Jammu & Kashmir High Court
Abdul Khaliq Bhat vs State And Ors. on 3 November, 2006
Equivalent citations: 2007(3)JKJ173
JUDGMENT Bashir A. Kirmani, J.
1. Claiming to be the owners of land measuring 31 Kanals 15 marlas under survey Nos. 105, 610, 621, 624, 625, 103, 622, 107 situate at Rekhi Suthu Tehsil Nowgam through their predecessors in interest, the petitioners, heirs of one Ramzan Bhat, Ama Wani, Rehman Bhat and Sona Sheikh by plead that the land in question was purchased by their predecessors from the original owners namely Jawala Datt and Jagdish Chander sons of the sister of original owner Nand Lal, and had been mutated in their favour under mutation No. 157 of Seripartab Singpora where-under the whole land under Khata No. 2-was transferred in favour of jawala Datt and Jagdish Chander after deletion of NandLaPs name whereafter they sold it to predecessors of petitioners through different sale deeds executed and registered way backing in October, 1957 pursuant whereto the requisite mutations were also attested in their favour by concerned revenue officers. It is further pleaded that petitioners 13 to 16 are in continuous possession of the suit land and vested with ownership rights under the provisions of J&K Agrarian Reforms Act, (in short "the Act"). Pleading that the entire chunk of land aforesaid was notified under Section 4 of Land Acquisition Act for being acquired for laying/construction of railway track, the petitioners maintain that they accordingly sought compensation thereof from the concerned Collector in June, 2000 but were informed that under mutation No. 402 of Rakh Suthu the whole land had been shown and mutated as Khalisa Sarkar after cancellation of mutation No. 157 where under Jawala Dutt and Jagdish Chander aforesaid had taken over the land decades back. On obtaining a certified copy of said mutation, they found that the same referred to some unspecified orders of Assistant Commissioner purporting to have been passed on 07.01.1963 and Dy. Commissioner dated: 02.01.1971 without any mention of the contents or substance of said orders. Aggrieved they instituted a revision petition before Financial Commissioner for correcting the irregularity committed by attestation of mutation No. 402 on 3.3.1971 which was dismissed on 27.12.2001.
2. It is to assail the dismissal order of their revision petition by Financial Commissioner, that petitioners have instituted this writ petition to seek its quashment on the ground that it was unfounded in law, by dismissing the revision petition, Financial Commissioner virtually denied rectification of the irregularity complained of and thereby failed to exercise jurisdiction vested in him resulting in gross miscarriage of justice, particularly because he never tried to summon the original records wherefrom the irregularity had erupted.
3. In his reply respondent No. 2, which has been adopted by other respondents also as reflected by interim, order of 19.8.2004 has pleaded that Late Jawala Datt and Jagdish Chander were not heirs of deceased Nand Lal and as such the mutation No. 157 of 2008 BK was rightly cancelled resultant whereupon the land escheated to Government under mutation No. 402 and as such the revision petition filed by petitioners before the Financial Commissioner was rightly dismissed and consequently thus the petitioners had no interest in compensation for the land involved. It has also been pleaded that revision petition before Financial Commissioner had been filed by petitioners after about three decades which was an additional reason for rejection thereof. During course of submissions learned Counsel appearing for rival sides have reiterated the contents of their pleadings.
4. I have heard learned Counsel and considered the matter. Taken in a capsule the question involved in the matter is whether Financial Commissioner while dismissing petitioners' revision petition exercised the jurisdiction vesting in him properly. The factual background of the whole controversy as gatherable from pleadings is that landed property of Nand Lal who as per Patwari's note of 5th Magar 2008 BK was unheard of and hence out of possession of his proprietary land measuring 31 kanals and 15 marlas that had been mutated in his favour under mutation No. 125, was further mutated under mutation No. 157, in the name of Jawala Dutt and Jagdish Chand sons of Atma Ram, the brother-in-law of Nand Lal who as per petitioners' had been in possession of land whereafter the said two persons sold the same to their predecessor-in-interest, under registered sale deeds, photo copies whereof have been appended to the petition and later mutated in their favour in terms of subsequent mutation attested by competent revenue officers. Under mutation No. 402 of 1971, the land appears to have escheated in favour of State and recorded as Khalisa Sarkar albeit in accordance with order of Assistant Commissioner dated: 07.01.1963 and that of Dy. Commissioner, Srinagar dated: 02.01.1971 where after the said mutation was attested on 3.3.1971. The attested copy of said mutation placed on file is, that of "Parath Patwar" according to which the reasons for attestation whereof have been mentioned on "Parat Sarkar" of the mutation which is not forth coming for the alleged reason of having been gutted in fire incident alongwith connected record.
5. In aforesaid background arises the vires of Financial Commissioner's impugned order, operative portion whereof reads as under:
I have heard the arguments of the Counsel for the petitioner and gone through the record available on the file and applied my mind on the facts circumstances of the case.
