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2017 DIGILAW 995 (JK)

Mohd. Shafi v. State of J&K

2017-11-10

SANJEEV KUMAR

body2017
ORDER : Sanjeev Kumar, J. 1. The petitioner in this petition is primarily aggrieved of the order of Collector (Deputy Commissioner), Jammu No. DCJ/Rdr/2016-17/R-153-155 dated 25.02.2017, whereby mutation No. 799/J of village Sidhra with regard to land measuring 05 kanals falling under Khasra No. 99/3, attested in favour of the petitioner has been declared void-ab initio and set aside. 2. The case set up by the petitioner is that he is in possession of land measuring 30 kanals 3 Marlas situate at Sidhra comprised in Khasra No. 99/3 since the year 1956. Petitioner claims that in view of his possession on the cut-off date he was declared as tenant at will in terms of Govt. Order No. LB-6/C of 1958 dated 05.06.1958 and thereafter conferred proprietary rights in terms of Government Order No. S-432 of 1966. Petitioner also relies upon the girdawari entries for the year 1984 to demonstrate that he and prior to him his ancestors had been in possession of the land measuring 33 kanals and 6 marlas situate at Sidhra. 3. The grievance projected by the petitioner in this petition is that though, he had been enjoying possession of the land in question as owner thereof in terms of mutation No. 799/J attested in terms of Government Order No. S-432 dated 03.06.1966, the respondents as also the officers of Adjoining Golf Course, being developed by the tourism department of the State, started interfering into the possession of the petitioner. The petitioner claims to have submitted an application to the Deputy Commissioner, Jammu on 10.07.2015 for looking into the matter and stopping the harassment caused by such officers. The petitioner further submits that instead of redressing his genuine grievance and restraining the revenue officers as well as the officials of the tourism department constructing the Golf Course from interfering in the peaceful possession of the petitioner over the land in question, Assistant Revenue Attorney with Deputy Commissioner, Jammu issued a notice dated 07.02.2017 to the petitioner to appear in the Court of Deputy Commissioner (Collector), Jammu and show cause as to why mutation No. 799/J, attested in favour of the petitioner on 28.03.2010, be not set aside. 4. The petitioner urges that in response to the aforesaid show cause notice, he submitted a detailed reply putting forth his stand in the matter. 4. The petitioner urges that in response to the aforesaid show cause notice, he submitted a detailed reply putting forth his stand in the matter. The respondent No. 3, however, without considering the reply filed by the petitioner and in flagrant violation of the principles of natural justice, passed the impugned order declaring the mutation No. 799/J pertaining to the land owned and possessed by the petitioner as void ab initio. The petitioner has, thus, assailed the order impugned on the ground that the same is illegal, arbitrary and passed in flagrant violation of the principles of natural justice. 5. Learned senior counsel appearing for the petitioner urges that had the petitioner been afforded opportunity of being heard, he would have definitely persuaded respondent No. 3 not to cancel the mutation, as the same had been attested strictly as per the provisions of Govt. Order No. LB-6/C read with Govt. Order No. S-432 of 1966. Learned counsel further submits that the Deputy Commissioner had no jurisdiction to suo motu cancel the mutation, which had the effect of depriving the petitioner of his ownership rights. He, therefore, submits that respondent No. 3 could have exercised such powers only, if approached by a party aggrieved by way of appeal as envisaged under the Jammu & Kashmir Land Revenue Act. 6. Precisely speaking, the order impugned has been assailed by the petitioner primarily on two grounds viz:- (a) The order impugned is in violation of the principles of natural justice as no adequate opportunity of being heard was given to the petitioner before passing the order. (b) The Deputy Commissioner could not have cancelled the mutation without their being any lis, i.e., appeal preferred by any party aggrieved before him, therefore, the order impugned is without jurisdiction. 