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2009 DIGILAW 460 (JK)

Ahmad Bhat v. State Of J&K

2009-09-16

Barin Ghosh, MUZAFFAR HUSSAIN ATTAR

body2009
1. The respondent, writ petitioner, approached the Writ Court challenging an order passed by the Jammu and Kashmir Special Tribunal, Camp Srinagar, whereby and under the Tribunal reversed the order of Joint Commissioner, Agrarian Reforms as also of the Tehsildar, and restored the mutation which stood prior to the order of the Tehsildar. The writ petition has been allowed by the judgment and order under appeal, in consequence whereof the order of the Tehsildar as well as the order of the Joint Commissioner, Agrarian Reforms became alive. 2. By order of the Tehsildar, request made by the respondent, writ petitioner, to mutate a plot of land in his favour was accepted, principally, upon placing reliance on affidavits produced by the respondent, writ petitioner. Those affidavits were said to have contained marks of the appellants. Those were said to have been produced before the appellants, who looked into the same and did not object to their marks thereon but, at the same time, made known to the Tehsildar that there are still some disputes inter se the respondent, writ petitioner, on the one hand and the appellants on the other, and, accordingly, sought adjournment. The Tehsildar granted such adjournment and, thereupon, the appellants fought before the Tehsildar. Ultimately, the Tehsildar accepted the request made by the respondent, writ petitioner, only on the admission of the appellants contained in those affidavits and, accordingly, directed for mutating the name of respondent, writ petitioner, in place and instead of the appellants in the revenue records in respect of the land in question. The appellants, thereupon, approached the Joint Commissioner, Agrarian Reforms by preferring a statutory appeal. The Joint Commissioner, Agrarian Reforms dismissed the said appeal holding that the order assailed before him was a consent order and, accordingly, no appeal lies before him. 3. The Agrarian Reforms Act, in terms whereof the Joint Commissioner, Agrarian Reforms was exercising appellate jurisdiction, no where provided that a consent order will not be appealable. The Joint Commissioner, Agrarian Reforms, brought in the analogy of the provisions contained in the Code of Civil Procedure to support his decision. The appellants then approached the Jammu and Kashmir Special Tribunal, Srinagar in revision against the said order of the Joint Commissioner, Agrarian Reforms. The Tribunal, amongst other, held that the Joint Commissioner, Agrarian Reforms wrongly held that the appellants consented to the change of `Girdawari' of the year 1971. The appellants then approached the Jammu and Kashmir Special Tribunal, Srinagar in revision against the said order of the Joint Commissioner, Agrarian Reforms. The Tribunal, amongst other, held that the Joint Commissioner, Agrarian Reforms wrongly held that the appellants consented to the change of `Girdawari' of the year 1971. For the reasons indicated by the Tribunal in its order, the Tribunal thereupon set aside the order of the Joint Commissioner, Agrarian Reforms, as well as the order of the Tehsildar. The learned Single Judge of this Court, who dealt with the writ petition, felt that a revision lay when a question of law or public interest is involved, and held that the instant case did not show that there was any question of law or public interest to be gone in and, accordingly, concluded that the Tribunal erred in interfering with the orders as were interfered by it. The learned Judge proceeded on the basis that the Tehsildar passed his order on the basis of admission by the appellants and also felt that the appeal against such an order was not appropriate. While dealing with the matter, the learned Judge also observed that, assuming that the Tribunal was of the opinion that the appellate authority did not consider the facts on record and merely accepted the conclusions of the Mutating Officer, the only course open to the Tribunal was to have the case remanded to the appellate authority for consideration of the entire matter on merits. The learned Judge held that instead of doing so, exercise of assumed appellate power by the Tribunal was uncalled for. 4. An ordinary decree and a consent decree are quite different in their character. A decree is the result of the adjudication made by a court. A consent decree is acceptance by the court of the compromise made by the parties to the suit. When the parties to the suit have led the court to believe that they have compromised their disputes in the manner they have represented before the court and have obtained the seal of the court thereon, by law they have been prevented from preferring an appeal against such decree, for, such an appeal would be against public policy. When the parties to the suit have led the court to believe that they have compromised their disputes in the manner they have represented before the court and have obtained the seal of the court thereon, by law they have been prevented from preferring an appeal against such decree, for, such an appeal would be against public policy. When the court passes a decree upon adjudicating the disputes before it, it may correctly adjudicate the disputes or may not to do so and, accordingly, the Statute authorizes the aggrieved party to prefer an appeal. There are provisions in the Code of Civil Procedure for passing a judgment upon admission. The moment a judgment is rendered upon admission, the same results in a decree. Whether an admission has been made, which could authorize the court to pass a judgment is again a matter which can be disputed. It may be said that the ingredients of admission, upon which the court has place reliance to pronounce the decree, are, in fact, not there, or the court while passing the judgment, has dissected the admission and has taken into account that part of the admission which is suitable to the plaintiff and rejected that part of the admission which is not suitable to the plaintiff. Therefore, when a decree is passed on admission by a court, the same is a pronouncement upon adjudication of a matter before the court. An appeal squarely lies against such a decree where it is open to the person aggrieved to point out that either there was no admission or that the admission was with conditions imposed and, accordingly, by dissecting the conditions no decree could be passed. This is the settled law of this Country for the last 150 years. 5. A look at the order of the Tehsildar would show that he passed the same on the basis of the affidavits produced before him by the respondent, writ petitioner. Those affidavits said to have contained admissions by the appellants in respect of the claim made by the respondent-petitioner before the Tehsildar. 5. A look at the order of the Tehsildar would show that he passed the same on the basis of the affidavits produced before him by the respondent, writ petitioner. Those affidavits said to have contained admissions by the appellants in respect of the claim made by the respondent-petitioner before the Tehsildar. Since on the basis of such affidavits the Tehsildar has passed the order, the order can only be said to be an order passed by him upon adjudication of the disputes inter se the parties before him and not on the basis of consent given by the parties to a compromise arrived at for the purpose of obtaining the seal of the Court. In the circumstances, the appeal against such an order could not be refused to be entertained on the ground that the same was a consent order, and, to that extent, the Joint Commissioner, Agrarian Reforms, did commit an error, we should say, rather a blunder. 6. We feel that the Tribunal has, though touched upon the issue, but did not spell out that the order was not a consent order and, accordingly, the appeal could not be dismissed on the ground that the same was against a consent order. Instead, the Tribunal went into the question whether, in fact, there was an admission or not. We feel, as rightly pointed out by the learned Single Judge dealing with the writ petition, that thereby the Tribunal exceeded its jurisdiction. However, at the same time, when the learned Single Judge, dealing with the writ petition, felt that the Tribunal exceeded its jurisdiction, the learned Judge also overlooked the fact that the Joint Commissioner, Agrarian Reforms, refused to exercise statutory jurisdiction vested on him on a totally non-existent ground. 7. In the circumstances, there is scope of interference and, accordingly, the appeal is allowed. The judgment and order under appeal is set side and, at the same time, the order of the Tribunal as well as the order of the Joint Commissioner, Agrarian Reforms, are set aside with a direction upon the Joint Commissioner, Agrarian Reforms, to hear and decide the appeal of the appellants contained in File No. 560 instituted on June 25, 1983, as quickly as possible, but not later than six months from the date of service of a copy of this order upon him. The prayer made for grant of leave under Article 133 of the Constitution of India is rejected.