Scope Of Writ Petition Under Article 226 Of Constitution Is Limited: Jammu & Kashmir & Ladakh High Court Points Out Exceptions Where Petitions Can Be Entertained

The intra-court appeal was directed against the judgment whereby the writ court dismissed the writ petition filed by the appellants under Article 226 of the Constitution, challenging the order passed by the first respondent (Financial Commissioner, Revenue, Jammu & Kashmir) for restoration of the mutation of Sehat-Indrej with respect to the land in question.

The Division Bench of Justice Sindhu Sharma and Justice Shahzad Azeem also explained, “Scope of the writ petition under Article 226 of the Constitution of India is limited and following are exception where writ petition can be entertained: (I) Where the writ petition seeks enforcement of any of the fundamental rights; (II) Where there is failure of principles of nature justice; or (III) Where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.”

Factual Background

The land was stated to be the proprietary land of Devi Singh, Hans Raj, Mst. Renu and Janki (owners), however, their ownership rights had been extinguished in the said landed estate, under the provisions of the Jammu & Kashmir Big Landed Estates Abolition Act, Svt. 2007 (1950 A.D.) [Act of 1950] and the same were transferred in favour of tillers, namely, Dittu S/o Taru and Dalipu S/o Niku R/o Badyari in equal shares, and they were recorded as joint owners. Dittu and Dalipu were the predecessors-in-interest of the appellants and respondents, who are the appellants-petitioners and respondents, respectively. In the year 1986, a mutation of “Sehat Indraj” No. 225 was attested in favour of Bishan Dass S/o Dittu (Predecessors-in-interest of the appellants) on the ground that he was in cultivating possession of the land in question.The name of Dalipu, i.e. predecessor-in-interest of respondents 6 and 7, was deleted from the record of rights, but the said action of attestation of mutation No. 225 in favour of Bishan Dass S/o Dittu was impugned, before the respondent Tehsildar. Bishan Dass was declared a trespasser of the land belonging to the estate Sehar Timber.

This action of the respondent Tehsildar was challenged by the said Bishan Dass by way of an appeal before the respondent- Additional Deputy Commissioner, Kathua, who upheld the entries of Jamabandi 1967-68, whereunder Dittu and Dalipu (predecessors-in-interest of parties) were reflected as co-sharers and as a corollary to the orders of the respondent Additional Deputy Commissioner, Kathua, the respondent Tehsildar, Kathua attested a fresh mutation bearing No. 295, reflecting therein the cultivating possession of Dalipu (predecessor-in-interest of respondents 6 and 7). The appellant-petitioners’ revision and appeal failed. It was in such circumstances that the LPA came to be filed before the High Court.

Reasoning

The Bench noted that the appellants were aggrieved by the findings of the writ Court, whereby it was held that the appellants never questioned the legality of the order passed by the Additional Deputy Commissioner, Kathua, pursuant to which the mutation No. 295 was attested. The Bench noted that the attestation of the mutation no. 295 was the very foundation of the findings returned by the Additional Deputy Commissioner, and failing to challenge the same amounted to accepting the findings returned therein. Those findings had assumed finality. “...therefore, the appellants cannot be heard to say that the same was a remand order and it was not required to be challenged”, it said.

The Bench noted that once the mutation came to be attested in favor of the parties in equal shares, in that event the mutation No. 225 (Sehat Indraj) legally could not have been attested in favor of Bishan Dass (predecessor-in-interest of the appellant) by deleting the name of Dalipu (predecessor-in-interest of respondents 6 and 7). The same was in contravention of paragraph 100 of the Standing Order No. 23-A, which deals with the Sehat Indraj and changes and envisages only the correction of clerical errors etc. Therefore, the findings of the writ Court were held to be based on a sound interpretation of the provisions of statute and principles of law.

The Bench thus held, “We concur with the findings of the learned writ Court that the writ Court in exercise of power of judicial review under Article 226 of the Constitution of India, cannot convert itself to an appellate or revisional forum and thus, the scope of interference is limited to the extent that if any perversity or jurisdictional error is shown, however, in the case on hand the appellants all along have raised factual pleas and there are concurrent findings recorded by the revenue authorities.”

Finding no plausible ground for indulgence, the Bench dismissed the appeal.

Cause Title: Ravinder Kumar v. Financial Commissioner, Revenue, Jammu & Kashmir, Jammu (Neutral Citation: 2025:JKLHC-JMU:168)

Appearance

Appellant: Advocate G.S. Thakur

Respondent: Advocate S.K. Anand

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