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2018 DIGILAW 227 (JK)

Bimla Raina v. State

2018-04-17

ALI MOHD.MAGREY

body2018
ORDER : Ali Mohd. Magrey, J. 1. By the instant petition, the petitioner has sought for a writ of certiorari to the effect that order dated 14/10/2014, for short, impugned order, passed by respondent No. 2, dismissing the revision petition filed in terms of Section 15 of the J & K Land Revenue Act, by the petitioner, be quashed. Besides a writ of mandamus is also sought for to the effect that respondents be directed to restore the correct entries in the relevant revenue records as mandated by the Government Order No. 60-C of 1944 dated 10.1.1944. 2. The order impugned has been inter alia challenged on the grounds that the order impugned is illegal, infested with an error apparent on the face of record; that it is an outcome of non-application of mind; that Government order dated 10.01.1944 has not been taken into consideration at all; that it is an outcome of improper exercise of jurisdiction; that respondent No. 4 has gone beyond jurisdiction in the matter; that it is not supported by any relevant material; that it is based on excess exercise of power and that respondent No. 3 was incompetent in law to set aside the orders dated 14.9.2007; 16.9.2009 and 17.9.2009 passed by the subordinate authorities. Etcetera. 3. Upon notice respondents appeared and reply was also filed by respondents 6 & 8 to 10 which has been treated, at request, as counter in terms of order dated 27.8.2015 and the right of filing rejoinder also stands closed. 4. Heard learned counsel for the parties and considered the submissions made. 5. The case of the petitioner is that in terms of Government Order No. 60-C of 1944 dated 10.01.1944, sanction to exchange various plots of land at Pahalgam, Anantnag, was accorded in favour of the owners reflected in the said Government order. The tabulated form of the said Government order is taken note of:- Plot No. Name of the owner Area owned by the owner Area proposed to be allotted Remarks 1 2 3 4 5 04 Usta Khaliq and others of Anantnag 04 K 04 M 4K-04 M Accepted possession taken 11 Usta Khaliq and Madhav Koul 06 K-2M 04K-0M Accepted possession taken Balance 2K-2M will be from Plot No. 54-A 54-A Usta Khaliq and Others 02K-02M 02K-02M A total area of this plot is 6K-2M out of which 4 kanals have been allotted to Lt. Prem Nath and the rest of Osta Khaliq and others for deficiency in the area of plot Nos. 4 and 11 (NH) allotted to them 9 Usta Khaliq and others of Anantnag 6 K-2M 6K-2M Acceptance taken possession handed over 6. It is stated that in terms of the said Government order that out of 06 kanals and 2 marlas, 4 kanals 0 marla under Plot No. 11 and 02 kanal-02 marlas under Plot No. 54-A was exchanged jointly in favour of Osta Khaliq and Madhav Koul (predecessor in interest of the petitioner), while as the land measuring 10 kanals and 06 marlas (04 kanals and 04 marlas under Plot No. 4 and 06 kanals and 02 marlas under Plot No. 9) was shown as exchanged in favour of Osta Khaliq and others. 7. It is further stated in the writ petition that in terms of mutation Nos. 177, 242 and 303, private respondents have managed the incorporation of their names in the revenue records inasmuch as plot No. 54-A measuring 2 kanals and 2 marlas, plot No. 9 measuring 6 kanals and 02 marlas were shown under joint tenancy of Usta Khaliq and Srikant Koul (Predecessor in interest of private respondents) vide mutation Nos. 177 and 242 respectively, while as in terms of mutation No. 303, land measuring 4 kanals-4 marlas and 4 kanals falling under Plot No. 4 and 11 respectively were shown under the tenancy of Usta Khaliq and Madhav Koul (01 kanal) and Srikant Koul (3 kanals and 2 marlas). The mutations have been shown to be of the year 1971. 8. The petitioner feeling aggrieved of such incorporation approached the revenue authorities with an application seeking restoration of the original position of ownership reflected in the Government Order No. 60-C of 1944. The matter was processed and the respondent No. 3 in terms of order dated 24th February, 2010, directed respondent No. 4 to verify the records and demarcate the land in presence of the parties after affording opportunity of hearing and dispose of the case accordingly. 9. Subsequently, respondent No. 4 passed an order dated 11.10.2011 by virtue of which the orders dated 16.9.2009; and 14.9.2007 & 17.9.2009 passed by the Additional Deputy Commissioner, Anantnag and Tehsildar Pahalgam respectively, were declared null and void by quashing the entries reflected in the revenue records on the basis of said orders and restored the previous position. 9. Subsequently, respondent No. 4 passed an order dated 11.10.2011 by virtue of which the orders dated 16.9.2009; and 14.9.2007 & 17.9.2009 passed by the Additional Deputy Commissioner, Anantnag and Tehsildar Pahalgam respectively, were declared null and void by quashing the entries reflected in the revenue records on the basis of said orders and restored the previous position. Tehsildar Pahalgam, in this behalf was also directed to demarcate the land as per the restored position and preserve the migrant property. 10. Petitioner, feeling aggrieved, of the order dated 11.10.2011 filed a revision petition before respondent No. 2 which was dismissed vide impugned order. 11. The petitioner's belief is that since the Government Order No. 60-C of 1944 dated 19.01.1944 does not reflect the name of the predecessors in interest of the respondents 6 to 10, therefore, their incorporation subsequently is a mere fraud having been wrongly shown to be affected in the year 1971. 12. Learned counsel for the petitioner submits that the private respondents have taken advantage of the situation as was prevailing in the valley in 90's and managed manipulation of the revenue records by incorporating wrong entries somewhere in 2007 falsely shown to have been affected in the year 1971. 13. Learned counsel for the petitioner further submits that the respondent No. 4 traversed beyond his jurisdiction as he was only required to verify the records and demarcate the land in presence of the parties which he did not do and instead he passed an order and quashed the orders of Additional Deputy Commissioner and Tehsildar Pahalgam which was not mandated by the order passed by respondent No. 3. 