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2012 DIGILAW 71 (JK)

Madan Lal v. Om Parkash

2012-02-23

Sanjay Gupta

body2012
1. This revision petition has been directed against the order of Additional Deputy Commissioner( with the powers of Agrarian Reforms Commissioner), Udhampur dated 22-10-2009, by virtue of which he has accepted the appeal of Respondent herein and has set aside the mutations No. 1286 dated 09-04-1982 attested under section 4 and mutation no. 1310 dated 27-3-1983 attested under section 8 of the Agrarian Reforms Act, regarding the land measuring 45 Kanals 18 Marla comprising under Khasra No. 535,539,735, 741, 742, 747, 759, 990,1020,1258 and 1259 situated at village Barolla Tehsil and District Udhampur and has remanded the case back to Tehsildar for de-novo enquiry. 2. Petitioners have challenged the impugned order on the grounds that the order is against facts and law. That respondent has failed to explain the delay in filling appeals before court below, That mutation no. 1286 attested u/s4 and mutation no. 1310 attested u/s 8 of Agrarian Reform Act were attested in the 1982 and 1983 respectively, where as appeal were filed on 28-5-05, no sufficient reason was shown for condoning the delay in filling the appeals. That land is still in possession of petitioners. That respondent was not adopted son of Dina Nath. That Late Dina Nath had executed a will deed on 23-12-74, with regard to the property in favour one Faquiru, the predecessor in interest of petitioner 1, 4, 5, & 6. 3. Heard. Perused the record of court below. Counsel for the petitioner had elaborated all the grounds mentioned in the memo of the appeal. 4. I have given my thoughtful consideration to the whole aspect of the matter. 5. Facts leading to the present case as is evident from record and arguments of counsel for petitioners are that, respondent herein by alleging adopted son of one Dina Nath, challenged two mutations attested u/s 4 and 8 of A R Act in favour of petitioners herein, with regard to the land measuring 45K-18M in different Khasra Nos. situated at Barolloa Tehsil and District Udhampur before Addl. Deputy Commissioner (with the powers of Agrarian Reforms Commissioner) Udhampur. 6. It was alleged and argued by respondent before court below that, he was minor and was adopted by late Dina Nath. That after the death of his adopted father his estates have devolved upon him by succession. A mutation no. situated at Barolloa Tehsil and District Udhampur before Addl. Deputy Commissioner (with the powers of Agrarian Reforms Commissioner) Udhampur. 6. It was alleged and argued by respondent before court below that, he was minor and was adopted by late Dina Nath. That after the death of his adopted father his estates have devolved upon him by succession. A mutation no. 1248 has been attested in his favour on 28-4-1980 with regard to estate of his adopted father. Respondents/petitioners herein challenged the adoption deed in civil court, which was dismissed. That mutation dt. 28-4-1980 was challenged by filling appeal on 30-4-1981, before the Deputy Commissioner Udhampur and that appeal was accepted and case was remanded to Addl. Tehsildar Udhampur. This order of Deputy Commissioner was challenged in revision before Divisional Commissioner, Jammu by respondent and on 29-10-1983, and Divisional Commissioner made a recommendation to Financial Commissioner for accepting the revision petition. Financial Commissioner transferred the case to Joint Financial Commissioner for disposal, who on 20-4-1993, did not accept the recommendation and upheld the order of Deputy Commissioner. Thus case was remanded to Tehsildar (settlement) Udhampur. A writ petition was filed which was accepted and case was remanded to Financial Commissioner. Financial Commissioner thereafter accepted the recommendation of Divisional Commissioner on 23-9-08 and mutation no.1268 dt. 28.4.1980 was kept intact. 7. That during the pendency of above litigation respondents/ petitioners herein got attested two mutations one no. 1286 dated 9-4-82 u/s 4 and other mutation no. 1310 dated 27-3-83 u/s 8 of A.R. Act by misrepresentation and by making false statements. 8. Court below after hearing the parties accepted appeals and set aside both the mutations. Court below after relying on law enumerated in several judgments held that as both mutations have been attested in absence of appellant condoned the delay in filling appeals and set aside both mutations. Concluding Para of impugned order reads as under:- In the facts and circumstances of the case, the court is clearly of the view that the order passed on mutation no. 1286 dated 9-4-82 u/s 4 and mutation no. 1310 dated 27-3-1983 u/s 8 of the Agrarian Reforms Act are illegal and against the provisions of the Statute and procedure prescribed for attestation of mutations. Accordingly, the appeal is hereby accepted and the order passed on mutations no. 1286 dated 9-4-82 u/s 4 and mutation no. 1310 dated 27-3-1983 u/s 8 of the Agrarian Reforms Act are illegal and against the provisions of the Statute and procedure prescribed for attestation of mutations. Accordingly, the appeal