Ghulam Rasool Thoker vs Financial Commr. & Ors

Sanjay Dhar, J

1) The petitioner has challenged order dated 11.10.2017 passed by respondent No.1 to the extent it has set aside order dated 21.07.1990 passed by Tehsildar, Dooru, on Farde Partal register.

2) Briefly stated, case of the petitioner is that land measuring 2 kanals 13 marlas in Khasra No.1363-min situated at Mouza Dooru was jointly purchased by two brothers, namely, Ghulam Rasool Thoker (petitioner herein) and Ab. Aziz Thoker (father of respondents No.3 and 4) in equal shares. It is being submitted that father of respondents No.3 and 4 agreed to sell his share in favour of the petitioner and in this regard an agreement was executed between the parties. On the basis of this agreement, Tehsildar, Dooru, recorded possession of the petitioner and passed order dated 21.07.1990. It has been averred that during the life time of father of respondents No.3 and 4, nobody raised objection with regard to entry pertaining to possession but after his death, respondents No.3 and 4 made an application to Additional Deputy Commissioner, Anantnag, and the same was sent to Tehsildar, Dooru, who, without hearing the petitioner and without seeking permission under Section 13 of the Land Revenue Act, reviewed his order dated 21.07.1990 and passed a fresh order on 17.01.2013 thereby changing the entry in the revenue record.

3) It seems that the petitioner herein filed an appeal before the Collector, Anantnag, against order dated 17.01.2013 passed by Tehsildar, Dooru, and when no proceedings were being conducted in the appeal, he approached the Divisional Commissioner, Kashmir, with a revision petition. On 08.01.2014, a direction was passed by the Divisional Commissioner, Kashmir, to Deputy Commissioner, Anantnag, to decide the matter within twelve weeks but no decision was rendered by the Deputy Commissioner.

4) The petitioner again filed a revision petition before respondent No.1 on 26.11.2014 and the said Authority vide its order dated 11.10.2017, which is impugned in this writ petition, has not only set aside order dated 17.01.2013 but has also set aside order dated 21.07.1990 passed by Tehsildar Dooru on Farde Partal register.

5) The only ground urged by the petitioner in assailing the impugned order is that he had challenged only order dated 17.01.2013 passed by Tehsildar, Dooru, before respondent No.1 but the said Authority has not only set aside the aforesaid order but it has proceeded to determine the validity of order dated 21.07.1990 recoded on the Farde Partal and has set aside the same. It has been contended that respondent No.1 could not have quashed order dated 21.07.1990 as the same was not subject matter of challenge nor the petitioner was given a notice by respondent No.1 of his intention to exercise powers of suo moto revision.

6) The writ petition has been contested by private respondents No.3 and 4 by filing a reply thereto. In their reply, the said respondents have submitted that no agreement was executed by their father in respect of the land in question nor there was any understanding between petitioner and their father whereby he had surrendered his share in the land in question in favour of the petitioner. It has been submitted that when respondents No.3 and 4 came to know about the entries recorded at the behest of the petitioner, they challenged the same before Tehsildar, Dooru, who vide his order dated 17.01.2013 set aside these entries and directed recording of entries in the revenue record in favour of both the parties in equal shares. It has ben contended that the impugned order passed by the Financial Commissioner, respondent No.1, does not suffer from any illegality and that the same has been passed after appreciating the record of the case.

7) I have heard learned counsel for the parties and perused record of the case.

8) The petitioner is aggrieved of the impugned order only to the extent it sets aside order dated 21.07.1990 passed by Tehsildar, Dooru. As already stated, the petitioner had laid challenged only to order dated 17.01.2013 passed by Tehsildar, Dooru, whereby a direction was issued to restore the entries in the name of petitioner along with his brother (father of respondents No.3 and 4) as was existing in mutation No.2283. This was done by the Tehsildar in a proceeding initiated by respondents No.3 and 4 against order dated 21.07.1990 whereby the entry in the revenue record relating to the entire land i.e., 02 kanals 14 marlas was made in the name of the petitioner on the basis of an alleged agreement executed between the petitioner and his brother.

9) Order dated 17.01.2013 passed by Tehsildar, Dooru, has been set aside by respondent No.1 on technical grounds by stating that as per Section 13(1)(a) of the Land Revenue Act, when a Revenue Officer of a class below that of Collector proposes to review any order, he is supposed to first obtain the sanction of the Revenue Officer to whose control he is immediately subject and that the requisite sanction was not obtained by the Tehsildar before reviewing his order dated 21.07.1990. On merits, the Revisional Authority, after going through the record, has found that no valid document has been placed on record by the petitioner to substantiate his claim of having purchased the share of his brother.

10) Therefore, while the order passed by Tehsildar, Dooru, on 17.01.2013 may not be legally sustainable on account of the fact that he had not obtained the previous sanction of his superior authority before reviewing his order dated 21.07.1990, but even order dated 21.07.1990 has been found to be illegal because the petitioner could not substantiate his claim of having purchased the share of his brother. Even in the present writ petition, the petitioner has not placed on record any document/agreement to show that his brother had surrendered his share of the land in question or he had even surrendered his possession in respect of the land in question in his favour.

11) It is true that the revision petition was filed by the petitioner challenging only order dated 17.01.2013 but Section 15(1) of the Land Revenue Act vests power with the Financial Commissioner to call for the record of any case pending before or disposed of by any Revenue Officer under his control. Thus, the Financial Commissioner has suo moto power of revision. Once it comes to the notice of the Financial Commissioner from the record which he has called from subordinate Revenue Authority that some illegality has been committed by the said Authority, the Financial Commissioner would be well within his jurisdiction to pass an order to set the said illegality right. The contention of learned counsel for the petitioner that the petitioner was not heard in regard to validity or otherwise of order dated 21.07.1990 is without any merit because the petitioner has been heard by the Financial Commissioner in the revision petition which he had filed and the impugned order has been passed after hearing him and on the basis of the record available before the Revisional Authority. Therefore, it cannot be stated that the impugned order has been passed by the Revisional Authority without hearing the petitioner.

12) For the foregoing reasons, I do not find any merit in this petition. The same is dismissed accordingly. Interim direction, if any, shall stand vacated with immediate effect.