14. Learned counsel for the petitioner further reiterated all the grounds taken in the writ petition in support of his case to seek the relief prayed for. 15. On the other hand learned counsel for respondents 6 and 8 to 10 submits that the order impugned is legally sound and the respondent No. 2 has not committed any illegality. He submits that the entries in terms of the mutations supra have been made in the revenue records not as a means of fraud by through a valid legal process as the respondents are the owners and possessors of the land in question after having purchased the same through three different sale deeds registered by the learned Sub Registrar Anantnag on 1st Phagun 1991 B.K. 16. He further submits that merely because the Government Order No. 60-C of 1944 dated 19.01.1944 did not mention the names of private respondents, their rights would be prejudiced and they would be deprived of the legitimate right of ownership and possession over the property in question. 17. He further submits that the subordinate revenue authorities like Tehsildar Pahalgam, on being approached by the petitioner, has erroneously passed the order in ex parte on the asking of petitioner without following the law and the procedure laid down in this behalf, therefore, the respondent No. 4 rightly quashed such orders and asked the Tehsildar to demarcate the land. 18. He further submits that the order impugned passed by the respondent No. 2 is well reasoned and needs no interference. He further submits that the petitioner cannot question the mutation of 1971 in the year 2007 after a period of 36 long years that too without there being any material to such challenge. In support of his submissions Mr. M.A. Qayoom, learned counsel for the respondents 6, and 8 to 10, has referred to and relied upon the law laid down by the Division Bench of this Court in case titled Jabar Malik v. State of J & K and others in LPA (OW) No. 264/2017. 19. Considered the submissions made and went through the entire material placed on record including the impugned order. 20. Admittedly the order of exchange supra is of the year 1944 and the beneficiaries have got the land in exchange as per their entitlement. There was no dispute of any type whatsoever till the time the petitioner moved an application before the Tehsildar Pahalgam in the year 2007, meaning thereby that the dispute with respect to the allotment of share in favour of the beneficiaries in terms of the order of 1944 was raised in the year 2007. The Tehsildar Pahalgam, by an ex parte order, is appeared to have, given rise to the unwarranted expectations of the petitioner as it prima facie appears that under a mistaken belief that since the certain portion of land, reflected in the Government Order No. 60-C of 1944 dated 19.01.1944, is not specifically mentioned in anybody's name, therefore, a chance can be had to grab it and in such an endeavor the petitioner has launched the instant litigation. 21. 21. The very specific stand taken by the respondents 6, and 8 to 10 is that they have come in the ownership and possession of the land in question after having purchased it and the requisite sale deeds are appended on the file. There is no challenge to such a stand of the respondents. 22. Otherwise also the mutations in question have been affected in the year 1971 and there has been no challenge to it for as long as 36 years till the time the application was moved by the petitioner before the Tehsildar Pahalgam seeking correction in the records. 23. Mutation neither creates nor extinguishes the rights of the parties but only, as settled, maintains the fiscal record on ground of the land. Parties at variance with reference to their claim are holding the possession of the property in terms of the applicable laws have to make such claim before the competent civil court for seeking such declaration in case aggrieved of the unauthorizedly holding of the possession by the rival parties. Rights of interest with reference to claiming ownership of property cannot be determined by the revenue authorities as per the settled position of law. 24. Present controversy relates to an action taken by the Tehsildar on the application of the petitioner in derogation of laws and in disregard of the fact that he is incompetent to reverse and unsettle the settled things. The Additional Deputy Commissioner, Anantnag, has gone step ahead by not only maintaining the order of the Tehsildar but also reversed the four decades old recorded entries and directed demarcation of the land. The Deputy Commissioner, Anantnag, has rightly reversed the action of Tehsildar Pahalgam and Additional Deputy Commissioner, Anantnag, being inconsistent with law, as unless the recorded mutations in the year 1971 are reversed by adhering to the procedure of law, the Tehsildar and ADC had no authority whatsoever to direct reversal of the entries so recorded. There are no shortcuts allowed under law as regards the reversal of orders unless the proper course is adhered to and remedies available are availed. The Court cannot make any observation or return a finding regarding the illegality or otherwise of the mutations so recorded as the same is not the subject matter of the lis. The only finding made has reference to the legality of the orders under challenge. The Court cannot make any observation or return a finding regarding the illegality or otherwise of the mutations so recorded as the same is not the subject matter of the lis. The only finding made has reference to the legality of the orders under challenge. As held in the foregoing paragraphs, the order impugned is not bad in law as the Deputy Commissioner, Anantnag and the Financial Commissioner have only reversed the action of Tehsildar and Additional Deputy Commissioner, Anantnag, not being consistent with law. 25. I am quite convinced that petitioner has not been able to carve out a case in her favour that would warrant exercising the writ jurisdiction. The order impugned appears to be well reasoned and needs no interference and is upheld accordingly. 26. Whatever stated above and the discussion made with reference to the pleadings of the parties shall not form the basis for any Court or Tribunal on the subject of entitlement of the parties vis-à-vis their claim and counter claim. The petitioner is at liberty to avail the remedy available under law by claiming their interest in property under question, before the Civil Court and Revenue Courts, if so advised. 27. In view of the above, the writ petition fails and is dismissed as such along with connected MPs. Interim direction, if any, shall stand vacated.