FINANCIAL COMMISSIONER, J&K Vs. KARIM DAR

JUDGEMENT

(1.) THIS is a letters patent appeal against the judgment dated 30 -11 -74 of Mufti Baha -ud -Din J in writ petition No. 20 of 1971. The learned Judge has held that Act. No. XXVI of 1969 empowering the Financial Commissioner to hear and dispose of revision petitions which were hitherto entertained and disposed of by the Director of Consolidation would not affect the power of the latter to hear and dispose of the revision petitions. According to the learned Judge as the revision petition was pending before the Director of Consolidation at the time when the amending Act came into force, he had jurisdiction to hear and dispose of the revision petition. This power could not be exercised by the Financial Commissioner and therefore the order of the Financial Commissioner was without jurisdiction and was therefore liable to be quashed. Aggrieved by this judgment, the Financial Commissioner has filed this appeal. We have heared Shri A. K. Malik appearing for the appellant.

(2.) ACCORDING to section 55 which stood earlier before the Amending Act of 1969 came into force, the Director Consolidation had the power to call for the record of any case or proceedings pending before or decided by a Consolidation court or authority and pass such orders in the case or proceedings as he thought fit. This section was substituted by another section in the amending Act of 1969. According to the newly substituted section the power of revising the proceedings pending before or decided by a consolidation court or authority have been conferred on the financial Commissioner. In order words the Director Consolidation has been deviated of his jurisdiction to entertain and dispose of the revision petitions and the power has vested in the Financial Commissioner at the time when the amending Act came into force, the revision petition was pending before the Director of Consolidation, the same was taken away from the files of the Director consolidation. The financial Commissioner in exercise of his revisional jurisdiction decided the petition and disposed it of by his order dated 1 -8 -1970. It cannot be said that the order of the Financial Commissioner is without jurisdiction. Section 55 of the Amending Act gave plenary powers to the Financial Commissioner to call for the record of any case or proceeding pending before or decided by a consolidation court or authority. Surely the Director Consolidation could not after the amending Act came into force, exercise revisional jurisdiction in such matters. He ceased to have jurisdiction over them. A plain construction of the amending section leaves no room for doubt that it takes away the jurisdiction from the Director Consolidation over revisions pending before him and transfers jurisdiction over these matter to the Financial Commissioner. It is merely choice of forum which rests with legislature. For the proposition that the choice of forum relates to the realm of procedure and not to substantative law there is catena, of authorities to support that, for the sake of brevity we may refer to the observations made in AIR 1963 Mad: 149 and AIR 1932 All. 30.

(3.) AGAIN a full bench of this court has had occasion to opine on this aspect of matter. In Ramzan Darzi Vs. Mst. Azizi and others reported in 1975 J & K LR page 585 this court agreed with the view taken in the above cited cases, that was a case where the amending Act conferred jurisdiction on the Executive Magistrates to hear and dispose of petitions under section 145 Cr. P.C. where the dispute likely to cause breach of peace concerns any land as defined in the Jammu and Kashmir Agrarian Reforms Act, 1972. These powers were before the amending Act came into force exercised by Judicial Magistrates. The proposition was debated before the full bench whether the judicial Magistrates were divested of the power to hear petitions under section 145 in such cases. The full bench ruled that the amending Act had the effect of depriving the Judicial Magistrate of jurisdiction to deal with the cases specified in the amending Act with effect from the date the amending Act came into force and it conferred exclusive jurisdiction on the executive magistrates.