Jammu & Kashmir High Court - Srinagar Bench
Ghulam Hassan vs Financial Commr & Others on 1 September, 2023
Author: Sanjay Dhar
Bench: Sanjay Dhar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
Reserved on: 28.08.2023
Pronounced on:01.09.2023
WP(C) No.2761/2021
GHULAM HASSAN ...PETITIONER(S)
Through: - Mr. M. A. Qayoom, Advocate.
with Mr. Bhat Shafi, Advocate.
Vs.
FINANCIAL COMMR & OTHERS ...RESPONDENT(S)
Through: - None for R1 to R3.
Ms. Saima Mehboob, Advocate-for R4&R5.
CORAM: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1) The petitioner has challenged order dated 16.04.2018, passed by respondents No.2, and orders dated 10.07.2019, 29.01.2020 and 12.10.2021 passed by respondent No.1. Vide order dated 16.04.2018, respondent No.2 has, after treating the appeal of respondent No.4 against mutation No.390 dated 01.09.1986 as a suo moto revision petition, made a recommendation to respondent No.1 to set aside the said order of mutation. Vide order dated 10.07.2019, respondent No.1 has, after accepting the aforesaid recommendation of respondent No.2, set aside the orders passed on mutation No. 390 of estate Qazipura Tehsil, Chadoora and directed attestation of a fresh mutation after following the procedure laid down in Standing Order 23-A. Vide order dated 19.01.2020, respondent No.1 has corrected its order dated 10.07.2019 by making the said order subject to outcome of suit/application, if any pending before the Munsiff. Vide order WP(C) No.2761/2021 Page 1 of 11 dated 12.10.2021, respondent No.1 has, while allowing the appeal of respondent No.4 against mutation order Nos.493 and 494 dated 30.01.1990 under Sections 4 and 8 of the Agrarian Reforms Act, set aside the said mutations.
2) As per the case of the petitioner, he is adopted son of one Mohammad Bhat and in terms of mutation order No.390 dated 01.09.1986, the estate left behind by Mohammad Bhat in village Qazipura Tehsil, Chadoora was mutated in his name, in the name of widow of Mohammad Bhat and in the name of his daughter, respondent No. 4 herein. As per the said mutation order, the estate to the extent of 6 kanals and 3 marlas was attested in favour of respondent No.4 whereas rest of the estate was mutated in equal shares in favour of the petitioner and widow of Mohammad Bhat. Respondent No.4 challenged the aforesaid mutation order dated 01.09.1986 by way of an appeal before respondent No.2 on 21.09.2017. Respondent No.2 vide impugned order dated 16.04.2018, after treating the said appeal as suo moto revision, observed that mutation No.390 has been attested in disregard of the Muslim Personal Law and in violation of Standing Order No.23-A. Accordingly, a recommendation was made to respondent No.1 for setting aside the said mutation, who, in terms of impugned order dated 10.07.2019 read with order dated 29.01.2020, accepted the recommendation of respondent No.2 and set aside mutation No.390 dated 01.09.1986 and directed attestation of a fresh mutation in accordance with the procedure laid down in Standing Order 23-A. WP(C) No.2761/2021 Page 2 of 11
3) Mutation order No.493 dated 25.08.1989 in respect of land measuring 16 kanals and 03 marlas under Khasra Nos.98-min (1kanal 6 marlas), 10-min (3 kanals 18 marlas), 78-min (2 kanals), 102-min (10 marlas), 96-min (1 kanal 10 marlas), 10-min (3 kanals 5 marlas) and 101- min (3 kanals 4 marlas) situated at Qazipora Tehsil Chadoora, under Section 4 of the Agrarian Reforms Act was made, whereby the petitioner was shown as the prospective owner of the land in question whereafter vide mutation order No.494 dated 30.01.1990, mutation in respect of aforesaid land under Section 8 of the Agrarian Reforms Act came to be attested in favour of the petitioner.
4) The aforesaid two mutation orders came to be challenged by respondent No. 4 by way of an appeal before respondent No.1 on 04.10.2017. Respondent No.1 after proceeding exparte against the petitioner herein, decided the appeal by virtue of impugned order dated 12.10.2021. In the said order respondent No.1 observed that the petitioner herein is shown to be the adopted son of estate holder Mohammad Bhat, as such, he cannot claim himself to be the tenant of the land in question. On this ground, respondent No.1 set aside both mutation orders No.493 and 494 and restored the previous mutations.
5) It appears that the petitioner had filed a suit for permanent prohibitory injunction against respondent No.4 and her husband, respondent No.5 herein, before the Court of learned Munsiff Chadoora seeking a permanent prohibitory injunction against them so as to prevent WP(C) No.2761/2021 Page 3 of 11 their interference in the land which was the subject matter of mutation. Nos.493 and 490 (supra). During pendency of the suit, a compromise was arrived at between the parties and a decree in terms of the compromise came to be passed by the Civil Court on 18.04.2018. The terms of compromise are reproduced as under:
(i) That the plaintiff shall remain continue as the lawful owner, possessor and title holder of land measuring 18 Kanals and 05 Marlas comprising of Khewat Nos. 13 & 14, Khata Nos. 50 & 51 and Survey / Khasra Nos. 58 (13 Marlas), 81 (03 Kanals 10 Marlas), 94 (03 Kanals 03 Marlas), 56 (04 Kanals 18 Marlas), 92 (04 Kanals 10 Marlas), 98 (01 Kanal 01 Marla) and 176 (01 Kanal) along with double storied residential house existent over a portion of it situated at village Qazipora Tehsil Chadoora District Budgam. However, the landed estate excluding the suit land which is on spot in possession of defendant No. 01 shall continue to remain in her possession and the plaintiff shall not cause any kind of interference therewith.
