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2017 DIGILAW 983 (JK)

Pritam Singh v. Financial Commissioner

2017-11-07

RAMALINGAM SUDHAKAR

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JUDGMENT : Ramalingam Sudhakar, J. Going by the nature of relief sought for, writ petition is admitted to hearing and with the consent of learned counsel for the parties, same is taken up for final hearing. 2. The writ petition has been filed challenging the order of Financial Commissioner-respondent No.1 dated 02.04.2014 and order of Divisional Commissioner-respondent No.2 dated 14.05.2011 and directing the restoration of order dated 29.04.2010 passed by Tehsildar Kalakote-respondent No.3. 3. The facts of the case in nut shell are that the Tehsildar Kalakote vide order dated 29.04.2010 directed the Patwari to evict Chanchala Devi Wd/o Late Kashmir Singh, 2. Kumar Vikas, 3. Veena Kumari, 4. Chandra Devi, 5. Ram Ishya, 6. Kavita Kumari and 7. Sudesh Kumari all residents of Village Sair, Tehsil Kalakote, District Rajouri from the land in dispute. The said persons mentioned above except Kavita Kumari filed a revision petition before the Divisional Commissioner, Jammu, who passed an order dated 14.05.2011. That order was challenged by Chanchala Devi and six others before the Financial Commissioner J&K, Jammu, who decided the case in File No.146/FC-AP on 02.04.2014 which is now under challenge before this Court. 4. The cause for the present lis is that the present petitioner-Pritam Singh, who was one of the respondents before the Financial Commissioner, moved the Tehsildar Kalakote for demarcation of the land falling under Survey Nos. 512, 516 and 517 measuring 08 Kanals and 19 Marlas based on the Commissioner's report (Annexure-A) Commission constituted by the Tehsildar. On the basis of evidence including documentary evidence, the Tehsildar came to the conclusion that Chanchala Devi and six others had encroached upon the property in issue and by his order dated 29.04.2010, directed the Patwari Sair to evict seven persons from the disputed land. 5. The Divisional Commissioner, however, set aside the order and called upon the Tehsildar Kalakote to proceed afresh. That order was challenged by Chanchala Devi and six others before the Financial Commissioner, who by his order dated 02.04.2014, set aside the order of Divisional Commissioner dated 14.05.2011 as well as order of the Tehsildar, Kalakote dated 29.04.2010. The Financial Commissioner allowed the revision petition filed by the private respondent herein, namely Chanchala Devi and six others. 6. The relevant portion of the reason given by the Financial Commissioner is in Paragraph No.6 of the order and it is as under:- “6. The Financial Commissioner allowed the revision petition filed by the private respondent herein, namely Chanchala Devi and six others. 6. The relevant portion of the reason given by the Financial Commissioner is in Paragraph No.6 of the order and it is as under:- “6. I have considered written arguments of the petitioners as well as the oral arguments of the counsel for the respondent. Perused the record available on the file. It is clear that the Tehsildar, Kalakote has traversed beyond his jurisdiction while dealing with application for demarcation filed by the applicant Pritam Singh (respondent herein). There is a set procedure under Section 95 of the Land Revenue Act, for dispossessing an “encroacher” from the land encroached upon. Under the said Section, dispossession can be ordered by a Revenue Officer, if it appears that any of the parties to the proceedings has, within a period of six months preceding the date of his order, illegally encroached upon any land adjacent to the boundary defined, that was previously in the lawful possession of any of the other parties to the proceedings. The order of the Tehsildar, Kalakote is silent about this aspect and nowhere makes a mention of this stipulatory time period. The said order therefore, does not confirm with the contours of Section 95 of the Land Revenue Act. Eviction or dispossession in such circumstances then can be made only by the order of a Civil Court of competent jurisdiction. The Court below without going into the merits of the case has passed the impugned order on the alleged consent (denied by the petitioner) given by the respondent counsel (petitioner herein) with regard to demarcation. (Emphasis Supplied) 7. The order of Financial Commissioner is challenged by the petitioner-Pritam Singh, who originally filed petition before the Tehsildar Kalakote for demarcation of the land in Survey Nos. 512, 516 and 517 measuring 08 Kanals and 19 Marlas in village Sair, Tehsil Kalakote, District Rajouri. 