AHAD RESHI Vs. JOINT FINANCIAL COMMISSIONER

JUDGEMENT

(1.) On the basis of an oral gift by one Abdullah in favour of the petitioner, a mutation No. 281 dtd. 15/11/1996 was attested by Tehsildar Kreeri, Baramulla in respect of land measuring 10 kanals, 15 marlas covered under Survey No. 902 (05 k, 18 m) and Survey No. 905 (04 k, 17 m) ['the subject land'] of Estate Dandmoh, Tehsil and District Baramulla. The said mutation was assailed by respondent No.4 in a revision petition filed before Additional Commissioner (with powers of Divisional Commissioner), Kashmir on the ground that the donor Mr. Abdulah, who was himself the owner of only 02 kanals and 03 marlas of land out of the subject land, was not competent to make the gift of entire subject land and that while attesting the mutation, the Attesting Officer had not followed the procedure prescribed under Standing Order 23-A. The Additional Commissioner, Kashmir accepted the revision petition and recommended the mutation dtd. 15/11/1996 (supra), to be set aside in a Reference made to the Joint Financial Commissioner (with powers of Financial Commissioner, Revenue) J&K, Srinagar. The aforesaid mutation was set aside by the Additional Commissioner, Kashmir, Srinagar primarily on the ground that the mutation was in disregard to Sec. 123 of the Transfer of Property Act Svt., 1977 and in violation of Standing Order 23-A having been attested on the basis of an oral gift at the back of respondent No.4.

(2.) The Reference before the Joint Financial Commissioner was contested by the petitioner as well as by respondent No.4. The Joint Financial Commissioner, vide his order dtd. 18/8/2021 ['the impugned order'], did not accept or reject the Reference, but instead, invoked suo motu revisional powers and set aside the impugned mutation. The Jt. Financial Commissioner also directed to restore the entries existing prior to attestation of the mutation aforesaid. Respondent No.4 was, however, left to seek the partition to claim his recorded share by approaching the competent authority. It is this order dtd. 18/8/2021 passed by the Jt. Financial Commissioner which is called in question by the petitioner in this petition.

(3.) The impugned order is assailed by the petitioner, primarily, on the ground that the Jt. Financial Commissioner, Revenue, J&K, Srinagar, hearing a Reference made to it by the Additional Commissioner, Kashmir with the recommendation to set aside the mutation, could have either accepted the Reference or rejected the same. It is submitted that the Jt. Financial Commissioner, while hearing the aforesaid Reference, was not competent to exercise suo motu revisional powers to pass the impugned order. It is contended by learned counsel for the petitioner that even if it is assumed that the Jt. Financial Commissioner was competent to exercise the suo motu revisional powers, yet, it was incumbent upon him to give the petitioner and other affected parties an opportunity of being heard on the action proposed to be taken in exercise of such power.