JKLR-Part(IV)                                             OWP 648/2000                                         Back To Index

(2001) 1 J & K LAW REPORTER 440
High Court of Jammu and Kashmir
at Jammu
Before
Hon’ble Mr. Justice Syed Bashir-Ud-Din, Judge

ALI MOHD. KHANDAY                                                                                                          Petitioner
                                                                                versus
STATE OF J&K                                                                                                                         Respondent

OWP 648 / 2000, decided on 22.1.2001.

            Constitution of India, Art. 226 - Mutation order set-aside by Financial Commissioner on revision - Order of Financial Commissioner challenged in writ jurisdiction - Disputed questions of fact and law - Held : Matter cannot be addressed and determined in writ jurisdictional proceedings.

            The J&K Land Revenue Act, 1996 (1939 AD) - S.15 - Revisional Powers of Financial Commissioner - Scope and ambit of - Held: In revisional jurisdiction the Financial Commissioner is not expected to embark on a factual enquiry.

            Admittedly the mutation effected by Tehsildar in respect of property of respondent No.3 father of petitioner, is alleged to be based on an oral gift. There is no documentation of the gift before the Financial Commissioner. Respondent No.3 has appeared to deny the oral gift and alleged collusion between his three sons the petitioner and respondent No.2 (referred as sub-ordinate revenue officials) in getting his property mutated in their own name. The impugned order shows that the writ petitioners have failed to appear before Financial Commissioner despite engaging counsel for the purpose. The petitioners and their counsel choose to remain absent and were duly set-ex-parte. The impugned order speaks of Financial Commissioner have gone through the whole record. He has found that the mutation attested by Tehsildar has been without enquiry and without ascertaining the factum and legality of alleged gift. He has also found that mutation (2463 dated: 15.8.98)  impugned in revision is vitiated by contradiction, errors and lacunas. The Financial Commissioner has on consideration, in exercise of revisional jurisdiction, set-aside the mutation order of Tehsildar pampore under his order No. 2463 on 15.8.98. It is not disputed that the Financial Commissioner has the powers to entertain the revision and pass orders in his discretion on merits of the case. The petitioners counsel having failed to appear before the Financial Commissioner, the Financial Commissioner was not expected to devlve deeper into the questions as raised in the writ. The questions of title and ownership rights, in the facts and circumstances of this case, cannot be said to be finally determined by the impugned orders in question. In revisional Jurisdiction the Financial Commissioner is not expected to embark on a factual enquiry like Tehsildar who as an officer at the bottom of Revenue heirarchy is required as an authorised officer to make such enquiry and effect a mutation which the Tehsildar in this case has not done. Merely, alleging that provisions of Muslim Law have been violated in absence of any plea and proof is not sufficient. The Financial Commissioner is not shown to have infracted provisions of revision or acted beyond jurisdiction. The impugned order is not shown to suffer from any legal infirmity. Petitioners, who claim ownership rights as also the possessery rights based on alleged title, have effective alternative remedy. The matter involves disputed questions of fact and law requiring determination on evidence, on detail inquiry. Obviously the matter cannot be addressed and determined in writ jurisdictional proceedings.                                  [Para 3]

Advocate who appeared in this case :
Mr. S.M.Ayub, Advocate for the petitioner

JUDGMENT AND ORDER

            Heard.

            Petitioners are brothers in whose favour Tehsildar Pampore (respondent No.2) recorded mutation No. 2463, mutating the property of their father Mohd. Sultan Khanday (Respondent No.3) in their favour. This mutation (Annexure-A) was subsequently challenged by their father/respondent No.3 in revision before Financial Commissioner (respondent No.1). The financial Commissioner vide his order dated 3.10.2000 has set-aside the mutation, No. 2463 date 15.8.98 recorded by Tehsildar Pampore in favour of the petitioners. This order of Financial Commissioner is impugned in the petition on the ground that the order has been passed against provisions of Land Revenue Act and Rules thereunder in so far as the Financial Commissioner has admitted the revision application questioning the mutation in question beyond period of limitation and also contravened provisions of Mohammadan Law. He has not conducted any enquiry.

            Admittedly the mutation effected by Tehsildar in respect of property of respondent No.3 father of petitioner, is alleged to be based on an oral gift. There is no documentation of the gift before the Financial Commissioner. Respondent No.3 has appeared to deny the oral gift and alleged collusion between his three sons the petitioners and respondent No.2 (referred as sub-ordinate revenue officials) in getting his property mutated in their own name. The impugned order shows that the writ petitioners have failed to appear before Financial Commissioner despite engaging counsel for the purpose. The petitioners and their counsel choose to remain absent and were duly set ex-parte. The impugned order speaks of Financial Commissioner having gone through the whole record. He has found that the mutation attested by Tehsildar has been without enquiry and without ascertaining the factum and legality of alleged gift. He has also found that mutation (2463 dated 15.8.98)  impugned in revision is vitiated by contradiction, errors and lacunas. The Financial Commissioner has on consideration, in exercise of revisional jurisdiction, set-aside the mutation order of Tehsildar Pampore under his order No. 2463 on 15.8.98. It is not disputed that the Financial Commissioner has the powers to entertain the revision and pass orders in his discretion on merits of the case. The petitioners counsel having failed to appear before the Financial Commissioner, the Financial Commissioner was not expected to devlve deeper into the questions as raised in the writ. The questions of title and ownership rights, in the facts and circumstances of this case, cannot be said to be finally determined by the impugned orders in question. In revisional jurisdiction the Financial Commissioner is not expected to embark on a factual enquiry like Tehsildar who as an officer at the bottom of Revenue heirarchy is required as an authorised officer to make such enquiry and effect a mutation which the Tehsildar in this case has not done. Merely, alleging that provisions of Muslim Law have been violated in absence of any plea and proof is not sufficient. The Financial Commissioner is not shown to have infracted provisions of revision or acted beyond jurisdiction. The impugned order is not shown to suffer from any legal infirmity. Petitioners, who claim ownership rights as also the possessery rights based on alleged title, have effective alternative remedy. The matter involves disputed questions of fact and law requiring determination on evidence, on detail inquiry. Obviously the matter cannot be addressed and determined in writ jurisdictional proceedings.

            For the aforesaid reasons, the writ petition is dismissed in limini.

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