8. Learned counsel for the petitioner contended that there is no dispute that he has filed an application in terms of Section 94 of the Land Revenue Act for defining the boundaries. In exercise of that power, an order was passed on 29.04.2010 by the Tehsildar and while exercising such powers of demarcation, he also passed an order in terms of Section 95 of the Act. 9. In exercise of that power, an order was passed on 29.04.2010 by the Tehsildar and while exercising such powers of demarcation, he also passed an order in terms of Section 95 of the Act. 9. For clarity, Sections 94 and 95 of the Land Revenue Act are reproduced hereunder:-94. Power of Revenue officer to define boundaries:- (1) A Revenue Officer may, for the purpose of framing any record or making assessment under this act or on the application of any person interested, define the limits of any estate, or of any holding, tenancy, field or other portion of an estate, and may, for the purpose of indicating those limits, require survey-marks to be erected or repaired. (2) In defining the limits of any land under sub-section (1), the Revenue Officer may cause survey marks to be erected on any boundary already determined by, or by order of, any Court, or Revenue Officer, or restore any survey-mark already set up by, or by order of, any court of any such officer. (3) The Revenue Officer to whom an application under this Section may be made may depute another Revenue Officer subordinate to him to take the necessary proceedings. 95. Power of Revenue Officer in proceedings under Section 94 to reinstate party dispossessed. (1) In any proceeding under Section 94 if it appears to the Revenue Officer that any of the parties to the proceedings has, within a period of six months preceding the date of his order illegally encroached upon any land adjacent to the boundary defined, and was previously in the lawful possession of any of the other parties to the proceeding, he may by his order direct that the party dispossessed by placed in possession of such land: Provided that, no order under this section shall be passed by any officer below the rank of an Assistant Collector of the first class and if proceedings under Section 94 are taken by an inferior officer he shall submit the case for orders to the Assistant Collector of the first class having jurisdiction. (2) The party dissatisfied with the order of the Revenue Officer passed under subsection (1) may seek his remedy in the Civil Court and subject to the decision of the Civil Court such order shall be final. 10. (2) The party dissatisfied with the order of the Revenue Officer passed under subsection (1) may seek his remedy in the Civil Court and subject to the decision of the Civil Court such order shall be final. 10. The Divisional Commissioner on a challenge by Chanchala Devi and six others, the alleged encroachers, remanded the matter to the Tehsildar for fresh consideration of the claim of the writ petitioner for demarcation of the land. The Financial Commissioner, however, on a further revision filed by Chanchala Devi and six others took a different view stating that the orders passed by the Tehsildar Kalakote as well as Divisional Commissioner is contrary to the provisions of Section 95 of the Land Revenue Act because it does not mention the period of time i.e., six months preceding the date of order when Chanchala Devi and six others are supposed to have illegally encroached upon the land of the petitioner and therefore, in terms of Section 95, eviction or dispossession can be made only by order of Civil Court of competent jurisdiction and not by order of the Tehsildar. 11. The Financial Commissioner further held that such an order was passed by the Tehsildar and the Divisional Commissioner based on a consent which is denied by Chanchala Devi and six others. The learned counsel asserted that the reasoning given by the Financial Commissioner that in a case of eviction or dispossession, the issue should be decided by the Civil Court of competent jurisdiction is not proper appreciation of the position of law. He relied upon Section 94 of the Act which defines the power of Revenue Officer to define the boundaries. There is no dispute on this issue. The offshoot of the proceeding in terms of Section 94 is a power of the Revenue Officer in terms of Section 95. He relied upon Section 94 of the Act which