Khalil Rather and another vs Financial Commissioner and Others

The petitioners have invoked the writ jurisdiction of this Court for issuing writ of certiorari for quashing, orders dated 20.08.1997 and

14.05.1993 passed by respondent No. I in revision petition and review petitioner titled Khlil Rather Vs. Mushtaq Ahmad Bhat and others and,

order dated 05.01.1986 passed by respondent No. 2 in appeal titled Khalil Rather and another Vs. Gh. Mohd. Bhat and, order dated 24th April,

1985 passed by respondent No.3 in a suit for rendition of accounts under Section 85 of the Jammu and Kashmir Tenancy Act, hereinafter, for

short ""the Act"", in case titled Gh. Mohammad Rather Vs. Rama Rather and another, and also for issuance of writ of mandamus commanding

respondent No.4 to decide the matter in terms of Sections 4 and 8 of Jammu and Kashmir Agrarian Reforms Act.

Factual background:

It appears that one Ghulam Mohammad Bhat and father of respondents 5 and 6 and husband of respondent No.7 filed a suit for rendition of

accounts in the court of District Collector, Anantnag, under Section 85 of the Act. District Collector, Anantnag, passed an ex parte preliminary

decree in the suit and appointed Naib Tehsildar, Shopian, as Commissioner for taking the accounts. The exparte decree came to be setaside on

the application of petitioner No.l and father of petitioner No.2 vide order dated 20th December, 1975. The suit came to be transferred to the

Court of Assistant Commissioner (Collector), Shopian. Assistant Commissioner (Collector), Shopian, directed Tehsildar Shopian, to conduct

proceedings in the matter in terms of Section 9 of the Jammu and Kashmir Agrarian Reforms Act.

Feeling aggrieved of the said order, petitioner No.l and father of petitioner No.2 filed an appeal before Additional commissioner, Kashmir,

which came to be dismissed vide order dated 5""1 November, 1986. Revision petition came to be filed by petitioners before Financial

Commissioner, Kashmir, which came to be dismissed vide order dated 14""'May, 1993. Thereafter, petitioners filed a review petition before the

same court which came to be dismissed vide order dated 20th August. 1997.

Petitioners have sought indulgence of this Court for quashing of the orders on the grounds taken in the writ petition.

It is profitable to reproduce relevant portion of order passed by Assistant Commissioner (Collector), herein, which read as under:

I have gone through the file. The learned counsel for the plaintiff has invited my attention towards the interlocutory order dated 6.7.83 in which it

has been written that the parties to the case were present on that date. This makes the entry present in the chowkidar register all the more

suspicious. Accordingly to chowkidar register Rama Rather has died on 22.6.1983 which according to the inter factory order he was alive on

6.7.83, in such circumstances I am of the opinion that the date of death of Rama Rather is not 22.6.83 alleged by the nonapplicants. The evidence

produced by the plaintiff has stated that he has died in Autumn 1983. This being the material on the file I hold that the application produced by the

plaintiff for bringing the legal representative of the deceased Rama Rather on record is well within time.

Now the second point remains that the concerned Naib Tehsildar has submitted his report on 23.11.1983 which is on the file. Under such

circumstances that the file is sent to the. Tehsildar concerned to proceed under section No. 9 of Agrarian Reforms Act, 1976.

It appears that Assistant Commissioner (Collector), Shopian, without entering upon the merits and discussing the niceties of law, has

mechanically directed Tehsildar to proceed under Section 9 of Jammu and Kashmir Agrarian Reforms Act and also granted application of the

plaintiff for bringing legal heirs of Rama Rather (father of petitioner No.2) on record.

The appellate court as well as the revisional court dismissed the appeal, revision petition and review petition on the ground that an appeal will lie

against the order of Assistant Commissioner (Collector), before the High Court. It is profitable to reproduce relevant portion of the order of

appellate Court herein, which reads as under:

""I have considered the arguments advanced on either side. There is only a question of law involved in the case that whether the appeal would lie

before this court or in the Hon'ble High Court. But it is clear that the appeal as per section 85 of the tenancy act, a relevant portion of which is

reproduced below lies before the Hon'ble High Court and not to this court.

Provided that, an appeal from an original or appellate order or decree of the Collector in suits mentioned in section 85 shall lie to the High Court

and shall be heard by a Single Judge and any further appeal if maintainable under the provisions of the Code of Civil Procedure, 1977, shall be

heard by a Division Bench of the High Court on a point of law only.

So the appeal which has been preferred/filed in the wrong forum is dismissed and no order as to costs.

It is also profitable to reproduce relevant portion of order passed by revisional court in review petition, herein, which read as under:

I find that the basic order of the Asstt. Commissioner flows from the suit under section 85 of the Tenancy Act. As provided in Section 86 of the

Tenancy Act, an appeal against this order lies only to the Hon'ble High Court. This court does not have any jurisdiction in this regard.

I, therefore, feel that no case for review is made out, hence the application is dismissed.

The moot point for consideration is whether the Assistant Commissioner (Collector), Shopian, had the jurisdiction to hear and determine the suit?

In order to return finding on this issue, it is necessary to notice Section 85 of the Act, herein, which reads as under:

Revenue Courts and suits cognizable by them.When a Revenue Officer is exercising jurisdiction with respect to any such suit as is described in

subsection (3) of this section or with respect to an appeal or other proceedings arising out of any such suit, he shall be called a Revenue Court.

(2) There shall be the same classes of Revenue Courts as of Revenue Officers 'under this Act, and in the absence of any order of the Government

to the contrary, a Revenue Officer of any class having jurisdiction within any local limits, under this Act, shall be Revenue Court of the same having

jurisdiction within the same local limits.

(3) The following suits shall be instituted in, and heard and determined by, Revenue Courts, and no other Court shall take cognizance of any

dispute or matter with respect to which any such suit might be instituted:

(a) suit by a tenant under section 7A(l) or otherwise, to establish a right of occupancy, or by landlord to prove that a tenant has not such a right;

(b) suits between landlord and tenant for enhancement or reduction of rent under sections 2 7, 28 or 29;

(c) suits by landlord or tenant to set aside a lease or agreement under section 34 (and suits relating to the rent to be paid under a mortgage made in

accordance with form (c) as prescribed by section 8 of the Jammu and Kashmir Alienation of Land Act);

(d) suits by landlord to eject the tenant;

[(e) Omitted.]

(f) suits by a landlord under section 66 to set aside a transfer made of a right of occupancy, or to dispossess a person to whom such a transfer has

been made, or for both purposes;

(g) any other suit between landlord and tenant arising out of the lease or conditions on which a tenancy is held [or for declaration regarding the size

of a holding under section 17B;J

(h) suits for sums payable on account of village cesses or village expenses;

(i) suits by a cosharer in an estate, holding or tenancy for a share of the profits thereof or for a settlement of accounts;

(j) suits for the recovery of overpayments of rent, of land revenue, or of any other demand for which a suit lies in a Revenue Court under this

subsection;

(k) suits relating to the emoluments of villageofficers;

Second Group.

(4) A Collector may hear and determine any of the suits mentioned in subsection (3).

[(4a) An Assistant Collector of the first class not below the rank of Assistant Commissioner or an Assistant Settlement Officer may dispose of such

of the suit under clauses (a) and (d) mentioned in First Group of subsection (3) as may be transferred to him by the Collector....:..........................

In terms of the mandate of Subclause (4a) of Section 85 of the Act, Assistant Commissioner or Assistant Settlement Officer can hear and

determine the suits falling under clauses (a) and (d) mentioned in First Group of subsection 3, if received by way of transfer in terms of the order of

District Collector.

The suit of the plaintiff, respondent herein, is under First Group of clause (i) of subsection 3 of Section 85 of the Act. This type of suit is to be

heard and determined by District Collector.

In terms of mandate of Land Revenue Act, Tenancy Act, District Collector is always Deputy Commissioner. However, Government can

empower any Assistant Commissioner to exercise powers as District Collector.

Now, question is whether Assistant Commissioner (Collector), Shopian, was having such powers?

There is nothing on the file suggesting the fact that Assistant Commissioner (Collector), Shopian, was empowerd to exercise powers as District

Collector.

It is worthwhile to mention herein that after creation of District at Pulwama, the case was to be heard by District Collector, Pulwatna. ' How

Assistant Commissioner (Collector), Shopian, heard the case is also to be thrashed out?

It is also to be seen and ascertained that whether Assistant Commissioner (Collector), Shopian, was empowered to exercise powers as •

District Collector, after creation of District Pulwama.

The suit in question was to be determined under Section 85 of the Act arid how Assistant Commissioner (Collector), Shopian, directed

Tehsildar to deal with the matter in terms of Section 9 of the Agrarian Reforms Act.

Section 9 of Agrarian Reforms Act, is not applicable to the instant case. It is profitable to reproduce Section 9(1) of the Jammu and Kashmir

Agrarian Reforms Act, herein, which read as under:

Payment of rent by the tiller.(1) A tiller shall, in respect of land vested in the State by section 4, pay to the State rent, which was payable by him

to the exlandlord prior to the first day of May, 1973 in such form and in such manner as may be prescribed, until such land is resumed under

section 7 or until such tiller acquires ownership rights therein under section 8.

While going through this Section, it is crystal clear that this section can be pressed into service when tenant is declared as prospective owner

and land is vested in the State in terms of Section 4 of the Jammu and Kashmir Agrarian Reforms Act. It appears that dispute is not between the

landlord and tenant.

Whether the remedy under Section 85 of the Act stands repealed by the operation of Agrarian Reforms Act, needs to be gone through,

decided and determined?.

While going through order passed by Assistant Commissioner (Collector), Shopian, it appears that Assistant Commissioner (Co 1 lector),

without discussing the merits of case directed Tehsildar to proceed in terms of Section 9 of Agrarian Reforms Act, which on the face of it is

without jurisdiction, illegal, erroneous and perverse.

The appellate court as well as the revisional court have also fallen in error while holding that order has been passed in terms of Section 85 of

the Act. Assistant Commissioner (Collector), Shopian, has passed order under Agrarian Reforms Act, which is beyond the scope of suit and

without jurisdiction.

An Appellate court as well as revisional court should have setaside the order and directed Assistant Commissioner to pass order in terms of

law applicable.

It is worthwhile to mention herein that learned counsel for respondents 1 to 4 and learned counsel for respondents 5 to 7, frankly conceded

that order passed by Assistant Commissioner (Collector), Shopian, is without jurisdiction and appellate court as well as the revisional court have

fallen in error.

Accordingly, the writ petition is allowed, impugned orders are quashed and case is remanded back to Assistant Commissioner (Collector),

Shopian, with the direction to pass appropriate orders while keeping in view the observations made hereinabove.

Parties are directed to cause appearance before Assistant Commissioner (Collector), Shopian, on 20.03.2006.