Wali Mohammad Bhat vs State And Others

Ali Mohammad Magrey, J

This matter was heard on 2nd July, 2019, and the counsel appearing for the petitioner was given time to substantiate the issue with reference to the

jurisdiction of Assistant Commissioner for hearing the appeal. Parties were also given time to supply the judgments relevant to the subject. The parties,

initially, did not do the needful and the matter was kept for pronouncement of judgment on 15th July, 2019, when Mr Sofi, learned counsel for the

petitioner, insisted for granting him one more opportunity of producing the notification or the judgment on the subject. The request of Mr Sofi, learned

counsel for the petitioner was exceeded to and this is how the matter has landed to this date.

The opportunity provided to the learned counsel for the petitioner for supplying law or the Notification on the subject, has been availed by him only

to produce a Division Bench judgment of this court, of which incidentally I was the member, delivered in case titled Mohammad Issaq & Ors v.

Financial Commissioner & Ors., reported as 2013 (1) SLJ, p. 448, to indicate that the powers of hearing and deciding the appeal against the order of

Assistant collector of either class is appealable before the Collector only.

By the present writ petition, the petitioner is challenging the order dated 9 th May, 2013, passed by respondent no. 5, Joint Financial Commissioner

(AR) with the powers of Financial Commissioner, (Revenue), J&K, Jammu/ Srinagar, whereby the revision petition of the petitioner, filed against the

orders of Additional Commissioner, Kashmir dated 10th March, 2012, dismissing the revision petition of the petitioner preferred against the orders of

Assistant Commissioner, (R) Handwara, dated 23rd February, 2011, by virtue of which the mutation no. 885 dated 18.04.2006 attested in favour of

petitioner has been set-aside.

Briefly stated the case of the petitioner is that the ancestral property of petitioner and respondents 1 to 4 is stated to have been mutated in favour of

the petitioner in presence of respondents 1 to 4 who surrendered their share in favour of the petitioner.

Against the order of mutation passed by the Naib Tehsildar, Handwara, on mutation no. 885 of village Braripora, dated 18th April, 2006, the

respondents 1 to 4 had filed an appeal before the Court of Assistant Commissioner (R) Handwara, seeking setting aside of the same. The Assistant

Commissioner (R) Handwara, while holding that the mutation is bad in law, set aside the same in terms of order dated 23rd February, 2011.

Against the order of Assistant Commissioner (R) Handwara, dated 23rd February, 2011, the petitioner filed a revision petition before the Additional

Commissioner, Kashmir, Srinagar, who did not find merit in the revision petition and while upholding of order of Assistant Commissioner (R)

Handwara, dismissed the revision petition.

The petitioner again filed a revision petition against the order of Additional Commissioner, Kashmir before the Joint Financial Commissioner (AR),

With the powers of Financial Commissioner (Revenue), J&K, Jammu/ Srinagar, who upheld the order of Additional Commissioner, Kashmir, and

dismissed the revision petition being without any merit in terms of order dated 9 th May, 2013, impugned herein.

The petitioner is aggrieved of the orders and challenge the same by the present writ petition mainly on the ground of the appeal preferred against

the mutation being time barred and the Assistant commissioner, (R) Handwara, was not having the jurisdiction to hear and decide the appeal.

Respondents 1 to 4 have filed reply and resisted the claim of the petitioner.

I have heard learned counsel for the parties.

The learned counsel for the petitioner submits that the appeal filed against the mutation of Naib Tehsildar Handwara, has wrongly been decided as

the forum chosen by the respondents to file such appeal was not having the jurisdiction as it was not vested with the power to hear and decide the

appeal against the order of Naib Tehsildar. The Assistant Commissioner, Revenue, as per the learned counsel for the petitioner had no appellate

powers under Section 11 of the J&K Land Revenue Act, 1966, to decide the appeal, therefore, the order, by virtue of the mutation made in favour of

petitioner with the consent of private respondents, has been set-aside by the authority that was not vested with the power, hence the order is bad in

law.

Mr N. H. Shah, learned Sr. AAG and Mr Salathi, advocate appearing on behalf of private respondents, submitted that in terms of Cabinet Order

No. 466-C of 1956 dated 20th March, 1956, the Government has empowered the Assistant Collectors of the 1st Class of the rank of the Assistant

Commissioners and the Assistant Settlement Officers to hear the appeals against the orders of Assistant Collectors of the 2nd Class within their

respective jurisdictions.

Considered the submissions made and went through the material placed on record.

