LPA 185/2024 c/w LPA 186/2024 Serial No. 09 REGULAR CAUSELIST HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR LPA 185/2024 In[OWP 2309/2015] c/w LPA 186/2024 Updesh Kaur & Others. …Appellant(s) Through: Mr. G. A. Lone, Advocate with Mr. Mujeeb Andrabi, Advocate. Vs. Union Territory of J&K and Others. ...Respondent(s) Through: Mr. Ilyas Nazir Laway, GA. Mr. T. H. Khawja, Advocate with Mr. Iman Abdul Muizz and Mr. Naseer Ul Akbar, Advocates. CORAM: Hon’ble Mr. Justice Sanjeev Kumar, Judge. Hon’ble Mr. Justice Puneet Gupta, Judge. JUDGMENT (ORAL) Per Sanjeev Kumar; J: 01. Impugned in these appeals filed under Clause 12 of Letters Patent, is an order and judgment dated 22nd May, 2024 passed by the learned Single Bench of this Court [“the Writ Court’] in OWP No. 462/2008 and OWP No. 2309/2015, whereby the learned Writ Court has dismissed both the writ petitions and upheld the order of the Financial Commissioner (Revenue), quashing the Mutation No. 727 dated 27.01.1997, attested under Section 121 of the J&K Land Revenue Act, 1996 [“the Act of 1996”] 02. Briefly stated the facts leading to the filing of these appeals, are that, land measuring 3-kanals falling under Survey No. 373/237 situate in estate Rangreth, Budgam, [“the subject land”], came to be vested in favour of three brothers, namely, Tirath Ram; Kulvant Singh and Nirmal Singh, under Section 8 of the J&K Agrarian Reforms Act, 1976 [“the Act of 1976”]. This happened in terms of Mutation No. 696 dated 10.03.1996. After about nine months, another Mutation bearing No. 727 dated 27.01.1997, came to LPA 185/2024 c/w LPA 186/2024 attested purportedly under Section 121 of the Land Revenue Act. This mutation was with respect to 2-kanals out of the subject land and this was in favour Tirath Singh. The mutation was attested by the Tehsildar, Settlement, as at the relevant point of time, the entire area including the subject land, was under settlement operations. Mutation No. 727 dated 27.01.1997 came to be challenged in a revision petition by the two brothers of Late Tirath Singh, before the Divisional Commissioner, Kashmir, on 02.06.2003. The mutation was challenged primarily on the ground that same had been attested in ex parte and without notice to Respondent Nos. 5 and 6 and that, there was no occasion to take recourse to Section 121 of the Act of 1996. The Divisional Commissioner. Kashmir, agreed with the revision petitioners and vide its order dated 28.07.2003, recommended to the Financial Commissioner the setting aside of Mutation No. 727 of 1997. The Financial Commissioner rejected the reference and the recommendations vide its order dated 10.10.2006. The reference was rejected by The Financial Commissioner primarily on the ground that in view of provisions of Section 6 (6) of the Act of 1996, the Divisional Commissioner was not vested with the powers of the Settlement Commissioner to hear any revision in respect of the land, which was under settlement operations. 03. Feeling dissatisfied with the order of the Financial Commissioner, the Respondent Nos. 5 and 6 filed a review petition on the ground that the proceedings in the revision petition culminating into passing of order by the Financial Commissioner dated 10.10.2006 were vitiated, as the Financial Commissioner had not taken note of the fact that before the Divisional Commissioner, the Respondent Nos. 5 and 6 had not been heard. 04. Be that as it may, the review petition filed by the Respondent Nos. 5 and 6 came to be allowed vide order dated 07.05.2008 and the revision petition was taken up for consideration with the consent of both the parties. It needs to be clarified that both the parties gave their consent for taking up and considering the revision petition by the Financial Commissioner in exercise of its inherent powers under Section 15 of the Act of 1996. The objection with regard to the jurisdiction of the Divisional Commissioner and other authorities was, in a way, given up. This is how the Financial Commissioner set down the revision petition for considering the legal validity or other wise of the Mutation No. 727 of 1997. Page 3 of 5 LPA 185/2024 c/w LPA 186/2024 05. Feeling aggrieved, the appellants filed OWP No. 462/2008, challenging the jurisdiction of the Financial Commissioner to take up the revision petition for consideration. This petition was dismissed for non- prosecution on 27.11.2013 and the record of the Financial Commissioner, which was earlier summoned by this Court, was sent back. The appellants filed an application for restoration of the writ petition and during pendency of the restoration application, Single Bench of this Court vide order dated 02.04.2014, again summoned the record from the Financial Commissioner. 