Research › Search › Judgment

J&K High Court · body

2023 DIGILAW 276 (JK)

Cho Cho Shazia v. UT of Ladakh

2023-07-14

SANJEEV KUMAR

body2023
JUDGMENT : 1. Petitioner No.1 (minor) is daughter and petitioner No.2 is wife of late Kacho Gazanfer Ali. Respondents No.10 to 15 are brothers and sisters of late Kacho Gazanfer Ali. The father of petitioner No.1 and husband of petitioner No.2 late Kacho Gazanfer Ali and respondents No.10 to 15 are sons and daughters of late Kacho Akber Ali Khan, the estate holder. The estate holder late Kacho Akber Ali Khan had proprietary land and residential building at Zamystang. With the complaint that the brothers were selling out the property left behind by the estate holder late Kacho Akber Ali Khan, respondent No.10 filed an application before the Deputy Commissioner (Collector), Kargil for demarcation, partition and possession of the landed property left behind by the estate holder and held by all his brothers and sisters jointly. The said application was filed before the Deputy Commissioner, Kargil on 01.06.2022. The Deputy Commissioner, Kargil assigned the application to the Assistant Commissioner Revenue (Assistant Collector 1st Class), Kargil. 2. The Assistant Commissioner Revenue, Kargil treated the application filed by respondent No.10 as an application under Section 105 of the Jammu and Kashmir Land Revenue Act, 1996 [‘the Act’] and issued notice to the petitioners herein. Further proceedings in the application were conducted on 06.06.2022, 09.06.2022, 15.06.2022 and 27.06.2022 in presence of the parties. On 12.08.2022 and 15.09.2022, when the partition application was taken up by the Assistant Commissioner, Revenue, the non-applicants therein/petitioners absented. The Assistant Commissioner, Kargil proceeded to consider the matter on the basis of material available before him and passed an ex parte order on 07.10.2022 and directed Tehsildar, Kargil to demarcate the land, make partition and put the applicant (respondent No.10 herein) into possession of his share. 3. Feeling aggrieved, the petitioners herein filed WP(C) No. 2817/2022 which was disposed of by a Bench of this Court vide order dated 13.02.023 by passing a consent order. The order impugned in the said writ petition, passed by the Assistant Commissioner Revenue, Kargil was set aside and the matter was remanded to the Deputy Commissioner (Collector), Kargil with a direction to reconsider the matter himself and pass an appropriate order after providing an opportunity of hearing to both the parties within a period of four weeks, strictly in accordance with the rules occupying the field. This is how the matter came up for consideration before the Deputy Commissioner (Collector), Kargil on remand. This is how the matter came up for consideration before the Deputy Commissioner (Collector), Kargil on remand. The petitioners herein filed their objections before the Deputy Commissioner (Collector), Kargil, opposing the application of respondent No.10 for demarcation, partition and possession of the subject property taking, inter alia, the following objections to the maintainability of the application: (i) That the application for demarcation, partition and possession filed by respondent No.10 was not maintainable in the absence of the all co-sharers being impleaded as party respondents. It is submitted that the estate holder late Kacho Akter Ali Khan was survived by four sons, three sisters, a daughter of his deceased son, namely Kacho Gazanfer Khan and, respondent No.10 (the applicant) had only impleaded three brothers, namely Kacho Liaqat Ali, Kacho Mohd and Kacho Gazanfer; and, (ii) That the estate holder, late Kacho Akbar Ali had, during his life time, partitioned privately his property equally among all his legal heirs on 10.09.1989 in the presence of witnesses by executing a settlement deed. The said private partition effected by the estate holder was never disputed by any of his legal heirs, either during his life time or thereafter for more than 30 years. It is, thus, contended that the subject property, having been already partitioned privately, cannot be made subject matter of partition again by filing an application under Section 105 of the Act. 4. In the face of an objection taken by the petitioners to the maintainability of the application on account of non-impleadment of necessary parties, respondent No.10 filed an application for making all the co-sharers as parties to the partition proceedings. The Deputy Commissioner (Collector), Kargil, taking note of the objections filed by the petitioners herein, wherein they claimed a private family settlement in respect of the subject property left behind by the deceased estate holder, issued two communications on 02.05.2023 addressed to the Tehsildar, Shargole and Tehsidlar, Kargil to submit a detailed report within two days as to whether any mutation has been effected, in terms of the family settlement till the year 1999. The report was called by the Deputy Commissioner, Kargil from both the Tehsildars within whose jurisdiction the subject property was situated. The report was called by the Deputy Commissioner, Kargil from both the Tehsildars within whose jurisdiction the subject property was situated. The Tehsildar, Kargil responded to the communication of the Deputy Commissioner (Collector), Kargil vide his communication dated 27.03.2023 and indicated, in detail, the property left behind by deceased Kacho Akber Ali Khan and the entitlement of his legal heirs to a share in such properties. The report from the Tehsildar, Shargole is still awaited. Before