The notification issued in terms of the Cabinet Order supra unambiguously makes it clear that the Assistant Commissioner (R) Handwara, was

indeed vested with the power to hear the appeal against the order in question and has rightly decided the appeal as the mutation ought not to have

been made on the basis of an alleged consent. The private respondents cannot be said to have relinquished their share of the inherited property on the

basis of the alleged consent which is disputed by them. The appellate authority in that view of the matter has rightly decided the appeal and set-aside

the order of mutation.

The judgment produced by the learned counsel for the petitioner, Mr I. Sofi, that the power of appeal against the order of Assistant Collector of

either class lies with the Collector only is noted to be rejected only as the ratio laid down in the said judgment does not, in any way, come in conflict

with the conclusion arrived at in the foregoing paragraphs. Section 11 the Jammu and Kashmir Land Revenue Act, 1966 Svt. (1939 AD), for short

Act, deals with the subject, which, for facility of reference is taken note of hereunder:

“[11. Appeals

Save as otherwise provided by this Act, an appeal shall lie from an original or appellate order of a Revenue Officer as follows, namely:-

(a) to the Collector when the order is made by an Assistant Collector of either class;

(b) to the [Divisional Commissioner] when the order is made by a Collector;

(c) to the Financial Commissioner when the order is made by a [Divisional Commissioner]:

(1) where an original order is confirmed on first appeal, no further appeal shall lie except on the grounds mentioned in clauses (a), (b) and (c) of sub-

section (1) of Section, 100 of the Code of Civil Procedure, 1977;

(2) where any such order is modified or reversed on appeal by the Collector, the order made by the Divisional Commissioner on further appeal, if any,

to him shall be final;

(3) the Government may especially empower an Assistant Collector of the first class to hear appeals against the orders of an Assistant Collector of

the second Class. (Emphasis supplied)â€​

The case in hand falls in the exception clause (3) of the Act as the Assistant Commissioner was empowered by the Government to hear the

appeal as taken note of in the foregoing paragraphs. The judgment produced by Mr I. Sofi, learned counsel for the petitioner, is distinguishable on facts

as in the said case the order was challenged in appeal before the Financial Commissioner and not before the Collector who later treated the appeal as

Revision. The appellants in the LPA no. 182/2012 in which the judgment, produced by Mr Sofi, was delivered had questioned the power of the

Financial Commissioner to treat the appeal as Revision. The Division Bench while dealing with the subject had made a passing reference to the appeal

provision of the Act and it was not the subject matter at all before the Division Bench.

The point in issue being entirely different, therefore, the judgment referred to and relied upon is not applicable to the attendant facts of the case in

hand. However, even if, for the sake of arguments, the judgment cited is applied, the principle does not change, as the Division Bench in the said

judgment, while taking note of the submissions that it was not the Financial Commissioner but the Collector who was competent to hear the appeal,

accepted the plea which is not being controverted herein.

I may reiterate that Section 11 of the Act very expressly provides that it is the Collector only who is competent to hear the appeal against the

orders of Assistant Collector of either class, however, the Act itself makes mention of the exception clause (3) that refers to empowering of the

Assistant Collector 1 st Class to hear appeals against the orders of an Assistant Collector of the second Class. The case in hand, in this view of the

matter is lucidly clear. The order that was challenged in appeal was made by the Naib Tehsildar, who is Assistant Collector second class and the

appeal was heard and decided by the Assistant Commissioner (R) who is Assistant Collector 1st Class, therefore, the case squarely falls within the

exception clause (3) of the Act and in that view of the matter, the Assistant Commissioner (R) was very much competent to hear the appeal. The

ground taken by the learned counsel for the petitioner in support of his case, therefore, fails and is turned down.

The subsequent orders passed by the Authorities where the challenge was made to the appellate order are also found to be well reasoned and

need no interference. The court may have thought of interfering with the order impugned if the ground taken by the petitioner, vis-Ã -vis the

jurisdiction of the appellate forum, would have succeeded.

The petitioner has miserably failed to establish his right to seek absolute rights over the ancestral property in question to the exclusion of private

respondents who are admittedly the legal heirs of the deceased Sadiq Bhat. The respondents 1 to 4 in their capacity as legal heirs of the deceased

Sadiq Bhat are entitled to their share of the property in terms of the applicable laws and they cannot be deprived of said right on the assumption of

having made a statement before the Revenue Authorities to the effect of having surrendered their share in favour of their brother, the petitioner.

For all what has been said hereinbefore, the writ petition fails and is dismissed as such along with connected IA. The impugned order is

accordingly upheld.