Jammu & Kashmir High Court - Srinagar Bench
Ghulam Mohammad Reshi vs J&K Special Tribunal And Ors on 11 February, 2021
Author: Sanjay Dhar
Bench: Sanjay Dhar
5
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(THROUGH VIRTUAL MODE)
OWP 97/2019
[WP(C ) 246/2019]
CM 2030/2019 [2/2019]
Reserved on : 04.02.2021
Pronounced on: 11.02.2021
Ghulam Mohammad Reshi
.....Petitioner(s)
Through :- Mr. Ayoub Bhat Advocate.
V/s
J&K Special Tribunal and ors .....Respondent(s)
Through :- Mr. M.Y.Bhat Sr. Advocate with
Mr. Furqan Sofi, Advocate.
Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE
JUDGMENT
1 Through the medium of instant petition, the petitioner has challenged order dated 31.10.2018 passed by the Additional Deputy Commissioner, Shopian (respondent No.2) as also order dated 29.01.2019 passed by the J&K Special Tribunal, Srinagar (respondent No.1) whereby, in an appeal filed by respondent No.3 against the Mutation order No. 177 dated 14.08.1986 and Mutation order No.258 dated 27.03.20, respondent No.2 has condoned the delay in fling the appeal and the said order has been upheld by respondent No.1 in the revision petition filed by the petitioner herein.
MOHAMMAD ALTAF BHAT 2021.02.12 12:21 I attest to the accuracy and integrity of this document 2 OWP 97/2019 2 It is the case of the petitioner that Mutation order No. 177 dated 14.08.1986 under Section 4 of Agrarian Reforms Act, 1976 and Mutation order No. 258 dated 27.03.2001 under Section 8 of the said Act came to be passed by the Tehsildar Shopian in respect of land measuring 20 kanals and 11 marlas situated at village Bandpahoo, District Shopian. Respondent No.3 challenged these Mutation orders by way of an appeal before respondent No.2 after a long time gap of 33 years with an application for condonation of delay. The said application came to be decided by respondent No.2 by virtue of order dated 31.10.2018 and the delay in filing the appeal was condoned. The said order came to be challenged by the petitioner herein by way of revision petition before respondent No.1 and vide order dated 29.01.2019, the same came to be dismissed by respondent No.1 thereby upholding the order dated 31.10.2008 passed by respondent No.2.
3 The petitioner has challenged the aforesaid two orders by way of instant petition on the grounds that respondents No.1 and 2 have failed to appreciate the fact that the appeal has been filed after many decades of passing of mutation orders without there being any justifiable reason; that the mutation orders were passed in presence of the erstwhile owner of the land in question who died in the year 1996; that the said erstwhile owner did not challenge the said mutation orders during his life time, and, therefore, respondent No.3 had no authority or right to challenge these mutation orders; that the impugned orders have been passed by respondents No.1 and 2 without application of mind, inasmuch as the erstwhile owner was himself present at the time of attestation of the MOHAMMAD ALTAF BHAT 2021.02.12 12:21 I attest to the accuracy and integrity of this document 3 OWP 97/2019 mutations; that there were no sufficient grounds to condone the delay, therefore, the impugned orders passed by respondents No.1 and 2 are without jurisdiction; that the application for condonation of delay has been allowed without affording an opportunity of hearing to the petitioner; that previously also, some persons have challenged these mutation orders by way of an appeal before respondent No.1 and the same was dismissed as withdrawn on account of compromise arrived at between the parties.
4 Respondent No.3 has resisted the petition by filing reply thereto. In her reply, she has contended that the instant petition is not maintainable as no final order has been passed by respondents No.1 and 2, inasmuch as only application for condonation of delay has been decided vide the impugned orders. It is averred that respondent No.3 is the Khana Nisheen daughter of ex-owner who died in the year 1996, whereafter she came into possession of the landed estate which is subject matter of the mutations in question. It is further averred that when respondent No.3 approached the revenue officials to obtain the revenue extracts of the land in question, she was shocked to learn about the mutations in question. It is averred that the petitioner was born in the year 1975 and, therefore, it is improbable that he would have been tiller in possession of the land in question in the year 1971, the crucial date for application of provisions of J&K Agrarian Reforms Act, 1976. Thus, according to respondent No.3, the mutations in question are fraudulent and deceitful. It has been contended by respondent No.3 that in such cases, the expression "sufficient cause" has to be given a MOHAMMAD ALTAF BHAT 2021.02.12 12:21 I attest to the accuracy and integrity of this document 4 OWP 97/2019 liberal construction so as to advance substantial justice and delay in preferring the appeal in such cases is required to be condoned. 5 I have heard learned counsel for the parties and perused the record of the case.
