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2021 DIGILAW 404 (JK)

Abdul Majeed Dar v. UT of J&K

2021-08-09

PANKAJ MITHAL, SANJAY DHAR

body2021
ORDER : 1. Heard Mr. M. Y. Lone, learned counsel for the petitioners/ appellants, and Mr. D. C. Raina, learned AG who is assisted by Mr. Sajad Ashraf, GA. 2. Impugned in this appeal is the judgment and order dated 15.7.2021 of the learned Single Judge dismissing WP(C) No. 982/2020 titled Abdul Majeed Dar and another versus Union Territory of J&K and others. 3. The contention of the learned counsel for the petitioners/ appellants is that the writ court has completely failed to consider that the order impugned in the writ petition passed by the SDM Chadoora, Budgam, was completely without jurisdiction, and secondly that the order was passed behind the back of the petitioners/appellants. Apart from the above contentions, it is also alleged that there was a proper exchange of land and, therefore, the orders of mutation were not liable to be set aside that too without holding a proper inquiry in accordance with the rules. 4. The respondents have submitted that there was no valid exchange of land. The petitioners/appellants despite alleged exchange retained their land and never parted with it and, thus, have managed the mutation entries which have been rightly set aside by the SDM who is fully authorized to pass the said order. The petitioners/appellants directly approached the High Court by means of the writ petition so as to challenge the above order without exhausting the statutory remedy of appeal provided under section 11 of the J&K Land Revenue Act. The aforesaid order was passed after due opportunity of hearing to the petitioners/appellants and they have even participated in the proceedings. 5. Before dealing with the respective contentions of the parties, it is appropriate to state in brief the facts leading to the filing of the writ petition. 6. The petitioners/appellants allege that in exchange of 19 marlas of their proprietary land falling under survey Nos. 745 and 334 in village Ranger, Chadoora, district Budgam, they have obtained 9 marlas of kahcharie land. On the basis of the said exchange, mutation numbers 110 and 111 were carried out by the Revenue department in the name of the petitioners/appellants. However, the SDM by the impugned order dated 25.6.2020 has ordered for setting aside the aforesaid mutation entries, thus restoring back the land as the kahcharie land, and the land under survey Nos. 745 and 334 of the petitioners/appellants in their own name. 7. However, the SDM by the impugned order dated 25.6.2020 has ordered for setting aside the aforesaid mutation entries, thus restoring back the land as the kahcharie land, and the land under survey Nos. 745 and 334 of the petitioners/appellants in their own name. 7. A reading of the order of the SDM dated 25.6.2020 indicates that the mutation entries were set aside as it was found that there was no valid exchange inasmuch as there was no approval to it by the competent authority and that despite the alleged exchange, the petitioners/appellants never parted with their land and remained in its occupation. 8. It is pertinent to mention that the dispute raised in the writ petition from which this appeal arises, was with regard to the mutation entries. 9. It is settled law that mutation entries are only for fiscal purposes and are not documents of title. The mutation neither extinguishes nor confers rights in the immovable property and that the ultimate title, if necessary, is to be adjudicated upon by the Civil Court. The courts have repeatedly laid down that as mutation entries are not documents of title, any entry, even if incorrectly made, would not affect the rights and titles of the parties over the land and, as such, ordinarily such change in entries/mutation would not be amenable to the extraordinary jurisdiction of this court. 10. In Sawarni Vs. Inder Kaur, AIR 1996 SC 2823 , the Apex Court held that mutation of a property in the revenue record does not create or extinguish title, nor has it any presumptive value of title. It only enables the person in whose favour the mutation is entered, to pay the land revenue. Similar view has been expressed by the Supreme Court in several of its decisions subsequent to the above one, and the latest appears to be that in the case of Suman Verma Vs. Union of India, AIR 2004 SC 4800 , and Prem Nath Khanna Vs. Narinder Nath Kapoor, AIR 2016 SC 1433 . 11. This apart, J&K Land Revenue Act, which is a complete code in itself, provides for the maintenance of the record-of-rights as well as annual records and for the appeals against the various orders passed thereunder. 12. Union of India, AIR 2004 SC 4800 , and Prem Nath Khanna Vs. Narinder Nath Kapoor, AIR 2016 SC 1433 . 11. This apart, J&K Land Revenue Act, which is a complete code in itself, provides for the maintenance of the record-of-rights as well as annual records and for the appeals against the various orders passed thereunder. 12. Section 21 of the Act provides that there shall be a record-of-rights of each estate which shall indicate a statement showing the names of persons who are landholders, tenants or assignees of land revenue in the estate, or who are entitled to receive any of the rents, profits or produce of the estate or to occupy land therein; the nature and extent of the interests of those persons; and the conditions and liabilities attaching thereto; and the rent, land revenue, rates, cesses or other payments due from and to each of those persons and to the State; a statement of customs respecting rights and liabilities in the estate; a map of estate; and such other documents as the Financial Commissioner with the previous sanction of the Government may prescribe. 13. Section 22 of the Act gives special powers to the government to direct by notification the preparation of the record-of-rights where no such records exist or to revise the records-of-rights. 14. In addition to the record-of-rights as required to be maintained aforesaid, now passbooks commonly known as “Kissan Bahi” have also been directed to be prepared containing the name of the landholder and the land held by him and all other essential information in relation thereto. 