HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Case:- WP(C) No.1077/2020 CM No.6255/2024 CM No.2949/2020 Hassan Mohd …..Petitioner(s) Through: Mr. Sarfraz Shah, Advocate Vs UT of J&K & Ors. .….Respondent(s) Through: Mrs. Monika Kohli, Sr. AAG Coram: HON’BLE MR. JUSTICE SANJAY DHAR, JUDGE ORDER (14.08.2025) 1. The petitioner through the medium of present petition has challenged Order No.DCP/SQ/4063-39 dated 13.03.2020 passed by respondent No.2-Deputy Commissioner, Poonch whereby inter alia, the mutation in respect of land measuring 05 kanal falling under khasra No.327 min and land measuring 16 marla falling under khasra No.316 situated at Nar, Tehsil Mendhar, District Poonch has been canceled. 2. It has been submitted that the petitioner and his ancestors have been residing on the land in question for more than 100 years. Mutation No.264 dated 08.03.1995 issued in terms of Government Order No.394/C of 1962 has been attested in his favour. It has been further contended that the aforesaid mutation has been declared Serial No. 04 2 WP(C) No.1077/2020 void ab initio by respondent No.2-Deputy Commissioner, Poonch in terms of the impugned order, without affording any opportunity of hearing to the petitioner. 3. According to the petitioner, he has become owner in possession of the aforesaid land, which has been mutated in the name of his forefathers in the year 1989 vide Government Order-LB-6/C of 1958. It has also been submitted that after the extension of the Forest Rights Act, 2006 to Union Territory of J&K, the petitioner, who belongs to Scheduled Tribes category, is entitled to be vested with rights over the land in question. It has further been submitted that besides the attestation of mutations under Government Orders No.LB-6/C of 1958 and 394-C of 1962, subsequent mutations of inheritance have also been attested in the favour of the petitioners in respect of the land in question. 4. The respondents have filed their counter-affidavit to the writ petition, in which it has been submitted that the land measuring 14 marla in khasra No.316 and land measuring 273 kanal and 10 marla under khasra no. 327 situated at Village Nar, Tehsil Mendher is recorded as State Land with „Banjar Qadeem’ and ’Ghair Mumkin Jungal’ respectively in Record of Rights of 1961-62. 3 WP(C) No.1077/2020 5. It has been submitted that the said land has not been recorded in possession of any other person, including the petitioner or his ancestors. 6. It has been submitted that vide mutation No.264 dated 08.03.1995, ownership rights under Government Order No.394/C of 1952 have been conferred in favour of the father of the petitioner in respect of the land which is the subject matter of the writ petition and the same has been done contrary to the provisions. It has been further submitted that land measuring 14 marla under khasra No.316 and land measuring 273 kanal 10 marla under khasra No.327 situated at village Nar, Tehsil Mendher was not permissible for mutation under Government Order No.394/C of 1952, as the ownership rights under the said Government Order can be conferred only upon those persons who got authorization/approval of Nautor of State Land from the then Raja Sahab of Poonch and the said persons should have been entered as legal occupants in the revenue record of that time and consequently in Record of Rights of 1961-62. It has been submitted that father of the petitioner has not been recorded in the Record of Rights even as an illegal occupant of the land in question. 7. It has been submitted that mutation No.264 dated 08.03.1995 was declared as void ab initio on the basis of 4 WP(C) No.1077/2020 the examination of revenue records and in accordance with the rules governing the field, as the land falling under khasra No.316 measuring 14 marla and land measuring 273 kanal 10 marla under khasra No.327 is recorded as State Land with type ‘Banjar Qadeem and Ghair Mumkin Jungal’ in the Record of Rights 1961-62. 8. On the basis of the aforesaid contentions, the respondents have contended that mutation attested in respect of land in question in favour of the petitioner is contrary to the statutory provisions and, as such, void ab initio which deserves to be set aside in terms of the impugned order. 9. I have heard learned counsel for the parties and perused the record. 10. It is not in dispute that mutation in respect of land in question viz land measuring 5 kanals under khasra No.327 min and land measuring 16 marla under khasra No.316 situated at Nar, Tehsil Mendhar, District Poonch has been attested in favour of the petitioner/his father under Government Orders-LB-6/C of 1958 and 394-C of 1962. The mutation in terms of Government Order No. LB-6 of 1958 came to be attested in favour of the petitioner/his father in the year 1989, whereas mutation in terms of Government Order No.394-C of 1962 was attested on 08.03.1995. Both these mutations have been 5 WP(C) No.1077/2020 set aside by respondent No.2-Deputy Commissioner, Poonch in terms of the impugned order. Neither in the impugned order nor in the counter-affidavit filed by the respondent, it has been even whispered that petitioner was issued a show cause notice or that he was heard before cancellation of the mutation orders. 