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2021 DIGILAW 659 (JK)

Sheikh Gowhar Ahmad v. State of J&K

2021-12-16

SANJAY DHAR

body2021
JUDGMENT : SANJAY DHAR, J. 1. Petitioner has called into question report dated 25.06.2003 of Director Land Records, Kashmir (respondent No. 3), communication dated 27.06.2003 issued by Deputy Commissioner, Srinagar (respondent No. 2) and order dated 30.06.2003 issued Tehsildar, Kangan (respondent No. 4). Petitioner has also challenged order dated 02.09.2014 passed by Financial Commissioner (Revenue), J&K, Srinagar (respondent No. 1) whereby revision petition preferred by petitioner against the aforesaid three communications/orders has been dismissed. A further direction has been sought upon the respondents restraining them from causing any interference or impediment in the petitioner’s possession over the land measuring 2 kanals 4 marlas covered under Khasra No. 261 and 36 kanals 13 marlas under Khasra No. 262 situated at Estate Sonamarg. 2. Petitioner claims to be owner in possession of aforesaid land for the last more than five decades through his predecessors-in-interest. It is averred that presently it is the petitioner who is in possession of the land in question which is recorded as “Shamilati Jaiz” and “State land”. Petitioner goes on to submit that on the basis of some false and fabricated complaints in respect of the land under certain other survey numbers in the vicinity of the petitioner’s aforesaid land, respondent No. 3, without holding a full-fledged enquiry into the matter, made certain observations in the impugned report dated 25.06.2003 which are adverse to the rights and interests of the petitioner. The aforesaid report was forwarded by respondent No. 3 to respondent No. 2 with a recommendation to set aside the entries in favour of the petitioner and restore the entries in favour of the State. Pursuant to the aforesaid recommendation, the respondent No. 2 issued impugned communication dated 27.06.2003 to respondent No. 4 directing him to take follow up action in the matter. In consequence of this communication, respondent No. 4, in terms of his impugned communication dated 30.06.2003, has proceeded to set aside all the entries including those in favour of the petitioner. 3. It appears that petitioner has challenged the aforesaid impugned orders/communication before Financial Commissioner, Revenue, by filing a revision petition. The said revision petition came to be dismissed by the Financial Commissioner Revenue in terms of impugned order dated 02.09.2014. 4. All the aforesaid orders/communications are being challenged by the petitioner, primarily, on the grounds that these orders/communications have been issued without application of mind and without hearing the petitioner. The said revision petition came to be dismissed by the Financial Commissioner Revenue in terms of impugned order dated 02.09.2014. 4. All the aforesaid orders/communications are being challenged by the petitioner, primarily, on the grounds that these orders/communications have been issued without application of mind and without hearing the petitioner. It is further contended that the impugned orders/communications are based on no evidence and that the revisional forum has failed to exercise the jurisdiction vested with it in its correct perspective thereby causing miscarriage of justice. 5. The writ petition has been contested by respondents by filing a reply thereto. In their reply, respondents have submitted that the land under Survey No. 261 is recorded as “Shamilati Deh”. It is further averred that by virtue of mutation No. 684 dated 08.08.1988, the entry has been set aside from the ownership column in favour of State as per the order of Financial Commissioner, Revenue, J&K dated 07.01.2010. It is contended that as per the revenue record, the land in question is shown as “Banjri Qadeem” under the ownership and possession of State. It is further contended that the petitioner is not a resident of Estate Sonamarg. Thus, according to the respondents, petitioner is not entitled to any relief. 6. I have heard learned counsel for parties and perused the record. 7. The genesis of instant litigation is traceable to enquiry report of Director Land Records, Kashmir, i.e. respondent No. 3, which has been issued vide No. 295/DLR-30/364-67 dated 25.06.2003. It appears that on the basis of the said enquiry report, respondent Deputy Commissioner has issued a communication to Tehsildar, Kangan, to set aside all wrong entries entered in favour of different persons as mentioned in the enquiry report, pursuant to which the needful has been done by Tehsildar in terms of his order dated 30.06.2003. 