Jammu & Kashmir High Court - Srinagar Bench
Wali Mohammad Magrey & Anr vs Ali Mohammad Gujree & Ors on 20 December, 2021
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU & KASHMIR, AND LADAKH
AT SRINAGAR
LPA(OW) no.29/2018
&
LPA(OW) no.30/2018
Reserved on: 09.12.2021
Pronounced on: 20.12.2021
Wali Mohammad Magrey & anr.
... Appellants
Through:
Mr. M. A. Qayoom, Advocate with Mr. Mian Muzaffar, Advocate.
v.
Ali Mohammad Gujree & ors.
...Respondents
Through:
Mr. Z. A. Qureshi, Advocate with Ms. Raziya, Advocate.
Coram:
Hon'ble Mr. Justice Ali Mohammad Magrey, Judge.
Hon'ble Mr. Justice Mohd Akram Chowdhary, Judge.
Judgment Per Magrey, J:
1. These two Letters Patent Appeals call in question the common judgment and order dated 06.03.2018 of the learned Writ Court allowing two writ petitions, OWP nos. 1396/2012 and 1397/2012, filed by respondent no.1 herein challenging a common order dated 17.09.2012 passed by the Joint Financial Commissioner (AR), J&K, Srinagar, in two revision petitions against mutations filed by the appellants herein.
2. The appellants herein filed two revision petitions on 25.07.2005 before the Joint Financial Commissioner, challenging mutation nos. 164 and 192 of village Nagabal, Ganderbal, attested by Naib Tehsildar, Ganderbal, on 14.08.1993 and 09.04.1994, respectively. The respondent no.1 herein, who happened to be respondent no.3 in the aforesaid two revision petitions, filed two separate applications in the aforesaid two revision petitions with the prayer that the revision petitions be dismissed as time barred. It was pleaded by him therein that since the revision petitions against the mutations in question had been filed after almost 12 years' delay and no application for condonation of delay was filed, nor any sufficient cause was shown for such delay, the revision petitions were not maintainable.
3. The Joint Financial Commissioner, by a common order dated 17.09.2012 dismissed the applications so filed by respondent no.1 herein, holding the revision petitions maintainable and posting the case for further hearing on 15.10.2012.
4. Aggrieved by the aforesaid order dated 17.09.2012 passed by the Joint Financial Commissioner, respondent no.1 herein filed two separate writ petitions for quashing the said order insofar as thereby his applications were dismissed, holding that the revision petitions were within time.
5. It is seen that before the learned Writ Court, the point argued was whether revision petitions filed under Section 15 of the Jammu and Kashmir Land Revenue Act, 1996 BK (1939 AD) were governed by the relevant provision of the Limitation Act and whether objection to the maintainability of the revision on the ground of latches could be taken at a belated stage. The learned Single Judge held that the revision petitions were expressly barred by time, therefore, it was incumbent on the revision-petitioners to file applications for condonation of delay which, admittedly, had not been filed; and that it was necessary for the party invoking the jurisdiction of the Joint Financial Commissioner to plead and show that they had sufficient cause in filing the revisions after such a huge and inordinate delay of, approximately, eleven years. Holding so, the learned Single Judge set aside the common order dated 17.09.20123 passed by the Joint Financial Commissioner impugned in the writ petitions with a liberty to the respondents (appellants herein) to seek redressal of their grievances, if any, before the competent forum, if available, and, further observing: whether the remedy would or would not be barred by the law of limitation shall be determined by that forum alone.
