Habibullah Mir And Anr vs Ghulam Rasool Dar And Ors on 22 May, 2025

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Jammu & Kashmir High Court - Srinagar Bench

Habibullah Mir And Anr vs Ghulam Rasool Dar And Ors on 22 May, 2025

1. This batch of letters patent appeals arise from a common order dated 07- 07-2022 passed in a batch of OWP's titled "Ghulam Rasool Dar vs State of JK and Ors", whereby the learned Single Judge [ 'the Writ Court'] has proceeded to allow all the writ petitions by quashing the order dated 27.02.2018 passed by the Financial Commissioner (Revenue), J&K, Srinagar with further direction to revisit and reconsider the matter afresh after affording an opportunity of being heard to the parties, besides, pending said consideration, the parties have been directed to maintain _________________________________________________________ LPA No. 171/2022 and connected appeals Page No: 1 status-quo. The impugned judgment is called in question precisely on the ground that the revision petitions were ex-facie, time barred and the Financial Commissioner (Revenue) instead of dismissing the petitions has postponed its decision pending consideration by Civil Court. That the writ court landed in legal error by directing remand of the cases with further direction to maintain status-quo on spot which has the connotations of depriving the appellants of their right of enjoyment over the property which they have purchased from respondent No. 1 in accordance with law on the strength of duly registered sale deeds. On that basis, mutations have been attested in favour of the appellant and proforma respondents. That the mutation has been attested strictly in accordance with law and the respondent No. 1 has, by abuse of process of law, filed the revision petitions questioning the mutation being violative of Section 13 and 31 of the Agrarian Reforms Act, 1976 that had no application because Section 31 does not exist in the statute. Whereas, application of Section 13 was clearly not tenable because the land is in cultivating possession of owners and there is no material to describe that the appellants have utilized the land in contravention of said provision.

2. Briefly stating, respondent No. 1 vide various sale-deeds (8 in number) duly executed and registered before Sub-Registrar concerned between 31.08.1998 and 04.09.2002 transferred land measuring 26 Kanals and 1 Marla on the strength whereof, various mutations were attested in the name of vendees, i.e., the appellants and proforma respondents. It was on 08.02.2017 that the original seller (present respondent No. 1) filed petition u/s 15 of J&K Land Revenue Act seeking setting aside of mutation No's. _________________________________________________________ LPA No. 171/2022 and connected appeals Page No: 2 597, 598, 599, 616, 619, 777, 2214 by way of seven revision petitions before Financial Commissioner (Revenue), J&K Srinagar, on the plea that those mutations are in respect of land which is in the nature of abi awal, and its alienation by way of sale-deeds is in contravention to J&K Alienation of Land Act, J&K Prohibition of Conversion of Land and Alienation of Orchards Act, besides Section 13 of J&K Agrarian Reforms Act, 1976. That the sale-deeds have already been questioned and given the sale-deeds being in violation of law, no such mutation could have been attested. The Financial Commissioner (Revenue), Srinagar in terms of order dated 27.02.2018 proceeded to pass the following order.

"I have perused the material placed on record as well as the averments made by the parties in their written submissions. The petitioner is aggrieved by the mutation orders passed on the basis of registered sale deeds executed by the petitioner in favour of the respondents herein. The counsel for the petitioner has admitted in his revision petition that the sale deeds on the basis of which impugned mutation orders have been passed are presently under challenge before the Court of IIIrd Additional Munsiff, Srinagar or similar grounds as taken by the petitioner before this court. Since, the parties have been litigating in the court of Civil Judicature and issue involved there is same as in this court, therefore, it is appropriate to wait till the said Civil Court returns its finding which would determine the fate of impugned mutation orders challenged before this court.

Interim Orders, if any, passed in the matter stand vacated. File to be consigned to records, after due completion."

