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2009 DIGILAW 163 (JK)

Pawan Gupta v. Joint Financial Commissioner

2009-04-09

MOHAMMAD YAQOOB MIR

body2009
1. The land measuring 05 Kanals and 10 Marlas covered by Survey no. 416, Khewat No. 26, situated at village tope Sherkhanian, Jammu owned by Daya Singh and Ors, is stated to have been sold vide 02 Sale deed. One shown to have been executed on 14-09-1982 and registered on the same date in favour of Sh. Krishan Lal, another is shown to have been executed on 20.09.1982 and registered on 14.10.1982 in favour of Vachaspati. Both of them are dead, so are survived by respondents no. 11 to 16, the legal heirs of Krishan Lal are shown to have executed a Sale deed on 03-03-2000 for land measuring 03 Kanals and 06 Marlas in favour of Pawan Gupta, (the petitioner) and by another sale deed shown to have been executed by Vachaspati on 03-03-2000 for land measuring 02 Kanals and 04 Marlas are sold in favour of the petitioner. 2. Based on the first two Sale Deeds executed in the year 1982 in favour of Krishan Lal and Vachaspati, Mutation no. 7375 and 7392 have been attested on 19.12.1999. Mutations regarding subsequent Sale Deeds in favour of the petitioner bearing No. 7487 and 7482 have been attested on 26-04-2000. All the said Mutations have been challenged before the Financial Commissioner by the medium of two separate revision petitions. Ld. Financial Commissioner has set aside the mutation orders opining therein that the said orders are illegal, defective and without jurisdiction. 3. Petitioner aggrieved by the said order passed by the Financial Commissioner has invoked the Writ jurisdiction. 4. The appearing counsel for the petitioner would first contend that the petitioner has been condemned unheard, as he was neither arrayed as a party nor any notice was served upon him. Therefore, the order is bad. 5. Secondly contended that the mutation orders attested in his favour based on the 02 Sale deeds were perfectly justified. The petitioner had purchased the land in question regarding which two proper Sale deeds have been executed and properly registered, so have been reflected in the revenue records, by means of attestation of mutations. There was nothing wrong which would warrant interference in revision by the Financial Commissioner. 6. The petitioner had purchased the land in question regarding which two proper Sale deeds have been executed and properly registered, so have been reflected in the revenue records, by means of attestation of mutations. There was nothing wrong which would warrant interference in revision by the Financial Commissioner. 6. Counsel appearing for the respondents while controverting the submissions of the appearing counsel for the petitioner contended that even if it is taken that the petitioner has not been heard by the Financial Commissioner, still hearing or without hearing him result would remain the same. As according to him, the first 02 Sale deeds executed in favour of Krishan Lal and Vachaspati, the certified copies of which are placed on the record are defective as in the said two Sale Deeds the Khasra number and land measuring 05 Kanals and 10 Marlas is not made mention of, same on perusal is found to be correct when it is so, the mutations based on such Sale Deeds could not be attested. Same appears to have been managed, as from the year 1982 till the year 1999 Mutation regarding the said Sale Deeds have not been attested. In the said two mutations bearing nos. 7375 and 7392 entry regarding the land covered by survey no. 416 as has been made mention of, appears to be quite suspicious and it is in this suspicious state of affairs in a planned manner, first mutation in the year 1999 have been attested then based on these suspicious Mutations and entries thereof in the revenue record, two Sale deeds in favour of the petitioner have been executed on 03-03-2000. 7. The position is further exposed by the fact that Sale Deeds are shown to have executed in the year 1982 whereas suspicious mutations have been attested on 19-12-1999. Then after a gap of 03 months i.e. on 03-03-2000, Sale Deeds in favour of the petitioner have been executed wherein the land covered by survey no. 416 is made mention of. When in the Sale Deeds executed in the year 1982 the survey no. 416, or the land measuring 05 Kanals and 10 Marlas was not mentioned, how the Vendee thereof would sell the said land under survey no. 416 in favour of the petitioner. 8. 416 is made mention of. When in the Sale Deeds executed in the year 1982 the survey no. 416, or the land measuring 05 Kanals and 10 Marlas was not mentioned, how the Vendee thereof would sell the said land under survey no. 416 in favour of the petitioner. 8. Another interesting feature of the case is that the petitioner, claim to be in possession of the land from the year 1985 as is reflected in Para no. 8 of the petition. When in the mutation Nos. 7375 and 7487, the 1st Vendees as on 19-12-1999 are shown to be in possession of the land. It adds to the suspicious position of the matter. 9. Learned Financial Commissioner in order to get rid of this Suspicious situation had asked the Assistant Commissioner, Revenue, Jammu to verify the exact position on the spot, who has submitted the report to the effect that the land measuring 05 Kanals 10 Marlas covered by survey no. 416 has been in occupation of Romal Singh who has been using it for keeping the wooden logs there. 10. The attestation of mutation based on Sale Deeds among others is subject to two conditions; i) Transfer should not be in violation of Statutory Laws; ii) Possession must change hands. While attesting the mutation on the basis of Sale Deed, the party in whose favour the mutation is to be attested, must be in possession as is prescribed under Rule 46 of Standing Order 23-A. In deviation thereof attesting officer has not verified the question of possession before attesting the mutations, so, has acted in violation of the said rule. Not only this, the attesting officer while attesting the mutation no. 7392 and 7375 has acted illegally as there was no mention of any survey number, furthermore, has not looked into the question of ban as was imposed by Section 31 of Agrarian Reforms Act against the alienation, when it was so, he should have rejected the mutation. The attestation of the mutation is simply for achieving fiscal objective, it does not determine the title. For enforcement of Sale Deeds as well as challenge to its validity is not within the domain of revenue authorities except for refusal to give it effect in the revenue records on the basis of the procedure prescribed under the Standing Order no. The attestation of the mutation is simply for achieving fiscal objective, it does not determine the title. For enforcement of Sale Deeds as well as challenge to its validity is not within the domain of revenue authorities except for refusal to give it effect in the revenue records on the basis of the procedure prescribed under the Standing Order no. 23-A. The attesting officer has ignored the Rule 46 and Rule 104 of the said standing order resultantly wrong entry has been effected in the revenue record based on the mutations. The learned Financial Commissioner has noticed the suspicious position of the records based on the Sale Deeds, thereafter has exercised the power and jurisdiction as vest in him. For setting the records right, the Financial Commissioner has in terms of Section 15 of Land Revenue Act, suo-moto powers of revision unfettered by any period of limitation same power can be exercised at any time, so as to rectify the record, as has been rightly done by the Financial Commissioner. It is admitted fact that the petitioner has not been heard by the Financial Commissioner but same was not required as the results would not change by his participation in the proceedings. In this connection, it is quite relevant to quote Para no. 17 of the judgment captioned as S.L.Kapoor v. Jagmohan and Others reported in 1980 (4) SCC 379 . "17. Linked with this question whether the failure to observe natural justice does at all matter if the observance of natural justice would have made no difference, the admitted or indisputable facts speaking for themselves. Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it approves the non-observance of natural justice but because courts do not issue futile writs. But it will be a pernicious principle to apply in other situations where conclusions are controversial, however, slightly, and penalties are discretionary." No ground whatsoever is made out which would warrant issuance of Writ of Certiorari or any other Writ for quashing the order dated 19-06-2006 passed by the Financial Commissioner. In the backdrop of the aforesaid position of law and facts, the petition is found devoid of any merit, as such, dismissed.