6. The original revision-petitioners, respondents in the writ petition, have challenged the aforesaid decision of the learned Writ Court in the present two LPAs. In the LPA it is pleaded that in their objections/counter affidavit it was, inter alia, stated by the appellants that the condonation of delay falls within the realm of discretionary powers of the Joint Financial Commissioner with the powers of Financial Commissioner and as the Joint Financial Commissioner exercised the discretion of condoning the delay and dismissed the application of respondent no.1 filed by him for dismissing the revision petitions on the said ground, the writ petitions were liable to be dismissed. The case put forth is that the learned Writ Court without examining and considering the objections raised by them allowed both the writ petitions. It is also pleaded that the writ petitions were not maintainable on account of the fact that the Joint Financial Commissioner was not impleaded as a party respondent therein. Citing the judgment of the Supreme Court in Madan Lal v. State of U. P., AIR 1975 SC 2985, it is also pleaded that the date of order has to be understood as the date of knowledge of the order, and that in view of such settled position of law, the period for filing of revision petitions against the mutation orders in question started on the day when the appellants came to know about the said orders. According to the appellants, this vital aspect of the matter has not been considered by the learned Writ Court while passing the impugned common judgment. Further, citing the judgment of the Supreme Court in B. S. Sheshagiri v State of Karnataka, (2016) 2 SCC 123, wherein it has been held that in the absence of an application for condonation of delay, the exercise of the power by the Minister for Corporation, the State Government of Karnataka, must be taken as a suo moto exercise of power by him, it is pleaded that the orders passed by the Joint Financial Commissioner in rejecting the application of respondent no.1 was perfectly valid and, consequently, the order passed by the learned Writ Court is legally imperfect and, therefore, liable to be set aside. Relying on the aforesaid Supreme Court judgment, it is further pleaded that the judgment passed by the learned Writ Court is perverse and, therefore, liable to be set aside.
7. Heard learned counsel for the parties and considered the matter.
8. The learned counsel for the parties have mostly directed their arguments for and against the point of applicability of the law of limitation on revision petitions filed under Section 15 of the J&K Land Revenue Act. Both the learned counsel in an attempt to buttress their arguments cited and relied upon some judgments as well. Furthermore, Mr. M. A. Qayoom, learned counsel for the appellants, also laid much stress on his argument that the date of knowledge of the order should, and has to be, understood as the date of order and has sought to derive support from the judgment of the Supreme Court in Madan Lal v. State of U. P (supra).
9. Having regard to the pleadings of the appellants made by them in their revision petitions and, in fact, reiterated in the objections/reply to the writ petitions, the memos of the present LPAs and in the arguments advanced at the Bar, we are of the considered view that the appellants have been conscious of the fact that the law of limitation very well applied to the revision petitions filed by them before the Joint Financial Commissioner. The fact that the appellants were conscious of the applicability of the law of limitation to the revision petitions is conclusively established by the identical statements / pleadings made by them in para 8 of the revision petition challenging mutation no.164 dated 14.08.1993 and in para 10 of the revision petition challenging mutation no.192 dated 09.04.1994. Para 8 of the first revision petition is reproduced hereunder:
"8. That impugned mutation has been attested without summoning petitioners and at their back. Petitioners have been condemned unheard. Petitioners at all had no knowledge of this mutation till 21.7.2005. On this date petitioners got knowledge of impugned mutation for the first time. Petitioners immediately applied for an attested copy and after obtaining same on 25.7.2005 revision petition is submitted before your honour without waiting any time."
Perusal of the order dated 17.09.2012 reveals that the learned Joint Financial Commissioner gave weightage to the aforesaid statements/pleadings of the appellants made by them in paras 8 and 10 of the two revision petitions, respectively, in holding the revision petitions within time and in dismissing the applications filed by the respondent no.1 herein for dismissing the revision petitions as time barred on the ground that no application for condonation had been filed with the revision petitions. Furthermore, the appellants in para 5 of their objections/counter affidavit to the writ petitions have, inter alia, stated that the learned Joint Financial Commissioner has considered the matter of condonation as projected in para 10 of revision petitions filed by the answering respondents 1 and 2 on exercise of sound discretion in accordance with law. The 'law' spoken about in this pleading by the appellants, obviously, is the law of limitation. It is a different thing whether the point sought to be put forward is legally tenable or not and whether the Joint Financial Commissioner's view was legally correct or not. What is pertinent is that the appellants have been conscious and admitting the applicability of the law of limitation in the revision petitions. The argument of Mr. Qayoom that date of knowledge of the order should be understood as the date of order also makes the same fact axiomatic. Viewed thus, the only question to be determined would be whether the Joint Financial Commissioner was legally right in giving weightage merely to the submission of the petitioners that they had got the knowledge of the impugned mutations on 26.07.2005 and 21.07.2005, and on that submission alone holding that the revision petitions were within time limit?
