HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
WP(C) No. 1072/2023
CM No. 2548/2023 Caveat No. 913/2023
Ghulam Mohi-ud-din Waza and Ors.
….. Petitioner/Appellant(s)
Through:Mr. T.A. Lone, Advocate
V/s
Union Territory of J&K and Ors.
…...Respondent(s)
Through:
CORAM:
Hon’ble Mr. Justice Sanjeev Kumar, Judge.
ORDER
08.05.2023
1. The petitioner is aggrieved of and has called in question the order dated 20.03.2023, passed by the Joint Financial Commissioner, Revenue J&K Srinagar with powers of Financial Commissioner Revenue, in case titled “Ghulam Mohi-ud-din Waza and Others Vs. Mst. Lateefa Begum and Ors.” whereby the Financial Commissioner Revenue has set aside the findings of fact returned by the Divisional Commissioner on merits and has remanded the case to the Sub Divisional Magistrate, Pattan, for considering and disposing of the appeal on merits.
2. Briefly stated the facts leading to the filing of this petition are that aggrieved by the order dated 30.08.2005 passed on mutation of inheritance attested by Naib Tehsildar Pattan, the respondents filed an appeal before the Collector (SDM Pattan). The appeal was belated and, therefore, an application for condonation of delay was also filed. The Collector (SDM Pattan) issued notices to the petitioners herein and after affording them an opportunity to file objections and arguing the matter, accepted the cause shown for filing the belated appeal. Vide order dated 12.09.2020, the Collector (SDM Pattan) condoned the delay and took up the appeal for consideration on merits.
3. This order of Collector dated 12.09.2020 was called in question by the petitioners by way of a revision petition before the Divisional Commissioner Kashmir, at Srinagar. The Divisional Commissioner, Kashmir, Srinagar, not only upheld the order of the Collector (SDM Pattan) passed in appeal on condonation of delay, but decided the appeal on merits. This was done by the Divisional Commissioner Kashmir, Srinagar, vide order dated 18.10.2021.
4. Feeling aggrieved and dissatisfied with the order of Divisional Commissioner Kashmir, Srinagar, the petitioners approached the Joint Financial Commissioner Revenue with powers of Financial Commissioner Revenue by way of a review petition in terms of Section 15 of the Land Revenue Act. The Joint Financial Commissioner Revenue, agreed with the contention of the petitioners, that the matter could not have been decided on merits by the Divisional Commissioner Kashmir, Srinagar, but declined to interfere with the concurrent finding of the fact of the two forums below with respect to condonation of delay. This happened in terms of order dated 20th March, 2023, passed by the Joint Financial Commissioner, Revenue. It is this order of Joint Financial Commissioner Revenue, which is assailed before this Court in the proceedings under Article 226 of the Constitution of
India.
5. Having heard learned counsel for the parties and perused the material on record, I am of the considered opinion that the concurrent finding of fact recorded by the three forums i.e., Collector (SDM Pattan), Divisional Commissioner Kashmir, Srinagar, and Joint Financial Commissioner Revenue, in respect of condonation of delay are not required to be interfered with by this Court in the exercise of extra-ordinary writ jurisdiction. This Court is aware that the Revenue courts above have condoned the huge delay of 14 years, but the fact remains that the mutation of inheritance which was attested by the Revenue Officer in favour of the petitioners and to the exclusion of their sisters i.e., private respondents herein was at the back of the private respondents.
6. Needless, to say that in terms of the mutation impugned before the Collector, the private respondents who were otherwise entitled to succeed to the estate of their father were excluded on the basis of will claimed to have been executed by the deceased father of the petitioners in their favour. From the material on record, it clearly transpires that the private respondents were neither put on notice, nor were they heard before attesting the mutation of inheritance. Legally, as and when, mutation of inheritance is to be attested by the Revenue Officer it is obligatory on him to summon all the legal heirs of the deceased, who are entitled to succeed to his estate.
7. The mutation which is challenged before the Sub Divisional Magistrate Pattan (SDM) is prima facie in favour of the petitioners and attested at the back of the private respondents. Since the petitioners and private respondents are brothers and sisters and, therefore, there was possibly no occasion for the private respondents to doubt the intention of the petitioners or to have knowledge that some mutation prejudicial to their interest has been attested in favour of the petitioners without their knowledge.
8. The forums below, therefore, rightly accepted the explanation tendered by the private respondents and condoned the delay. The Joint Financial Commissioner Revenue in terms of the order impugned has correctly upheld the concurrent finding of fact returned by the Collector and the Divisional Commissioner Kashmir, Srinagar, on condonation of delay and has remanded the case to the Collector (SDM Pattan) for its consideration and determination on merits. The petitioners are, therefore, well within their rights to contest the mutation on merits.
9. For these foregoing reasons, I find no merit in this petition and the same is accordingly dismissed. Nothing said in this petition shall in any manner prejudice the parties in so far as the merits of the appeal pending before the Collector (SDM Pattan) are concerned.
(Sanjeev Kumar) Judge
SRINAGAR:
08.05.2023