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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
SANJAY DHAR, J.
Sheikh Gowhar Ahmad – Petitioner
Versus
State of J&K and Others – Respondents
O.W.P. No. 427 of 2015
Decided On : 16-12-2021
Jammu and Kashmir Land Revenue Act - Section 24(4) and 26 - Land - Possession - Enquiry report of Director Land Records - Allegations of tampering of revenue record of Village - Petitioner has placed on record a copy of Government Order, according to which the Government has concluded that 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 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 eyes of law.
Finding of the Court:
The word “inquire” appearing in sub-section (4) of Section 24 of Act pre-supposes the right of hearing to all those persons whose entries in register of mutations are likely to be affected by the exercise undertaken by Revenue Officer. If respondent Director Land Records would have given an opportunity of hearing to petitioner before recommending cancellation of his entries in respect of land in question, petitioner would have, besides presenting his case before said Revenue Officer, got an option of getting the dispute determined in accordance with Section 26 of Act by approaching the civil court of competent jurisdiction. None of respondents gave such an opportunity to 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 impugned order in revision petition, put his seal of approval upon illegal acts of the other respondents. His order is, therefore, not sustainable in law - Impugned orders and communications are set aside.
Result: Writ Petition is allowed.
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. 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 asid
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