Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(J&K) 64

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU
VINOD CHATTERJI KOUL, J.

Talib Hussain, S/o Wazir Mohd and Ors. - Petitioners
Versus
UT of J.&K. through Commissioner Secy., Revenue Deptt., Civil Secretariat, Srinagar/Jammu and Anr. - Respondents
WP(C) No. 737 of 2023, CM No. 1797 of 2023
Decided On : 11-03-2024

Advocates Appeared:
For the Petitioners: Mr. Abrar Ahmed Khan.
For the Respondents: Mrs. Monika Kohli.

The main legal point established in the judgment is that the cancellation of a mutation must adhere to the principles of natural justice and statutory provisions, and the authority reviewing the mutation must follow due process.

Headnote:
Mutation - Land Mutation - Government Order No. LB-6/C of 1958 - Section 21 of the Land Revenue Act, 1996 Svt. - Standing Order No. 23-A - Mutation No. 788 dated 13.01.2010 - The court discussed the provisions of Government Order No. LB-6/C of 1958, Section 21 of the Land Revenue Act, 1996 Svt., and Standing Order No. 23-A. The court highlighted that mutations against statutory provisions are not recognized by law and that mutation cannot be carried out of a transaction which contravenes an express provision of the statutory law. The court also emphasized that a mutation does not confer any title and is only an alteration of an entry in revenue records for its updation.
Fact of the Case:
The petitioners seek quashment of the order cancelling the mutation of Village Sheindara, Tehsil Haveli, on the ground that it was passed without jurisdiction and without giving them an opportunity to be heard. The petitioners claim to be descendants of the original land possessor and argue that the mutation was cancelled in violation of the principles of natural justice.
Finding of the Court:
The court found that the order cancelling the mutation was passed without giving the petitioners an opportunity to be heard, in violation of the principles of natural justice. The court also held that the Deputy Commissioner did not have the authority to review and cancel the mutation without following the due process.
Issues: The issues revolved around the jurisdiction of the Deputy Commissioner to cancel the mutation, the violation of natural justice in passing the order, and the compliance with statutory provisions for land mutations.
Ratio Decidendi: The court's decision was based on the violation of natural justice and the lack of authority of the Deputy Commissioner to review and cancel the mutation without following due process and statutory provisions.
Final Decision: The court set aside the order cancelling the mutation and disposed of the case, allowing the petitioners' claim.

JUDGMENT :

1. The petitioners are aggrieved of the order passed by the respondent No. 2-Deputy Commissioner, Poonch on 23.01.2023, whereby he has cancelled the mutation No.788 dated 13.01.2010 of Village Sheindara, Tehsil Haveli, holding that the same is void ab initio. The petitioners are seeking quashment of the said order precisely on the ground that the same has been passed by the respondent No.2 without having jurisdiction and without giving petitioners an opportunity of being heard. The mutation in question was attested on 13.01.2010. The respondent No. 2 has held that the mutation has been attested against the provisions of Government Order No. LB-6/C of 1958. The order impugned is reproduced as under: -

“UNION TERRITORY OF JAMMU & KASHMIR

Office of the Deputy Commissioner, Poonch

Sub:-Cancellation of Illegal Mutation No. 788 of Village Shiendara

Whereas, Tehsildar Haveli vide his Communication No.TH/OQ/ 2402 dated 17.01.2023 has reported that in village Sheindara of Tehsil Haveli, District Poonch, Mutation No. 788 dated 13.01.2010 has been attested illegally on State land bearing Khasra No. 129 under the provisions of Government Order No. LB-6/C of 1958 in favour of illegal occupants, which were not entitled to said mutation and has recommended for setting aside the same and;

Whereas, Misi-e-Haqiyat (ROR) of Village Shiendara has been perused and the Khasra No. 129 has been found recorded as State land under the possession of Wazir Mohd. S/o Kalu and;

Whereas, the mentioned Mutation No.788 dated 13.01.2010 for land bearing Khasra No. 129 measuring 42 Kanals and 15 Marlas has been attested in favour of Khadim Hussain, Mushtaq Ahmed, Mohd. Razak, Mohd. Aslam Ss/o Mohd. Hussain equal share half and Wazir Mohd. S/o Kalu and;

Whereas in the ROR 1961-62, the names of Khadim Hussain, Mushtaq Ahmed, Mohd. Razaq and Mohd. Aslam or their father Mohd. Hussain do not exist as occupants of the said State Land bearing Khasra No. 129, which shows that they had no possession over the said land in 1961-62 and;

Whereas Tehsildar, Haveli in his aforementioned report has also mentioned that Talib Hussain and others, sons of Wazir Mohd. are not occupants of the land bearing Khasra No. 129, but are occupants of proprietary land under Khasra Nos. 131, 133, 134 & 135 and;

Whereas for attesting mutation under these Government order No. LB-6/C of 1958, the essential condition is that the land must be under the continuous possession of the beneficiary since Kharief 1957. But the aforementioned facts clearly establish that land bearing Khasra No. 129 has not been under the possession of the said beneficiaries since 1957. As such, they are not entitled for rights under Government Order No. LB-6/C of 1958 for the said land. Thus, Mutation No. 788 dated 13.01.2010 has been attested against statutory provisions of law and;

Whereas, U/S 21 of the Land Revenue Act, 1996 Svt., the record of rights or Misi-e-Haqiyat, prepared at the time of settlement of the estate is the Standing/Primary record of the estate. ROR is the most important record so far as evidential value is concerned. The evidential value of entries made in ROR in invariably relevant as held in case Ramanna Vs. Sambamurthy AIR 1961 AP-361 and;

Whereas, the State is the owner of big chunks of land scattered throughout the District and every officer/official of the Government is duty bound to protect the same and remove encroachments therefrom and;

Whereas, Para No. 104 of the Standing Order No. 23-A, Hidayat Intiqalat (Instructions for Mutations) lays down that mutations against statutory provisions are not recognized by law, as held in case titled Bawa Sewa Nand Chela Shanker Vs. State of J&K: 14.11.2006: OWP No. 515/2002: 2007 (2) JKJ HC-83 and that transfers which are not recognized by law are void and cannot be enforced by mutations, and that mutation cannot be carried out of a transaction which contravenes an express provision of the statutory law and;

Whereas, a mutation does not conf