Copy of mutation No. 157 of village Rakh Suthu Tehsil Seripartap Singhpora attested on date not mentioned has been brought on record whereby the estate of Shri Nand Lal being Gair Kabiz has been mutated in favour of Jawala Dutt and Jagdish Chand sons of Atma Ram. It appears that this mater was not concluded and the proceedings continued subsequentially as is evident from the notings on mutations No. 402 dated: 3.3.1971, on the basis of the orders passed on a file by the Assistant Commissioner on 2.1.1971, Nand LaPs estate has been escheated to the State. For a proper disposal of the matter, this file should have been brought on record. Further, ho one has appeared for the State to place the fact on record. In the absence of facts to the contrary, it can safely be presumed that orders on mutation No. 402 dated: 3.3.1971 have been passed in due course and there is no reason to doubt the veracity of the facts recorded thereon. Shri Dar's agreement argument that the land has been purchased by his clients from the Jawala Dutt and Jagdish Chand and mutations have been duly attested in their favour on the basis of sale-deeds cannot be accepted as a reason to strike down his mutation. Caveat emptor. On the contrary mutations attested on the basis of sale deeds with deficient title or liable to be questioned a logical corollary to mutation No. 402 dated: 3.3.1971. Moreover, the present revision petition is grossly time barred and no sufficient cause has been shown to justify the delay.
Perusal of aforesaid order reveals that while passing the same neither the records pertaining to mutation No. 157 nor those pertaining to mutation No. 402 have been before the learned Financial Commissioner but still then he has proceeded on the presumption that order on mutation No. 402 must have been passed in due course of law. On what basis did he derive the presumption is not forthcoming which renders the conclusions arrived at quite faulty, particularly in view of Financial Commissioners own observation that for proper disposal of the matter these files should have been brought on record. It thus appears that learned Financial Commissioner has returned his opinion in a total vacuum which cannot be justified for the simple reason that it is devoid of legal substance.
6. Taking the discussion a little further it would be appropriate to observe that revisional proceedings in the matter were required to be conducted by Financial Commissioner under Section 15 of Land Revenue Act only with a view to assess legality, regularity and propriety of orders passed or proceedings conducted in any case pending before or disposed of by any revenue officer. It necessarily follows that for returning an opinion thereupon the records of the case had to be examined before arriving at any definite conclusion which does not appear to have been done in the instant case admittedly for the reason that records were never furnished to Financial Commissioner which by itself renders the excise of jurisdiction in the matter by him bad for the simple reason of having opined on the matter without having the records before him, which in other words means that learned Financial Commissioner had nothing before him to apply his mind to accept the note of Patwari concerned on the copy of mutation No. 402 which was not only insufficient for arriving at a proper conclusion but could also be misleading.
7. As regards the question of belated institution of revision petition before the Financial Commissioner, the same does not appear to be relevant for two reasons. First, that under Section 15 of Land Revenue Act the time constraint does not appear to attend the exercise of revisional power by Financial Commissioner in appropriate cases for preventing a failure of justice like the present one in which a duly attested mutation appears to have been cancelled under another mutation subsequently attested without apparently any notice to the beneficiaries of mutation/their descendants in interest who claim to have been holding the land as proprietors under registered sale deeds for as long as decades together. It may be apt to mention here that in cases where a party is entitled to notice before any adverse order is proposed to be passed against him and no notice is issued and while passing such order, time of limitation would have to be deemed to start running against him from the date of knowledge and not that of order, for the simple reason that lack of knowledge would certainly be a reason for not seeking remedy against the adverse order; and insistence for reckoning the period of limitation for seeking remedy from the actual date of order involved in most of the cases result in miscarriage of justice.
8. Secondly, in view of the texture of impugned order, the same appears to have been passed full merit of the matter by learned Financial Commissioner, in view whereof he can be deemed to have entertained the petition despite-the delay involved notwithstanding his observation that revision petition was grossly time barred and no sufficient cause had been shown to justify the delay. As it is, in terms of the order the revision petition does, not appear to have been dismissed as being time barred, but purely on merits, which renders the question of limitation irrelevant.
9. Accordingly in view of what has been discussed above, the petition is allowed and Financial Commissioner's impugned revisional order dated: 27.12.2001 is set aside and matter remanded to him for fresh consideration after summoning the records of mutation No. 125,157 and 402 aforementioned and hearing the parties.
10. Should the records of said mutations be not forthcoming due to any reason whatsoever then he may consider the matter on basis of available records including the documents that may be furnished by parties in respect of contents thereof and pass orders within four months from now. Till then the operation of mutation No. 402 and orders of Assistant Commissioner, and Dy. Commissioner, Srinagar respectively dated: 7.1.1963 and 2.1.1971 shall remain in abeyance.
11. However the compensation of land in question may be deposited by concerned Collector after proper assessment in his name in a schedule bank to be disbursed in terms of lawful orders that may be passed by the competent authority in view of revisional order of Financial Commissioner and other relevant orders lawfully passed. Matter stands accordingly disposed of. Parties through their Counsel are directed to appear before the Financial Commissioner on 25.11.2006.