defines the power of Revenue Officer to define the boundaries. There is no dispute on this issue. The offshoot of the proceeding in terms of Section 94 is a power of the Revenue Officer in terms of Section 95. In Section 95 of the Act, a provision is made whereunder a Revenue Officer in a proceeding under Section 94 for demarcation of boundaries comes to conclusion or it appears to him that any of the parties to the proceedings has, within a period of six months preceding the date of his order, illegally encroached upon any land adjacent to the boundary defined and was previously in the lawful possession of any of the other parties to the proceedings, he has the power to direct that party, who is disposed to be placed in possession of such land. In this case, the Tehsildar Kalakote has exercised the power in terms of Section 94 read with Section 95. No doubt, the Divisional Commissioner has set aside the order and ordered that it should be considered afresh. 12. In a revision filed by the present respondents-Chanchala Devi and six others, the Financial Commissioner on misreading of Sections 94 and 95 of the Act has come to the conclusion that in a case of eviction or dispossession, it is only the Civil Court which has the jurisdiction to decide the issue. This finding of the Financial Commissioner falls foul of Section 95(2) of the Act because if the power is exercised by the Revenue Officer in terms of Section 94 read with Section 95 of the Act and a party dissatisfied with the order of the Revenue Officer passed under sub-Section (1) is entitled to seek remedy in the Civil Court and the decision of the Civil Court is final between the parties. Therefore, at the time when the Divisional Commissioner remanded the matter to the Tehsildar, the stage has not come for the parties to go before the Civil Court. Therefore, at the time when the Divisional Commissioner remanded the matter to the Tehsildar, the stage has not come for the parties to go before the Civil Court. At best, the Tehsildar on remand would have made a proper enquiry as between the rival parties and taken a decision as to whether there is a breach of Section 95 of the Act at the time of demarcation of the land and if he finds so, he is entitled to direct such party to be placed in possession of the land from which he was dispossessed. It is only thereafter that a party aggrieved can seek the remedy before the Civil Court. In this case, the Divisional Commissioner has remanded the matter to the Tehsildar for fresh consideration for demarcation and if he, in exercise of such power, finds there is a breach of Section 95 of the Act, he can pass appropriate orders. That can be the subject-matter of the proceedings before the Civil Court by the respondents herein namely Chanchala Devi and six others. The petitioners are aggrieved by the reasoning given by the Financial Commissioner that it is a case for Civil Courts to decide the issue. 13. The reasoning given by the Financial Commissioner is not in consonance with the provisions of Sections 94 and 95 and therefore, at the threshold, it has to be held as bad in law. 14. Even otherwise, the petitioner herein had not challenged the order of Divisional Commissioner passed on 14.05.2011 by way of an objection before the Financial Commissioner. The proceedings before the Tehsildar in terms of Section 94 has to, therefore, commence afresh and he will be entitled to exercise such powers in terms of Sections 94 and 95 of the Act. The order of the Financial Commissioner holding that the order of the Divisional Commissioner as well as the order of the Tehsildar as bad is contrary to the provision of Sections 94 and 95 of the Act. 15. On the legal issue, learned counsel for the respondents tried to raise an issue on the basis of decision in case titled Radhey Shyam and ors. vs. Chhabi Nath and ors. reported in 2015 AIR SC 3269 to state that judicial orders of Civil Court are not amenable to writ jurisdiction of the High Court under Article 226 of the Constitution. 16. vs. Chhabi Nath and ors. reported in 2015 AIR SC 3269 to state that judicial orders of Civil Court are not amenable to writ jurisdiction of the High Court under Article 226 of the Constitution. 