8. What comes to the fore from the above sequence of events is that some enquiry was conducted by Director Land Records pertaining to allegations of tampering of revenue record of Village Sonamarg. Petitioner has placed on record a copy of Government Order No. Rev/168 of 2003 dated 13.08.2003, according to which the Government has concluded that the enquiry in question has been made in a slipshod manner without application of mind by the enquiry officer. This aspect of the matter has not been rebutted by the respondents. Petitioner has placed on record a copy of Government Order No. Rev/168 of 2003 dated 13.08.2003, according to which the Government has concluded that the enquiry in question has been made in a slipshod manner without application of mind by the enquiry officer. This aspect of the matter has not been rebutted by the respondents. Therefore, the action of respondents on the basis of an enquiry which has been termed as slipshod by the Government itself cannot be sustained in the eyes of law. 9. Apart from the above, if we have a look at the communication of Deputy Commissioner, Srinagar, dated 27.06.2003, he has straightway, on the basis of recommendations made in the enquiry report, directed the Tehsildar to set aside the entries without even hearing the affected parties. It is not the case of respondents that before setting aside the entries in favour of the petitioner, he was given any opportunity of hearing. The enquiry officer i.e. Director Land Records as also the Deputy Commissioner have commented upon the merits of the entries without even hearing the parties in whose favour the entries stood recorded in the Record of Rights. Such an approach on the part of revenue authorities vested with power under the J&K Land Revenue Act cannot be countenanced in law. On top of it, the learned Financial Commissioner, Revenue, has shut out the case of petitioners by observing that they did not deserve any right of hearing at all as the rights on the land in question were conferred upon them by deceit and illegal means. 10. Right of hearing is a valuable right given to a person whose rights are being affected by proposed action of any judicial or quasi-judicial authority. Even in the realm of administrative actions where rights of a person are going to be affected by such actions, the Courts have read the principles of natural justice into such actions of administrative authorities. 11. Chapter IV of the Jammu and Kashmir Land Revenue Act (for short “the Act”) deals with Record of Rights and Annual Records. It contains various provisions providing for preparation of revision of entries appearing in Record of Rights and annual records. It additionally provides for fora for settlement of disputes regarding entries in Records of rights and Annual Records. 12. Chapter IV of the Jammu and Kashmir Land Revenue Act (for short “the Act”) deals with Record of Rights and Annual Records. It contains various provisions providing for preparation of revision of entries appearing in Record of Rights and annual records. It additionally provides for fora for settlement of disputes regarding entries in Records of rights and Annual Records. 12. Sub-Section (4) of Section 24 of the Act casts a duty upon a Revenue Officer to inquire into the correctness of all entries in the register of mutations and into all such acquisitions coming to his knowledge. The word “inquire” appearing in sub-section (4) of Section 24 of the Act pre-supposes the right of hearing to all those persons whose entries in the register of mutations are likely to be affected by the exercise undertaken by the Revenue Officer. If respondent Director Land Records would have given an opportunity of hearing to the petitioner before recommending cancellation of his entries in respect of the land in question, the petitioner would have, besides presenting his case before the said Revenue Officer, got an option of getting the dispute determined in accordance with Section 26 of the Act by approaching the civil court of competent jurisdiction. None of the respondents gave such an opportunity to the petitioner thereby depriving him of his valuable right of judicial review of the action of respondents. The respondent No. 1-Financial Commissioner, Revenue, has, by passing the impugned order in the revision petition, put his seal of approval upon illegal acts of the other respondents. His order is, therefore, not sustainable in law. 13. For the foregoing reasons, the writ petition is allowed and the impugned orders and communications are set aside. The respondents shall be, however, at liberty to pass appropriate orders in respect of the entries existing in favour of the petitioner with regard to the land in question after holding a fresh enquiry in which petitioner be given an opportunity of hearing.