Ghulam Qadir Bhat V. UT of J&K and Ors.

LPA/71/2024

AI Insights

The case involves an appeal by Ghulam Qadir Bhat against an order from the Ld. Single Judge, which allowed the petitioner to approach the Tehsildar Khanyar Srinagar regarding the maintainability of proceedings initiated by respondents No. 4 and 5. The petitioner contended that the Tehsildar Khanyar lacked jurisdiction due to an ongoing suit concerning the same property before the Munsiff 1st Class Srinagar. The Ld. Single Judge's decision to allow the petitioner to raise objections directly with the Tehsildar was challenged in this appeal, arguing that an authority without jurisdiction should not initiate proceedings.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 691486 (HC-SRINAGAR)
• Appeal Type: Others
• Pronouncement Date: 25-03-2024
• Assessment Year: misc
• Other Referred Cases: Vishal Ashwin Patel Vs. Assistant Commissioner of Income Tax Cricle 25 (3) and Ors, (2022) 14 SCC 817
• Laws Referred To: Vishal Ashwin Patel Vs. Assistant Commissioner of Income Tax Cricle 25 (3) and Ors, (2022) 14 SCC 817
• Result in Favour of: Partly Allowed
• Court: HIGH COURT
• Assessee Lawyers: NISAR BHAT
• Keywords: Jurisdiction; Maintainability; Property Dispute; Writ petition; Tehsildar Khanyar

Judgement Text

"Sr. No.3 Suppl. IN THE HIGH C0URT 0F JAMMU & KASHMIR AND LADAKH AT SRINAGAR LPA No. 71/2024 in WP(C) No. 2855/2022 Ghulam Qadir Bhat …Petitioner(s)/appellant(s) Through: Mr. Nisar Ahmad Bhat, Advocate Vs. UT of J&K and Ors. ...Respondent(s) Through: None CORAM HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE WASIM SADIQ NARGAL, JUDGE O R D E R 25.03.2024 1. Heard learned counsel for the appellant. 2. Considering the nature of the case, we are of the view that the matter can be decided at this stage without issuing notice to the respondents. 3. The present appeal has been preferred against the order dated 07.02.2024 passed by the Ld. Single Judge in WP(C) No. 2855/2022 by which the Ld. Single Judge disposed of the writ petition with liberty to the petitioner to approach the Tehsildar Khanyar Srinagar and agitate the issue relating to maintainability of the application. 4. It appears that certain notice was issued by the Tehsildar Khanyar on the basis of an application made by the present respondent No. 4 and 5 which was resisted by the petitioner/appellant contending that the Tehsildar Khanyar Srinagar does not have the jurisdiction to do so in view of the pending suit before the Munsiff 1st Class Srinagar under file No. 207/N as regards the property in issue. 5. Learned Single Judge in the impugned order made the observation that whether or not the Tehsildar has jurisdiction in the case with respect to the subject matter of the application filed by the respondent No.4 and 5, the petitioner would be within his right to approach the Tehsildar Khanyar by filing his objection including the maintainability of the proceeding initiated by the Tehsildar at the instance of the respondent No. 4 and 5. 6. Under the circumstances, Ld. Single Judge disposed the writ petition with liberty to the petitioner appellant to approach the Tehsildar Khanyar and submit his response and agitate the issue about its maintainability. 7. Learned counsel for the appellant submits that since the Tehsildar Khanyar does not have basic jurisdiction, the Ld. Single Judge ought to have given a finding inasmuch as if an authority without jurisdiction initiates the proceeding, the same will be null and void and such order cannot subsist, be said to be allowed and relying on the decision of the Hon’ble Supreme Court in Vishal Ashwin Patel Vs. Assistant Commissioner of Income Tax Cricle 25 (3) and Ors, (2022) 14 SCC 817 8. It has been submitted that unfortunately, Ld. Single Judge did not give any finding as regards the plea taken by the petitioner that the Tehsildar Khanyar did not have the jurisdiction to proceed and relegated the matter to the Tehsildar. 9. However, on perusal of the impugned order, what we have noted is that though the Ld. Single Judge did not decide on the inherent lack of jurisdiction as contended by the petitioner, the Ld. Single Judge made the observation that this is an issue which can be raised before the Tehsildar. 10. In our opinion the decision of the Ld. Single Judge does not appear to be wholly impermissible inasmuch as if the Tehsildar upon being informed that the Teshisidar does not have jurisdiction to continue with the proceedings, the Tehsildar obviously cannot proceed with the matter once emphasized with the lack of jurisdiction as contended by the petitioner. 11. Under the circumstances, we do not feel that this is a fit case for interference from our side. However, we make it clear that Tehsildar before proceeding with the matter on merit must decide on the maintainability of the application on to the ground of lack of jurisdiction and if the petitioner/ appellant is aggrieved by any decision in that regard, he would have liberty to approach the competent forum to challenge any such order by the Tehsildar on the issue of the maintainability. 12. With the above observation, the present appeal is disposed of. (WASIM SADIQ NARGAL) (N. KOTISWAR SINGH) JUDGE CHIEF JUSTICE SRINAGAR 25.03.2024 Aadil "