3. Being aggrieved by this order, the respondent No. 1 filed various OWPs reiterating that very stand that was taken before the authority below, _________________________________________________________ LPA No. 171/2022 and connected appeals Page No: 3 besides urging that the mutations are nullity having been attested in violation of law and Standing Order 23A. The writ Court, taking clue of Section 15, took a view that the authority below has, suo moto, power to revise the orders passed by subordinate authorities and that since the Financial Commissioner (Revenue), has no power, competence or jurisdiction to determine the validity of the sale-deeds, however, the fact cannot be lost sight of that Financial Commissioner (Revenue) is vested with revisional powers under the Land Revenue Act and so has the power to determine the validity or otherwise of the mutations, having regard to the provisions of Land Revenue Act and standing order 23A, notwithstanding the pendency of civil suits challenging the validity of sale- deeds. It further took the view that the Financial Commissioner (Revenue) could not have deferred the consideration of revision petition on the premise that unless the civil suit determined the validity or otherwise of the sale-deeds, the validity of mutations cannot be decided. The writ court, therefore, quashed the order of Financial Commissioner (Revenue) and directed reconsideration of the matter afresh.

4. Learned senior counsel representing the appellants urged that the revisions were barred by limitation. Even if for the sake of arguments, the respondent's contention, if taken true, that the sale was distress in nature, but even then once he had taken recourse to questioning the sale-deeds, and the mutation having been attested on the strength of such sale-deeds, any order thereof shall remain subject to the outcome of the civil courts decision, thus no recourse for filing any such revision petition. That Section 31 of the Agrarian Reforms Act, 1976, stood repealed, and, as a _________________________________________________________ LPA No. 171/2022 and connected appeals Page No: 4 result of it, Rule 60 of Agrarian Reform Rules has also become redundant. So much so the land is situated at Gangbugh Srinagar for which settlement has taken place and if the respondent had any grievance he could lay claim under Section 32 of the Land Revenue Act. That the respondent has led no material either before the Financial Commissioner (Revenue) or before the writ Court delineating any conversion of land having been affected by the appellant who are enjoying the property in accordance with law having purchased it after paying lawful consideration. Since the respondent No. 1 himself has become a land grabber, who is involved in various litigations so much so was also detained under Public Safety Act, hence filing of revision petitions by him was only a ploy to extract more money from the appellants.

5. Per contra, learned counsel for the respondent argued that the sales were in violation of Section 13 of the Act and given the fact that appellants have failed to utilize the land in accordance with law because the land in question is agricultural land whereas, the appellants intend to convert it for commercial and other purposes, Section 13 had application, so the mutation being in contravention to Section 13, the land would vest with the State. He further argued that the transfer of land in favour of the appellants was in contravention of Section 35 of the Agrarian Reforms Act, 1976 as well, so it had got to be regulated in terms of Section 13. Since the appellants are not indulging in agricultural pursuit of the sold property, thus putting it to non-agricultural purposes renders the mutation, null and void. That the Financial Commissioner(Revenue) had supervisory role over _________________________________________________________ LPA No. 171/2022 and connected appeals Page No: 5 the mutation effected by subordinate officers and once the mutations were contrary to law, then no limitation would save such mutations.

6. We have given our thoughtful consideration to the matter in hand.

7. Admittedly, given the factual position as discussed above, the respondent No. 1 happened to be the seller of the land in question who has, in pursuance to various duly registered sale deeds, transferred the land in question in favour of the appellants and proforma respondents. In terms of Section 24 of the Land Revenue Act, 1996, a Revenue Officer is duty bound to give effect to the sale-deeds, whereas, in terms of Section 26 (2) any final order of the Revenue Officer is always subject to the orders that may be passed by the civil court of competent jurisdiction.

8. It is admitted case of the respondent that the sale-deeds in question have already been assailed by him before the civil court claiming the same to be distress sale. According to the respondent, taking his undue advantage of the helplessness and poverty, the appellants and proforma respondents under the garb of providing financial assistance got the sale-deeds executed from him by manipulation and fraud. So, once the sale-deeds are under challenge, then any order passed by the civil court would prevail upon any finding or order recorded by the revenue authority. Having said so, the moot issue to be decided is whether the Financial Commissioner (Revenue) was rightly approached by the respondent No. 1 by way of revision in assailing the mutation, so recorded.

