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2017 DIGILAW 606 (JK)

Ahad Dar v. Ali

2017-08-10

KOSSAR AHMAD QURESHI

body2017
JUDGMENT : KOSSAR AHMAD QURESHI, MEMBER, J. 1. This revision petition has been filed against the ex-parte order passed by Financial Commissioner/Agrarian Reforms Commissioner dated 02.07.2013 in case titled "Ali & Others v. Ahad Dar and Others" along with another order of Financial Commissioner/Agrarian Reforms Commissioner dated Nil passed on Re-hearing petition titled "Ahad Dar & Others v. Ali & Others" The brief facts of the case are that land under survey No. 98 measuring 2 kanals and 17 marlas of village Konabal Pampore has all along been in the tenancy of petitioners No. 1 and 2 (half) and petitioners 4 & 5 (half). After coming into force of Agrarian Reforms Act, Mutation No. 1006 dated 12.09.1987 under section 4 and mutation No. 1026 dated 17.07.1991 under section 8 has been attested in their favour, declaring them as full and absolute owner of the said land. 2. The respondents challenged these mutations before FC/Agrarian Reforms Commissioner and the Ld. FC vide order dated 30.06.1999 rejected their appeal. Against the said order dated 30.06.99 respondents filed revision petition before this Tribunal and also filed a suit for injunction before Collector AC in which Collector has passed order dated 17.09.1980. This Tribunal Vide its order dated 18.10.2001 disposed of the revision petition by remanding the case to Collector/AC directing him to decide the following issues at first:- i. Whether under section 19 of Agrarian Act. AC/Collector has jurisdiction to adjudge a suit for injunction; ii. If it is maintainable then after detailed enquiry orders may be passed; iii. Affidavit submitted before subordinate officer may be looked into and if original affidavit is required then that may be obtained as per law; in view of the circumstances of the case, matter be disposed off expeditiously. 3. The Collector/AC after receiving the case from this Tribunal has heard the parties and looked into the case in detail, passed a detailed speaking order dated 26.10.2005, whereby he has held that firstly suit for injunction cannot be heard by him under section 19, secondly the affidavit has no legal value and accordingly the suit for injunction was rejected. The AC/Collector has settled the controversy between the parties and none of the parties have chosen to challenge the same. 4. That on 16.02.2006, respondents again filed a petition before this Tribunal seeking clarification of order dated 18.10.2001. The AC/Collector has settled the controversy between the parties and none of the parties have chosen to challenge the same. 4. That on 16.02.2006, respondents again filed a petition before this Tribunal seeking clarification of order dated 18.10.2001. The said clarification petition was rejected by this Tribunal vide its order dated 29.08.2006 on the ground that reopening the long settled issue will not be in the interests of justice. 5. Thereafter, the respondents have in connivance with Tehsildar concerned managed illegal order on 19.08.2006 on mutation No. 1006 whereby Tehsildar while giving wrong reference to AC(R)/Collector's order dated 26.10.2005 set aside this mutation No. 1006. Although this at all is not true. Collector by virtue of is order dated 26.10.2005 has rejected the suit of respondents and has not set aside the mutation nor has the Collector any such jurisdiction. 6. That against this order of Tehsildar petitioners applied to AC(R)/Col-lector who after looking into the records passed order dated 22.01.2007, whereby he has set aside/expunged this illegal order of Tehsildar. The respondents filed again appeal before FC/Agrarian Reforms Commissioner against the order of AC dated 22.01.2007. 7. The FC/Agrarian Reforms Commissioner has passed ex parte order, accepted the appeal of respondents. Against that, rehearing application was filed by the petitioners but the same was rejected by the FC who has already confirmed the action of Tehsildar and has set aside the mutation of his own without adhering the orders passed either by this Tribunal or by court below. The petitioners aggrieve by both the orders of FC/Agrarian Reforms Commissioner dated 2.07.2013 and another dated Nil (for re-hearing application) and challenged the same on various grounds mentioned in the memo of the appeal. 8. Heard the learned counsel for the parties at length, perused the record available on file, also perused the record called from the court below in detail. 