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2005 DIGILAW 315 (JK)

Ab. Sattar Ganaie v. Financial Commissioner

2005-11-19

NISAR AHMAD KAKRU

body2005
1. The writ petition arises out of an endorsement recorded by the Financial Commissioner (Revenue) on the application of respondent No.5 seeking implementation of a direction-dated 16.08.2004 passed by the Sub Divisional Magistrate. The endorsement reads: "S.D.M.Kulgam. To ensure that illegal encroachment, if any, is removed under law/rules." 2. Crux of the challenge is that the Financial " Commissioner lacks the power to pass such orders. To appreciate the contention reference to the powers of the Financial Commissioner (Revenue) relevant to the issue having the statutory sanction contained in the Jammu and Kashmir Land Revenue Act, 1996 has become imperative and are extracted: "Classes of Revenue Officers - (1) There shall be the following classes of Revenue officers, namely: - (a) The Financial Commissioner. (b) The [Divisional Commissioner, (c) The Collector, (d) the Assistant Collector of the first class, (e) the Assistant Collector of the second class. (2) ....... (3) Unless the Government issues a notification to the contrary, the jurisdiction of the Financial Commissioner shall extend to the whole of the State and of [Divisional Commissioners] to the Provinces and of Collectors and Assistant Collectors to the Districts and Tehsils respectively in which they are employed. (9) Power to distribute business-(l) The Financial Commissioner, the [Divisional Commissioner] or the Collector may be order in writing distribute in such manner as he thinks fit any business cognizable by any Revenue officer under his control. Financial Commissioner may at any time call for the record of any case pending before or disposed of by any Revenue Officer under his control...." 3. It is very clear from the provisions extracted hereinabove that jurisdiction of the Financial Commissioner as a Revenue Officer extends to the whole of the State including the power to distribute the business amongst the Revenue Officers of the State. Apart from that in the capacity of a major head of the department in terms of classification of officers defined in Schedule 1-A attached to the Jammu & Kashmir Civil Service Regulations, a duty is cast upon him to see to it that law is not observed in breach by his subordinates. In that view of the statutory position it cannot be said that the Financial Commissioner lacks the power to issue administrative directions or executive orders, of course, in respect of matters, which fall within his competence. In that view of the statutory position it cannot be said that the Financial Commissioner lacks the power to issue administrative directions or executive orders, of course, in respect of matters, which fall within his competence. Having spelt out the legal position the Financial Commissioner cant be said to have faltered, for, the direction impugned does not ask the Sub Divisional Magistrate to do some thing in contravention of law but it essentially requires him to follow law. Needless to say that it will lead to an anomalous situation if it is held that the Financial Commissioner has no power to direct adherence to law. True it is that he cannot add to his powers by administrative/orders and executive directions. Nonetheless, he is within his powers to issue directions in consonance with the statute. Situated thus, direction does not call for any interference. 4. Adverting to the contention that the SDM may resort to lawlessness under the part of the direction of the Financial Commissioner (Revenue), suffice it to say that it is a mere apprehension, for, the direction of the Financial Commissioner (Revenue) admits no ambiguity to the effect that it requires the authority to remove the encroachment under law/rules which presupposes adherence to law. 5. Writ petition is disposed of along with CMP.