10. Notwithstanding the above, it becomes imperative for this Court to reiterate the law on the subject, more particularly in view of the fact that there are decisions rendered by different Benches of the learned Writ Court, from time to time, as would be referred to later herein, including the judgment reported as Mst. Akhtara v. State of J&K & ors., 2009(I) SLJ 20, [cited before, and referred to by, the Joint Financial Commissioner in his order] which have come to our notice during the course of hearing of this case, wherein a different view has been taken to the effect that there is no limitation prescribed for filing a revision petition under Section 15 of the J&K Land Revenue Act. In fact, one of the learned Single Judges of this Court in Ayoub Gujar & ors. v. Financial Commissioner, Revenue & ors., OWP no. 184/2015 decided on 14.03.2018, (para 9 of the judgment) has observed that there are conflicting judgments on the point, in that some judicial pronouncements lay down that Section 12 of the Land Revenue Act prescribes a period within which a revision can be filed by a party, and, on the contrary, there are judgments which hold that the powers of the Financial Commissioner in revision petitions are unfettered and a revision can be entertained by the Financial Commissioner at any point of time under Section 15 of the Land Revenue Act. The learned Single Judge has then proceeded to consider the point at length and return a finding, holding as under:
"31. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third-party rights that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statue that vests such power in an authority."
We, at the very outset, wholly agree with the above view taken by the learned Single Judge [in Ayoub Gujar & ors. v. Financial Commissioner, Revenue & ors. (supra)].
11. It is not that the question had not come earlier before this Court for consideration. Way back in 1986 a similar question has been dealt with by a Division Bench of this Court in Rajinder Singh alias Prithpal Singh v Mst. Damodari, LPA(Writ) no.52 of 1979 decided on 03.06.1986 (unreported), referred to by the learned Single Judge in the impugned judgment, though that DB judgment was in context of a review petition under Section 30(5) of the Evacuees' (Administration of Property) Act, Svt. 2006 (Evacuees' Property Act) providing for review of their own orders by the Custodian General, Custodian, Additional Custodian or the authorised Deputy Custodian read with Rule 27(6) of the Evacuees'(Administration of Property) Rules, Svt. 2008 (Evacuees' Property Rules), providing that an application for review of any order may be made within thirty days of the date of such order. In that case, a review petition was filed before the Custodian General on 03.01.1968 against his order dated 30.11.1967 passed while accepting a revision petition. The aggrieved party Mst. Damodari challenged the same in a writ petition. The learned Writ Court allowed the writ petition and remanded the case back to the Custodian General with liberty to the petitioner to take the question of limitation of the application for review before the Custodian General. The Custodian General after fresh hearing, passed the very same order again. That order was again challenged by Mst. Damodari before the learned Writ Court. The Writ Court allowed her writ petition, holding the review application as time barred. In the LPA filed against the Writ Court order, the appellant raised an argument that Rule 27 sub-Rule (6) of the Evacuees' Property Rules, which prescribes for a period of thirty days for review application cannot be a bar for the Custodian General to entertain the application thereafter. In that connection, the learned counsel for the appellant had cited the Division Bench decision in Begum Hamida Malik v. State of J&K, 1976 J&K L.R. 241, and the Full Bench decision in Ghulam Rasool Wadera v. Mohammad Saleem, 1978 K.L.J. 415, and submitted that, as held by their lordships in the said two authorities, that the question of limitation for review by the Custodian General was of no import and, therefore, the findings of the learned Single Judge holding the review before the Custodian General as barred by time was not in accordance with law. In reply to such arguments, the opposite counsel submitted that the Custodian General had not taken up the case for review under suo moto powers but the same having been initiated on a petition, the Custodian General had no jurisdiction to condone the delay without any application as required under Section 5 of the Limitation Act. In the peculiar facts attendant to that case and in the above background, the Division Bench held that any authority empowered to exercise suo moto powers under the law either to review or revise can do so only after notice to the respective parties signifying his intention to them to the effect that the authority chooses to exercise such powers. In the absence of such an exercise of power, when review or revision was initiated on an application by any party, the authority or the person concerned was bound by the law of limitation. The same ratio was subsequently followed in several judgments by the learned Writ Courts, including in Lt. Col. Sunit Singh (Retd.) v The Financial Commissioner, 1989 SLJ 507, referred to and relied upon by the learned Single Judge in the instant case and Mst. Mali v State of J&K, 2007 (2) JKJ 459.
