Harbans Lal and Another vs State of Jammu & Kashmir and Others

J.P. Singh, J.—Map prepared by Patwari Halqa Raipur Domana on 05.07.1998 which was counter signed by Naib Tehsildar, Jammu on

06.07.1998 in respect of Harbans Lal and Garo Devi- Petitioners' house and common path measuring 107' x 18' leading thereto, was questioned

by Vinod Kumar-Respondent No .3, who had purchased land appurtenant to the house of the Petitioners in the year 1999 and 2001, by an

Appeal before the Director Land Records (Settlement Officer) Collector, Jammu.

During the course of consideration of the Appeal, it was found by the Director, on the basis of the spot inspection and the statements of the

Villagers, that the path way in Khasra No. 1219 of Village Raipur Domana, leading to the house of the Petitioners, was in existence since 1947,

but its width was not 18' as indicated by the Patwari in the site plan. He, accordingly, in the circumstances, held the dimension of the path way

leading to the house of the Petitioners as 107' x 8'.

Aggrieved by the decision of the Director Land Records, the Petitioners have approached this Court by their Writ Petition seeking quashing of

the Director's order.

Petitioners' learned Counsel submitted that the learned Director had erred in assuming appellate jurisdiction when there was no adjudication on

the rights of the parties by any Revenue Officer against whose decision an Appeal may be contemplated under the provisions of Section 11 of the

Jammu and Kashmir Land Revenue Act, 1996 (1939 A.D.).

Per contra, Respondent No. 3's counsel submitted that as the Map prepared by the Patwari had been counter signed by the Revenue Officer,

so an Appeal would lie to the Director Land Records u/s 11 of the Act.

Learned State counsel, however, submitted that Section 11 of the Land Revenue Act contemplates Appeals only against adjudicatory orders

and not otherwise.

I have considered the submissions of learned Counsel for the parties and gone through the provisions of the Jammu and Kashmir Land Revenue

Act.

The Naib Tehsildar has only counter signed the Map prepared by the Patwari which means that he had authenticated the signatures of the

Patwari concerned. Looked from any angle, this act of the Naib Tehsildar, by any stretch of reasoning, cannot be treated as adjudication of any

type whatsoever.

There being no adjudicatory order by any Revenue Officer of the classes indicated in Section 11 of the Land Revenue Act, Respondent No. 3's

Appeal before the Director Land Records was, therefore, incompetent.

That apart, the dispute between the parties pertains to the existence of a path, which the Petitioners' claim was 107' x 18' whereas Respondent

No. 3 disputes the existence of such path. The dispute was thus required to be resolved by the competent Forum of original jurisdiction where

both parties may project their respective case to seek determination on the issue.

Such a dispute could not be entertained for consideration and determination by the Appellate Authority/Court, in the absence of initial

adjudication on the issue, on the original side, by an Authority empowered to exercise such jurisdiction, in that, the Appellate Forum, being a

creation of the Statue, would come into existence only against such orders of the Authority exercising original jurisdiction, as the Statute may

prescribe in this behalf.

The Director Land Records has, therefore, erroneously assumed jurisdiction in the absence of any adjudicatory order by any Authority of

original jurisdiction. His Order dated 10.09.2005 cannot thus be sustained, and needs to be quashed as one without jurisdiction.

This Writ Petition, therefore, succeeds and is, accordingly, allowed, quashing the Director Land Records (Settlement Officer) Collector,

Jammu's order dated 10.09.2005, leaving the parties, however, free to seek adjudication of their rights regarding the path in question before the

Authority empowered to deal with such type of disputes.