Jammu & Kashmir High Court - Srinagar Bench
Ghulam Ahmad Sheikh vs State Of J&K And Others on 16 June, 2023
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
OWP no.1078/2017
Reserved on: 28.02.2023
Pronounced on: 16.06.2023
Ghulam Ahmad Sheikh
.......Petitioner(s)
Through: Mr H. Furrahi, Advocate
Versus
State of J&K and others
......Respondent(s)
Through: Mr M. Tufail, Advocate
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Through the medium of this writ petition, petitioner prays for quashment of orders dated 11th March 2014 and 24th May 2017 to the extent it affects the legitimate rights of petitioner to hold the land under his control for all times to come to the extent of 01 Kanal 05 Marlas falling under Survey no.2609 on the basis of mutation no.1072 dated 5th August 1986. Petitioner also prays for a direction to respondents not to interfere/intervene or evict petitioner on the basis of impugned orders. He also seeks a direction to respondents to allow him to carry on with the possession of his land to the extent of 01 Kanal 5 Marlas situated at Village Drugmulla Tehsil and District Kupwara.
2. Learned counsel for petitioner has stated that in the present case all that has been done including attestation of mutation which was subject Page 1 OWP no.1078/2017 matter of challenge in a revision petition preferred by respondent no.5 before Commissioner, Survey and Land Records (Ex Officio Settlement Commissioner - respondent no.2 herein), J&K, Srinagar, solely falls under the purview of J&K Agrarian Reforms Act and resultantly respondent no.2 has no jurisdiction and orders impugned are, therefore, in violation of the Agrarian Reforms Act. He also states that the land in question was gifted by landlord, after resuming the land measuring 01 Kanal 05 Marlas only, out of 05 Kanals and 12 Marlas on the basis of agreement dated 7th February 1984, to his servant, namely, Ghulam Ahmad Sheikh for rendering services to landlord. He also states that respondent did not array landlord as party in the revision petition so there was non-joinder of the parties as the landlord was not heard while passing orders impugned. His further submission is that revision petition was mainly liable to be dismissed as there was inordinate delay in filing the revision, which fact has been totally ignored while passing orders impugned. He has placed reliance on a judgement passed by a Bench of this Court in Partap Singh v. J&K Special Tribunal and others, 2011 (4) JKJ 60.
3. On the other hand, counsel for the private respondent no.5 would contend that order dated 11th March 2014 passed by respondent no.2 holding that ex. owner being beneficiary under the provisions of the Act of 1976, was not entitled to alienate4/transfer the land by breaching the embargo imposed by Section 28-A of Agrarian Reforms Act and therefore mutation order dated 5th January 1996 was legally invalid. Respondent no.1, to whom reference was made by respondent no.2, has agreed with respondent no.2 and for the reason put forth in the order Page 2 OWP no.1078/2017 dated 24th May 2017, he has accepted the reference and set-aside the impugned mutation order and remanded the matter to Collector (ACR) concerned for initiating action under Section 28 of Agrarian Reforms Act.
4. I have heard learned counsel for parties and considered the matter.
5. Perusal of the record on the file would reveal that a revision petition was preferred by private respondent no.5 in January 2013 against Mutation Order no.1072 dated 5th August 1996 of village Dragmullah Tehsil and District Kupwara with respect to land measuring 01 Kanal 05 Marlas comprising Survey no.2609. Was it open for respondent no.5 herein to come up with a motion in the shape of a revision that too after so long and inordinate delay to challenge an order on mutation attested way back in the year 1996. Answer thereto is in negative.
6. The Division Bench of this Court (of which I am also a member) in an Appeal, being LPAOW no.33/2017, titled as Ghulam Qadir Bhat and others v. Financial Commissioner (Revenue) and others, vide its judgement dated 24th September 2021, has set at rest all the questions and issues as have arisen and come up for discussion and determination in the case in hand; relevant portion thereof is necessary to be reproduced hereunder:
"15. In view of the above, the question that arises is even if no limitation is provided for filing a revision, whether the revision could have been entertained after such a long gap of time so as to disturb the entries on the basis of which the property has exchanged hands and many other entries have come to be recorded subsequently.
16. The law of limitation is based upon the public law doctrine that there should be an end to a litigation and that there ought to be finality attained to a decision with the passage of time. The purpose to provide limitation for taking recourse to a legal remedy is not to destroy the rights of parties but to ensure that parties do not resort to dilatory tactics and seek their remedy Page 3 OWP no.1078/2017 within the prescribed time or a reasonable time so that the matter may not remain alive forever.
17. In a way, statutes of limitation and prescription are statutes of peace and repose. The interest of state requires that there should be an end to litigation. The public policy therefore requires application of law of limitation. The object of the law of limitation is to prevent disturbance of what has been acquired in equity and justice by long enjoyment and not to restore what may have been lost by party's own inaction.