9. It is an admitted fact that the case was remanded earlier by this Tribunal vide its order dated 18.10.2001 to AC(R) directing him to decide the issues aforementioned and in compliance the Assistant Commissioner (Collector Agr. 9. It is an admitted fact that the case was remanded earlier by this Tribunal vide its order dated 18.10.2001 to AC(R) directing him to decide the issues aforementioned and in compliance the Assistant Commissioner (Collector Agr. Reforms) Pulwama has passed a detailed order dated 26.10.2005 wherein he has dismissed the suit of respondents herein along with the compromise submitted by the parties at the time of compounding the above mentioned suit before AC (R) and has held that he has no jurisdiction to entertain a suit for permanent injunction and as such, the compromise submitted by the parties cannot be taken into account by his court because there is no registered exchange vis-à-vis. the two lands mentioned in the compromise and secondly the court has not jurisdiction to entertain such type of suits (for permanent injunction) thereby dismissed the suit of the respondents herein. 10. The respondents on 16.02.2006 filed a petition before this Tribunal for clarification of earlier order dated 18.10.2001 which has already been acted upon by both the parties when they appeared before the Collector in terms of order passed by this Tribunal and during pendency of clarification petition before this Tribunal respondents herein conspired with Tehsildar who inserted an illegal note dated 29.08.2006 in (section 4) mutation No. 1006 saying wrongly that the mutations have been set aside by Collector vide order dated 26.10.2005 which is absolutely incorrect because firstly, the fact is that the Collector has dismissed the suit of respondents and secondly, no such jurisdiction is vested in Collector to set aside the agrarian mutations as he is not appellate authority. In the meanwhile, this Tribunal rejected the clarification petition vide order dated 29.08.2006. The petitioners as soon as come to know about the action of Tehsildar, have challenged before the Collector/AC(R) regarding the same and Collector vide order dated 22.01.2007 set aside/expunged the illegal insertion of Tehsildar dated 29.08.2006 pronouncing the same as void, as the same had no basis at all. Against the said order of Collector respondents filed appeal before the FC/Agrarian Commissioner, J & K the FC/Agrarian Commissioner has passed an ex parte order dated 02.07.2013 allowed the appeal of respondents without examining the records has said that Tehsildar's insertion in mutation is the implementation of AC/Collector's earlier order dated 26.10.2005 which is incorrect. Against the said order of Collector respondents filed appeal before the FC/Agrarian Commissioner, J & K the FC/Agrarian Commissioner has passed an ex parte order dated 02.07.2013 allowed the appeal of respondents without examining the records has said that Tehsildar's insertion in mutation is the implementation of AC/Collector's earlier order dated 26.10.2005 which is incorrect. The present petitioners as soon as came to know about the FC's Order dated 02.07.2013 challenged the same before FC by way of re-hearing petition which was also rejected without hearing at the time of presentation. 11. Only issue involved in the case is that whether Collector vide his order dated 26.10.2005 has set aside the mutations or not. This issue is replied in negativity based on the following grounds:- i. The fact is that before Collector/AC(R) was a suit for permanent injunction filed by present respondent, which stand dismissed by Collector vide order dated 26.10.2005 holding that no such jurisdiction is vested in him. ii. Again Collector while adjudging a suit for permanent injunction a suit for permanent injunction cannot decide upon Agrarian Mutations. iii. Moreover Agrarian Mutations can neither be challenged before Collector nor is Collector under Agrarian Reforms Act competent to adjudge upon Agrarian Mutations. Viewed thus, keeping above facts and circumstances into consideration, the FC/Agrarian Commissioner J & K has fallen in grave legal error while holding that Tehsildar's insertion dated 19.08.2006 is implementation of order of Collector dated 26.10.2005, as such, FC/Agrarian Commissioner J & K has failed to exercise jurisdiction vested in him. Hence the appeal is accepted and both the impugned orders of FC/Agrarian Reforms Commissioner dated 02.07.2013 passed in case titled "Ali & others v. Ahad Dar & Others" and order dated Nil passed in case titled "Ahad Dar & Others v. Ali & Others" are set aside. Revision is accordingly disposed off and shall go to records after its due completion. Court below file shall send down, if called, along with the copy of the order.