9. The mutations have been recorded w.e.f., 1999 to 2006 on various dates, whereas, the respondent No. 1 has questioned these mutations only on 08.02.2017 as mutation No. 597,599,598, 616 have been assailed after _________________________________________________________ LPA No. 171/2022 and connected appeals Page No: 6 expiry of more than 18 years, whereas, mutation No. 619 after 17 years and mutation Nos. 777, 776 after more than 11 years.

10. In terms of Section 15 of the Land Revenue Act, the Financial Commissioner (Revenue) has got power to call for record of any case pending before or disposed of by the revenue authorities under his control at any time.

11. In Zaina vs. Financial Commissioner and Ors 2017 (3) JKLR 235 it was held that normally the period of limitation for filing revision petition should be the same as the period for filing appeal. However, the Financial Commissioner (Revenue) may exercise discretion in treating revision petition within time, provided he is satisfied that the petitioner cannot file the revision petition within the time provided for the appeal due to some reasonable cause. It is not only the duty of the Financial Commissioner (Revenue) to be so satisfied but must also express his satisfaction in clear words in his judgment.

12. Hon'ble Apex Court in "State of HP and Ors vs. Raj Kumar Barinder Singh and Ors 2004 10 SCC 585" has held that:

"We are now left with the second question which was raised by the respondents before the High Court, namely, the delayed exercise of the power under sub-section (3) of Section 20. As indicated above, the Financial Commissioner exercised the power after 15 years of the order of the Collector. It is true that sub-section (3) provides that such a power may be exercised at any time but this expression does not mean there would be no time-limit or it is in infinity. All that is meant is that such powers should be exercised within a reasonable time. No fixed period of limitation may be laid but unreasonable delay in exercise of the power would tend to undo the things which have attained finality. It depends _________________________________________________________ LPA No. 171/2022 and connected appeals Page No: 7 on the facts and circumstances of each case as to what is the reasonable time within which the power of suo moto action could be exercised. For example, in this case, as the appeal had been withdrawn but the Financial Commissioner had taken up the matter in exercise of his suo moto power, it could well be open for the State to submit that the facts and circumstances were such that it would be within reasonable time but as we have already noted that the order of the Collector which has been interfered with was passed in January 1976 and the appeal preferred by the State was also withdrawn sometime in March 1976. The learned counsel for the appellant was not able to point out such other special facts and [pic]circumstances by reason of which it could be said that exercise of suo moto power after 15 years of the order interfered with was within a reasonable time. That being the position in our view, the order of the Financial Commissioner stands vitiated having been passed after a long lapse of 15 years of the order which has been interfered with. Therefore, while holding that the Financial Commissioner would have power to proceed suo moto in a suitable case even though an appeal preferred before the lower appellate authority is withdrawn, maybe, by the State. Thus the view taken by the High Court is not sustainable. But the order of the Financial Commissioner suffers from the vice of the exercise of the power after unreasonable lapse of time and such delayed action on his part nullifies the order passed by him in exercise of power under sub-section (3) of Section 20".

This was later on relied on in civil appeal No. 325/326, decided on 13.01.2015 titled Joint Collector Ranga Reddy vs D Narsingh Rao by holding as under: -

"No time limit is prescribed in the above Regulation for the exercise of suo moto power but the question is as to whether the suo moto power could be exercised after a period of 50 years. The Government as early as in the year 1991 passed order reserving 477 acres of land in Survey Nos. 36 and 37 of Gopanpally village for house-

_________________________________________________________ LPA No. 171/2022 and connected appeals Page No: 8 sites to the government employees. In other words, the Government had every occasion to verify the revenue entries pertaining to the said lands while passing the Government Order dated 24.9.1991 but no exception was taken to the entries found. Further the respondents herein filed Writ Petition No.21719 of 1997 challenging the Government order dated 24.9.1991 and even at that point of time no action was initiated pertaining to the entries in the said survey numbers. Thereafter, the purchasers of land from respondent Nos.1 and 2 herein filed a civil suit in O.S.No.12 of 2001 on the file of Additional District Judge, Ranga Reddy District praying for a declaration that they were lawful owners and possessors of certain plots of land in survey No.36, and after contest, the suit was decreed and said decree is allowed to become final. By the impugned Notice dated 31.12.2004 the suo moto revision power under Regulation 166B referred above is sought to be exercised after five decades and if it is allowed to do so it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties over immovable properties.

