‘Natural justice violated, due process ignored’
Quashes orders passed by FCR, Div Com, Tehsildar
Mohinder Verma
JAMMU, Dec 1: In a strongly worded judgment, the High Court of Jammu & Kashmir and Ladakh has quashed three orders passed by Tehsildar Pattan, Divisional Commissioner (Div Com) Kashmir and Financial Commissioner Revenue (FCR) after finding that the officials acted in blatant violation of settled law, natural justice and jurisdictional limits while adjudicating a private land dispute already pending before a Civil Court. Moreover, the High Court reaffirmed that Civil Court jurisdiction is superior and revenue authorities are legally bound to defer proceedings when the subject matter is before a civil forum.
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Justice Wasim Sadiq Nargal, while allowing a petition filed by 60-year-old Abdul Rashid Khan of Kongamdara in Pattan area of Baramulla district, held that the entire proceedings initiated at the behest of private respondent Bashir Ahmad Ganie were vitiated, arbitrary, without jurisdiction and unsustainable in the eyes of law as the matter was already pending adjudication before a Civil Court.
The High Court quashed the orders dated 03.03.2016, 23.05.2016 and 27.02.2018 and directed authorities not to disturb the existing position on the ground or harass the petitioner. It also affirmed the petitioner’s right to peaceful use and enjoyment of his property.
The petitioner had purchased two kanals of land under Survey No.1607 at Nawlari, Pattan and constructed a house there. Bashir Ahmad Ganie claimed that a pathway existed through the petitioner’s land providing him access to his land in Survey No.1606.
The High Court observed, “the Tehsildar had initially kept his proceedings in abeyance on 12.12.2015 after acknowledging that a civil suit between the parties was pending before the Sub Judge, Pattan. However, without assigning any reason, the same Tehsildar suddenly passed the order dated 03.03.2016 directing removal of an alleged obstruction on the common pathway,” adding, “this is a serious procedural irregularity that strikes at the root of the decision-making process”.
Quoting Section 10 CPC and relying on the Supreme Court and its own precedents, the High Court reiterated, “once a civil court is seized of the matter, revenue authorities cannot simultaneously adjudicate the same issue,” adding, “the revenue authority became functus officio the moment the civil suit was filed”.
Justice Nargal found that none of the revenue records showed the existence of any pathway through the petitioner’s land. The Sub-Judge Pattan had also, on 24.03.2016, rejected the claim of private respondent after examination of the Patwari report.
The Civil Court had held that mere use of private land does not create an easementary right, no pathway existed in the records, balance of convenience favoured the landowner and accordingly vacated the interim relief earlier granted to the private respondent.
The High Court said these findings further weakened the respondent’s claim and yet were ignored by the revenue authorities. Setting aside the order of the Divisional Commissioner dated 23.05.2016, the High Court observed that the officer failed to notice that the Tehsildar revived proceedings despite a pending civil suit, wrongly upheld an order passed without jurisdiction and directed restoration of a pathway that did not exist in revenue records.
Justice Nargal emphasised that the Divisional Commissioner overlooked important factual and legal aspects essential for deciding the matter. A major procedural lapse noted by the High Court was that the revision petition before the Divisional Commissioner, originally listed for 29.06.2016, was taken up and disposed of in haste on 23.05.2016 without any application for preponement or notice to the petitioner.
Calling it a direct assault on natural justice, the High Court cited a 2024 Supreme Court ruling and held that preponement of hearing without notice to the affected party is completely illegal and contrary to elementary principles of natural justice. “The absence of any recorded reason or application for preponement rendered the order unsustainable”, the High Court added.
Tehsildar Pattan had invoked Section 3 of the J&K Common Lands (Regulation) Act, 1956 and relied on the judgment in “Sabir Dar Versus Deputy Commissioner, Anantnag”. But, the High Court held this reliance as misconceived and misplaced because the dispute was a private dispute between two individuals, not involving rights of the general villagers.
The High Court also noted that private respondent withdrew his appeal before the District Judge Baramulla immediately after obtaining a favourable order from the Divisional Commissioner. This, the High Court observed, appeared to be a calculated attempt to circumvent the jurisdiction of the Civil Court and highlighted procedural manipulation.
“The jurisdiction of the Civil Court is superior to, and overrides, that of the revenue authorities, particularly in matters concerning title, possession, or any civil rights in respect of immovable property. Once a civil suit is pending on the same subject-matter, the revenue authorities are expected to defer their proceedings so as not to prejudice or conflict with the adjudication before the Civil Court”, Justice Nargal concluded.
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