Revenue authorities can’t interfere in pending civil suit: HC

Srinagar, Dec 1: The High Court of J&K and Ladakh Monday, overturned orders by revenue authorities, saying that no officer could issue directions that may prejudice or interfere with a matter already pending before a civil court.

In his plea, one Abdul Rashid Khan had assailed orders dated March 3, 2016 passed by Financial Commissioner Revenue Department J&K, May 23, 2016, by Divisional Commissioner Kashmir and February 27, 2018, by Tehsildar Pattan. He had also sought protection from alleged harassment by authorities and requested that he be allowed to use and enjoy his property without obstruction.

While dealing with the plea, a bench of Justice Waseem Sadiq Nargal observed that the claim of Bashir Ahmad Ganie of Pattan regarding the existence of a pathway through the Khan’s land was unsupported by any revenue record. The court noted that the “revenue record, which constitutes the primary and authoritative source for determining the nature and character of land, does not reflect any such pathway”.

In an order dated March 24, 2016, the Sub-Judge, Pattan after examining pleadings and the Patwari’s report had already held that no pathway existed on Khan’s land and the bench referred to this trial court’s order.

Mere use of private land as a passage in the past did not create an easement of necessity, and the balance of convenience favoured the landowner whose property was properly fenced, the trial court had said.

Khan’s claim was that he is the lawful owner of two kanals of land on which he constructed his house after purchase. According to him, Ganie owns land in the adjoining patch and already has access through two approach roads. He supported his claim by “revenue extracts”. However, after Khan fenced his land and raised construction, Ganie approached the Tehsildar concerned, alleging encroachment on an “alleged common pathway.”

After the Tehsildar was informed that a civil suit on the issue was already pending, he initially directed that proceedings before him would remain on hold until the civil court’s decision. Subsequently, Tehsildar Pattan directed Khan to remove the alleged obstruction from the pathway within five days.

The High Court noted that in that civil suit, the trial court had vacated an interim status quo order that was earlier granted in favour of Ganie, finding no prima facie right in his favour.

Setting aside the revenue orders, the High Court reiterated that once a civil dispute is seized by a competent court, parallel proceedings by subordinate authorities cannot be permitted to create prejudice or influence the outcome of the judicial process.

“The Tehsildar, despite being fully aware of the pendency of the civil suit, proceeded to decide the matter unilaterally,” the court said “Such conduct is squarely barred by the doctrine of res sub judice, also by the settled principle that subordinate authorities cannot pass orders which may prejudice or interfere with the adjudication pending before the civil court.

“The respondents, being quasi-judicial authorities, are expected to act in a manner that inspires confidence, adheres to the procedure established by law and by no stretch of imagination can deal with the issue simultaneously which is substantially in issue before the competent Civil Court,” the court said. The authorities, it said, had acted in blatant violation of the settled principles of law.

The bench observed that the “jurisdiction of the civil court is superior to, and overrides, that of the revenue authorities, particularly in matters concerning title, possession, or any civil rights in respect of immovable property”.

The court noted that the material on record clearly establishes that the dispute pertains to private rights between two individuals and does not involve any public right or common pathway as contemplated under section 3 of the J&K Common Lands (Regulation) Act, 1956. “Therefore, the impugned proceedings stand vitiated and are not sustainable in the eyes of law,” it said.

In keeping with the reasons stated, the Court allowed Khan’s petition and quashed the orders on March 3, 2016, May 23, 2016, and February 27, 2018 passed by the revenue authorities.