12. It may be reiterated here that Section 30 of the Evacuees' Property Act (under the caption: appeal, review and revision), governing Rajinder Singh alias Prithpal Singh v Mst. Damodari (supra) in its sub-section (4) provided that the Custodian General or the Custodian may, at any time, either on his own motion or on application made to him in this behalf, call for the record of any proceeding under the Act, and sub-section (5) thereof provided for review of orders. There is no limitation provided in these sub-sections of Section 30 of the said Act. However, Rule 27 of the Evacuees' Property Rules, captioned appeal, review and revision, in its sub-rule (5) provided thirty days' limitation for revision before the Custodian and sixty days for a revision made to the Custodian General, and in its sub-rule (6) provided thirty days' for review. In context of such express provisions of law the Division Bench in the above case held what has been mentioned hereinabove. So far Lt. Col. Sunit Singh (Retd.) v The Financial Commissioner (supra) is concerned, that was a case arising out of the provisions of Big Landed Estates Abolition Act, Svt. 2007. It is seen that Section 30 of that Act provides for appeals and revision. Sub-section (3) thereof provides that the Financial Commissioner or Commissioner may call for the record of any case pending before or disposed of by any revenue officer subordinate to him; then Sub-section (4) provides that if in any case in which a Commissioner has called for the record, he is of the opinion that the proceedings taken or the order made should be modified or reversed, he shall report that case with his report thereon for orders of the Financial Commissioner; and sub-section (5) provides that the Financial Commissioner may, in any case called for by him under sub-section (3) or reported to him under sub-section (4), pass such order as he thinks fit. However, there is no provision in the Act or under the aforesaid Section 30 of the Act providing for any limitation for such revision; the limitation is provided only for appeals thereunder. Obviously, it appears that the Court, in context of this fact, while dealing with the aforesaid case, applied the ratio of the judgment in Rajinder Singh alias Prithpal Singh v Mst. Damodari (supra).
13. Coming to the relevant provisions of the Land Revenue Act, with which we are concerned herein, it is seen that Section 12 thereof provides for limitation for appeals, revisions and reviews and Section 15 provides for power to revise order. The two Sections are quoted hereunder:
"12. Limitation for appeals, revisions and reviews (1) Save as otherwise provided in this Act, the period of limitation for an appeal under the last foregoing section shall be as follows.--
(a) when the appeal lies to the Collector or an Assistant Collector of the first class ... 60 days;
(b) when the appeal lies to the Financial Commissioner or Divisional Commissioner ... 90 days;
Provided that, in the Districts of Ladakh and Gilgit twice the ordinary period of limitation for appeals under this section shall be allowed.
(2) Such provisions of the Limitation Act as apply to appeals, applications for revision and review in civil suits shall also apply to appeals, applications for revision and review under this Act. "
"15. Power to revise order (1) The Financial Commissioner may at any time call for the records of any case pending before or disposed of by any Revenue Officer under his control.
(2) The Divisional Commissioner may call for the record of any case pending before or disposed of by any Revenue officer subordinate to him.
(3) If in any case in which the Divisional Commissioner has called for a record he is of opinion that the proceedings taken or order made should be modified or revised he shall report that case with his opinion thereon for the orders of the Financial Commissioner.