16. On the other hand, learned counsel for the petitioner relied upon a decision in case titled Jagmittar Sain Bhagat vs. Director Health Services, Haryana and ors. reported in 2013 (10) SCC 136 (equivalent citation is 2013 (9) Scale 103 ). Para Nos.7, 8 and 9 of the aforesaid decision are reproduced hereunder:- 7. Indisputably, it is a settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior Court, and if the Court passes a decree having no jurisdiction over the matter, it would amount to nullity as the matter goes to the roots of the cause. Such an issue can be raised at any stage of the proceedings. The finding of a Court or Tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Similarly, if a Court/Tribunal inherently lacks jurisdiction, acquiescence of party equally should not be permitted to perpetuate and perpetrate, defeating the legislative animation. The Court cannot derive jurisdiction apart from the Statute. In such eventuality the doctrine of waiver also does not apply. (Vide: United Commercial Bank Ltd. vs. Their Workmen, AIR 1951 SC 230 ; Smt. Nai Bahu vs. Lal Ramnarayan and Ors., AIR 1978 SC 22 ; Natraj Studios (P) Ltd. vs. Navrang Studios and Anr., AIR 1981 SC 537 ; and Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar and Ors., AIR 1999 SC 2213 ). 8. In Sushil Kumar Mehta vs. Gobind Ram Bohra (Dead) Thr. Lrs., (1990) 1 SCC 193 , this Court, after placing reliance on large number of its earlier judgments particularly in Premier Automobiles Ltd. vs. K.S. Wadke and Ors., (1976) 1 SCC 496 ; Kiran Singh vs. Chaman Paswan, AIR 1954 SC 340 ; and Chandrika Misir and Anr. vs. Bhaiyalal, AIR 1973 SC 2391 held, that a decree without jurisdiction is a nullity. vs. Bhaiyalal, AIR 1973 SC 2391 held, that a decree without jurisdiction is a nullity. It is a coram non judice; when a special statute gives a right and also provides for a forum for adjudication of rights, remedy has to be sought only under the provisions of that Act and the Common Law Court has no jurisdiction; where an Act creates an obligation and enforces the performance in specified manner, “performance cannot be forced in any other manner.” 9. Law does not permit any court/tribunal/authority/forum to usurp jurisdiction on any ground whatsoever, in case, such a authority does not have jurisdiction on the subject matter. For the reason that it is not an objection as to the place of suing;, “it is an objection going to the nullity of the order on the ground of want of jurisdiction”. Thus, for assumption of jurisdiction by a court or a tribunal, existence of jurisdictional fact is a condition precedent. But once such jurisdictional fact is found to exist, the court or tribunal has power to decide on the adjudicatory facts or facts in issue. (Vide: Setrucharlu Ramabhadra Raju Bahadur vs. Maharaja of Jeypore, AIR 1919 PC 150 ; State of Gujarat vs. Rajesh Kumar Chimanlal Barot and Anr., AIR 1996 SC 2664 ; Harshad Chiman Lal Modi vs. D.L.F. Universal Ltd. and Anr., AIR 2005 SC 4446 ; and Carona Ltd. vs. M/s. Parvathy Swaminathan and Sons, AIR 2008 SC 187 ). 17. The further plea of the learned counsel for the petitioner that the Financial Commissioner had no jurisdiction to entertain the revision petition and, therefore, his proceeding is nonest in law cannot be countenanced. In the present case, not satisfied the order of the Tehsildar, respondent herein invoked the jurisdiction of Divisional Commissioner in terms of Section 15(2) and thereafter the Financial Commissioner in terms of Section 15(1). The petitioner is not able to justify as to how this power of revision is bad in law when the provision is clear. This contention is rejected 18. Be that as it may, the order of the Financial Commissioner is bad as it based on an erroneous premise that there is no period specified/indicated in the order of Tehsildar and that such claim should be agitated before the Civil Court is bad for the reasons stated aforesaid. 19. This contention is rejected 18. Be that as it may, the order of the Financial Commissioner is bad as it based on an erroneous premise that there is no period specified/indicated in the order of Tehsildar and that such claim should be agitated before the Civil Court is bad for the reasons stated aforesaid. 19. In the result, this Court is inclined to accept the legal contention of the petitioner and set aside the order of the Financial Commissioner and is accordingly set aside. 20. The issue, however, will be decided by the Tehsildar Kalakote afresh in terms of application filed under Section 94 read with Section 95 of the Act by the present petitioner in accordance with law after affording the parties proper opportunity to put forward their case so as to avoid allegation of violation of principles of natural justice. 21. The writ petition is allowed as above. No order as to cost.