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2012 DIGILAW 332 (JK)

Gh. Ahmad & Ors. v. State & Ors.

2012-06-12

MANSOOR AHMAD MIR

body2012
1. In OWP No. 228/2002, petitioners have questioned the Govt. Order No. Rev (S) 92-02 dated 23rd April, 2002 so far it governs mutation No. 295 dated 26th December, 1987 and they have also sought writ of mandamus commanding the Senior Superintendent of Police, Crime Branch, Srinagar to conduct investigation in the matter and Revenue Department be directed to pay the amount of compensation in terms of mutation No. 295 dated 26th December, 87. 2. In OWP No. 229/2002, same relief is sought but only mutation No. is 292. 3. In OWP No. 04/2006, petitioners have sought writ of certiorari quashing the Orders dated 18th November, 2000, SthMay, 2000 and 8th August. Besides a direction be given to respondent No. 3 not to deprive the petitioners of his legitimate rights in respect of mutation orders dated 26th December, 87. It is profitable to record herein that petitioners have already questioned mutations 292 and 295 dated 26th December, 87 and Govt. Order No. Rev(S) 92-02 dated 23rd April, 2002. 4. Respondents have raised objections taken in the memo of reply. 5. The foundation of the writ petition is based on mutation No. 292 and 295 dated 26th December, 87 which was set-aside by the Joint Commissioner Agrarian Reforms in terms of order dated 11th December, 99, was subject matter of revision petition before Divisional Commissioner, with powers of Settlement Commissioner, came to be dismissed vide order dated SthFebruary, 2000. 6. Feeling aggrieved, petitioners have questioned all the three orders before the Financial Commissioner by the medium of revision petition, was dismissed vide order dated 18th May, 2005. It is worthwhile to mention here that writ petition No. 228 and 229 were already pending, should have sought amendment in view of the subsequent developments, whether filing of fresh writ petition seeking same relief which is sought in writ petitions 228 and 229 and in addition to that have sought quashment of orders passed by Superior Revenue Officers is warranted? Writ petitions 228 and 229 came to be filed on 15th May, 2002, petitioners have not sought quashment of order dated 11th December, 1999, 8th of February, 2000, what is its effect? In the given circumstances writ petition Nos. 228 and 229 of 2002 have been rendered infructuous. 7. Writ petitions 228 and 229 came to be filed on 15th May, 2002, petitioners have not sought quashment of order dated 11th December, 1999, 8th of February, 2000, what is its effect? In the given circumstances writ petition Nos. 228 and 229 of 2002 have been rendered infructuous. 7. Now coming to writ petition No. 04/2006, the mutation was made in terms of the application made by one Syed Mohammad Husain who is not a party before this court and has chosen not to question the orders passed by the Appellate and Revisional Authority though mutation being in his favour. Commissioner while hearing the appeal remanded the case after noticing that prima-facie fraud has been committed by the subordinate revenue officers along with the applicant and other persons and directed the Tehsildar to conduct fresh enquiry in terms of order date 11th December, 99. 8. Financial Commissioner has passed detailed order, while exercising revisio-nal powers and the same is legal besides appears to have been passed with due deliberation and application of mind. Petitioner has failed to carve out a case for interference by the writ court. It is apt to reproduce relevant portion of the same herein:- "The Tehsildar also committed a number of other illegal actions in the course of processing the case for the partition of Shamilat land. In the first place, he accepted an application from Mohammad Hussain and three others claiming that they were acting for all the khewatdars who had rights in the Shamilat land in a representative capacity. This application was accepted without question by the Tehsildar. How the Tehsildar could have assumed that the application was in a representative capacity is totally baffling given that there was no evidence to support the claim. He never even informed all the khewatdars about the proposed partition. It is not even clear whether all the applicants were khewatdars who had rights over the Shamilat land either. Doubts have been raised about whether Lal Mohammad Bangroo, the father of petitioners 1-8, owned any land at all in Hanjak village. If this is so, he did not have any rights on Shamilat land in the village. However, this is something which had to be determined by the Tehsildar before he took action on the application for the partitioning of the land. If this is so, he did not have any rights on Shamilat land in the village. However, this is something which had to be determined by the Tehsildar before he took action on the application for the partitioning of the land. It is difficult to escape the conclusion that the Tehsildar was acting on behalf of the Petitioners. It is therefore clear from the discussion above that the order dated 11.11.1987 and the Mutation No. 295 dated 28.12.1987 were illegal. The other issues raised in the revision can now be discussed....It would be a travesty of justice if the perpetrators are allowed to enjoy the benefits of the scam purely on account of technical reasons. The legal system cannot become a mechanism to thwart the interests of justice and to enable persons to blatantly violate the law. If the legal system cannot provide justice, there is probably very little justification for it to exist at all. The issue in this case is simple and straightforward-could the Tehsildar have partitioned the Shamilat land in Hanjak village in terms of the provisions of section 118-A of the Land Revenue Act? The answer is a