11. The question whether a Deputy Commissioner, suo motu and without affording an opportunity of hearing to the affected party can cancel a mutation under the scheme of Jammu and Kashmir Land Revenue Act came up for determination before this Court in the case of ”OM Parkash & Ors. Vs Union Territory of J&K & Ors.” in WP(C) No.2360/2021 decided on 02.03.2024. While deciding the said issue, this Court observed as under- “(i) If we have a look at the provisions contained in the Jammu and Kashmir Land Revenue Act, 1966 (1939 A.D.), Section 6 of the Act classifies the Revenue Officers and these include the Financial Commissioner, The Divisional Commissioner, the Collector, the Assistant Collector of the first class and the Assistant Collector of the second class. It also provides that the Deputy Commissioner of a District would be the Collector of a District and an Assistant Collector and a Tehsildar would be the Assistant Collector of the First class, whereas a Naib Tehsildar would be an Assistant Collector of the second class. 6 WP(C) No.1077/2020 (ii) Section 11 of the J&K Land Revenue Act provides that an appeal from an order passed by the Assistant Collector of either class shall lie to the Collector; an appeal from an order passed by the Collector shall lie to the Divisional Commissioner and an appeal shall lie to the Financial Commissioner from an order passed by the Divisional Commissioner. (iii) Section 13 of the J&K Land Revenue Act provides that a Revenue Officer has power to review his own order either of his own or on the application of any interested party. Clause (c) of sub section (1) of Section 13 of the Act postulates that while exercising the powers of review, an order cannot be modified or reversed unless reasonable notice has been given to the parties affected thereby to appear and be heard in support of the order. (iv) Section 15 of the J&K Revenue Act vests powers of revision with the Financial Commissioner and Divisional Commissioner. In case, the Divisional commissioner feels that the order against which revision petition has been filed is required to be modified or revised, he has to send a report alongwith his opinion to the Financial Commissioner. Proviso to Section 15 further lays down that in case an order is required to be reversed or modified, the same cannot done without giving to the affected person an opportunity of hearing. (v) In the instant case, respondent No.2 has set aside the mutation orders passed in 7 WP(C) No.1077/2020 favour of the petitioners and the said mutation orders had been passed by the Tehsildar. A Deputy Commissioner is vested with appellate powers against an order of the Tehsildar (Assistant Collector). It is not case of the respondents that an appeal against the mutation orders attested in favour of the petitioners had been filed before him. Thus, it cannot be stated that while passing the impugned order, respondent No.2 has exercised its appellate power in terms of Section 11 of the Act. Since the orders of mutation were passed by the Tehsildar and not by the Deputy Commissioner, as such, it can also be not stated that the Deputy Commissioner has exercised his suo motu powers of review as contemplated in Section 13 of the Act. The Deputy Commissioner is not vested with powers of revision in terms of Section 15 of the Act, as such, it cannot be stated that while passing the impugned order, respondent No.2, Deputy Commissioner, Poonch has exercised his revisional jurisdiction.” 12. In view of what has been analysed hereinabove, respondent No.2 Deputy Commissioner, Poonch could not have exercised his power of review against the impugned mutation order passed by the Tehsildar, who is a subordinate revenue officer nor could the said authority exercise the power of revision which is not vested in it. In fact, no appeal was pending before respondent No.2- 8 WP(C) No.1077/2020 Deputy Commissioner, Poonch upon which the impugned order could have been passed. Besides this, the petitioner was not issued any show cause notice nor was he heard by respondent No.2 before passing the impugned order. 13. An order made by a Quasi Judicial authority or even by an administrative authority which adversely affects the rights of the parties cannot be issued without adhering to the principle of natural justice. Non-adherence to the principles of natural justice makes such an order arbitrary and illegal. 14. It has been contended by the respondents that it would not have made any difference if the petitioner had been heard before the cancellation of the impugned mutations. The said contention is without any substance for the reason that rules of natural justice cannot be given go by; it is probable that the petitioner could have satisfied respondent No.2-Deputy Commissioner, Poonch about the legality of the mutation order that has been passed in his favour by producing the material before the said authority. But respondent No.2 did not even put the petitioner to notice before setting at naught the mutation order attested in his favour. 15. For the foregoing reasons, the impugned order passed by respondent No.2-Deputy Commissioner, Poonch to the extent of the petitioner is not sustainable in law. Although 9 WP(C) No.1077/2020 the writ petition is allowed and impugned order No. DCP/SQ/4063-39 dated 13.03.2020 passed by respondent No.2-Deputy Commissioner, Poonch to the extent of the petitioner is set aside. (SANJAY DHAR) JUDGE JAMMU 14.08.2025 Sneha