Research › Search › Judgment

J&K High Court · body

2022 DIGILAW 254 (JK)

Gh. Mohammad v. Principal District Judge Kargil

2022-05-21

SANJEEV KUMAR

body2022
JUDGMENT : Sanjeev Kumar, J. 1. Order dated 11.05.2022 passed by the Principal District Judge, Kargil, exercising the powers of Divisional Commissioner, Ladakh in terms of SRO 1, dated 01.01.1981 in the case of Nisar Ahmad and others versus Tehsildar (Assistant Collector) Executive Magistrate 1st Class, Drass ["the impugned order"] is subject matter of challenge in this petition filed by the petitioners under Article 226/227 of the constitution of India. 2. Briefly stated, the facts germane to the disposal of this petition are that on the basis of a complaint made by some persons that the petitioners herein along with proforma respondent no. 3 have encroached upon the state land, the respondent no. 2, Tehsildar (Assistant Collector First Class) Drass, issued a notice bearing no. OQ-Teh.D/01/2021, dated 04.05.2021 purportedly under section 133-C of the J&K Land Revenue Act, Samvat 1996 ["the Act"] directing the respondents to vacate the state land unauthorisedly occupied by them. 3. Feeling aggrieved by the issuance of the aforesaid notice by the respondent no. 2, the petitioners herein along with proforma respondent no. 3 filed an appeal before the Principal District Judge, Kargil with powers of Divisional Commissioner as conferred upon him under SRO 1, dated 01.01.1981. The Principal District Judge, Kargil, entertained the appeal and put the respondent Tehsildar on notice. 4. An objection was taken to the maintainability of appeal before the Principal District Judge by the respondent no. 2 contending that the appeal against the impugned notice of eviction issued by Tehsildar (Assistant Collector First Class) Drass, in terms of Section 11 of the Act would lie before the Collector and not before the Divisional Commissioner. Principal District Judge, Kargil, sustained the objection and consequently dismissed the appeal of the petitioners for want of jurisdiction in terms of the order impugned dated 11.05.2022. Principal District Judge, Kargil, sustained the objection and consequently dismissed the appeal of the petitioners for want of jurisdiction in terms of the order impugned dated 11.05.2022. It is this order of the Principal District Judge, Kargil, dated 11.05.2022 which is passed in the exercise of powers of Divisional Commissioner conferred upon the Principal District Judge, Kargil, under SRO 1 of 1981, that the petitioners are aggrieved of and challenge the same inter alia on the grounds: I) That the impugned order dated 11.05.2022 passed by Principal District Judge, Kargil, is erroneous, in that, the Principal District Judge, Kargil, has not appreciated that in terms of sub-section 4(a) of Section 133-C, an appeal against order made by any authority under section 133-C or Section 133-D lies before the Divisional Commissioner. II) That assuming, though not admitting, that appeal against the order of Tehsildar (Assistant Collector First Class) Drass, passed under section 133-C was not maintainable before the Principal District Judge, Kargil, yet the learned court could not have dismissed the appeal. It was obligatory on the court to return the appeal for its presentation before the court/forum having jurisdiction. The court of Principal District Judge, Kargil, having not followed the mandate of Order 7 Rule 10-B Code of Civil Procedure, 1908, has committed patent error in dismissing the appeal of the petitioner. 5. Having heard learned counsel for the parties and perused the record, it is necessary to first put on record that the Act has undergone substantial changes after the promulgation of J&K Reorganization Act, 2019. The central government in the exercise of powers conferred by Section 96 of J&K Reorganization Act, 2019 has issued J&K Reorganization (Adaptation of State Laws) 5th Order 2020 ["5th Adaptation Order" for short]. Apart from other changes and amendments brought in the Act, Chapter XI has been drastically amended and modified. Section 133-C, as it now stands, clearly provides that any land converted for other purposes in violation of provisions of Section 133-A or Section 133-B or Section 133-BB shall escheat to the government and the Collector or any other officer as may be authorized by him, may direct such person to remove the contravention and restore the land or water-surface or water field or floating field, as the case may be, to its original condition by a particular date. It further provides that if such a person fails to do so, within the prescribed time, the Collector or such officer may, remove or cause to be removed the contravention and in doing so, may use such force as may be necessary and impose the cost of restoration thereof on the violator. 