resounding No. When the basic order dated 11.11.1987 and the Mutation dated 26.12.1987 attested on the basis of the order are bad in law, the relevance of the technical issues raised by the petitioners in Ghulam Ahmad and ors. v. Abdul Ahad and ors. is questionable. This court would be failing in its duty if the perpetrators of the scam are to let off purely on technical grounds. This court has extremely wide and flexible revisional powers under section 15 of the Land Revenue Act. These powers have been conferred to enable this court to provide suitable correction in the interests of justice in cases where the lower Revenue courts cannot provide the relief required in terms of the law. Given the circumstances, this is certainly a case where the revisional powers conferred on this court by section 15 of the Land Revenue Act have to be used." 9. The writ jurisdiction can be exercised only in exceptional cases for setting aside the orders passed by Revenue Agencies provided it is in abuse of process of law or is not in accordance with the provisions of law. The writ jurisdiction can be exercised only in exceptional cases for setting aside the orders passed by Revenue Agencies provided it is in abuse of process of law or is not in accordance with the provisions of law. In the given circumstances, it can safely be held that impugned orders are legal and are not in any way abuse of process of law. In fact the orders advance the cause of justice. 10. Respondent No. 8 has also disputed the genuineness of the mutation and locus of petitioners which is a question of fact, therefore, cannot be gone into by the writ court. It is apt to reproduce Paragraph 9, 10 and 11 of the objections filed by respondent No. 8, herein: "9. In reply to Para 11 d it is submitted that the very sale deed on the basis of which Lal Mohammad Bangroo, father of the petitioners claim ownership of Shamilat land situated in Hanjik is doubtful. What was sought to be sold through the said deed is the land situated at village Hakoora Tehsil Budgam. The Tehsildar without conducting any enquiry and without calling all the land holders ordered the partition vide order dated 11.11.1987. The Tehsildar ought to have proceeded under Order 1 Rule 8 by publishing the notice in some newspaper when the land holders were sued in representative capacity through one Mohammad Sultan of village Hajibagh. The Tehsildar neither called the land holders nor had he issued any notice in terms of Order 1 Rule 8 so as to provide a chance to all the land holders to appear before him and contest the proceedings. The whole exercise conducted by the Tehsildar was illegal and against fundamental procedures and therefore rightly found to be invalid by respondent No. 1. The Financial Commissioner was very right in expressing doubt about the ownership of Lal Mohammad with regard to the purchase of 76 kanals 9 marlas of land to have been purchased by him on 2nd June, 1957. 10. The Financial Commissioner was very right in expressing doubt about the ownership of Lal Mohammad with regard to the purchase of 76 kanals 9 marlas of land to have been purchased by him on 2nd June, 1957. 10. In reply to Para 11 e & fit is submitted that the petitioners and their father have not been in possession of any part of Shamilat land at any point of time and therefore cannot claim ownership over it even, otherwise, claim is based on a sale deed which is highly intriguing and there is a serious doubt about their ownership over the land allegedly purchased by him from Brij Krishan in 1957. 11. In reply to Para 11 g & h it is submitted that neither the petitioners nor their father was entitled to any Shamilat land as the very basis of their claim is doubtful. It is further submitted that the Shamilat land got mutated by him through Tehsildar pertain to that part of the land which was wholly in possession and ownership of answering respondents and their predecessors in-interest for several decades. They had raised orchards over the land providing handsome income to them. The Tehsildar has no jurisdiction or authority to pass a mutation with respect to the said land even without issuing a notice to the answering respondents. The power exercised for attestation of mutation and order directing partition was a collusive exercise amounting to fraud. The Tehsildar did not conduct enquiry into the matter before directing the partition of Shamilat land. The petitioners or their father had never asked for partition, it was one Mohammad Hussain who had made the application. The said person has not filed any revision or petition against the setting aside of the order of Tehsildar directing partition and the mutation attested in favour of the petitioner's father. The petitioners are uselessly crying hoarse in regard to the passing of the order in revision against them which only shows it is they who had manipulated application for partition filed by Mohammad Hussain allegedly a Khewatdar of village Hanjik." 11. The petitioners are uselessly crying hoarse in regard to the passing of the order in revision against them which only shows it is they who had manipulated application for partition filed by Mohammad Hussain allegedly a Khewatdar of village Hanjik." 11. Why writ petitioners didn't lay a motion and chose to contest before Tehsildar, and why one Mohammad Hussain instead opted to contest the same is also to be thought about as the said Mohammad Hussain, also went missing and did not contest the matter too, before Agrarian court, appellate court and even before this court. Having said so, the court feels that the actual face behind the litigation is still under veils. Viewed thus, the order of Financial Commissioner is held to be well reasoned and needs no interference. Resultantly, all the three writ petitions fail, and are dismissed as such.