06. It seems that the aforesaid order was either not served or escaped the attention of the Financial Commissioner, who proceeded to dispose of the revision petition on merits, without providing an opportunity of being heard to the appellants, Mutation No. 727 dated 27.01.1997 attested by Tehsildar, Settlement Budgam was set aside. This made the appellants to come to this Court again by way of OWP No. 2309/2015. This is how the both petitions came up for consideration before the Writ Court and the Writ Court after considering the matter in the light of the rival contention of the parties and material on record, dismissed both the petitions vide judgment impugned in these appeals, thus upholding the Mutation No. 727 of 1997. 07. Having heard the learned counsel for the parties and perused the material on record, we are of the considered opinion that the order dated 02.09.2015 passed by the Financial Commissioner, is apparently without providing adequate opportunity of being heard to the appellants. The learned Writ Court has clearly noted in the judgment impugned that the Financial Commissioner disposed of the matter at a time when a Bench of this Court was seized of the restoration application and had even sent for the record from the Financial Commissioner. Although it is not very clear as to whether the order of summoning of record was brought to the notice of the Financial Commissioner in time, yet the facts and circumstances emerging from the case, do suggest that the appellants were under the impression that the record had been sent for and, therefore, chose not to appear before the Financial Commissioner. 08. Be that as it may, the order of the Financial Commissioner dated 02.09.2015 is without providing adequate opportunity of being heard to the appellants. We are aware that the learned Writ Court has even gone to the LPA 185/2024 c/w LPA 186/2024 extent of examining the impugned Mutation attested under Section 121 of the Act of 1996 on merits, but having regard to the facts and the circumstances of the case, we are of the view that the appellants may not be deprived of one forum i.e. Financial Commissioner (Revenue), J&K. 09. Without adjudicating upon the sustainability or otherwise of the judgment impugned, we are of the opinion that the order dated 02.09.2015 which was challenged by the appellants in OWP No. 2309/2015, is not sustainable having been passed by the Financial Commissioner, in violation of the principles of natural justice. The Writ Court ought not to have entered into the merits of the controversy and should have instead sent the case back to the Financial Commissioner for fresh adjudication after putting both the parties to notice. 10. Be that as it may, with a view to doing complete justice between the parties, it is imperative that the judgment passed by the Writ Court is set aside and the matter is sent back to the Financial Commissioner for consideration of the revision petition afresh. Ordered accordingly. 11. We make it clear that none of the parties who have already consented to hearing of the revision petition by the Financial Commissioner in the exercise of inherent powers under Section 15 of the Act of 1996, shall raise any objection with regard to the jurisdiction of the Financial Commissioner to hear and decide the revision petition and the Financial Commissioner shall decide the legal validity or otherwise of the Mutation No. 727 of 1997 attested purportedly under Section 121 of the Act of 1996, purely on its merits. Let the revision petition be taken up for consideration by the Financial Commissioner on 6th March, 2025, on which date, the parties either in person or through their counsel, shall appear before the Financial Commissioner. 12. Having regard to the fact that the litigation between the parties is very old, the Financial Commissioner shall make an endeavor to dispose of the revision petition as expeditiously as possible and in any case, within a period of three months. Page 5 of 5 LPA 185/2024 c/w LPA 186/2024 13. It has been reported that Tirath Singh, who was contesting respondent before the Financial Commissioner has died and is survived by the petitioner and the respondent No. 7. They shall be deemed to have been substituted in place of late Tirath Singh. The revision petitioners shall file fresh Memo of Parties before the Financial Commissioner. 14. Both the appeals shall stand disposed of accordingly on the above terms. 15. Copy of this judgment be placed on each file. (Puneet Gupta) (Sanjeev Kumar) Judge Judge SRINAGAR: 19.02.2025 “HAMID” ❖ Whether the Judgement is Reportable? Yes/No ❖ Whether the Judgment is Speaking? Yes/No