Sharief vs State of J&K

Sanjay Dhar, J

The petitioner, through the medium of the present petition, has challenged order dated 04.12.2018 passed by Financial Commissioner (Revenue), J&K, Jammu (respondent No. 2) whereby the revision petition filed by respondents No. 6 and 7 has been partly allowed. A further direction, commanding respondents No. 1 to 5 to evict respondents No. 6 and 7 from the land measuring 16 kanals 5 marlas in survey No. 1912 of village Bhaddu, tehsil Billawar, district Kathua, has also been sought.

As per case of the petitioner, his father-Mohd. Yousif filed an application in a representative capacity on behalf of the  inhabitants of village Bhaddu, tehsil Billawar, district Kathua on 18.02.2004 alleging therein that respondent No. 6 has encroached upon the State land measuring 16 kanals 5 marlas in khasra No. 1912 of village Bhaddu, tehsil Billawar, district Kathua thereby causing obstruction to the movement of the inhabitants of the village as also to the grazing of animals. It has been submitted that upon an in depth enquiry made by respondent No. 5-Tehsildar, Billawar, it was found that respondents No. 6 and 7 are under unauthorized occupation of the aforesaid land, which is owned by the State. Accordingly, order dated 15.04.2005 was passed by respondent No.5-Tehsildar, Billawar whereby directions for eviction of respondents No. 6 and 7 were issued.

The aforesaid order was challenged by respondents No. 6 and 7 by way of an appeal before the respondent No. 4-Deputy Commissioner, Kathua who, vide order dated 04.08.2009, upheld the aforesaid order dated 15.04.2005. Aggrieved of the order passed by the Deputy Commissioner, Kathua, respondents No. 6 and 7 filed a revision petition before the Additional Commissioner, Jammu (with powers of Divisional Commissioner). The said revision petition came to be dismissed by Additional Commissioner, Jammu vide order dated 13.04.2015.

Respondents No. 6 and 7 challenged the order of the Additional Commissioner, Jammu by way of a revision petition before Financial Commissioner (Revenue) J&K, Jammu who, vide impugned order dated 04.12.2018, partly allowed the said revision petition and set aside the order of the Tehsildar, Billawar dated 15.04.2005 and subsequent orders of Deputy Commissioner, Kathua and Additional Commissioner, Jammu with regard to land measuring 8 kanals 3 marlas entered in the name of respondent No. 6 whereas, order to the extent of remaining land measuring 8 kanals 2 marlas entered in the name of respondent No. 7 was upheld.

The petitioner has challenged the impugned order on the grounds that the same has been passed in an arbitrary and illegal manner inasmuch as once the order of the Tehsildar, Billawar was upheld by the appellate and revisional authority, it was not open to respondent No. 2 to interfere in the said order. It has also been contended that the impugned order was passed without taking into consideration the enquiry conducted by the Tehsildar, Billawar, who had clearly found that allotment of land in

favour of respondent No. 6 under the Chief Minister’s guidelines was patently illegal. It has also been contended that the land in question is State land and as such, respondent Nos. 6 and 7 do not have any right to encroach upon the said land.

During pendency of the writ petition, respondent No. 6 has passed away but his legal heirs were not brought on record by the petitioner. The petition, as against respondent No. 6 has, therefore, abated.

Respondent No. 7, in his objections to the writ petition, has submitted that the petitioner has no locus standi to file the writ petition nor he has locus standi to challenge the order passed by respondent No. 2. It has been contended that land measuring 8 kanals 3 marlas in khasra No. 1912 of village Bhaddu, tehsil Billawar, district Kathua entered in the name of respondent No. 6 was regularized in his favour in terms of the Chief Minister’s Guidelines, therefore, it was not open to the Tehsildar, Billawar to set aside the mutation attested in favour of respondent No. 6. It has been submitted that because the writ petition has been filed to challenge the order of respondent No. 2 to the extent of the land, which was regularized in favour of respondent No. 6, who has already expired, the present writ petition cannot proceed further. It has been further submitted that respondent No. 6 has two sons and one daughter as his legal heirs and without bringing on record the said legal heirs, the relief claimed in the instant petition cannot be granted in favour of the petitioner.