13. Even in case titled "Wali Mohammad Magrey & Anr vs. Ali Mohammad Gujree and Ors bearing LPA (OW) No 29/2018 decided on 20.12.2021", a Coordinate Bench of this Court has also declared the law by holding as under:

"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, 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 _________________________________________________________ LPA No. 171/2022 and connected appeals Page No: 9 to our notice are mentioned herein: (1) 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)."

14. So given the aforesaid legal position, the revision petition on the face of it was time barred, so much so, even before the writ Court also, the issue of maintainability of revision had been raised by the present appellants, but, unfortunately that plea has not been taken cognizance of. The respondent's contention that Section 31 had application to the said sale-deeds but the learned counsel has not been able to satisfy us as to how come that provision can be invoked when the same ceased to exist from the statute book having been omitted by Act No. XXXVIII of 1997, whereas, the sale in question have come into picture much thereafter. That apart, reliance on Rule 60 of Agrarian Reforms Act, 1976 too is misplaced, because reliance on said rule can only be made once Section 31 is applicable. With the repeal of Section 31 of the Agrarian Reforms Act, 1976 reliance on Rule 60 too becomes misplaced. It was further argued that the sales are in contravention of Section 13. However, with the amendment of Act of 2020, even sub-clause (1) and sub-clause (3) of Section 13 too have been omitted. Now remains Clause (2) in the statute books. For convenience, the old Section 13 with all its clauses is reproduced as under:

(1). After the commencement of this Act, no person shall hold land, otherwise than for personal cultivation (except where tenancy is permitted by this Act), or for residential purposes upto [Two] Kanals per family, or, subject to the provisions of the Jammu and Kashmir Prohibition on Conversion of Land and _________________________________________________________ LPA No. 171/2022 and connected appeals Page No: 10 Alienation of Orchards Act, 1975 for horticultural purposes or, within the previous permission of the Revenue Minister or any officer nominated by him in this behalf, for industrial or commercial purposes:

Provided that land recorded as orchard, arak, kap, kah-i- krisham or of a class notified under clause (f) of Section3 shall not be put to any use other than such orchard or ark, kap, kah-i- krisham or for growing fodder of fuel as the case may be, subject to the second proviso to Sub-section (1) of Section 15 in the case of orchard:

Provided further that where land, not exceeding half a kanal in area is used as a gharat, or a chakki or shop or for such other purpose relating to rural economy, no permission shall be made." (2). Except as otherwise provided in this Act, no tenancy created or continued after the first day of May, 1973 in respect of any land shall be valid.

(3). Rights, title and interest in land or any person who, except for reasons beyond his control, fails to utilize the land in accordance with, or utilizes land in contravention of the provisions of sub-section (1) or lets land to a tenant in contravention of the provisions of sub-section (2) shall, after such enquiry, as may be prescribed, vest in the State."

