Jammu & Kashmir High Court - Srinagar Bench
Mst Jani And Others vs State Of Jk And Others on 12 August, 2022
Author: Moksha Khajuria Kazmi
Bench: Moksha Khajuria Kazmi
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP (C) no. 3086/2019
Reserved on 26.07.2022
Pronounced on 12.08.2022
Mst Jani and others
.... Petitioner
Through: Mr Abdul Rauf Parray, Advocate
v.
State of JK and others
... Respondent(s)
Through: Mr M. S. Latief, Sr. Advocate with
Mr Zahid Khan, Advocate
CORAM:
Hon'ble Ms Justice Moksha Khajuria Kazmi, Judge
JUDGMENT
1. Challenge in this writ petition is laid to the order dated 17.09.2019, for short impugned order, passed by the Financial Commissioner (Revenue)/ Commissioner Agrarian Reforms, J&K Srinagar, in case titled Mst Jani & others v. Mohammad Akbar Mir and others. In terms of the impugned order, the reference dated 26.10.2019, made by the Additional Commissioner, Kashmir, in the revision petition, seeking setting aside of the order of dismissal dated 04.02.2014 passed in the condonation of delay application by the Deputy Commissioner, Budgam, together with mutation no. 261 dated 12.05.1968 with a further recommendation to refer the matter to Tehsildar concerned for fresh attestation of mutation in accordance with Muslim Personal Law, has been rejected.
2. A brief resume of the case is that a mutation bearing No. 261 of 1968 dated 12.05.1968 has been attested, in the revenue records for the landed estate of one Shaban Tantray in village Mammath, Tehsil and district Budgam, in favour of the mother of respondents 2 to 7 in exclusion of other legal heirs of the deceased estate holder. The said mutation came to be challenged by the aggrieved party before the Deputy Commissioner, Budgam, through the medium of a time barred appeal accompanied with an application for condonation of delay.
3. The Appellate Court rejected the condonation of delay application in terms of order dated 04.02.2014, by holding that it is hopelessly time barred and no WP(C) no. 3086/2019 Page 1 of 4 plausible justification has been given by the applicants for such a huge delay caused in filing the appeal against the mutation in question.
4. The appellants/ petitioners herein filed a revision petition before the Additional Commissioner, Kashmir with powers of Divisional Commissioner, who accepted the revision in terms of order dated 26.10.2017 and recommended to the Financial Commissioner (Revenue)/ Commissioner Agrarian Reforms, J&K, Srinagar, to set aside the order of the Appellate Court, Deputy Commissioner, Budgam, dated 04.02.2014, along with mutation no. 261 dated 12.05.1968 with further recommendation that Tehsildar concerned be directed to attest fresh mutation after denovo enquiry in favour of all the legal heirs of the deceased Shaban Tantray strictly in accordance with Muslim Personal Law.
5. The Financial Commissioner (Revenue)/ Commissioner, Agrarian Reforms, J&K, Srinagar, did not accept the reference of the Additional Commissioner, Kashmir and upheld the order of the Deputy Commissioner, Budgam and the mutation in question, in terms of the impugned order. Against the said order of the Financial Commissioner (Revenue)/ Commissioner, Agrarian Reforms, J&K, Srinagar, the present writ petition is filed on the grounds that the mutation in question is irrational as it excludes the three daughters and their legal heirs of the inheritance of deceased Shaban Tantray while only one daughter gets benefited; the impugned order is bad in law as it did not appreciate the distinguishable facts and circumstances of the case that warranted the case to be treated exceptionally as the petitioner is a resident of a far off place, simple and thus ignorant of the mutation in question. The impugned order suffers from ambiguity and infirmity, therefore, cannot sustain in the eyes of law.
6. The respondents, upon notice, appeared but did not file reply.
7. Admit.
8. Heard learned counsel for the parties and considered the submissions made. Mr M. S. Latief, learned senior counsel for the petitioner, referred to and relied upon the case law reported as 2018 SLJ 992 in support of his submissions.
