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2015 DIGILAW 31 (JK)

Ab. Rehman Dar v. District Magistrate

2015-02-19

B.L.BHAT

body2015
JUDGMENT : Bansi Lal Bhat, J.:- 1. The petitioner, through the medium of the instant writ petition seeks quashment of order dated 27th August, 2013, passed by the Collector, (Deputy Commissioner) Budgam, in case titled Abdul Rashid Dar and others v. Abdul Rehman Dar and others, in terms whereof mutation Order No. 378 dated 19.04.1994, of village Kultreh, Tehsil Chadoora, in regard to land measuring 7 kanals falling under survey No. 193 min, was set aside and the case was remanded back to the Tehsildar, Chadoora, for passing appropriate orders under law. It has been stated in the writ petition that the petitioner holds possession of 07 Kanals of land falling under survey No. 193 min, renumbered as 660 min, of revenue estate Kultreh as owner thereof, and also possesses Shamilat Jaiz Land measuring 16 Kanals falling under survey No. 198 of revenue estate Rangeen Kultreh, Tehsil Chadoora, already detailed in the impugned order and need not to be detailed herein. 2. According to the case set up by the petitioner in the instant petition Mst. Mali and Mst. Zeeba delivered possession of the land in Pursuance of an oral gift, effected by Mst. Mali and Mst. Zeeba in the year 1990 and formally participated in the mutation proceedings effected in the year 1994. Petitioners claims to be in exclusive possession of the land aforementioned which has been converted into an Orchard. 3. It is further averred that an application came to be filed by one Abdul Rashid Dar, respondent No. 4, before the Deputy Commissioner, Budgam, falsely alleging encroachment on migrant property which prompted the Deputy Commissioner to pass an order directing the Tehsildar Chadoora, to take necessary steps for preservation and protection of the said property. 4. Petitioner claims to have assailed the said order by invoking the writ jurisdiction of this Court through the medium of writ petition (OWP No. 852/2013), which came to be disposed of with a direction to the Deputy Commissioner, Budgam, to provide an opportunity of hearing to the petitioner and pass final order within a period of two months stipulated therein. 5. What is stated further in the writ petition on hand is that the petitioner appeared before the Deputy Commissioner and produced copies of two sale deeds, one executed by Mst. 5. What is stated further in the writ petition on hand is that the petitioner appeared before the Deputy Commissioner and produced copies of two sale deeds, one executed by Mst. Mali on 18th November, 2006, and the other executed by the respondent No. 4, on 17th October, 2010, admitting that the property under sale was not migrant property. 6. Respondents 4 to 10 filed an appeal assailing mutation No. 378 favouring petitioner which was pending before the Collector. The same came to be disposed of alongwith the matter under Jammu and Kashmir Migrant Immoveable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, (for brevity 'Migrant Act') vide order dated 27th August, 2013, impugned in the writ petition at hand. 7. The impugned order has been assailed on the following grounds which are summarized hereunder: (i) That the Collector, Budgam, failed to notice the dichotomy between, the law regulating its decision making power as an appellate court under Land Revenue Act, and it acting as a statutory authority under the Migrant Act; (ii) That the District Magistrate, Budgam, could not have delegated his statutory power derived from the provisions of the Migrant Act; (iii) That the District Magistrate, Budgam, abdicated his authority and failed to exercise jurisdiction vested in him under law. 8. In response to the averments made in the writ petition, the respondents 4 to 10 have filed a detailed reply and contested the same on the following grounds: (i) That the petitioner has not availed an alternative and efficacious remedy available to him. The petitioner had the remedy of challenging the impugned order in an appeal, which he has not availed; (ii) That the Respondents 4 to 10 learnt about the mutation order No. 378 dated 19.09.1994 after the death of Mst. Mali (mother of respondents 4 to 7) and Mst. Zeeba (mother of respondents 8 to 10) who were the owners and in possession of 7 Kanals of land falling under survey No. 193 min in Village Kultreh, Tehsil Chadoora, which had been managed by the petitioner on the pretext of an oral gift, allegedly attributed to the abovementioned two ladies. (iii) It is pleaded that the said mutation order had been attested by the Tehsildar, Chadoora, without jurisdiction and in absence of Mst. Mali and Mst. Zeeba, at the time when the respondents had migrated. (iii) It is pleaded that the said mutation order had been attested by the Tehsildar, Chadoora, without jurisdiction and in absence of Mst. Mali and Mst. Zeeba, at the time when the respondents had migrated. It is further pleaded that Parti Sarkar of the mutation order was not found in the office and only an extract of mutation order issued from Parti Patwar was available which did not contain the statement or signatures of the deceased, Mst. Mali and Mst. Zeeba. It is further pleaded that the application filed by the respondents 4 to 10 under the Act is still pending decision and only appeal under the Land Revenue Act has been decided by the Deputy Commissioner, Budgam, in his capacity as a Collector and not as the Deputy Commissioner, Budgam. The impugned order is purely an order passed by a Collector in an appeal under the Land Revenue Act, and not by a Deputy Commissioner, under the Migrant Act. 9. I have heard learned counsel for the parties and considered the Matter. 