6. Sub-section (3) of Section 133-C makes the contravention of provisions of section 133-A or sub-section 133-B or sub-section 133-BB an offence punishable with penalty which may extend to Rs. 25,000/- and till such time such contravention is removed, the violator shall be punished further with a penalty of Rs. 5,000/- for each day during which the contravention continues. Under sub-section 4(a), the person aggrieved by an order made under section 133-C or Section 133-D, may prefer an appeal to the Divisional Commissioner within a period of 30 days from the date the order is passed. For facility of reference Section 133-C is reproduced hereunder:- 133-C. Land converted in violation to escheat to Government (1) Any land converted for other purposes in violation of the provisions of Section 133-A or Section 133-B or 133-BB shall escheat to the Government. (2) The Collector or any other officer as he may authorise, may direct such person to remove the contravention and restore the land or water-surface or water field or floating field, as the case may be, to its original condition by a particular date and if such person fails to do so, within the prescribed time, the Collector or such officer may, remove or cause to be removed the contravention and in doing so, may use such force as may be necessary and impose the cost of restoration thereof on the violator. (3) Without prejudice to the provisions of sub-section (1) or sub-section (2), the person found to have contravened the provisions of Section 133-A or Section 133-B or Section 133-BB, shall be punishable by the Collector or any officer not below the rank of an Assistant Collector of the first class as may be authorised by him with penalty which may extend to twenty-five thousand rupees and till such time such contravention is removed he shall be punished further with a penalty of five thousand rupees for each day during which the contravention continues. (4) (a) Any person aggrieved by an order made under section 133-C or Section 133-D, may prefer an appeal to the Divisional Commissioner within a period of thirty days from the date the order is passed. (b) An appeal under clause (a) shall not operate as a stay of the proceedings under an order appealed from. (5) Notwithstanding anything contained in any other law for the time being in force, nothing done or purporting to have been done by the Collector, or the officer authorised by him in this behalf, under sections 133-A, 133-B, 133-BB or 133-C shall be called in question in any Court and no Court shall entertain any suit or proceeding or grant any injunction with respect to any action or thing or any matter for which a proceeding has been taken under the said provisions. 7. From the plain reading of Section 133-C, it clearly transpires that order passed by the Collector or the officer authorized by him under section 133-C is appealable before the Divisional Commissioner within 30 days from the date the order is passed. 8. In the instant case, the order which was assailed by the petitioners before the Principal District Judge, Kargil, is purportedly passed under section 133-C. Indisputably, the order which was assailed by the petitioners before the Principal District Judge, Kargil, is appealable before the Divisional Commissioner. It is equally true that the powers of the Divisional Commissioner in the districts of Leh and Kargil for a specified purpose are conferred on the District and Sessions Judges, Leh/Kargil in terms of SRO 1, dated 01.01.1981. 9. Before we proceed further it would be appropriate to set out SRO 1 of 1981 hereunder: "SRO 1, dated 1st January, 1981, Revenue Department: In exercise of the powers conferred by sub-sections (4) and (5) of Section 6 of the Jammu and Kashmir Land Revenue Act, Samvat 1996, the Government hereby confer upon the District and Sessions Judges Leh/Kargil the powers of a Divisional Commissioner to be exercised by them within their respective jurisdiction in respect of such classes of cases as may arise out of the orders of the Collectors of the Districts concerned." 10. From careful reading of SRO 1 of 1981, it is evident that the government in the exercise of powers conferred upon it by sub-sections (4) and (5) of Section 6 of the Land Revenue Act, has conferred the powers of the Divisional Commissioner upon the District and Sessions, Leh/Kargil to be exercised by them within their respective jurisdiction. But this power of the Divisional Commissioner is conferred upon the District and Sessions Judges of Leh and Kargil in respect of only such classes of cases as may arise out of the orders of the Collectors of the district concerned. It is thus axiomatic that if the order is passed by a Collector of the district under section 133-C, or for that matter under any provisions of the Act, the appeal would lie before the Principal District Judge of the concerned district. However, if the order is passed by an officer authorized by the District Collector, and such officer is Assistant Collector of First Class (Tehsildar), the appeal would lie before the Divisional Commissioner under section 4(a) of Section 133-C of the Act, and the District and Sessions Judge Leh/Kargil shall have no jurisdiction for the simple reason that under SRO 1 of 1981 the District and Sessions Judges of Leh and Kargil shall exercise powers of Divisional Commissioner within their respective jurisdictions only respect of the cases that may arise out of the orders of the Collectors of the district concerned. 