is hereby accepted and the order passed on mutations no. 1286 dated 9-4-82 u/s 4 and 1310 dated 27-3-1983 u/s 8 pertaining to the land measuring 45Kanals 18 marlas comprising Khasra No. 535,539, 741,, 742,747,769,990,1020,1259,1258 and 735 are set aside and the case is remanded to Tehsildar Udhampur for de-novo enquiry for passing fresh orders as indicated above on touch stone of law relating to the attestation of mutation after hearing the parties. Before parting with, I cannot resist an observation that the high handedned ness resorted by the Tehsildar along with patwari and girdawari in attesting the impugned mutations in flangrant violation of statutes needs to be dealt with an administrative side by the competent authority by due adherence to the principle of natural justice in spite of the stay order issued by the Revisional Authority (Divisional Commissioner, Jammu) and the case was pending decision on the date of attestation of mutation but the officer (mutation attesting officer) and the patwari, girdawari by abusing their powers attested the impugned mutations. This act of the office and patwari, girdawari concerned needs to be dealt with an administrative side by the compentent authority by due adherence to the principle of natural justice. Let the officer i.e. mutating officer and patwari and girdwar be identified forthwith. So that recommendation be made to the competent authority unless they ceased to be in the active service. Such course of action is necessary even if percolate a message that arbitrary exercise of power can entail disciplinary action even if noticed at a belated stage which may even fall within the ambit of abuse of power. The appeal is disposed off as ordered above. Stay order if any issued by this court stand vacated. Copy of this order be forwarded to Tehsildar Udhampur for further necessary action and the file be consigned to records after its due completion. Sd/- Announced 22-10-2009 Addl. Deputy Commr (With the powers of Agrarian Reforms Commissioner) Udhampur 9. This Tribunal constituted under Special Tribunal Act, 1988 derives powers of revision against the order of Commissioner, u/s 21 sub-clause 2 of A.R. Act, 1976. Sd/- Announced 22-10-2009 Addl. Deputy Commr (With the powers of Agrarian Reforms Commissioner) Udhampur 9. This Tribunal constituted under Special Tribunal Act, 1988 derives powers of revision against the order of Commissioner, u/s 21 sub-clause 2 of A.R. Act, 1976. This section reads as under:- Section 21 of A.R. Act, 1976 deals with appeals and revisions. It reads as under:- (1) Any person aggrieved by a final order of a Collector or a Revenue Officer of a class lower than that of a Collector may prefer an appeal to the Commissioner having jurisdiction in the area to which the appeal relates. (2) The Revenue Minister may at any time call for the record of any case in which a Tehsildar or an Assistant Commissioner has passed orders in respect of evacuees land or State land or of any case in which Commissioner has passed final order and if he finds that a question of law or public interest is involved in the case, he may pass such orders thereon as he thinks fit; Provided that no order shall be passed against any party without affording that party an opportunity of being heard. 10. From bare reading of this section, it evident that for revising an order of Commissioner, firstly there should be a final order and secondly a law point or any question of public importance should have arisen. So exercise of Revisional jurisdiction is confined to final order and question of law or public importance. This court should have to formulate an opinion that a question of law or public interest is involved in the case. 11. Question of law means application or interpretation of legal principle or statues. It involves the interpretation of principle that are potentially applicable to other case. It relates to determination of what is law, how it is applied to facts of case. It is purely legal in contention. 12. While going through the conclusion of impugned order, I find that, no final rights of any parties to litigation have been decided by court below. Remand order is considered as interlocutory order, as it does not terminate the proceeding and it is always open to aggrieved party to challenge any order passed by remand court. In case, if a remand order is passed by authority or court lacking inherent jurisdiction, then that order may be revisable. Remand order is considered as interlocutory order, as it does not terminate the proceeding and it is always open to aggrieved party to challenge any order passed by remand court. In case, if a remand order is passed by authority or court lacking inherent jurisdiction, then that order may be revisable. But in the present case counsel for the petitioners has failed to satisfy the court with regard to lack of inherent jurisdiction of court below in dealing with matter. 13. In view of what has been discussed above the revision petition is dismissed. 14. File of the court below is sent back along with a copy of this order. File of this court be consigned to record after due compilation.