(ii) That the defendant No. 01 had relinquished, released and renounced all her rights, interests and claim over the suit property and in lieu of it she had received an amount of Rs 3,00,000/- (Rupees Three Lakhs) from the plaintiff. The defendant No.02 happens to be husband of defendant No. 01 as such has no right otherwise over the suit land, as such henceforth and hereafter the defendants shall have no right, interest or claim over the suit land and shall not cause or make any kind of interference whatsoever with the ownership and possession of the plaintiff over the suit property in any manner.
(iii) That the defendant No.01 had filed an appeal/ revision before Ld. Divisional Commissioner Kashmir at Srinagar against the Mutation No 39 dated 01-09- 1986 of village Qazipora, and the defendant No. 01 shall withdraw the same unconditionally as such the said Mutation shall remain intact and in force.
(iv) That nothing has remained in dispute between the parties to the suit.
WP(C) No.2761/2021 Page 4 of 11
6) The petitioner has challenged the impugned orders so passed by respondents No.1 and 2 on the grounds that the said respondents have entertained stale challenge on behalf of respondent No.4 without there being any reason, much less a justifiable reason, for condoning the delay. It has been further contended that while entertaining challenge to mutation No. 390, it was not open to respondent No.2 to treat the appeal filed by respondent No.4 as suo moto revision petition as the proper remedy available to respondent No.4 was to file an appeal before the Collector and not before the Divisional Commissioner directly. It has been further contended that in the appeal against mutation orders No.493 and 494, no notice was served upon the petitioner and without affording him an opportunity of hearing, respondent No1 has proceeded to decide the appeal against him. It has been further contended that the dispute between the petitioner and respondent No.4 has been settled in terms of compromise arrived at before the Civil Court and this aspect of the matter has not been considered by respondents No.1 and 2 while passing the impugned orders. It has been submitted that once there is a decree of Civil Court, the mutation orders have to be passed in consonance with the said decree. It is also contended by the petitioner that the estate holder Gulam Mohammed Bhat had executed a registered will deed dated 6th February 1983, by virtue of which he had distributed his estate and it is in accordance with the said will that mutation No.390 came to be attested. Since there has been no challenge to the said will, as such, the Mutating Authority was well within its jurisdiction to attest the mutation in accordance with the said will. WP(C) No.2761/2021 Page 5 of 11
7) The private respondents have contested the writ petition by filing a reply thereto, in which they have supported and justified the impugned orders passed by respondents No.1 and 2. It has been submitted that the petitioner cannot claim property left behind by the estate holder in his capacity as an adopted son because as per the Muslim Personal Law, there is no concept of adoption. It has been further contended that on the one hand, the petitioner claims himself to be an adopted son of the estate holder, on the other he has projected himself to be the tenant of the land left behind by the estate holder, which is contradictory in terms. Therefore, according to the private respondents, the mutations in favour of the petitioner have rightly been set aside by respondents No.1 and 2. Regarding compromise executed before the Civil Court, it has been submitted that the same was executed by respondent No. 4 under coercion as her entire family was in jail on the said date. It has been submitted that respondent No.4 has already made an application under Section 151 of the Code of Civil Procedure for recall of the compromise decree, which is pending disposal before the said Court.
8) I have heard learned counsel for parties and perused the record of the case.
9) The first contention that has been raised by learned counsel for the petitioner is that it was not open to respondent No.2 to treat the appeal filed by respondent No.4 as suo moto revision and that the proper remedy for respondent No.4 was to file an appeal before the Collector. If we have a WP(C) No.2761/2021 Page 6 of 11 look at the provisions contained in Section 11 of the Land Revenue Act, an appeal lies to the Collector from the orders made by the Assistant Collector, whereas an appeal lies to the Divisional Commissioner from an order made by the Collector. To the extent that respondent No.4 should have filed an appeal against mutation No.390 before the Collector, the argument of learned counsel for the petitioner is correct but then Section 15 of the Land Revenue Act vests power with the Divisional Commissioner to call for record of any case pending before or disposed of by any Revenue Officer subordinate to him. An Assistant Collector is an officer subordinate to the Divisional Commissioner. Therefore respondent No.2 was vested with the power to revise the orders passed on mutation No. 390. The Divisional Commissioner has ample powers to call for record of any case disposed of by a subordinate Revenue Officer and it cannot be curtailed just because there is a remedy of appeal available against the order of the subordinate Revenue Officer, particularly when no such bar is contained in Section 15 of the Land Revenue Act. Once some illegality is brought to the notice of the Divisional Commissioner, it would be well within his powers to exercise the power of revisional jurisdiction to correct that illegality or impropriety so that the subordinate revenue officers are kept within their bounds. Therefore, no fault can be found with the decision of respondent No.2 so far as treating of appeal of respondent No.4 as suo moto revision is concerned.