10. The case of the petitioner is that he is in possession of the land measuring 7 kanals covered under the survey No. 193 of aforestated revenue estates, was delivered to him by medium of an oral gift effected by Mst. Mali and Mst. Zeeba in the year 1990, in respect whereof mutation order No. 378 was attested. Besides, the petitioner claims to be in possession of land measuring 16 kanals Shamilat Jaiz land falling under survey No. 198 of revenue estates Rangeen Kultreh, Tehsil Chadoora. It is claimed that the land holders Mst. Zeeba and Mst. Mali had formally participated in the mutation proceedings. The petitioner claims to have changed the aforesaid land into an orchard. Respondents 4 to 10 appear to have approached the District Magistrate, Budgam, with petition under sections 4, 5 and 6 of the Migrant Act, alleging that the petitioner herein and his brothers have illegally encroached upon the aforesaid land owned by the private respondents 4 to 10, who were registered migrants. It appears that in terms of communication dated 03.06.2013, the District Magistrate (Deputy Commissioner), Budgam, directed the Tehsildar, Chadoora, to submit action taken report within a period of three days and to take steps for preservation and protection of the aforestated property. It appears that in terms of communication dated 03.06.2013, the District Magistrate (Deputy Commissioner), Budgam, directed the Tehsildar, Chadoora, to submit action taken report within a period of three days and to take steps for preservation and protection of the aforestated property. The aforesaid communication appears to have been assailed before this Court by the present petitioner and his brothers through a medium of writ petition bearing OWP No. 852/2013, which came to be disposed of in terms of order dated 28.06.2013, directing the Deputy Commissioner, Budgam, to hear the petitioner in the matter in regard to the maintainability of the application filed before him by the private respondents 4 to 10. The impugned order dated 27.08.2013 appears to have been passed subsequently, which has been assailed through the medium of the instant writ petition. 11. So far as the attestation of mutations is concerned, it is clear that mutations are attested under Standing Order No. 23-A of the Land Revenue Act to keep a correct record of ownership and possession in respect of State and proprietary lands. The procedure in regard to attestation of mutations and classification of officers competent to attest such mutations is laid down in Sections 24 to 27 of the Land Revenue Act and Standing Order No. 23-A (Record of Mutation). It would be advantageous to refer to paragraph 8 of the judgment of this Court handed down in case Rasheeda Akhtar v. State reported in 2005 (II) SLJ 785 : 2006 (2) JKJ 384 [HC] in this regard, which reads as under: "8. Mutations are attested by the Revenue officers to keep a correct record of ownership and possession in respect of state and proprietary land. Mutation literary means change or alteration and in revenue parlance means alteration of revenue entry in the records. The object of mutation proceedings is to bring the entries in the Record of Rights upto date. Sections 24 to 27 of the Land Revenue Act and Standing Order 23-A (Record of Mutation) lay down the procedure required to be observed while attesting a mutation. Necessity of mutation arises in cases of succession, alienation, partition, decree of a Court of law or abandonment etc. The Land Revenue Act as well as the Standing Order No. 23-A classify the case for mutations as undisputed cases and other cases. Necessity of mutation arises in cases of succession, alienation, partition, decree of a Court of law or abandonment etc. The Land Revenue Act as well as the Standing Order No. 23-A classify the case for mutations as undisputed cases and other cases. Undisputed cases of changes concerning tenants-at-will except those under the State and cases of undisputed leases for a period not exceeding one year, are taken straight to the Jamabandi from the Khasra Girdawari. In other undisputed case and in other cases of dispute the procedure laid down by Sections 24 and 25 of the Land Revenue Act and provisions of the Standing Order No. 23-A are required to be followed. No change can be made in the entries of the last Jamabandi relating to the rights of the land holders, tenants, mortgages, lease holders and assignees of land Revenue and any change required in this behalf can be made only on the orders of a competent Revenue Officers passed on the Mutation Register. While attesting the mutations the Revenue Officer has to afford every interested party an opportunity of being heard." 