7. Per contra, learned Deputy Advocate General appearing for the respondents has taken a primary objection to the maintainability of the writ petition. He submits that in terms of Section 11 of the Land Revenue Act, any order made by the Collector under the provision of the Land Revenue Act is appealable before the Divisional Commissioner. He further argues that even in terms of Section 15 of the Land Revenue Act, the Financial Commissioner and the Divisional Commissioner have the powers to call for the record of any case pending before or disposed of by any revenue officer under his control. He further argues that even in terms of Section 15 of the Land Revenue Act, the Financial Commissioner and the Divisional Commissioner have the powers to call for the record of any case pending before or disposed of by any revenue officer under his control. He, therefore, submitted that in view of equally efficacious statutory remedy provided under the Land Revenue Act, the writ petition would not be maintainable. He, however, submits that the exceptions carved out by the judicial precedents for entertaining the writ petition despite availability of equally efficacious remedy are not attracted in this case. He rebuts the contention of the learned counsel for the petitioner by referring to the proceedings that were taken before passing the order impugned. He submits that not only the petitioner was put on notice but he was also asked to appear in person. Learned counsel has drawn attention of this Court to the order impugned wherein it has been categorically stated that the petitioner actually appeared before respondent No. 3 on 11.02.2017 and was directed to file his reply by or before the next date, i.e., 18.02.2017. He did not appear on the date fixed date but submitted his reply through Dak, which was, though, received after the Court proceedings, was duly considered. Learned Deputy Advocate General, therefore, submits that not only the petitioner was provided an opportunity of being heard but was also allowed to file written submission in response to the show cause notice. It is, therefore, submitted that the order impugned was passed after due consideration of the objections/written reply filed by the petitioner, as such, principles of natural justice have been duly complied with. 8. With regard to the jurisdiction of the Collector, learned counsel for the respondents states that the Collector being a revenue officer of 1st Class can always review the mutation, if any, passed by him or any officer subordinate to him. 9. Heard learned counsel for the parties and perused the record. 10. It is trite law that ordinarily relief under Article 226 of the Constitution of India is not available, if efficacious alternative remedy is available to any aggrieved person. Where statutory remedy is created by law, the writ petition should not be entertained ignoring the statutory dispensation. 9. Heard learned counsel for the parties and perused the record. 10. It is trite law that ordinarily relief under Article 226 of the Constitution of India is not available, if efficacious alternative remedy is available to any aggrieved person. Where statutory remedy is created by law, the writ petition should not be entertained ignoring the statutory dispensation. It is also a well recognized principle of law that where a right or liability is created by a statute, which provides for speedy remedy for enforcing it, the remedy provided by the said statute alone should be availed of. Undoubtedly, it is equally well settled that this canon of law is not free of exceptions and alternative remedy is not a bar to the entertaining of the writ petition filed for enforcement of any of the fundamental rights or where there has been violation of principles of natural justice or where the order under challenge is wholly without jurisdiction or vires of the statute providing for alternative remedy is otherwise under challenge. 11. Admittedly, in the case in hand any order passed by the Collector under the Land Revenue Act is amenable to the appellate jurisdiction of the Divisional Commissioner in terms of Section 11 of Land Revenue Act. For facility of reference Section 11 of the Land Revenue Act is reproduced hereunder:- "11. Appeals Save as otherwise provided by this Act, an appeal shall lie from an original or appellate order of a Revenue officer as follows, namely:--- (a) to the Collector when the order is made by an Assistant Collector of either class; (b) to the [Divisional Commissioner] when the order is made by a Collector; (c) To the Financial Commissioner when the order is made by [Divisional commissioner]: Provided that,- (1) where an original order is confirmed on first appeal, no further appeal shall lie except on the grounds mentioned in clauses (a), (b) and (c) of sub-section (1) of section 100 of the Code of Civil Procedure, 1977; (2) where any such order is modified or reversed on appeal by the Collector, the order made by the [Divisional Commissioner] on further appeal, if any, to him shall be final; (3) the Government may especially empower an Assistant Collector of the first class to hear appeals against the orders of an Assistant Collector of the second Class]." 