J&K&L HC while setting aside the order of Deputy Commissioner, Kathua/Collector under the J&K Land Revenue Act whereby the Deputy Commissioner had set-aside several mutations made in favor of Petitioners by the Tehsildar and had restored the land to the State, observed that the said action of the Deputy Commissioner is unsustainable in law as he had no authority in terms of the Land Revenue Act to hpass the said order.

The Petitioners had challenged the order of the Deputy Commissioner mainly on two grounds, one, that he was not competent to pass the impugned order, as neither he had any power to exercise the revisional jurisdiction in respect of the mutations attested by the Tehsildar, nor did he had power to review the said mutation orders, and two, the order has been passed without hearing them.

The Court, accordingly, framed two issues for determination, that is,

i. Whether the Deputy Commissioner, Kathua was competent to cancel the mutation orders without there being any application or appeal from any interested person before him?

ii. Whether the mutation orders attested in favor of the petitioners could have been set at naught without hearing the petitioners?

The stand of the respondents, vis-a-vis the aforesaid issues was that the Deputy Commissioner passed the impugned order in exercise of his administrative powers and as such there was no requirement of adhering to the principle of natural justice before cancelling the mutation orders.

The Court while deciding the said issues evaluated the provisions of the Land Revenue Act, more specifically, Sections 6, 11, 13 and 15, and ruled that though Deputy Commissioner is vested with appellate powers against an order of the Tehsildar (Assistant Collector), however, since it is not the case of the respondents that there was an appeal filed before him against such mutations, thus, it cannot be said that he has exercised appellate powers under Section 11 of the Act. Further, since the mutation orders were not passed by the Deputy Commissioner, but, the Tehsildar, as such, he can’t be said to have exercised suo moto power of review under Section 13 either, and since, the Deputy Commissioner does not have powers of revision under Section 15, it cannot be stated that in passing the order impugned he exercised his revisional jurisdiction.

Further, the Court, rejecting the arguments of the Respondents held that the power to attest a mutation as also the power to set aside the mutation, is quasi-judicial in nature, and not administrative, and it has to be exercised strictly in accordance with the provisions contained in the J&K Land Revenue Act and that too after affording an opportunity of hearing to the affected party by adhering to the principles of natural justice.

The Court while setting-aside the order of the Deputy Commissioner observed, “In the instant case, respondent No. 2, Deputy Commissioner, Kathua has adopted a novel approach by exercising powers of review in respect of the orders passed by the Tehsildar, who is a subordinate Revenue Officer. This has been done by respondent No. 2 without even putting the affected party to notice. The manner in which respondent No. 2 has proceeded to set at naught the mutation orders attested in favour of the petitioners clearly exhibits arbitrariness on his part.”