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Judgment
(1) This is a writ application for quashing the order dated 981971 passed by the Financial Commissioner, by which he reversed the orders of
Divisional Commissioner and Collector (Deputy Commissioner) and restored that of the Asstt. Commissioner.
(2) The relevant facts which have given rise to this application are as follows :
A dispute between the parties was in respect of land measuring 6 kanals 71/2 marlas under Khasra No. 701 situate in village Dara Tehsil Srinagar.
Respondent No. 1 who is the Landlord filed an application on 481951 before the Deputy Commissioner alleging therein that a violation had been
committed by the father of the petitioner as he had transferred the land to the petitioner. The Deputy Commissioner sent the application to the
Assistant Commissioner for disposal. The Asstt. Commissioner after trial held that there was a violation of the provisions of Section 68A of the
J&K Tenancy Act. This order was made by him on 29101963. An appeal was preferred by the present petitioner against that order to the Dyeput
Commr. and he on 3061966 reversed the order of the Asstt. Commr. The respondent then filed an appeal against this order before the Divisional
Commissioner and he also upheld the finding of the Deputy Commissioner and dismissed the appeal of the respondent. The respondent then filed
revision petition before the Financial Commissioner who set aside the order of the Deputy Commissioner as well as of the learned Commissioner
and restored the order of the Asstt. Commissioner on 981971 This petition as already said, is directed against this order of the Financial
Commissioner on the grounds inter alia that the Financial Commissioner had no jurisdiction and competence to disturb the entry of protected
tenants and that the decision of the Financial Commissioner is erroneous in law and that there are errors apparent on the face of the record.
(3) The application has been opposed by the respondent No. 1 and contended that the Financial Commissioner had jurisdiction and he had
correctly applied the law and that it is not a fit case in which there should be interference with the order passed by the Financial Commissioner.
(4) The facts which I have stated above would clearly show that the matter in dispute had been agitated before several revenue officers and the
final order which has been passed is of the Financial Commissioner when he heard the revision. This position is quite clear in law that ordinarily in
exercising the writ jurisdiction the court will riot sit as an appellate court and the petitioner has to show that there was an error apparent on the face
of the record or that the order is without jurisdiction. As far as the question of jurisdiction is concerned, it may be stated that there can be no doubt
that the Financial Commissioner has the power to hear the revision and pass such order as he thinks fit and proper, I may in this connection refer to
a Full Bench decision of this court in Baboo Ram Vs. The Financial Commissioner and others, Letters Patent Appeal No 10 of 1970 reported in
1972 J&K LR III page 41 where it was held that :
A combined reading of Sec. 86 of the Tenancy Act and Sec 15 of the Land Revenue Act would make it clear that the powers of the Financial
Commissioner to interfere in revision are very wide and extensive. Unlike the power of his counter part in Punjab, the power enjoyed by the
Financial Commissioner under the Tenancy Act in force in our State are not subject to the limitations and restrictions contained in Sec. 115 of Civil
Pr : Code. Sitting on the revisional side it is open to him to pass any order which he may deem proper in the circumstances of a case.
(5) The learned counsel for the petitioner in this respect has relied on the observations of Anant Singh J. in the aforesaid decision where he was
pleased to observe as follows :
The Financial Commissioner with all his unfettered revisional powers, unlike the limitations imposed by Sec. 115 Civil Pr. Code is still to exercise
his powers with in the ambit of law, otherwise, he will be acting in excess of his jurisdiction.
(6) In this present case this position cannot be disputed that the Financial Commissioner had the jurisdiction to pass such an order as he deemed fit
and proper but it has been urged that in his order he has taken views which are erroneous and cannot be supported in view of the law and that he
has misdirected himself.