I have heard learned counsel for the petitioner and perused record of the case of the case.

By virtue of impugned order dated 04.12.2018, the orders of the inferior revenue authorities i.e., Tehsildar, the appellate authority and the revisional authority have been set aside only to the extent of 8 kanals 3 marlas of land, which was regularized in the year 1985 in favour of respondent No. 6, whereas, the order of the Tehsidar, Billawar, as upheld by the superior revenue authorities to the extent of balance 8 kanals 2 marlas of land, which was entered in the name of respondent No. 7, has been upheld. Thus, the petitioner is aggrieved of the impugned order passed by respondent No. 2 only to the extent of the State land, that was regularized in favour of respondent No. 6.

As already stated, the said respondent has died during the pendency of this writ petition and his legal heirs have not been brought on record. Though respondent No. 7 is also a legal heir of respondent No. 6, yet there are two more legal heirs, namely, Bharat Bhushan and Bimla Devi, who have not been brought on record by the petitioner in spite of the fact that the details of the said legal heirs were furnished by respondent No. 7 in his reply to the writ petition. Since the estate of the deceased-respondent No. 6 is not fully represented in the present case by his legal heirs, therefore, the writ petition on this ground alone, in the absence of impleadment of all the legal heirs of respondent No. 6 would suffer dismissal on account of abatement particularly when the petitioner is aggrieved of impugned order passed by respondent No. 2 only to the extent of deceased-respondent No. 6.

Even on merits, there is no ground to interfere with the impugned order passed by respondent No. 2. The said respondent while setting aside order of the Tehsildar to the extent of land measuring 8 kanals 3 marlas allotted in favour of the deceased respondent No. 6 has observed that it was not open to the Tehsildar to review his order without obtaining sanction of the superior revenue officer. In this regard, a perusal of the order dated 15.04.2005 passed by Tehsildar, Billawar reveals that he has reviewed order dated 18.05.1985 passed by his predecessor whereby mutation in respect of land measuring 8 kanals 3 marlas in khasra No. 1912 was attested in favour of respondent No. 6 in accordance with the guidelines of the Chief Minister issued in the year 1975 whereby occupation of the aforesaid

portion of the State land was regularized in favour of the said respondent.

While passing order dated 15.04.2005, power of review has been exercised by the Tehsildar/Assistant Collector, by taking resort to Section 13 of the Land Revenue Act. However, proviso (a) to Section 13 (1) of the Jammu and Kashmir Land Revenue Act clearly stipulates that when a revenue Officer of a class below that of Collector proposes to review any order, whether passed by himself or by any of his predecessors in office, he shall obtain the sanction of the revenue officer to whose control he is immediately subject meaning thereby that before reviewing an order, Tehsildar/Assistant Collector has to first obtain sanction of his superior revenue officer. In the present case, the Tehsildar/Assistant Collector has, after reviewing order dated 18.05.1985 passed by his predecessor submitted the order to Deputy Commissioner, Kathua for confirmation. The requirement of law is that before reviewing an order, a revenue officer below the rank of Collector has to seek prior sanction of the superior revenue officer and not that order of review would be passed and thereafter sent to superior revenue officer for confirmation. Thus, order dated 15.04.2005 passed by the Tehsildar is not sustainable in law.

The aforesaid aspect of the matter has not been appreciated either by the Deputy Commissioner, Kathua or by the Revisional Authority i.e., Additional Commissioner, Jammu. Both these authorities have upheld the order of review passed by the Tehsildar, Billawar without dealing with the issue in its right perspective. The said action of the appellate and revisional authority is contrary to the position of law as stated hereinbefore. Therefore, respondent No. 2 has rightly set aside the order of the Tehsildar, Billawar as well as the orders of appellate and revisional authority by holding that mutation order dated 18.05.1985 in respect of land measuring 8 kanals 3 marlas falling in khasra No. 1912 of village Bhaddu, tehsil Billawar, district Kathua in favour of respondent No. 6 could not have been reviewed without obtaining sanction of the superior revenue officer. Thus, no fault can be found in the impugned order passed by respondent No. 2.

For the foregoing reasons, both on merits as well as on account of abatement, the writ petition deserves dismissal. Accordingly, the same is dismissed.