IMPORTANT POINT
The jurisdiction for appeals against orders issued by a Tehsildar under the J&K Land Revenue Act lies with the Divisional Commissioner, not the Principal District Judge, as clarified by the provisions of Section 133-C and SRO 1 of 1981.

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. 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 d