Fata Bibi vs Tasleema

Mr. G.Ali, GA, enters, appearance and takes notice on behalf of Respondents. As the matter can be finally disposed of, the matter is taken up

for final disposal.

Admit.

Heard.

The writ petition is directed against the order dated: 1.09.1998 of the Financial Commissioner, Srinagar for setting aside the order of mutation

dated 4.02.1993 of Assistant Collector (Naih Tehsildar) Srinagar after considering the report and recommendations of the Divisional

Commissioner dated 18.10.1997 in the matter of remanding the case for fresh mutation to collector, Tehsildar Srinagar. One Sultan Magloo, land

holder in Moza Sangeen Darwaza, Srinagar (specifically referred to in para 2 of the writ petition and Annexures) died on 20.04.1991. Assistant

Collector, Naib Tehsildar, Srinagar ordered mutation of his estate (land) in favour of petitioners on 4.02.1993. The respondents 1 to 3 have been

excluded for the reason that they are stated to be the daughters of Qadir Magloo, Predeceased son of Sultan Magloo. The other two daughters of

Sultan Magloo, Jalla Bano and Hajra Banoo, have been excluded, as they are stated to be married outside their fathers house, (married as Bairon

Khana). The Divisional Commissioner, before whom revision petition was filed, found the mutation against facts and law. He also found that the

mutation of Naib Tehsildar failed to apply either Personal Law or customary law and instead excluded the close relatives and effected mutations

both partly under personal and partly under customary law. The order was found by him as ambiguous and not based on the law governing

inheritance to the matrooka property of Sultan Magloo, deceased. Therefore, recommended the case to Financial Commissioner for denovo

inquiry. On remand to Tehsildar Srinagar. Financial Commissioner, after hearing the parties, found that the Assistant Collector, Naib Tehsildar had

no jurisdiction to pass the impugned mutation, as it was disputed. Besides the Naib Tehsildar also failed to consider the documents, a will and its

legal effects on this case and besides erred in applying law to the case. The Financial Commissioner, accordingly accepted the recommendation of

the Divisional Commissioner and set aside the mutation order and remanded the case to the Tehsildar Srinagar for fresh orders. The counsel, Mr.

M.H.Lone has contended that against the impugned mutation, revision could not lie and it is not case decided. Section 15 of the Land Revenue

Act, clearly provides that the Financial Commissioner has power to revise the orders on calling up the record of any case pending or disposed of

by any Revenue Officer under the control of the Financial Commissioner. This section also provides that, similarly, Divisional Commissioner can

also revise the orders of any revenue officer subordinate to him, and SubSection (3) provides that, if on examination of the record by Divisional

Commissioner, the Divisional Commissioner is of the opinion that the order merits to be modified or revised, he shall report the matter with his

opinion for orders to the Financial Commissioner. Obviously, the Financial Commissioner is seized of the matter on the report of Divisional

Commissioner and has on examining of the record and after giving opportunity to parties of being heard, considered the opinion and

recommendation and report of the Divisional Commissioner. The whole consideration has culminated in remanding the case to Tehsildar/Collector

Srinagar.

Obviously, powers of revision under Section 15 of Land Revenue Act are without any fetters, but shall have to be exercised on some well

recognised grounds. The exercise or failure to exercise jurisdiction, acting with material irregularity or illegally is the exercise of jurisdiction or

passing of the orders or taking proceedings, causing failure of justice are all matters to be read and understood in the context of revisional powers

of the Financial Commissioner, though, there is no express provision under Section 15 of Land Revenue Act to show on what matters revisional

powers shall be exercised. However, taking clue from over all scheme, procedural safeguards and objects of the La id revenue Act and the

authority, decided on 29.09.1987, Bhagwat Parshotam Dass case, KLJ 1988 Page 169 (.IandK), it cat be .safely concluded that the exercise of

powers under Section 15 of the Land Revenue Act can be on grounds parameteria with incorporated in Section 115 of the Civil Procedure Code.

Case decided in the context of Section 15 of the Land Revenue Act, read with Section 115 of the C.P.C, can be said to cover any question

decided between the parties to mutation proceedings having a direct bearing on the interest arid obligations of the .parties, arising in the mutation

proceedings irrespective of the fact, whether it is so stated expressly or is a sequence of the order.

