Parmanand & Ors. vs State and Others

The dispute between the petitioners and respondents 4 & 5 herein on one hand and Mangat Ram, respondent No. 3 here in on the other is only

in regard to a small parcel of land allegedly encroached upon by one of the party's and this dispute was under litigation before so many forums.

Nishandehi which the parties desire has been affected by Patwari, Girdawar, NaibTehsildar, Tehsildar and ultimately by Assistant Commissioner

but respondent No. 3 still remained not satisfied. Thereafter Chairman J&K Special Tribunal on 2471989 on review petition filed by respondent

No. 3 herein has appointed Shri Rajinder Singh Parihar, Additional Deputy Commissioner Jammu as commissioner to conduct nishandehi on spot

in presence of the parties after affording them sufficient opportunity of"" being heard. Said order has been challenged in this writ petition, being

passed illegally and without jurisdiction.

Both the above said parities have been conferred proprietary rights in regard to certain land situate in villsge Langath, Tehsil Samba, being tillers

under the provisions of Big Landed Estates Abolition Act. Respondent No. 3, Mangat Ram, alleged forcible encroachment upon a portion of land

by the other side and applied for nishandehi. Nishandehi was effected by various revenue officials affected and Tehsildar passed order directing

that the encroachment, if any, found be removed and possession of the land be restored to the other party. Other party preferred appeal before

Deputy Commissioner Collector, Jammu who accepted the appeal and ordered for making nishandehi in presence of the parties. In pursuance of

that order Tehsildar got nishandehi made through one Girdawari who pointed out such encroachment to the extent of 7marla. Petitioners' party was

satisfied with this report but respondent No. 3 objected to it. Thereafter Tehsildar sent to girdawar who found 8 marl of land to have been

encroached upon. Petitioners did not accept this report and Tehsildar himself went on spot and came to the conclusion that 6Marla of land had

been encroached upon by respondent No. 3 and 2Marla by petitionerparty. Against this order respondent No. 3 filed a revision petition before

Divisional commissioner Jammu who rejected the same. Respondent No. 3 being not satisfied with the order of Divisional commissioner field

revision before Financial Commissioner who transferred the case to Shri A.N. Saraf holding powers of Financial Commissioner (Appeals) and he

appointed Sh. Gurdev Singh Isher Asstt. Commissioner as Commissioner for conducting nishandehi who found encroachment of 2marla of land

and submitted report on 1851992. The Financial Commissioner Appeals finding no objections from the parties ordered for making entries in the

revenue record and to act accordingly. This order of the Financial Commissioner Appeals was further assailed in revision petition before the then

Revenue Minister, who on the enforcement of J&K. Special Tribunal Act, 1976 transferred the case to that Special Tribunal. The Tribunal

rejected the revision petition holding that no question of law or public interest involved in the case requiring determination by the Tribunal and

upheld the order of Financial Commissioner Appeals. Respondent No. 3 was not satisfied and he filed a review petition before the said Tribunal

and in review the Tribunal has appointed Shri Rajinder Singh Parihar, Addl. Deputy Commissioner Jammu to conduct fresh nishandehi.

The order of the Special Tribunal has been challenged in this petition mainly on the grounds that the Tribunal had no jurisdiction to entertain the

review as no revision could liw to the Tribunal against the order of Financial Commissioner and further that no grounds as mentioned in Order 47

C. P. existed for invoking powers of review particularly when the Tribunal had already held about the nonexistence of any point of law or public

policy involved in the case. Reply has been filed by respondent No. 3 only resisting the petition and denying the allegations of the petitioners.

I have heard the learned counsel for the parities. The first point raised by Mr. Bali learned counsel appealing for the petitioners is that the matter

was not covered under Big Landed Estate Abolition Act as nishandehi is governed by Land Revenue Act and under Land Revenue Act the

Revenue Minister and for that matter the Tribunal, has no jurisdiction as the Financial Commissioner is the final authority under it. Mr. Gupta

learned counsel for respondent No. 3 has, however, contended that under Sec. 31 of Big Landed Estate Abolition Act provisions of Land

Revenue Act are applicable to all proceedings taken under the Act and under Sec. 30(6) the Revenue Minister and now J&K Special Tribunal had

all the powers to entertain revision petition. I have considered these submissions of either side.

In the present case proprietary rights in the land have been conferred upon the parties under Big Landed Estate Abolition Act. Removal of

encroachment was sought under the said Act and Tehsildar also passed order under Sec. 12 of the Act. No. Doubt nishandehi is permissible under

Land Revenue Act but Sec. 31 clearly Jays down that the provisions of Land Revenue Act shall, so far as may be, apply to all proceedings taken

under the said Act. Sec. 30 (6) of this Act lays down as under:

Whenever it is made to appear to the Government that a case decided by the Financial Commissioner involves a substantial question of law or a

question of public interest, it may call for the record of the case and pass such order thereon as it thinks fit.

This provision thus permits J&K Special Tribunal to entertain revision against the order passed by the Financial Commissioner. The Special

Tribunal thus rightly admitted the revision petition filed by respondent No. 3 against the order of financial commissioner. The argument of Mr. Bali

in this regard has thus no force.

The other point raised by Mr. Bali is that J&K Special Tribunal dismissed the revision petition holding that no question of law or public

importance was involved in the case and thus thereafter there was no occasion for the said Tribunal to entertain the review petition, particularly

when no ingredients of Order 47 C. P. C. had been found to be attracted. In this regard Mr. Gupta has pleaded that the Tribunal by appointing a

fresh Commissioner has committed on illegality as the petitioners have not been prejudiced by it and the appointed Commissioner, who is of the

rank of Additional Dy. Commissioner, would solve the matter and end the controversy between the parties.

The Member J&K Special Tribunal in a revision petition filed by respondent No. 3 herein on 2811987 passed the following operative order:

I have considered the arguments of both the learned counsel and have also perused the record on the file and have arrived at the conclusion that

no question of law or public importance is made out in the instant case which may require determination of this court. Moreover, the order of the

appellate authority with powers of Financial Commissioner Jammu dated 15.7.1982 is perfectly valid. The result is that revision fails and

accordingly rejected.

It shows that the Tribunal dismissed the revision petition finding no question of law or public importance involved in it requiring determination,

Powers of review are very limited and those are to be invoked strictly in accordance with Order 47 C.P.C. under which review petition can be

filed only when there is a discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the

knowledge of the party seeking such review or on account of some mistake or error apparent on face of record or for any other sufficient reason.

The Chairman of the Special Tribunal while exercising powers of review has net dealt with, in any manner with any of the above said questions of

law. When there was clear finding of the said Tribunal that no question of Jaw or public importance was involved in the case, which was the only

ground for involving powers of revision, in accordance with Sec. 30(6) of Big Landed Estate Abolition Act, there was hardly any reason for the

said Tribunal to exercise powers of review. ""No ingredient of Order 47 C.P.C. has been shown invoked in the order passed in review. The parties

are litigating for a small piece of land for the last more than twenty years and to drag any one of them further will not be in the interests of justice,

more so when sufficient opportunition was granted, by the Financial Commissioner to respondent No. 3 to file objections to the report made by

the Assistant Commissioner.

For the aforesaid reasons this petition is allowed and the order of the J&k Special Tribunal dated 2471989 is set aside.