12. A bare perusal of Section 11 of the Land Revenue Act would indicate that against any order passed by the Collector whether it is original or appellate side is appealable before the Divisional Commissioner. The remedy provided is, thus, statutory in nature and otherwise efficacious one. Even Section 15 of the Land Revenue Act confers power upon the Divisional Commissioner as well as Financial Commissioner to call for the record of any case pending before or disposed of by any revenue officer under his control. That being the position, the Collector, in any case, is a revenue officer, as indicated in Section 6 of the Land Revenue Act and subordinate to the Divisional Commissioner as well as Financial Commissioner. 13. In the face of the availability of statutory remedy of appeal and revision as envisaged under Section 11 and 15 respectively of the Land Revenue Act, this writ petition is not maintainable. I have carefully perused the memorandum of writ petition as also the objections filed by the respondents; I do not find it a case, which is covered by the exceptions to the general rules that in the face of alternative remedy, the Constitutional Court would not entertain the writ petition under Article 226 or Article 32 of the Constitution of India. As observed herein above, the order impugned was passed after putting the petitioner to notice and even providing him opportunity to appear and present his case. Not only the petitioner filed his written response but had also appeared on one occasion. He, however, as it appears, chose not to appear before the authority concerned, i.e., the Collector and in those circumstances, the Collector after taking note of the reply submitted by the petitioner, though received by him after the proceedings, passed the impugned order. The order impugned, therefore, cannot be said to have been passed in violation of the principles of natural justice. 14. By virtue of the order impugned the mutation, which was attested in favour of the petitioner has been cancelled against which, as observed above, the petitioner has the remedy available under law, i.e., the Jammu & Kashmir Land Revenue Act and therefore, it cannot be said that any of the fundamental right of the petitioner has been violated by the impugned order. 15. Similarly, the order impugned cannot be said to be without any jurisdiction. 15. Similarly, the order impugned cannot be said to be without any jurisdiction. The Tehsildar, who is Assistant Collector 1st Class and the Collector have the concurrent jurisdiction to attest the mutation and the revenue officer in terms of Section 13 of the land Revenue Act are entitled to review their own orders either on application of any party interested or on his own motion. The power to attest mutation is generally conferred on the revenue officers in terms of Section 24 of the Land Revenue Act. 16. Be that as it may, the fact remains that in the instant case the petitioner has failed to demonstrate that the order impugned is either in violation of the principles of natural justice or is passed by an authority, who does not have the jurisdiction to do so. The case of the petitioner does not fall within the exceptions carved out to the general principle that in the face of alternative remedy, writ would not be maintainable. 17. Learned counsel for the petitioner, however, relied upon judgments of this Court dated 28.08.2017 passed in OWP No. 1340/2016 (Mohan Singh v. State of J&K and others), Radhey Sham and others v. State and others, 2010 (4) JKJ 715 and Kewal Krishan v. State of J&K and others, 2004(3) JKJ 198 [HC]. 18. On the other hand, learned counsel for the State respondents has relied upon a judgment of the Supreme Court in the case of Punjab National Bank v. O.C. Krishnan and others, 2001(6) SCC 569 . 19. I have gone through the judgments cited at the Bar. As stated above, the law in this regard is well settled and general rule is that in the face of availability of statutory equally efficacious remedy, writ petition should not be entertained and the party concerned should be relegated to such alternative remedy. (see Baburam Parkash Chandra Maheshwari v. Antarim Zila Parishad, AIR 1969 SC 556 , Whirlpool Corporation v. Registrar of Trade marks, Mumbai, 1998(8) SCC 1 and Harbanslal Sahnia and another v. Indian Oil Corporation Ltd. and others, 2003(2) SCC 107 . 20. (see Baburam Parkash Chandra Maheshwari v. Antarim Zila Parishad, AIR 1969 SC 556 , Whirlpool Corporation v. Registrar of Trade marks, Mumbai, 1998(8) SCC 1 and Harbanslal Sahnia and another v. Indian Oil Corporation Ltd. and others, 2003(2) SCC 107 . 20. In view of the settled legal position adumbrated herein above and in the given facts and circumstances of the case, this writ petition is held not maintainable, hence the same is dismissed and the petitioner is relegated to the alternative remedy of filing of appeal before the Divisional Commissioner under Section 13 of the Jammu & Kashmir Land Revenue Act or revision before the Divisional commissioner/Financial Commissioner in terms of Section 15 of the Land Revenue Act, if so advised.