Research › Search › Judgment

J&K High Court · body

2013 DIGILAW 600 (JK)

Salam Din v. Amroo Devi

2013-10-03

Madan Lal

body2013
ORDER 1. Petitioner has assailed the order of Additional Deputy Commissioner Rajouri passed on 19.4.2008 on the ground that the impugned order deserves to be set aside. As the order has been passed without hearing the petitioner. And the petitioner has been never served with any notice from the Court of the Addl. Deputy Commissioner Rajouri. Further stated that on 25th Nov. 1983, Naib Tehsildar Koteranka had mutated a big chunk of land measuring 699 kanal and 18 marlas falling in different survey No. including 1 kanal 2marlas of land falling in khasra no. 1662 situated at Raj Nagar Budhal in favour of petitioner vide mutation no. 691 dated 25.11.1983, copy of the mutation has enclosed as annexure "B". Whereas the land comprising under Khasra No. 1662 measuring 1 kanals 2 marlas situated at Village Rajnagar Budhal is in physical cultivating possession of the petitioner since 1960 and with regard to the land mutation u/s 8 of the Agrarian Reforms Act has been passed vide mutation no. 694 dated 20.4.1984. Respondent had preferred an appeal before Learned additional Deputy Commissioner, Rajouri with the powers of Commissioner Agrarian Reforms while showing herself as the widow of Munshi Ram, who was owner of land in question before attestation of mutation under section of Agrarian Reforms Act whereas fact is that respondent had never been wife of Munshi Ram who is the wife of one Balak Ram and thus respondent has no locus standi to file any appeal with regard to land in question. Respondents herein misled the Court below by representing herself as a widow of Munshi Ram and petitioner had no knowledge of any such appeal, as such could not contest the same and bring this fact before the Court below. Moreover petitioner had never received any summon with regard to any appeal pending against him nor he has appeared before the Court below. In order to substantiate this fact that Amroo Devi is not widow of Munshi Ram but is the widow of Balak Ram. Copy of the relevant pedigree table is enclosed with the petition as annexure "D". Moreover respondent herein has challenged the mutation no. 694 dated 20.4.1984 challenge the same in the appeal before Addl. Deputy Commissioner Rajouri with powers of Commissioner Agrarian Reforms on 5th May, 2007 after the lapse of 23 years and appeal was time barred. Copy of the relevant pedigree table is enclosed with the petition as annexure "D". Moreover respondent herein has challenged the mutation no. 694 dated 20.4.1984 challenge the same in the appeal before Addl. Deputy Commissioner Rajouri with powers of Commissioner Agrarian Reforms on 5th May, 2007 after the lapse of 23 years and appeal was time barred. Moreover there is no mention of condoning of such a long delay in the order impugned by the Learned Addl. Deputy Commissioner, Rajouri and until and unless delay is condoned, the appeal was not entertain- able. Moreover the impugned order has been passed exparte with a view to deprive the petitioner to his legitimate right. Petitioner being in old age has mostly remained bedridden because of multiple health problems, received a summon from the Office of Tehsildar Koteranka that an enquiry has been initiated against the mutation no. 694 dated 20.4.1984. 2. The petitioner approached the Tehsildar Koteranka to know about the enquiry who in turn asked the petitioner that enquiry has been initiated on the direction of high higher officials and respondent has illegally encroached upon the land in question. Learned Addl. Dy. Commissioner Rajouri has set a side the mutation order. 3. On perusal of the order of Addl. Deputy Commissioner, Rajouri, it reveals that petitioner herein caused his appearance before the Court below and an exparte proceedings has been initiated against him. When the petitioner herein did not appear before the Court below and appeal of the respondent had been accepted and case had been remanded to Tehsildar Kortaranka with the direction: 1- to ascertain the factual position in presence of the parties, who was in cultivation possession of the land in dispute in Kharief 1971? 2- Whether the respondent/petitioner herein had occupied the land without consent of the real owner? 3- Whether the mutation u/s 4 has been not attested and in what capacity patwari of the said area has made an entry of mutation no. 691 in the revenue record? 4- Whether the land in dispute had been sold? 4. Tehsildar of the area was asked to pass the fresh order by keeping in view the question framed here in above strictly in accordance with Agrarian Reforms Act. 5. 691 in the revenue record? 4- Whether the land in dispute had been sold? 4. Tehsildar of the area was asked to pass the fresh order by keeping in view the question framed here in above strictly in accordance with Agrarian Reforms Act. 5. Learned counsel for the petitioner has referred pedigree table of1995-96 and pleaded that Amro Devi has never married to Munshi Ram but she was wife of Balak Ram and the respondent herein had no authority to challenge the mutation in an appeal before the Addl. Deputy Commissioner, Rajouri and order passed by the Addl. Deputy Commissioner Rajouri is bad in the eyes of law and deserves to be set aside. 6. On scanning the pleading of the petitioner herein petitioner himself admitted in para-6 of the petition that he had received a summon from the Office of Tehsildar Kortarnka and after coming to know about the order passed by the Additional Deputy Commissioner, Rajouri, filed the present revision petition. In order to appreciate the dispute in question, revision petition lies only when the order passed by the Court below suffers from illegality or a question of public importance is involved. If it is admitted for the sake of argument that petitioner had got no opportunity of being heard before the Court of Additional Deputy Commissioner, Rajouri even than the order passed by the Addl. Deputy Commissioner Rajouri is a remand order and right of the petitioner herein has not been determined finally. The rights of the parties in dispute were yet to ascertained by the Tehsildar Koteranka. Order impugned herein was not final order in nature. Thus the revision petition was not maintainable before the Tribunal. In this regard, reliance is placed on a judgment reported in 2010 (3) JKJ HC 752 titled Rashid Sheikh v. State, wherein it has been laid that revisional jurisdiction could be exercised by Special Tribunal only on a question of law involve or public interest and revision against the remand order does not lie because remand order does not determine the rights of the parties. The present petition is not maintainable before this Court, accordingly it is dismissed. However, the petitioner is directed to cooperate with the Tehsildar Koteranka who was asked by the Addl. Deputy Commissioner Rajouri to conduct the fresh enquiry on the points enumerated in the remand order and passed the fresh order. 7. The present petition is not maintainable before this Court, accordingly it is dismissed. However, the petitioner is directed to cooperate with the Tehsildar Koteranka who was asked by the Addl. Deputy Commissioner Rajouri to conduct the fresh enquiry on the points enumerated in the remand order and passed the fresh order. 7. File be sent to record room and file of the lower Court be sent forthwith along with copy of the order.