12. Attestation of Mutations serves a fiscal purpose Mutations do not confer title and decide succession to property which is the domain of civil court. The object behind the attestation of mutations is to update the ownership and possession in respect of an estate for purposes of realization of land revenue. Disputes with regard to succession, testamentary or non-testamentary, are to be adjudicated upon by a competent civil court. In the case on hand, the parties are Muslims by faith and governed by Muslim Law of Inheritance. It is well settled that devolution of property of a Muslim estate holder does not get postponed and upon the death of the estate holder the ownership rights immediately get vested in the successor. Oral gift is a mode of transfer of property while the estate holder is surviving. Transfer by gift, oral or documentary, is transfer inter vivos and governed by provisions of the Transfer of Property Act. Oral gift is a mode of transfer of property while the estate holder is surviving. Transfer by gift, oral or documentary, is transfer inter vivos and governed by provisions of the Transfer of Property Act. While Section 123 of the said Act provides that transfer in the form of a gift must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses, Section 129 of the same enacts an exception, inter alia, providing that the aforesaid provision and other provisions embodied in Chapter VII of the aforesaid Act shall not affect any rule of Mohammedan Law. It is well settled that subject to the capacity of the donor, extent of property that can be bequeathed in favour of heir or non-heir other conditions laid down in Muslim Law of Inheritance, any Muslim not suffering from any legal disqualification can make an oral gift in respect of his property. It is apposite to extract paragraph 17 of the judgment rendered by the Hon'ble apex Court in Rasheeda Khatoon v. Ashiq Ali reported in (2014) 10 SCC 459 , which reads hereunder: "17. From the aforesaid discussion of the propositions of law, it is discernible that a gift under the Muhammadan law can be an oral gift and need not be registered; that a written instrument does not, under all circumstances require registration; that to be a valid gift under the Muhammadan law three essential features, namely, (i) declaration of the gift by the donor, (ii) acceptance of the gift by the donee expressly or impliedly, and (iii) delivery of possession either actually or constructively to the donee, are to be satisfied; that solely because the writing is contemporaneous of the making of the gift deed, it does not warrant registration under Section 17 of the Registration Act." 13. Adverting to the case at hand, the stand taken by the private respondents 4 to 10 is that the land measuring 7 Kanals under survey No. 193 min of village Kultreh, Tehsil Chadoora, belonged to Mst. Mali (the mother of respondents 4 to 7) and Mst. Zeeba (the mother of respondents 8 to 10) as owners. Mst. Zeeba is said to have died in the year 2004, whereas Mst. Mali is claimed to have died in the year 2010. Admittedly, Mst. Zeeba and Mst. Mali (the mother of respondents 4 to 7) and Mst. Zeeba (the mother of respondents 8 to 10) as owners. Mst. Zeeba is said to have died in the year 2004, whereas Mst. Mali is claimed to have died in the year 2010. Admittedly, Mst. Zeeba and Mst. Mali were surviving when mutation No. 378 dated 19.04.1994 was attested The private respondents 4 to 10 claim to have acquired knowledge about the mutation No. 378 dated 19.04.1994 in April, 2013, and they assailed the same in appeal on various grounds. It was alleged that the said mutation order had been attested by the Tehsildar without jurisdiction and in absence of Mst. Mali and Mst. Zeeba. Private respondents have also pleaded that the petitioner had claimed that the two ladies had gifted the aforesaid land in favour of him and his brothers in lieu of money taken in the year 1991 and a civil suit regarding the same had been filed before the Principal District Judge, Budgam. Private respondents while defending the impugned order have pleaded that their application under Migrant Act is pending disposal before the District Magistrate, Budgam, and has not been decided finally so far. It is contended that the proceedings under the Migrant Act and the appeal under Revenue Act are two different cases and it is the only appeal against the mutation order No. 378 dated 19.04.1994, that has been decided in terms of the impugned order, while the application of private respondents under Migrant Act is still pending consideration before the District Magistrate, Budgam. It is further contended that the impugned order is purely an order passed in appeal by the Collector under the Land Revenue Act and the remedy of assailing the same before the Financial Commissioner was available to the petitioner, which he has not availed, as such, instant writ petition is not maintainable. 