15. Because of the repeal, the omission of Clause 1 and 3 has taken place much after the sales were executed and consequent mutation attested. What Section 13 speaks of is that the land which a person holds shall not be utilized but in the manner provided under Section 13, which means that Section 13 is complete Code in itself. As it provides that any land being possessed can be utilized for residential purposes to the extent of 2 Kanals per family. With the prior permission of competent authority, such land can be used for industrial or commercial purposes. So much so, land to the extent of half a kanal can be used as a "gharat or chakki" or shop, or for such purposes relating to rural economy for which no permission is needed. Rule (3) which was in vogue at the relevant time specifies that if the land is not utilized in accordance with clause (1) then, such land, on enquiry, as _________________________________________________________ LPA No. 171/2022 and connected appeals Page No: 11 may be prescribed, vest in the State. So, what Section 13 speaks is 'that land shall be utilized in accordance with the provisions of the Act'. Here Section 13 has to be read independently because the land in question which was purchased by the appellants and private respondents was the propriety land of respondent No. 1 and not the one that falls within the purview of Section 28A of the Agrarian Reforms Act, 1976. Having said so, the land is to be used for the purposes for which it is meant and in case there is utilization of land for residential purpose or commercial purpose or any other purpose, the same requires prior permission. Whether in the present case, the appellants have utilized the land in contravention to Section 13 that is the matter of fact to be enquired by the revenue authorities. Nothing of that sort has happened, so it would be highly premature to endorse the arguments of learned counsel for the respondent that land was being utilized by the appellants in contravention to Section 13. Such issue being a matter of fact cannot be decided in writ proceedings and given the fact that respondent No. 1 has already filed suits seeking cancellation of sale-deed, such plea, if any, can be raised therein. Once the revision itself, on the face of it was time barred, even if the Financial Commissioner (Revenue) was having supervisory jurisdiction over the said mutation, still he could not have intervened after fifteen years of attestation of mutation, because, such supervisory jurisdiction could be invoked at the earliest possible opportunity.

16. Learned counsel for the respondent No. 1 further submits that, since the document of sale is void ab-initio, there is no question of seeking its _________________________________________________________ LPA No. 171/2022 and connected appeals Page No: 12 cancellation as it is only a valid document of which the court can take cognizance of.

17. Learned counsel appears to be contradicting his own stand, if he has to be believed that documents were void ab-initio, then for what reason he has filed the suit seeking setting aside of those sales or their cancellation. The respondents have blown hot and cold and thus are oblivious of the legal position that exists in the statute book, the judgment relied on has got no application to the facts of this case. Reliance of the learned counsel on "Partap and Anr v. Smt. Puniya Bai AIR 1977 MP 108" is misplaced because whether the sales in question are outcome of fraud or misrepresentation, is a question of fact to be agitated in the appropriate proceedings, which the respondents have already taken by filing the suits. In that view of the matter, reliance on the aforesaid judgment too is uncalled for.

18. Now the question arises whether for the foregoing reasons, the order of writ Court is sustainable. The answer to this question is negative, for the reason that, by remanding the matter back for fresh consideration of the Financial Commissioner (Revenue) would mean that the filing of revision petition by respondent No. 1 is held justified. We, therefore, are of the view that the writ Court has landed in error in not considering the issue of limitation as well as it also failed in not considering the issue of limitation despite plea being raised by the appellant that the revisions were not maintainable, being barred by limitation. The writ Court has still proceeded to entertain the writ petition and directed the Financial Commissioner (Revenue) to proceed ahead with the revision petition and pass fresh _________________________________________________________ LPA No. 171/2022 and connected appeals Page No: 13 orders, thereby investing jurisdiction unto Financial Commissioner (Revenue) to decide the revision petition which jurisdiction ceased to exist after more than three years and in the light of aforesaid legal position could not have been entertained. The law declared by the Supreme Court was binding on the revenue authorities as well, since the civil court was already seized of the validity of the sale-deeds, so any mutation effected thereto was subject to the outcome of the civil suit and mutating officers in terms of Section 24 were bound to make entries in annual record by incorporating acquisition of land by way of sale, purchase, gift etc. The revenue record which in the given case has been duly entered by way of mutation and there being Section 26 of the Land Revenue Act, any order passed by the revenue authorities is subject to decree or order passed by the civil court. By holding revisions maintainable despite the same being barred by limitation, an error has occasioned rendering the order passed by the writ Court bad in the eyes of law.

19. In view of what has been discussed above, we find merit in these appeals. While allowing the appeals, the impugned order of writ Court is set-aside. Resultantly the revision petitions filed before the Financial Commissioner (Revenue) are dismissed being barred by limitation.

                         (SANJAY PARIHAR)           (SANJEEV KUMAR)
                             JUDGE                      JUDGE
   SRINAGAR:
   30.05.2025
   "SHAHID"
                  Whether the order is approved for reporting: Yes

_________________________________________________________ LPA No. 171/2022 and connected appeals Page No: 14

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Jammu & Kashmir High Court - Srinagar Bench