However, the whole scheme of the Land Revenue Act reveals that Revenue Officers performs both quasijudicial and

judicial functions while exercising powers under the Act in as much as they decide cases after giving notice to the parties and hearing them For

instance, while hearing an application for partition under sec. 111A (3) he exercises all the powers of the Civil Court. Therefore, the interpretation

to be put on the provisions of sec. 13 of the Act must accord with the scope review as prescribed by order XLVII rule 1 C.P.C., as in our opinion

the expression ""review"" used in sec. 13 (1) of the Land Revenue Act being a term of known legal significance, has the same legal meaning and

scope. The Revenue officer, therefore, has the jurisdiction to review the order on the grounds as provided for in order XLVH rule 1 C.P.C. i.e.,

when there is an error apparent on the face of the record or where is discovery of fresh materials.

The expression ""review"" has been used in sec. 13 of the J&K Evacuee's (Administration of Property) Act where also no grounds on which it is

possible have been enumerated. The scope of the word ""review"" as used in the Evacuees' Act, came up for consideration of this court in Taj Ram

V. Custodian GeneralAIR 1967 J&K 8, wherein Mr. Fazal Ali, J. (as His Lordship then was) opined as under :

The custodian General has given power to review his own order under the Act. Although the grounds of such review have not been specified in

sec. 30 on the principle that when a statute uses a terms of well known significance the Legislature must be presumed to have the intention of the

attaching to that term that known legal significance, the Custodian General is required to review his order only on certain specified grounds as

provided for in order 47 Rule 1 of the Civil Procedure Code, that is, only when there is an error of fact apparent on the face of the record or

where there is any discovery of new and certain matters or the like.

Later, a Full Bench of this Court in B. Raghunath V. Custodian General and othersAIR 1970 J&K 50had also to deal with the same question

which held:

Therefore, taking all these authorities and the well known rules of construction of statutes, the scope and ambit of the Act, absurdities and

hardships and anomalies that would arise by interpreting the would 'review' as giving unlimited powers to an officer, into consideration, we are

clearly of the opinion that the grounds on which a review application can be entertained by the Custodian General or any other officer empowered

to exercise such powers under the Act, should be analogous to those given in a Civil Court under to provisions of order 47 Rule 1 C.P.C.

The observations of the Full Bench would mutatismutandis apply to sec. 13 (1) of the Land Revenue Act as well. We, therefore, hold that the

provisions of sec. 13 (1) of the Land Revenue Act are not ultra virus the Constitution as submitted by the Mr. Hagroo because a Revenue Officer

while exercising powers under sec. 13 (1) of the Land Revenue Act can review the order only on the grounds specified in O. XLVII r. 1 C.P.C.

and we have to read the fetters and limitations contained therein sec 13 (1) of the Land Revenue Act, also.

Coming now to the facts of the instant case, the order of Mr. R.K. Takkar in transferring the case to Collector, Agrarian Reforms, Budgam

under sec 19 (4) ignored the factual aspects of the case and suffered from an error apparent on the face of the record which the Financial

Commissioner, respondent No. 1, was quite competent to review in exercise of the powers vested in him.

Thus, for what has been said above, this petition merits dismissed and is dismissed as such in limine.