Thus viewed and seen, the effect of mutation proceedings taken by the Naib Tehsildar in this case is to exclude the Respondent No. 1 to 3 and

as also the other two daughters of the deceased Sultan Mugloo from being recorded, as such, in the records on mutation while applying the law of

succession to the Mutrooka estate of late Sultan Magloo. It definitely decides a case and will come within the sweep of Section 15 of the Land

Revenue Act and thereby the order on mutation proceedings is amenable to revisional jurisdiction of the Financial Commissioner.

The counsel also submit that the revision against the order of Assistant Collector would lie to collector under Section 8 of the Act and not to the

Divisional Commissioner under Section 15 of the Land Revenue Act. This argument cannot hold the scrutiny of law. It cannot be denied that the

general powers of supervision and control over all the revenue officers in the context of Land Revenue Act vest with Financial Commissioner, as

the highest executive of the Revenue Deptt. The Divisional Commissioner/Collector/ and Assistant Collector are subordinate to and under the

direct control of Divisional Commissioner. Whereas, section 15 of the Land Revenue Act gives powers to Financial Commissioner of revision in

respect of cases before any revenue officer under his control. SubSection 2 of Section 15 provides that the Divisional Commissioner can call the

record and revise the orders of any Revenue Officer, subordinate to him. SubSection 4 of Section 8 provides, that subject to the Control of

Government and Financial Commissioner all other revenue officers in the District (which term includes Assistant Collector) are subordinate to and

under the control of Collector.

On combined reading of the two provisions, it is manifest that the Divisional Commissioner has legal authority to take appropriate action in

exercise of revisional powers, as laid down by Section 15 of the Act and place his report and opinion for orders of Financial Commissioner. This is

exactly what has been done in this case. Thus there is no substance in the contention of the counsel.

Financial Commissioner has exercised this powers within the parameters of law. It is found by the Divisional Commissioner that the mutation

effected have not been in accordance with the provisions of law. To this case, the Naib Tehsildar has applied a bit of customary law and a bit of

personal law. The mutation officer has failed to inquire into an important aspect of the case as to which law governs the parties in the matter of

inheritance in this case. Besides, the Financial Commissioner has also found that the documents, a will, referred to in the mutation order, has not

been properly considered. Neither its legal implications nor the weight which could have been given to the will, has been considered. Thereby,

proceedings have been conducted with material irregularity. It is also found in the order of Financial Commissioner, that the Naib Tehsildar has

attested the mutation in question when the facts are in dispute and that the case falls within the category of 'disputed mutation's'. Under clause 29 of

the standing orders of 23A (Mutation Hidayats), such a type of mutation cannot be disposed of by Assistant Collector (Naib Tehsildar), in so far

as the Naib Tehsildar has not been specifically empowered by the Financial Commissioner The Financial Commissioner has found that the mutation

ordered and disposed of by Naib Tehsildar in this case is without jurisdiction, so it is a case of exercise of jurisdiction not vested with the Naib

Tehsildar. Even, in terms, the Financial Commissioner has found that the mutation has been ordered, attested and disposed of at the back of and in

absence of the parties widely affected by the order, it is after taking note of all these features and facets of the case, that the mutation order has

been set aside and the case remanded to the Tehsildar for fresh orders and for passing orders in accordance with law, after giving the parties

opportunity of being heard.

In the light of above fact situation and circumstances, appearing on record in the context of applicable provisions of law, the impugned order in

this writ has been . passed fully within jurisdiction by the authority having powers to pass such orders under law. In such circumstances, the writ

Court cannot interfere in its writ jurisdiction. The High Court, in its writ jurisdiction cannot be expected to adjudicate matters dehors of merits, take

decision on disputed facts and byepass the orders passed by the legal authorities in exercise of powers vested in such authorities under statutes

only for its asking. So long the authority conducts itself and takes action within the canopy of law, the writ court is not justified to interfere with well

considered orders of the authorities passed within jurisdiction and under the enabling provisions of law. Dismissed.