14. After wading through the impugned order dated 27.08.2013, it appears that the Collector (Deputy Commissioner), Budgam, also exercising jurisdiction as Deputy Commissioner, Budgam, has clubbed the application of private respondents under the Migrant Act with the appeal proceedings of mutation order No. 378 dated 19.04.1994, and passed a composite order assailed in the petition on hand, in terms whereof impugned mutation was set aside and case was remanded back to the Tehsildar, Chadoora, to enquire into the following issues: (a) Whether Mst. Zeebi was surviving on the date of passing of the order on the impugned mutation on 19.04.1994; (b) Whether Abdul Rashid Dar and his brother Mohammad Abdullah Dar can claim benefit of being Migrants as defined under the J&K Migrant Immoveable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997; (c) Whether the possession of the respondent has ever been resisted by other appellants, if not why; (d) To what portion of Shamilat land appellants and the respondent are entitled to from old survey No. 198 on pro-rata basis." 15. It is contended on behalf of the petitioner that clubbing of the application under Migrant Act with the appeal proceedings arising out of mutation No. 378 dated 19.04.1994, is not permissible in law and the two jurisdictions vested in the Collector under the Land Revenue Act as an appellate authority and in District Magistrate under Migrant Act as custodian of migrant property are dichotomous and cannot be fused together. It is further contended that the District Magistrate could not delegate powers under the Migrant Act to the Tehsildar in terms of the impugned order Reliance in this regard is placed on the law laid down by this Court in Mst. Masooda Akhter v. State reported in 2006 (II) SLJ 796 : 2006 (3) JKJ 521 [HC]. It would be useful to reproduce paragraphs 9 to 11 thereof hereunder: "9. It is profitable to reproduce Sections 4 and 5 of the "Act" Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, herein, which reads as under: '4. Custody of immovable property:- (1) Within 30 days from the commencement of this Act, the District Magistrate shall take over the possession of immovable property, belonging to Migrants, falling within his territorial jurisdiction and shall, on the expiry of said period of 30 days be deemed to have the custody of such immovable property. (2) The District Magistrate shall take all such steps as may be necessary for preservation and protection of such property: Provided that possession of such property shall not be handed over to any one save within the express consent of the migrant in writing. 5. (2) The District Magistrate shall take all such steps as may be necessary for preservation and protection of such property: Provided that possession of such property shall not be handed over to any one save within the express consent of the migrant in writing. 5. Eviction of unauthorized occupants: If any unauthorized occupant of any migrant property refuses or fails on demand to surrender possession thereof to the competent authority such authority may use such force as is necessary for taking possession of such property and may for this purpose after giving reasonable warning and facility to any woman not appearing in public to withdraw, remove or break open any lock, bolt or door or do any other act necessary for the said purpose. 10. In terms of the mandate of the law, referred hereinabove, District Magistrate cannot delegate his powers but had to decide the issue whether the property falls within the ambit of the "Act" and whether there is any illegal encroachment. 11. Applying the test to the instant case, District Magistrate had asked the Tehsildar to pass order which is illegal. Thus, on this count the impugned order requires to be quashed." 16. In view of the aforesaid dictum of law, it was impermissible for the Collector to club the two jurisdictions vested in him as the Collector under Land Revenue Act and as Custodian of Migrant Property under the Migrant Act and to pass a composite order remanding the case to the Tehsildar for enquiry on the issues indicated elsewhere in this order. It is manifest to this Court that District Magistrate has not only abdicated his authority and acted beyond jurisdiction vested in him under the Migrant Act, but also has excessively delegated his powers to the Tehsildar which is contrary to the provisions of the statute and against the settled law of the land. 17. Viewed thus, the writ petition merit acceptance. Accordingly, it is allowed and the impugned order dated 27.08.2013 passed by the Collector (Deputy Commissioner), Budgam, is set aside. The Deputy Commissioner, Budgam, who is figuring as respondent No. 1 & 2 in the instant writ petition, in his capacity as the District Magistrate and Collector, is directed to split the proceedings under the Migrant Act from the appeal proceedings arising out of the aforestated mutation and hear the two matters separately in two different capacities which he is holding. Clubbing of the two jurisdictions under the two separate statutes is impermissible and the two jurisdictions are independent of each other. In his capacity as the District Magistrate, he is required to exercise the jurisdiction vested in him and pass appropriate orders on the petition of private respondents under the Migrant Act, bearing in mind that such powers cannot be delegated to the Tehsildar. In appeal proceedings under the Land Revenue Act, he shall pass such order as is warranted under law. Opportunity of hearing shall be provided to both the parties. Disposed of alongwith all connected CMPs.