the Deputy Commissioner, Kargil, could proceed further in the matter, the petitioners, probably apprehending some adverse order on the basis of report submitted by Tehsildar Kargil and even without waiting for the similar report from Tehsildar Shargole, approached this Court invoking extraordinary writ jurisdiction of this Court verted by Article 226 of the Constitution of India by filing the instant petition. The petitioners have sought multiple reliefs in this petition. They pray for quashing of the application filed by respondent No.10 and the proceedings taken thereon by the Deputy Commissioner, Kargil. The petitioners also pray for a direction to respondents No. 3 and 7 to 9 to issue necessary revenue documents/orders of the proceedings. The writs prayed for are claimed primarily on the ground that the Deputy Commissioner (Revenue), Kargil, who is conducting the partition proceedings pursuant to remand order of this Court, is not proceeding in the matter in accordance with law. 5. Mr. Makroo, learned Senior Counsel appearing for the petitioners vehemently contends that the Deputy Commissioner, Kargil, who is seized of the proceedings in the application for demarcation, partition and possession etc., filed by respondent no.10, was not competent in law to seek any report, either from the Tehsildar Shargole or Tehsildar Kargil and by doing so, he has virtually delegated his authority and powers to the Tehsildar to decide the matter. He submits that, in terms of the consent order passed by this Court on 13.02.2023 in WP(C) No.2817/2022, Deputy Commissioner (Collector), Kargil has to reconsider the entire matter himself and pass appropriate orders after providing an opportunity of hearing to both the parties. He further argues that the Deputy Commissioner, Kargil, by not providing the petitioners the requisitioned certified copies of the proceedings, has violated principles of natural justice and, therefore, the entire proceedings before the Deputy Commissioner, Kargil are vitiated. He further argues that the Deputy Commissioner, Kargil, by not providing the petitioners the requisitioned certified copies of the proceedings, has violated principles of natural justice and, therefore, the entire proceedings before the Deputy Commissioner, Kargil are vitiated. He also raises a plea that, though the proceedings before the Deputy Commissioner, Kargil, launched by respondent No.10 are barred by limitation, yet the Deputy Commissioner is proceeding in the matter without deciding the plea of limitation raised by the petitioners. He also took me through some case law to make good his point that, even in matters, where there is no limitation prescribed by the statute, the action is required to be initiated within reasonable time. 6. Per contra, Mr. Qayoom, learned counsel appearing for respondent No.10 and Tahir Shamsi, learned DSGI, appearing for official respondents submit that the entire effort of the petitioners to knock the doors of this Court, time and again, is to protract the proceedings for partition launched by respondent No.10 and to avoid the unsavoury results. 7. Having heard learned counsel for the parties and perused the material on record, I am of the considered opinion that this writ petition is surely aimed at protracting the litigation to the benefit of the petitioners and to avoid the decision of application filed by respondent No.10 seeking partition of ancestral properties. Respondent No.10 has a right to claim that he is a co-sharer along with his other brothers and sisters in the immovable properties left behind by his father late Kacho Akber Ali. He is also well within his right to seek partition of the joint property. He has, therefore, filed an application before the Deputy Commissioner, Kargil. The partition proceedings, in terms of Section 105 of the Act read with Rule 4 of the Partition Rules, are required to be taken up for disposal by the Revenue Officer of the rank of an Assistant Collector of first class. The Deputy Commissioner, Kargil, thus, transferred and assigned the application filed by respondent No.10 to the Assistant Commissioner, Revenue, Kargil for disposal. The application was disposed of by the Assistant Commissioner, Revenue vide his order dated 07.10.2022. The petitioners did not accept the order dated 07.10.2022 and challenge the same by way of WP(C) No. 2817/2022. As taken note hereinabove, the aforesaid writ petition was disposed of by a Bench of this Court by passing a consent order. The application was disposed of by the Assistant Commissioner, Revenue vide his order dated 07.10.2022. The petitioners did not accept the order dated 07.10.2022 and challenge the same by way of WP(C) No. 2817/2022. As taken note hereinabove, the aforesaid writ petition was disposed of by a Bench of this Court by passing a consent order. The order passed by the Assistant Commissioner, Revenue, Kargil was set aside and the matter was remanded to the Deputy Commissioner, Kargil to reconsider the matter himself and pass an appropriate order after affording an opportunity of hearing to both the parties within a period of four weeks. This is how the matter was taken up by the Deputy Commissioner (Collector), Kargil for consideration. He has put all the parties to the properties on notice. The petitioners have filed their detailed objections to the maintainability of the application. Since the petitioners have taken the plea that the property of the estate holder stood partitioned between the co-sharers by way of a private settlement during life time of the estate holder, as such, the Deputy Commissioner, Kargil, with a view to verify such claim, has summoned detailed reports with respect to the property from Tehsildar Shargole and Tehsildar Kargil. Report from Tehsildar Kargil has been received, whereas report form Tehsildar Shargole is awaited. The Deputy Commissioner, Kargil, is yet to proceed further in the matter. However, the petitioners, with a view to scuttle the proceedings and to protract their outcome, have filed this utterly frivolous petition in this Court seeking, inter alia, quashing of entire proceedings on the specious plea that the Deputy Commissioner, Kargil is proceeding in the matter dehors the procedure provided under the Land Revenue Act and the Partition Rules framed thereunder. 