Mohammad Muzaffar Mir vs State and Others

Mansoor Ahmad Mir, Judge

Petitioner has called in question communication dated 25th of June, 2011-Annexure P, made by Assistant Commissioner (Revenue) Budgam-

Respondent No. 4 to respondent No. 5 and has also prayed for commanding respondents to issue, in his favour, Resident of Backward Area

certificate in terms of provisions of the Jammu and Kashmir Reservation Act, 2004, hereinafter for short as Act and in terms of the Jammu and

Kashmir Reservation Rules, 2005, hereinafter fort short as Rules, on the grounds taken in the writ petition.

Respondents have resisted the petition on the grounds taken in the memo of reply.

Provisions contained in the Act and Rules provide how to make an application for considering the case for grant of Resident of Backward Area

Certificate and what is the procedure to be adopted by the competent Authority. It also provides that if someone is aggrieved by the order of the

competent authority, he has a right of Appeal and if a person is aggrieved of the order of Appellate Authority, he has a right of Revision in terms of

provisions of Section 16, 17 and 18 of the Act.

Tehsildar Chrar-e-Sharief in terms of mandate of Section 16 of the Act read with the Rules, has the power to entertain the application, to

consider the same and either accept or reject it on the grounds to be recorded in writing. The said Authority is also within its powers to examine

the case of the petitioner in terms of the provisions of Rule 21 (iii). It is apt to reproduce Rule 21 (iii) herein:-

Procedure for issuance of certificates

The issuance of certificates shall be governed by the procedure laid down in sections 13, 14, 15, 16, 17, 18, 20, 21 and 22 of the Act and the

Competent Authority shall scrutinize the application and conduct such enquiries as may be necessary for verification of the details of the application

as also with regard to the eligibility of the applicant for the certificate claimed by him/her keeping in view the following guidelines, namely:-(iii) A

person claiming benefit for being resident of Backward Area or of Area near the Line of Actual Control must establish that he/she has resided in

the area for a period not less than 15 years before the date of application and is actually residing in the said area. However, a person may not be

disentitled from claiming this benefit only on the ground that his/her father or person on whom he/she is dependent is living in a place which is not

identified as Backward Area or area near line of Actual Control on account of his employment, business or other professional or vocational

reasons;.

The portrayed position of law on the subject makes it copiously clear that any communication made by Tehsildar to Assistant Commissioner

Revenue and by Assistant Commissioner Revenue to Deputy Commissioner is illegal, for, the Tehsildar-Competent Authority was competent

enough to grant or reject the application, however, the reasons assigned for such acceptance or rejection of the application thereof were required

to have been recorded in writing. But in the instant case, the Tehsildar has made communications regarding the subject to Deputy Commissioner-

respondent No. 3 who endorsed it Assistant Commissioner Revenue who in turn made a communication dated 25.6.2011 which is impugned

herein.

It was for the Tehsildar to obtain requisite information either through his own agency or through petitioner-applicant by asking him to satisfy the

mandate of the Act read with the Rules.

In the given circumstances, I deem it proper to dispose of this writ petition by directing the Tehsildar Chrar-e-Sharief-respondent No. 5 to

examine the case of the petitioner in terms of the provisions of the Act read with the Rules particularly Rule 21 and to arrive at a conclusion for

granting or rejecting the application, for the reasons to be recorded in writing, within fifteen days from the date copy of the order is served upon

him.

Disposed of accordingly.