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2012 DIGILAW 8 (JK)

Atta Mohd. & Ors. v. State J&K and Ors.

2012-01-30

J.P.SINGH

body2012
The facts leading to the filing of this Writ Petition may be stated thus:- Noor Hussain-respondent No.8 filed an Application with Settlement Tehsildar, Satwari-Digiana, Jammu for making up deficiency of his share in land comprised in Khewat No. 15 situated at Narwal Bala, Tehsil and District Jammu pursuant to the final Judgment of Collector, Assistant Commissioner (G), Jammu dated 01.03.1993 in File No. 108/ACG-1987-88. The Settlement Tehsildar allowed his Application by providing that deficiency of 3 Kanals and 4< Marlas of his share in land comprised in Khewat No.15 be made up from Khasra No. 178, vide Order dated July 12, 2006. Aggrieved by the Settlement Tehsildar s ex-parte order, the petitioners filed Appeal before Settlement Officer, Jammu who, entertaining the Appeal directed the parties to maintain status quo. The status quo order was later withdrawn by the learned Settlement Officer proceeding on the premise that he had no jurisdiction to issue the status quo order because the order questioned in the Appeal was a consequential order passed in compliance to the earlier concluded Judgment of the Collector, Assistant Commissioner (G) between the parties. He, however, kept the Appeal pending for final adjudication. Revision preferred against the Settlement Officer s Order vacating status quo order was dismissed by Joint Settlement Commissioner, Jammu on November 20, 2006. Questioning the orders passed by the Subordinate Settlement Authorities, the petitioners approached the Financial Commissioner (Revenue). The Financial Commissioner (Revenue) appears to have transferred to his file the petitioners Appeal against the Settlement Officer s Order. This Appeal was later dismissed, vide Order dated 13.02.2007 holding that Assistant Commissioner (G), Jammu s order passed in the year 1993 having attained finality, there was no merit in the Appeal. Aggrieved by the orders of the Settlement Officer, Joint Settlement Commissioner and Financial Commissioner (Revenue), the petitioners have approached this Court seeking setting aside of the above orders. I have considered the submissions advanced by the learned counsel for the parties at the Bar. Aggrieved by the orders of the Settlement Officer, Joint Settlement Commissioner and Financial Commissioner (Revenue), the petitioners have approached this Court seeking setting aside of the above orders. I have considered the submissions advanced by the learned counsel for the parties at the Bar. The Order passed by the learned Settlement Officer, Jammu vacating the status quo order proceeding on the premise that it was a consequential order pursuant to Assistant Commissioner (G) s order dated 01.03.1993 and may not, therefore, be appealable, is found unsustainable, for, the issue as to whether or not the petitioners Appeal against Settlement Tehsildar s order was maintainable, was required to be considered in the light of the grounds raised by the petitioners in their Memo of Appeal and not in a slipshod manner as was done by the learned Settlement Officer. The petitioners have questioned the Settlement Tehsildar s order on various grounds, inter alia, questioning the validity of ex-parte proceedings besides sustainability of the direction of making up of deficiency from Khasra No.178 in view of the provisions of the Partition Rules. The Settlement Officer s order vacating the status quo order without dealing with the issues raised by the petitioners in their Appeal pertaining to the manner in which the Settlement Tehsildar had directed implementation of the Assistant Commissioner(G) s order is, therefore, unjustified. The Financial Commissioner (Revenue) too appears to have committed the same mistake in dismissing the petitioners Appeal without dealing with the issues raised by the petitioners, inter alia, urging that the partition proceedings were ordered to be conducted in violation of the Partition Rules and without notice to the petitioners. The Subordinate Settlement Authorities were obliged, under law, to determine the issues raised by the petitioners in their Appeal against Settlement Tehsildar s order. They have, however, failed to discharge their statutory duty to decide the Appeal in accordance with law dealing with the grounds raised in the Memo of Appeal. A direction, therefore, needs to be issued to the Subordinate Revenue Authorities to decide the petitioners Appeal against Settlement Tehsildar s order on its merit. This Petition, accordingly, succeeds and is, therefore, allowed setting aside Settlement Officer s order dated 29.07.2006, Joint Settlement Commissioner s Order dated 20.11.2006 and Financial Commissioner (Revenue) Jammu and Kashmir, Jammu s Order dated 25.04.2007. A direction, therefore, needs to be issued to the Subordinate Revenue Authorities to decide the petitioners Appeal against Settlement Tehsildar s order on its merit. This Petition, accordingly, succeeds and is, therefore, allowed setting aside Settlement Officer s order dated 29.07.2006, Joint Settlement Commissioner s Order dated 20.11.2006 and Financial Commissioner (Revenue) Jammu and Kashmir, Jammu s Order dated 25.04.2007. The petitioners Appeal would, accordingly, revive for its expeditious consideration afresh by the learned Financial Commissioner (Revenue), Jammu & Kashmir, Jammu in accordance with law. Parties through their learned counsel are directed to appear before the learned Financial Commissioner (Revenue), Jammu & Kashmir, Jammu on February 11, 2012.