8. Viewed from any angle, the grievance projected by the petitioners in the writ petition does not have an iota of merit in it. The argument of Mr. Makroo, learned Senior Counsel appearing for the petitioners, that the Deputy Commissioner, Kargil, by inviting reports from two Tehsildars has virtually delegated his powers of adjudication, is totally misconceived. The matters like the title to the land, partition and distribution of shares amongst the co-sharers etc., cannot be decided without making reference to the revenue record. The argument of Mr. Makroo, learned Senior Counsel appearing for the petitioners, that the Deputy Commissioner, Kargil, by inviting reports from two Tehsildars has virtually delegated his powers of adjudication, is totally misconceived. The matters like the title to the land, partition and distribution of shares amongst the co-sharers etc., cannot be decided without making reference to the revenue record. The Deputy Commissioner, Kargil, who is seized of the partition proceedings is well within his right to call for reports from the concerned Revenue Officers to know the exact status of the subject property as reflected in the revenue records. Needless to say that the petitioners or any other party to the proceedings are/is equally well within their/his right to object to such report and persuade the Deputy Commissioner not to accept it. As already mentioned, the report from Tehsildar Kargil alone has been received by the Collector and similar report from Tehisldar Shargole is still awaited. Once both the reports are received and the matter proceeds, the petitioners, if they are aggrieved of these reports, can very well file their objections. If that is done by the petitioners, it would be incumbent upon the Deputy Commissioner, Kargil to deal with such objections and proceed in the matter. The reports have been called by the Deputy Commissioner (Collector), Kargil only to find out as to whether there is any prima facie substance in the claim of the petitioners that the subject property stood already partitioned by a private settlement and that the application for partition of the property already partitioned, does not lie. 9. It is strange that the petitioners do not want the Deputy Commissioner, Kargil to adjudicate the plea which they have taken. From the arguments of learned Senior Counsel appearing for the petitioners, this Court could only gather that the petitioners want the Deputy Commissioner, Kargil to accept their plea of private settlement and dismiss the application in limine. Since the Deputy Commissioner, Kargil is proceeding in the matter in accordance with law and has subjected the plea of the petitioners to verification, as such, the petitioners are annoyed and aggrieved. They have come to this Court only to ensure that the proceedings are somehow protracted. The protraction of the proceedings obviously helps the petitioners, who claimably are in possession of the subject property. Mr. They have come to this Court only to ensure that the proceedings are somehow protracted. The protraction of the proceedings obviously helps the petitioners, who claimably are in possession of the subject property. Mr. Makroo, learned Senior Counsel, has also raised an interesting argument that the Deputy Commissioner, Kargil, has called for the reports from the concerned Tehsildars without first adjudicating the preliminary objection of the petitioners to the maintainability of the application on account of huge delay of 30 years. The argument is utterly misconceived. 10. I have carefully gone through the objections filed by the petitioners before the Deputy Commissioner, Kargil, and find no such plea of limitation taken therein. Equally frivolous is the augment of learned Senior Counsel that suit for partition of the joint property would not lie, unless respondent No.10, claiming partition, first obtains possession of the land. As per own showing and pleadings of the petitioners, the share in the joint property has been allocated to respondent No.10 on the basis of a private partition made by the estate holder during his life time which is witnessed by a Settlement Deed executed by the parties. If that be the position, it cannot be said that respondent No.10 is not in possession of even a minuscule portion of the joint property. Be that as it may, the petitioners have not pleaded ouster of respondent No.10 from the joint property. It is a settled proposition of law that in such situation, the possession of one co-sharer shall be deemed to be the possession of all. Such plea though not taken by the petitioners specifically in their objections is, otherwise abhorrent to law. Despite the fact that after hearing for some time the learned Senior Counsel appearing for the petitioners was made aware about the extent of frivolity contained in the writ petition, yet he persisted that he should be heard in the matter. The matter, which ought to have been concluded in five to ten minutes, was argued by the learned Senior Counsel appearing for the petitioners for almost one hour, thereby wasting the precious time of this Court. For so doing, the petitioners cannot be allowed to go scot-free. Small and non-existent issues, enlarged with a zeal to protract the litigation and avoid unsavoury results as also to drag the opposite party in false and frivolous litigation causes sheer waste of court’s valuable time. For so doing, the petitioners cannot be allowed to go scot-free. Small and non-existent issues, enlarged with a zeal to protract the litigation and avoid unsavoury results as also to drag the opposite party in false and frivolous litigation causes sheer waste of court’s valuable time. Such frivolous litigation cannot be simply ignored as it does not come without consequences of harassing parties, abusing the process of law, stealing valuable court’s time and unjust deviation of Court concern from pending litigation. There is no denying the fact that Indian litigation system though most efficient is commonly battling the image of “delay” which has far reaching consequences in the time of globalization and make in India. 11. It is true that the Courts should not be hypersensitive in discharge of their functions, but that does not mean and imply that they should become mute spectators to the attempts made by the unscrupulous litigants, who approach the Courts only, with a view to abusing the process of law. It is, thus, the duty of the Courts to ensure that frivolous and vexatious litigation is weeded out at its outset, so that it does not come in the way of a genuine litigant seeking justice from what they treat as ‘Temple of Justice’. This would protect the precious public and judicial time. The instant petition is one such litigation. Obviously, there is no effective order passed by the Deputy Commissioner, Kargil, nor any proceedings adverse to the interest of the petitioners have taken place. The petitioners, if, at any stage, are aggrieved of some order, interim or final, passed by the Deputy Commissioner, Kargil, is entitled to file an appeal or revision before the Competent Authority. The Land Revenue Act provides a complete mechanism for redressal of grievances. There is complete hierarchy of the Revenue Officers in the Act which, inter alia, contains the provision for appeal and revision by the higher Authorities against the orders passed by the Revenue Officers subordinate to them. The Constitutional Court cannot be approached on the slightest provocation, more so, when equally efficacious alternative statutory remedies are provided in the statute. The process of law cannot be permitted to be abused by a litigant only for the reason that he has financial resources to straightway approach the Court bypassing all the statutory remedies available to him. The Constitutional Court cannot be approached on the slightest provocation, more so, when equally efficacious alternative statutory remedies are provided in the statute. The process of law cannot be permitted to be abused by a litigant only for the reason that he has financial resources to straightway approach the Court bypassing all the statutory remedies available to him. Otherwise also, as discussed above, there is absolutely no merit in the contentions of learned Senior Counsel for the petitioners. It is not the case of the petitioners that they were not the parties before the Deputy Commissioner, Kargil or that any order adverse to their interest has been passed by the Deputy Commissioner, Kargil without affording them an opportunity of being heard. Though, there is an application placed on record by the petitioners filed by their counsel for getting the certified copies of the proceedings, yet, it cannot be said with certainty, as to whether the certified copies, applied for, have been given or not. The application seems to have been filed on 20.05.2023, whereas the petitioners have rushed to file this petition to Srinagar immediately thereafter. The instant writ petition is filed in this Court on 31.05.2023. The petitioners have even succeeded to persuade this Court to pass an interim order of stay of the proceedings pending before the Deputy Commissioner, Kargil and, thus, achieved the purpose for which instant petition was filed. 12. Viewed thus, I find no merit even in the submission of Mr. Makroo, learned Senior Counsel appearing for the petitioners, that the Deputy Commissioner, Kargil has declined to issue the certified copies applied for. The petitioners have not waited for the certified copies to be supplied and rushed to this Court and even got the proceedings before the Deputy Commissioner, Kargil stayed. Such is the extent of frivolity in the submissions made by the learned Senior Counsel appearing for the petitioners. Less said the better, this petition is found to be totally frivolous and vexatious and the same is, accordingly, dismissed with an exemplary cost of Rs.50,000/-, to be deposited by the petitioners in the Advocates’ Welfare Fund within a period of four weeks. The Deputy Commissioner (Collector), Kargil, shall proceed in the matter in accordance with the Land Revenue Act and the partition Rules framed thereunder. The Deputy Commissioner (Collector), Kargil, shall proceed in the matter in accordance with the Land Revenue Act and the partition Rules framed thereunder. He shall do well to address all the issues raised by the parties before him by passing a speaking order.