18. The learned Single Judge in deciding the writ petition has unnecessarily brushed aside his own decision in OWP No. 1833/2015 Mst. Mali v. Financial Commissioner (Revenue) and others on 27.05.2016 wherein he himself held that the delay of 14 years in challenging the mutation entries by way of a revision amounts to inordinate delay and therefore the Financial Commissioner was not justified in overlooking the question of delay in filing the revision.
19. The Apex Court in Joint Collector Ranga Reddy Dist. & Anr. vs. D. Narsing Rao & Ors (2015) 3 SCC 695 has held that even where no limitation is prescribed for invoking the revisional power that will not permit the authorities to exercise the power arbitrarily with inordinate delay.
20. In Zaina vs. Financial Commissioner & Ors. 1983 SLJ 1, this Court in context with the filing of revision under Section 15 of the J&K Land Revenue Act held that though no limitation is prescribed for filing a revision, but it must be filed within the time prescribed for filing appeals and in case there is delay, the revisional court has power to condone it after recording reasons for doing it.
21. The Bombay Land Revenue Code, 1879 also did not provide for any limitation for exercising the revisional power by the Commissioner. The Apex Court in State of Gujarat vs. Patel Raghav Natha & Ors. AIR 1969 SC 1297 held that in spite of the fact 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.
22. In state of A.P. & Anr. vs. T. Yadagiri Reddy & Ors. (2008) 16 SCC 299, it was held that where the legislature in its wisdom did not fix any time limit for exercising revisional power and inserted the words "at any time" it does not mean that the legislature intended to leave the orders passed under the Act open to alteration and variation for an indefinite period as it would perpetuate uncertainty.
23. In view of the aforesaid case law, the inescapable conclusion is that the revisional powers cannot be exercised arbitrarily after an inordinate delay of the passing of the order sought to be revised.
24. The case at hand is a classic example of inordinate and unreasonable delay in exercise of revisional power. The said power has been exercised without recording any satisfaction as to the delay in exercising it more particularly when the two earlier generations of the revisionist have not come forward to object to the mutation or to challenge it by filing a revision. Thus, it is a clear case of unreasonable delay in exercise of revisional power.
Page 4 OWP no.1078/2017
25. A complete procedure for maintaining the records or the annual record of rights is provided under the J&K Land Revenue Act. The scheme of the above Act clearly provides that the dispute as to the mutation has to be decided by the revenue authorities in a summary manner and that the final order passed by the Revenue Officer as to who is best party entitled to the property is always subject to any decree or order that may be subsequently passed by any civil court of competent jurisdiction. Section 32 of the J&K Land Revenue Act also 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.
26. It may be noted that the mutation entries have not been recognized as document of titles of property. They are simply meant for fiscal purposes to enable the Government to collect revenue. These entries do not either create any right, title or interest in the land of any party nor do they extinguish any such right of any party. The said entries are always subject to the decree of a civil court of competent jurisdiction. Therefore, whenever a long standing revenue entry is sought to be disturbed, it is always by way of a declaratory suit before the competent court.
27. In view of the aforesaid facts and circumstances, we are of the opinion that the writ court as well as the revisional courts have manifestly erred in law in exercising their power and in directing for the modification of the mutation entry......"
7. In the above case of Ghulam Qadir Bhat, it was tried to aver and show that Financial Commissioner (Revenue) under J&K Land Revenue Act had unfettered revisional powers and provisions of Limitation Act would not apply to petitions for revision whereas provisions of Limitation Act would apply only in the cases of appeals. The Division Bench, however, held that revisional powers could not be exercised arbitrarily after an inordinate delay of passing of the order sought to be revised.
8. In the case in hand, there is inordinate delay in preferring the revision petition against the mutation in question. The Division Bench in Ghulam Qadir Bhat (supra) has discussed all the facets of the matter including that mutation entries have not been recognized as document of titles of property because such mutations are simply meant for fiscal Page 5 OWP no.1078/2017 purposes to enable the Government to collect revenue inasmuch as these entries do not either create any right, title or interest in the land of any part nor do they extinguish any such right of any party and that such entries are always subject to the decree of a civil court of competent jurisdiction and therefore, whenever a long standing revenue entry is sought to be disturbed, it is always by way of a declaratory suit before the competent court.
9. The net result is that the instant writ petition succeeds and, as such, is accordingly allowed. Impugned Orders dated 11th March 2014 and 24th May 2017 are quashed.
10.Disposed of as above.
(Vinod Chatterji Koul) Judge Srinagar 16.06.2023 Ajaz Ahmad, PS Whether approved for reporting? Yes/No. Page 6 OWP no.1078/2017