11. I am, therefore, not in agreement with the argument of Mr. M.A. Qayoom, learned counsel, that the order passed by any authority under section 133-C is appealable before the Principal District Judge exercising powers of Divisional Commissioner in terms of SRO 1 of 1981. The District and Sessions Judges, Leh/Kargil who are conferred with the powers of Divisional Commissioner in terms of SRO 1 of 1981 are empowered to exercise the powers of Divisional Commissioner only in respect of matters arising out of the orders of Collectors of their respective districts. In the instant case, the order purportedly passed under section 133-C is an order passed by the Tehsildar (Assistant Collector First Class) Drass, and not by the Collector and, therefore, the Principal District and Sessions Judge Kargil shall have no jurisdiction to entertain appeal in exercise of powers of the Divisional Commissioner conferred upon it under SRO 1 of 1981. In the instant case, the order purportedly passed under section 133-C is an order passed by the Tehsildar (Assistant Collector First Class) Drass, and not by the Collector and, therefore, the Principal District and Sessions Judge Kargil shall have no jurisdiction to entertain appeal in exercise of powers of the Divisional Commissioner conferred upon it under SRO 1 of 1981. The appeal would lie before the Divisional Commissioner appointed under section 6 of the Land Revenue Act. 12. The Principal District Judge Kargil has thus rightly dismissed the appeal of the petitioner being not maintainable before him, though I do not agree with the reasoning given by the Principal District Judge, Kargil that the order of the Tehsildar (Assistant Collector First Class) Drass, in terms of Section 11 of the Act is appealable before the Collector. Sub-section 4(a) of Section 133-C of the Act is clear and unequivocal that a person aggrieved by an order passed under section 133-C or Section 133--D is entitled to prefer an appeal to the Divisional Commissioner within a period of 30 days from the date of order. To reiterate, if the order is passed by the District Collector of the district of Leh and Kargil under section 133-C, the appeal in terms of sub--section 4(a) thereof would be maintainable before the District and Sessions Judges Leh/Kargil as the case may be. However, if the order is passed by an officer other than the Collector, the appeal would lie before the Divisional Commissioner appointed under section 6 of the Act. I, therefore, uphold the impugned order passed by the Principal District Judge, Kargil, though for different reasons. 13. Having said that, it is necessary to advert to the argument of Mr. Qayoom that the Principal District Judge, Kargil having found that it had no jurisdiction to entertain the appeal should have acted under Order 7 Rule 10-B and returned the appeal to the petitioners for its presentation before the proper forum. The argument made by Mr. Qayoom when analysed in reference to Order 7 Rule 10 of the Code of Civil Procedure, would clearly reveal that a court is competent to return the plaint at any stage of the suit to be presented to the court in which it should have been instituted. The argument made by Mr. Qayoom when analysed in reference to Order 7 Rule 10 of the Code of Civil Procedure, would clearly reveal that a court is competent to return the plaint at any stage of the suit to be presented to the court in which it should have been instituted. The explanation to Rule 10 of Order 7 makes it further clear that a court of appeal or revision after setting aside the decree passed in a suit may direct the return of the plaint to be presented to the competent court of jurisdiction. The strict rules of Code of Civil Procedure may not apply to the proceedings under the Land Revenue Act, yet by analogy if the appellate court is of the opinion that the appeal filed before it is not maintainable, there is nothing wrong in returning the appeal to the appellant for its presentation before the appropriate forum. The Principal District Judge, Kargil, did not find the appeal preferred by the petitioner maintainable before him has simply dismissed it but that does not take away or affect the right of the petitioner to present his appeal before the appropriate forum. 14. Be that as it may, without elaborating much on this aspect, suffice it to say that there is nothing wrong in the order passed by the Principal District Judge, Kargil, though the same is being upheld by this court for different reasons indicated hereinabove. The order passed by the Tehsildar (Assistant Collector First Class) Drass, is appealable before the Divisional Commissioner concerned and not before the Principal District Judge, Kargil. 15. For the foregoing reasons, this petition is found to be without merit and the same is accordingly dismissed. It shall, however, remain open to the petitioners to work out their remedy before the appropriate forum. Needless to say that in case such remedy is invoked by the petitioners, the time spent by the petitioners in prosecuting their appeal before the Principal District Judge, Kargil and this petition before this court shall be eschewed from computation of limitation. With a view to enable the petitioners to avail the remedy available to them in law and to preserve the lis, till then there shall be status quo with regard to the subject property for a period of four weeks. 16. Disposed of.