(7) I will now therefore straightway refer to those submissions which have been made with regard to the impugned order challenging thereby its
correctness and its impropriety. The learned counsel for the petitioner has relied on the 5th paragraph of page 2 of the impugned order of the
Financial Commissioner and it runs as under :
From the record, it is clear that Khazir, father of the nonapplicant No. 1 was a tenantatwill under the applicant for decades and specifically from
Kharif 2005 his possession continued as such, till Kharif 1958. The entry of Girdawari (Rabi 1955) referred to and relied upon by the counsel for
the nonapplicant No 1 does not hold water because as per copy of a report of the Girdawari dated 3171963 existing on the original file, the said
Mst. Rahti herself approached the Tehsildar in the year 1963 that the wrong entries had been made in the Girdawari in respect of the disputed land
and her father, Khazir Wani, had been wrongly shown in cultivating possession of the land from 2004 (corresponding to 1947) till 1958, whereas
she was, in fact, in possession of the land during all these years. Secondly, the record of Girdawari produced before me also reveals clearly that in
Kharif 1955 (the crucial harvest) as also in subsequent years, viz 1956 and 1957 the land stood recorded as in cultivating possession of Khazir
Wani and not of Mst. Rahti. his daughter.
(8) It has been urged by the learned counsel for the petitioner that the findings in this para of the learned Financial Commr. show that the father of
the nonapplication. the father of the present petitioner was a tenantatwill and if that be so, the provisions of Sec. 68A of the Tenancy Act would
not be attracted because that section applies only to transfers made by protected tenants. It has been urged on the other side that the learned
Financial Commissioner has not held that the father of the petitioner was a tenantatwill but he has simply given a historical background of the
events, A perusal of the relevant para which I have quoted above, will show that no doubt the Financial Commissioner has stated that the father of
the nonapplicant was a tenant at will but the subsequent sentences which occur there show that what was the position prior to 1955. This fact also
cannot be disputed that the status of a protected tenant was conferred by the amendment in the Act in the year 1955, The learned Financial
Commissioner has stated that he was a tenant at will under the applicant for decades and............ specially from Kharif 2005. This would
correspond to 194748. He would of course be a tenant at will because that was the position prior to 1955.
(9) The second contention which has been raised is that the Financial Commissioner took into consideration some documents which had been
produced before him for the first time and that it was not on the record from before. I may again refer here to the para to which I made reference
above and that in my opinion does not show that the Girdawari to which he has referred was produced before him for the first time. The Financial
Commissioner observed:
.......................the record of Girdawari produced before rue also reveals clearly that in Kharif 1955 (the crucial harvest) as also in subsequent
years viz 1956 and 1957 the land stood recorded as in cultivating possession of Khazir Wani and not Mst. Rahti, his daughter.
(10) The recital is that the Girdawari was produced before him but I think it does not necessarily show that it was produced for the first time. In the
earlier part of this para the Financial Commissioner has referred to the entry in the Girdawari. There is no material on record before me to show
that the Girdawari was produced before him for the first time,
(11) Reference has also been made by the learned counsel for the petitioner to the recital in para 7 of the counter affidavit which has been filed on
behalf of the respondent. I may first of all refer to para 7 of the main petition itself In that para the petitioner stated that the Financial Commissioner
had no jurisdiction and competence to disturb the entry of protected tenancy recorded in the name of the petitioner in record of rights in
circumstances of the case. Now so far as the contention in this para is concerned, I find that the order of the Financial Commissioner is well
discussed and he has considered all the aspects of the matter and then he has come to certain findings. In para 7 of the petition. The respondent
has stated that the entry in regard to protected tenancy was a sham one was liable to be corrected by the highest Revenue Officers and the learned
Financial Commissioner acted with jurisdiction in the matter. Reading this para with the other recitals it appears that the respondent alleged that the
entry was a sham one but this did not preclude the Financial Commissioner in coming to a certain findings on the matter on record.
(12) The learned counsel for the petitioner has also referred to para 4 of the counter affidavit of the respondents in which it is stated that the recital
in para 4 of the petition are denied and it was also stated that 'the petitioner cannot acquire any rights of protected tenancy in view of the fact that
she was not the tenant but a transferee from the original tenant Khazir Wani who sublet the tenancy without the consent of the landlord'. It has been
urged that according to the respondents there was a subletting and not a transfer and if that be so subletting will not come within the scope of Sec.
68A of the Act. The learned counsel for the respondent on the other hand submitted that the loose expression of subletting has been mentioned
and it has not been used in that sense. In my opinion from a mere statement in the counteraffidavit in this manner the order of the learned Financial
Commissioner cannot be set aside.
(13) On a consideration of all the facts and circumstances of the case. I do not think that there should be any interference in the order of the
learned Financial Commissioner and therefore the application is dismissed but in the circumstances of the case, there is no order as to costs.