15. Section 23 of the Act contemplates for annual records in addition to the record-of-rights, and it is the duty of the Collector to get the annual records prepared by the Patwari annually or at such intervals as the Commissioner directs, but with the previous sanction of the Financial Commissioner/Government. Such annual records are supposed to contain all information which is required to be recorded in the record-of-rights as mentioned in section 21(2) of the Act. It is for the above purposes that the Collector is required through the Patwari to maintain register of mutations. 16. Section 26 of the Act provides for the mode of determination of the dispute in relation to the entries in the record-of-rights/annual records. It is for the above purposes that the Collector is required through the Patwari to maintain register of mutations. 16. Section 26 of the Act provides for the mode of determination of the dispute in relation to the entries in the record-of-rights/annual records. It provides that if during the preparation or revision of any record or in the course of inquiry a dispute arises as to any entry made in the record or in the register of mutations, a Revenue Officer may on his own motion or on the application of any party interested, make a summary inquiry into the title as may be necessary, to determine the entry to be made in the record of that land. It also provides that the order passed by the Revenue Officer declaring the party best entitled to the property shall be subject to any decree or order that may be passed by the Civil Court of competent jurisdiction. In other words all disputes regarding the entries in the land records/mutation are required to be decided by the Revenue Officer who is authorised to exercise the said power even suo moto in a summary manner and that the order passed by him is subject to the decision of the competent Civil Court. 17. The Revenue Officer entitled to resolve the disputes in accordance with Section 26 of the Act has been defined under section 3 (12) of the Act to mean an officer having authority under the Act to discharge the functions of Revenue Officer. Section 6 of Chapter-II of the Act classifies the Revenue Officers, which includes the Financial Commissioner; the Divisional Commissioner; the Collector; the Assistant Collector of the first class; and the Assistant Collector of the second class. 18. It further provides that the Deputy Commissioner of a district shall be the Collector thereof and an Assistant Commissioner and a Tehsildar shall be Assistant Collector of the first class and Naib Tehsildar shall be an Assistant Collector of the second class. In short, in addition to the classes of officers enumerated above, a Deputy Commissioner, an Assistant Commissioner, a Tehsildar and a Naib Tehsildar are also Revenue Officers. 19. In short, in addition to the classes of officers enumerated above, a Deputy Commissioner, an Assistant Commissioner, a Tehsildar and a Naib Tehsildar are also Revenue Officers. 19. The government vide Land Revenue Act, Samvat 1996 i.e. SRO 142 dated 26.4.2011 of the Revenue Department in exercise of powers under sub-section (4) and (5) of section 6 of the Act has conferred upon all Sub Divisional Magistrates of the State the powers of the Collector to be exercised by them within the respective jurisdiction. It means that Sub-Divisional Magistrates have been authorized to discharge the powers of the Collector under the Act meaning thereby that Sub Divisional Magistrates have been delegated with the power of the Collector and, as such, are also Revenue Officers. 20. In view of the above discussion, the basic submission of learned counsel for the petitioners/appellants that the SDM was not competent to pass the impugned order dated 25.6.2020 is unsustainable in law and cannot be accepted. The SDM in passing the said order has exercised the power of the Collector as Revenue Officer in accordance with the provisions of Section 26 of the Act. 21. As far as the argument that the SDM has passed the aforesaid order behind the back of the petitioners/appellants, it would be necessary to refer to the order of the SDM. The said order in unequivocal terms states that the parties were summoned and after hearing the matter, the order is being passed. It further records that Mr. Ab. Majeed son of Gh. Mohd Lone and Mr. Ab. Ahad son of Gh. Mohd Bhat provided two communications both dated 08.7.2013 regarding action to be taken under section 133 (II) (C) of the Land Revenue Act. It was on consideration of these documents that the SDM came to the conclusion that there is no explicit order for the exchange of the land as alleged by the petitioners/appellants and that there is no approval to it as required in law. The petitioners/appellants have continued to remain in possession of the land which they alleged to have been given in exchange. The said recitals in the order of the SDM clearly establish that the petitioners/appellants had the notice of the proceedings and that they have even participated therein. The petitioners/appellants have continued to remain in possession of the land which they alleged to have been given in exchange. The said recitals in the order of the SDM clearly establish that the petitioners/appellants had the notice of the proceedings and that they have even participated therein. Accordingly, it cannot be said that the aforesaid order was passed in violation of principles of natural justice without affording any opportunity of hearing to the petitioners/ appellants. 22. In view of the aforesaid facts and circumstances, we are of the opinion that the learned Single Judge has rightly come to the conclusion that the petitioners/appellants have no right to get their names mutated in respect of aforesaid Kahcharai land and that the mutation numbers 110 and 111 of the revenue authorities are non-est in the eyes of law and have rightly been set aside by the SDM. We are in full agreement with the finding and reasoning given by the writ court. The petitioners/ appellants by invoking the writ jurisdiction of this court and getting the matter decided on merits have undoubtedly lost their chance of preferring an appeal under section 11 of the Act before the Divisional Commissioner, but since the matter has been addressed by the writ court as well as by us on merits, we are of the considered opinion that no purpose would now be served by allowing the petitioners/appellants to avail the remedy of appeal. The dispute regarding mutation as raised by them is tend to determine in a summary manner subject to any decision that may be taken by the competent court of civil jurisdiction. 23. The appeal lacks merit and is dismissed.