KASHMIR AND LADAKH AT SRINAGAR v. OWP no. 438/2014 CPOWP no. 230/2018 Abdullah Wani and another Pronounced on & Ors.

challenged by respondent no.5 before Additional Deputy Commissioner with powers of Collector/Commissioner, Agrarian Reforms, Shopian, in the Appeals. Being time barred, applications for condoning delay in filing the Appeals were also filed by respondent no.5. Applications as also Appeals filed by respondent no.5 were dismissed vide Order dated 16th August 2011. Petitioners maintain that order dated 16th August 2011 was not challenged by respondent no.5 before any forum, but he made an application on 22nd February 2012, which was entertained by respondent no.1, and by order dated 23rd July 2012, submitted the matter to respondent no.1, with recommendation to set-aside Mutation Order no.138 and 143. Besides, respondent no.5 filed two Appeals against Mutation Order nos.164 and 165 before respondent no.1, who vide order dated 26th March 2014 held both the Appeals not maintainable and also held that by making recommendation dated 23rd July 2012, respondent no.2 has exceeded his jurisdiction. It is also submitted that after holding so, OWP no.438/2014 CPOWP no.230/2018 respondent no.1 set-aside all four mutation orders and remanded the case to Tehsildar concerned for de novo enquiry and thereafter to attested mutation after hearing all the parties. Petitioners are aggrieved thereof and have filed the instant writ petition.

#3. Reply has been filed by respondent no.5, wherein he has stated that parties are co-sharers. It is averred that Shaban and MstKhurshi were cousins and members of single-family unit. MstKhurshi was married as KhanaNisheen daughter and she in connivance with her husband took undue advantage of naïve and straightforwardness of respondent no.5 and managed to grab his share in the property as they entered into conspiracy with subordinate revenue agencies and managed entries by way of Saht-i-Kasht in their favour, which action of theirs was totally illegal and against spot position. They are said to have managed two mutations in their favour under Section 4 and 8 of Agrarian Reforms Act, 1976, as provisions of Agrarian Reforms Act has no application in a single-family unit and one family member cannot claim possession of land as against another family member and possession of one family member is deemed as possession of all family members under the provisions of Agrarian Reforms Act. It is also submitted by respondent that subordinate revenue agencies had made mess of all proceedings and divested respondent from his lawful share in ancestral property.

#4. Heard and considered.

#5. Learned counsel for petitioners has stated that order dated 1st August 2011 passed by Additional Deputy Commissioner, was not put to OWP no.438/2014 CPOWP no.230/2018 challenge by respondent no.5 and, therefore, the said order has attained finality and is binding on him. It is stated that respondent no.2 ought to have dismissed the application filed by respondent no.5 as it was actually a suit for possession in disguise, and the said application was entertained and decided by respondent no.2 without having any jurisdiction or legal authority and in terms of impugned order dated 23rd July 2012, respondent no.2 made recommendations to respondent no.1 for quashing mutations. Such recommendations made by respondent no.2, according to learned counsel for petitioners, are legally unwarranted and unjustified as being in violation of provisions of Section 15(2) of the Land Revenue Act. He has also contended that mutation order nos.138 and 143 had been attested in terms of provisions of the Agrarian Reforms Act and after attestation thereof, two more mutations under Section 4 and 8 of the Act were attested in favour of petitioners, whereby they were declared full and absolute owners of the land in question and therefore, respondent had no jurisdiction to set-aside the mutations. According to learned counsel for petitioner, respondent no.5 concealed the fact of having already filed an appeal against mutation order nos. 164 and 165 before Additional Deputy Commissioner, which were dismissed, before respondent no.1, who instead of dismissing appeals and rejecting the order of reference made by respondent no.2, has set-aside the mutations. Learned counsel for petitioners has placed reliance on various judgements, including those reported in AIR 1950 SC 222; AIR 1952 SC 179 on the point of issuance of writ of certiorari to quash OWP no.438/2014 CPOWP no.230/2018 judicial or quasi-judicial proceedings; AIR 1954 SC 440; AIR 1955 SC