10) Learned counsel for the petitioner has next contended that even if it is conceded that respondent No.2 had the revisional powers, still then he WP(C) No.2761/2021 Page 7 of 11 could not have entertained the revision petition after a delay of more than 30 years, particularly when there was no reason assigned by respondent No.4 for condoning the delay. In this regard, the learned counsel has relied upon the judgment of the Supreme Court in the case of Joint Collector, Ranga Reddy District and another vs. D. Narsingh Rao and other, (2015) 3 SCC 695.
11) A perusal of the order passed by respondent No.2, as accepted by respondent No.1, shows that regarding the aspect of limitation, it has been observed that the limitation would not come into play in a case where it is shown that the affected party was not present at the time of attestation of mutation. The Supreme Court has in the case of D. Narsingh Rao (supra) clearly laid down that powers of suo-moto revision should be exercised within a reasonable time. It was incumbent upon respondents No.1and 2 to deal with this aspect of the matter in some detail, with reference to the cause that was shown by respondent No.4 in her appeal/application for condonation of delay and discuss the material that was before them, which prompted them to condone the delay. This aspect of the matter was required to be dealt with in a more elaborate manner, particularly when respondent No.4 had filed her appeal after more than 30 years. The same is true of impugned order dated 12.10.2021 passed by respondent No.1 whereby mutation Nos. 493 and 494 under Sections 4 and 8 of the Agrarian Reforms Act, have been set aside after entertaining appeal after 27 years without any discussion on Condonation of Delay.
WP(C) No.2761/2021 Page 8 of 11
12) Coming to the effect of compromise arrived at between the parties that resulted in passing of decree by the Civil Court, it has to be noted that as per Section 26(2) of the Land Revenue Act, an order passed by the Revenue officer declaring the entitlement of any party to some property has to be subject to any decree or order which may subsequently be passed by the Civil Court of competent jurisdiction. As per the compromise decree passed by the Civil Court, respondent No.4 had relinquished and renounced all her rights, interests and claim over the estate left behind by Mohammad Bhat against a consideration of Rs.3.00 lacs and it was agreed by the parties that the landed estate except to the extent of suit land would remain in possession of respondent No.4 whereas rest of the suit land would remain under the ownership and possession of the petitioner. The effect of compromise decree had to be considered by respondents No.1 and 2 while passing the impugned orders as the said compromise decree was in force at the relevant time and is in force even as on date. Merely because respondent No.4 had made an application for recall of compromise decree, without there being any stay of the said compromise decree, the question relating to the effect of compromise decree could not have been brushed aside by respondents No.1 and 2 while passing the impugned orders.
13) So far as impugned order dated 12.10.2021 passed by respondent No.1 is concerned, in the said order it has been observed that ample opportunities were granted to the petitioner to cause his presence, but he has chosen not to appear and he was set exparte. A perusal of the record of respondent No.1 does reveal that a notice was sent to the petitioner through WP(C) No.2761/2021 Page 9 of 11 registered post on 31.03.2018 and he was set exparte on 1.05.2019 but again on 10.08.2021, it is recorded in the minutes of the proceedings that counsel for the petitioner had appeared and he had orally argued the case. In the impugned order, the petitioner herein is shown to have been set exparte and it has also been recorded that the petitioner was provided ample opportunities to cause his presence, but he chose not to appear. The record further shows that due to Covid-19 Pandemic, no effective proceedings could take place before respondent No.1 for more than one year.
14) In the above circumstances, before proceeding further in the matter, respondent No.1 should have issued a fresh notice to the petitioner. Even otherwise, the record of respondent No.1 presents a contradictory picture, inasmuch as at one place it shows that the petitioner has been set exparte and at another place it shows that the counsel for the petitioner has orally argued the case on 10.08.2021, which is contrary to the final order dated 12.10.2021. In these circumstances, the contention of the petitioner that he was not given an opportunity to present his case before respondent No.1 appears to be well-founded.
15) In view of the foregoing discussion, it would be appropriate to direct respondents No.1 ad 2 to reconsider the whole issue afresh and determine the contentions of the petitioner as regards the limitation and effect of compromise decree passed by the Civil Court.
16) Accordingly, the writ petition is allowed and all the impugned orders passed by respondents No.1 and 2 are set aside. Respondents No.1 and 2 WP(C) No.2761/2021 Page 10 of 11 are directed to re-consider the appeal/revision petition filed by respondent No.4 afresh after hearing the parties and allowing them to produce evidence/documents, if need arises. While considering the matter afresh, respondents No.1 and 2 shall render their specific findings as regards the question of limitation as also the effect of compromise decree passed by the Civil Court.
(Sanjay Dhar) Judge SRINAGAR 01.09.2023 "Bhat Altaf, PS"
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No
WP(C) No.2761/2021 Page 11 of 11