9. I have also perused the orders passed the Deputy Commissioner, Budgam, Additional Commissioner, Kashmir, with powers of Divisional Commissioner, Kashmir and of the Financial Commissioner (Revenue), J&K.
10. The order impugned does not appear to be suffering from any ambiguity, infirmity or illegality. The mutation made in the year 1968 could not have been set- aside on the mere asking of an aggrieved party after a span of 46 years, almost five decades later, over a plea of ignorance that too when no plausible reasons were WP(C) no. 3086/2019 Page 2 of 4 putforth in support of such plea. In such circumstances, the Deputy Commissioner, Budgam, and the Financial Commissioner (Revenue)/ Commissioner Agrarian Reforms J&K, Srinagar, appear to have passed very reasoned orders which do not call for any interference. Law on the point is no more res integra. The delay caused in availing a legal remedy has to be sufficiently explained so as to convince the court that the inordinate delay was beyond the control of the party seeking such condonation. The Division Bench of this Court in case titled Ghulam Qadir Bhat and others v. Financial Commissioner (Revenue) & others, bearing LPAOW no. 33/2017 decided on 24.09.2021 has held that although there is no limitation prescribed for filing a revision, yet the same must be filed within a reasonable amount of time. The Hon'ble Apex Court in case titled State of Gujarat v. Patel Raghav Natha & others, AIR 1969 SC 1297 has held that in spite of the fact that the provisions do not prescribe for any limitation for exercising revisional power, this power must be exercised in reasonable time and the length of reasonable time must be determined by the facts of the case. In the instant case the petitioners have not explained sufficiently the reasons forming basis for the delay of five decades to challenge the mutation, therefore, is a case of unreasonable delay in exercise of revisional power. In that view of the matter the impugned order appears to be legally sound.
11. The Hon'ble Supreme Court in case titled Joint Collector Ranga Reddy District & Others v. D. Narsing Rao & others (2015) 3 SCC 695, has held as under:-
"In the decision in State of Gujarat v. Patil Raghav Natha and others (1969) 2 SCC 187 this Court while adverting to Sections 65 band 211 of the Bombay Land Revenue Code, 1879 held that though there is no period of limitation prescribed under Section 211 to revise an order made under Section 65 of the Act, the said power must be exercised in reasonable time and on the facts of the case in which the decision arose, the power came to be exercised more than one year after the order that was held to be too late."
12. It may be apt to mention here that Section 32 of the J&K Land Revenue Act authorizes a person aggrieved by any entry appearing in the revenue records to institute a suit before the Collector (Deputy Commissioner) for the correction of the record, and for the possession of the right claimed if he is not in possession. The mutation entries are only meant for fiscal purposes for generating revenue and WP(C) no. 3086/2019 Page 3 of 4 they do not create any right, title or interest in favour of any person in the land nor do they extinguish such right. These entries are always subject to the decree of a civil court of competent jurisdiction; therefore, it is always by way of a declaratory suit before the competent court that a long-standing revenue entry can be disturbed.
13. Furthermore, the parties are stated to be entangled in a civil litigation also as a suit for declaration, partition, possession and permanent injunction appears to be pending on the subject before a civil court.
14. In view of above, no ground is made out that would warrant allowing the writ petition and setting aside the order impugned. Accordingly, the writ petition is held to be without any merit, therefore, dismissed along with all connected CMs. Interim direction granted in terms of order dated 25th October, 2019, is vacated.
15. It is made clear that this court has not expressed its opinion on the merits of the case in any way. Any case pending on the subject before any forum shall be decided on its own merits without getting influenced by any of the observations made in this order.
(Moksha Khajuria Kazmi) Judge Srinagar 12.08.2022 Amjad lone, Secretary Whether approved for reporting: Yes/No WP(C) no. 3086/2019 Page 4 of 4