6 Before coming to the merits of the case, it is necessary to keep in mind the scope of judicial review of the decisions of Tribunals and quasi- judicial authorities in Writ proceedings. The Supreme Court in the case of Hari Vishnu Kamath vs. Syed Ahmad Ishaque and others, AIR 1955 SC 233 had an occasion to consider the scope of Writ of Certiorari against the orders of Tribunals. While doing so, the Court laid down the following propositions.
"(1) Certiorari will be issued for correcting errors of jurisdiction as when an inferior Court or Tribunal acts without jurisdiction or in excess of it or fails to exercise it;
(2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice;
(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of facts reached by the inferior Court or Tribunal, even if they be erroneous;
(4) An error in the decision or determination itself may also be amenable to a writ of "certiorari" if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by "certiorari" but not a mere wrong decision. What is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left MOHAMMAD ALTAF BHAT to be determined judicially on the facts of each case".2021.02.12 12:21 I attest to the accuracy and integrity of this document 5 OWP 97/2019
7 From the aforesaid enunciation of law on the subject, it is clear that the scope of judicial review of the decisions of Tribunals and quasi- judicial authorities is limited to correcting of errors of jurisdiction, intervention in the cases where there is violation of principles of natural justice, exercise of supervisory and not Appellate jurisdiction and correction of manifest errors apparent on the face of proceedings when it is based on disregard of the provisions of law.
8 In the backdrop of aforesaid legal position, let me now consider the case at hand. The main ground urged by the learned counsel for the petitioner is that at the time when the mutation orders in question were passed, the ex-owner of the land Akram Bhat was present on spot and he did not raise any objection, therefore, respondent No.3, who claims to be the Khana Nisheen daughter of ex-owner has no right to challenge the mutations, particularly when the ex-owner did not challenge the same during his life time. According to the learned counsel, respondents No. 1 and 2, while condoning the delay in filing the appeal vide the impugned orders, have overlooked this aspect of the matter. The learned counsel has further contended that the law pertaining to limitation has to be made applicable with full rigour and the same cannot be given a go-bye, unless a person is able to show sufficient cause within the meaning of Section 5 of the Limitation Act for not filing the proceedings within the prescribed period. The learned counsel has relied upon the judgment of the Supreme Court in the case of P. K. Ramachandran vs. State of Kerala and another, (1997) 7 SCC 556.
MOHAMMAD ALTAF BHAT 2021.02.12 12:21 I attest to the accuracy and integrity of this document 6 OWP 97/2019
9. A perusal of the copies of mutation orders in question which have been placed on record reveals that the ex-owner of the land in question Akram Bhat is shown to be present at the time of attestation of the mutations. Ordinarily, this circumstance would have been fatal to the case of respondent No.3. But there are certain important and pertinent issues raised by respondent No.3 and if the case of said respondent is shut on the ground of limitation, it may lead to miscarriage of justice. In his appeal against the mutation orders, the respondent No.3 has raised question mark over the existence of petitioner in the year Kharif 1971, when he, as per the mutation orders, is shown to be actually cultivating the land in question as a tenant of the ex-owner. In this regard, respondent No.3 has placed on record a document to show that the petitioner was born in the year 1975. Even the petitioner has disclosed his age as 51 years while filing this petition which means that in the year 1971, his age would have been around 3 years.
10. Further, in the appeal before respondent No.2, the respondent No.3 has claimed that the petitioner is the grandson of ex-owner of the land in question and, as such, he cannot be termed as a "tenant" of his grandfather. The said issue is also very vital to the validity of the mutations in question.
11. The expression „sufficient cause‟ must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is MOHAMMAD ALTAF BHAT 2021.02.12 12:21 I attest to the accuracy and integrity of this document 7 OWP 97/2019 imputable to the party seeking condonation of delay, particularly when the refusal to condone the delay would result in grave miscarriage of justice.
12. In the instant case, if the case of respondent No.3 is shut out on the ground of limitation, it would cause grave injustice to her as she has been able to raise important questions which go to the root of the mutation proceedings under challenge. On the other hand, no prejudice would be caused to the petitioner if the appeal of respondent No.3 is heard on merits as he will have an opportunity to present his case before the Appellate Authority.
13. Having regard to the aforesaid important questions, the discretion exercised by respondent No.2 in condoning the delay in filing of the appeal cannot be stated to be an improper exercise of jurisdiction by the said authority.
14 Thus, this Court is of the view that the order passed by respondent No.2 condoning the delay in filing the appeal as upheld by respondent No.1 does not call for any interference by this Court in writ jurisdiction.
15. The petition along with connected CM is, accordingly, dismissed. Respondent No.2 is directed to proceed ahead with the appeal filed by respondent No.3 herein and decide the same expeditiously.
(SANJAY DHAR) JUDGE Srinagar 11.02.2021 Sanjeev PS Whether the order is speaking: Yes Whether the order is reportable: Yes/No MOHAMMAD ALTAF BHAT 2021.02.12 12:21 I attest to the accuracy and integrity of this document