(4) The Financial Commissioner may, in any case called for by him under sub-section (1) or reported to him under sub-section (3) pass such order as he thinks fit;
Provided that he shall not under this section pass an order reversing or modifying any proceeding or order of a subordinate officer affecting any question of right between private persons without giving those persons an opportunity of being heard."
It be seen that whereas Sub-section (1) of Section 15, providing for power to revise orders, uses the phrase 'at any time', meaning at any time, without reference to limitation, Sub-section (2) of Section 12 provides that such provisions of Limitation Act as apply to applications for revision etc. in civil suits shall also apply to revisions etc. under the said Act. Obviously, Sub-section (1) refers to the suo moto exercise of power of revision by the Financial Commissioner and Sub- section (2) of Section 12 refers to the revisions initiated under Section 15 of the Act at the instance of an aggrieved party. The provision of the law in Sub-section (2) of Section 12 of the Land Revenue Act, thus, expressly, clearly and unambiguously provides limitation period for revision applications under the Act, as being the same as provided for revisions under the Limitation Act in civil suits. The plea or the contention that the law of limitation is not attracted to the revision applications under the Land Revenue Act does not hold good. The judgments cited at the Bar and relied upon by Mr. M. A. Qayoom are either not attracted or are distinguishable on facts.
14. It may also be equally relevant to mention here that, of course, there is no limitation period as such prescribed under the Limitation Act for revision applications in civil suits. However, it has been consistently held by this Court that normally a revision petition shall be filed within the same period as is prescribed for filing an appeal against a decree or order, which, admittedly, is 90 days (See Rahman Labroo v. Rajab Labroo, 1982 SLJ 489 : JKJ Soft JKJ/24100. We reiterate the law so laid down.
15. Now, coming to the question arising in this case for determination whether the Joint Financial Commissioner was legally right in giving weightage merely to the submission of the petitioners that they had got the knowledge of the impugned mutations on 26.07.2005 and 21.07.2005, and on that submission alone holding that the revision petitions were within time limit, it would suffice to say that such a plea or assertion would constitute a fact to be properly pleaded and established in accordance with law in an application under section 5 seeking extension of the period of limitation. Even if one goes by the argument of Mr. Qayoom that date of knowledge has to be taken as the date of order, but it has to be properly pleaded as provided by the law of limitation and established in accordance with law, and once proved, it would constitute a sufficient ground for condonation of delay. A mere statement of the counsel that the revision petitioner had come to know about the mutation orders on a particular date would not constitute or tantamount to a proven fact and, therefore, could not have been relied upon to hold the petitions to be within time. The Joint Financial Commissioner has thus fallen into a grave error in so doing and in dismissing the respondent's application seeking dismissal of the revision petitions on the ground of the same being suffering from latches.
16. In view of the above, we find no merit in the instant LPAs. The same, therefore, deserve to be dismissed.
17. Now that we have come to a definite conclusion that a revision arising out of the provisions of the Land Revenue Act under Section 15 thereof, initiated at the instance of an aggrieved party, would attract the law of limitation, the judgments of the learned Single Benches, which hold to the contrary, expressing conflicting view, would continue to baffle the revenue authorities and the legal practioners. Those judgments, obviously, do not lay down a good law and, therefore, need to be, and are, declared so. Some of these judgments, which have come to our notice are mentioned herein: (i) Mst. Akhtara v. State of J&K & ors., 2009(I) SLJ 20; (ii) Sukhdev & anr. v. Financial Commissioner & ors., 2005 (II) SLJ 716 (to the extent it holds so); and (iii) Mst. Azizi v Mst. Fata, 2003(II) 599 (to the extent it relates to and deals with the point in question).
18. Resultantly, these LPAs are dismissed alongwith connected CMPs and the interim directions are vacated.
19. There shall be no order as to costs.
(Mohd Akram Chowdhary) (Ali Mohammad Magrey)
Judge Judge
Srinagar,
20.12.2021
Syed Ayaz Hussain, Secy
Whether approved for reporting: Yes
SYED AYAZ HUSSAIN
2021.12.20 12:22
I attest to the accuracy and
integrity of this document