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2020 DIGILAW 628 (JK)

Ghulam Mohi-ud-Din Baba v. Financial Commissioner (Revenue) J&K

2020-11-26

SANJEEV KUMAR

body2020
Judgment Sanjeev Kumar, J.—This application, which is unique in itself, has been filed by the petitioners purportedly under rule 67(2) of the Jammu and Kashmir High Court Rules, 1999 (hereinafter the Rules of 1999) seeking a Writ of Certiorari for quashing the order dated 07.07.2020 passed by Financial Commissioner (Revenue) J&K in File No.568/FC/AP titled Zafar-ullah Shah & Ors. Vs. Financial Commissioner J&K (Revenue) & Ors. The petitioners also seek a direction to respondent No.1 to protect and preserve the land which, as per the petitioners, is a reserved graveyard. 2. Briefly stated, the facts as are gatherable from the petition are that the petitioners filed OWP No.391/2018 seeking, inter alia, quashment of orders passed by Assistant Commissioner, Revenue, Srinagar, and Financial Commissioner, J&K, Srinagar. The petition was disposed of by this Court vide order dated 14th of March, 2018 with a direction to the respondents to treat the writ petition as representation on behalf of the petitioners and accord consideration to the claim strictly in accordance with law and the rules governing the field. 3. In compliance to the direction of this Court, the Financial Commissioner (Revenue) decided the matter in terms of its order dated 30th of January, 2019, holding that the status of land i.e. Maqbooza Ahli Islam (Gairmumkin Qabristan) shall be preserved by District Magistrate, Srinagar, and the same shall not be allowed to be encroached upon by any of the parties. This order of the Financial Commissioner was questioned by respondent No.2 to 4 in OWP No.127/2019 titled Zafar-ullah Shah & Ors. Vs. Financial Commissioner J&K Revenue & Ors. The writ petition was disposed of by this Court vide order dated 2nd July, 2019, and the impugned order dated 30th of January, 2019, passed by Financial Commissioner (Revenue) was quashed. The matter was remanded back to Financial Commissioner for re-adjudication and passing appropriate orders by dealing with the preliminary objection raised by the respondents. The matter once again landed before the Financial Commissioner on remand. The Financial Commissioner vide its order dated 07.07.2020 re-considered the whole matter and found that it had no jurisdiction to adjudicate the matter and, therefore, rejected the representation of the petitioners herein. It is this order of the Financial Commissioner which the petitioners seek to challenge by way of an application purportedly filed under Rule 67(2) of the Rules of 1999. 4. It is this order of the Financial Commissioner which the petitioners seek to challenge by way of an application purportedly filed under Rule 67(2) of the Rules of 1999. 4. Having heard learned counsel for the petitioners and perused the record, it is necessary to first set out Rule 67 of the Rules of 1999 here under:- “67. Civil/Criminal Miscellaneous Petitions.—(1) All applications made during the pendency of an appeal, reference, petition or other matters presented to and pending in the High Court and connected with the same or with any decree, order or sentence or other proceeding of the subordinate court which is the subject matter of the same, and praying for any interim relief or order, shall be called Civil/Criminal Miscellaneous petition and be registered serially and separately in each appeal, petition, reference or matter as the case may be. (2) All applications made after the disposal of any such appeal, petition or reference or other matter, connected with it or with any decree or order passed therein, other than those for review of any judgment of this court or for leave to appeal to Supreme Court which shall be designated as petitions under Rule 55, shall also be called Civil/Criminal Miscellaneous petition and be numbered as provided for in sub-clause (1). 5. From a bare perusal of Rule 67, it is clear that the Rule only provides for registration of applications filed during the pendency or after the disposal of an appeal, reference, petition or other matters presented to and pending/disposed of in the High Court. It only provides for registration of such applications as Civil/Criminal Miscellaneous petitions and does not, in any manner, provide or create a new remedy for challenging the orders passed by the Government, the public functionaries or the administrative or quasi judicial forums. 6. From the narration of facts, it is abundantly clear that the petitioners are aggrieved of an order passed by Financial Commissioner in compliance to the remand order dated 2nd July, 2019 passed by this Court in OWP No.127/2019. The petitioners if aggrieved or dissatisfied with the order passed by the Financial Commissioner may be entitled to invoke Article 226 or even Article 227 of the Constitution but cannot assail the order by filing an application purportedly under rule 67 (2) of the Rules of 1999. The petitioners if aggrieved or dissatisfied with the order passed by the Financial Commissioner may be entitled to invoke Article 226 or even Article 227 of the Constitution but cannot assail the order by filing an application purportedly under rule 67 (2) of the Rules of 1999. The learned counsel appearing for the petitioners was even confronted with Rule 67(2) of the Rules of 1999 and its import but he showed his adamance and urged for disposal of this application on merits. A very unique but totally frivolous argument was raised that Rule 67(2) provides a statutory remedy for challenging the consideration orders passed by public authorities pursuant to the directions of this Court. In any way, this is perhaps one of the most frivolous cases filed in this Court and this Court could have dismissed it with exemplary costs but keeping in view that the learned counsel with his little knowledge bona fidely believed that the remedy was available to him under Rule 67(2) as the impugned order had been passed by the Financial Commissioner pursuant to the direction passed by this Court while disposing of OWP No.127/2019, no costs are imposed. 7. Be that as it is, there could be no doubt that the instant application is grossly misconceived and, therefore, deserves outright rejection. Ordered accordingly. Dismissal of this application, however, shall not come in the way of the petitioners in working out their remedy against the order dated 07.07.2020 passed by the Financial Commissioner which was sought to be challenged in this application.