Jammu & Kashmir High Court - Srinagar Bench
Ghulam Nabi Katoo & Ors vs Dr. Mohammad Afzal Bhat & Ors on 31 January, 2023
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPA No. 157/2020
CM No. 5705/2020
Reserved on 27.12.2022
Pronounced on 31.01.2023
Ghulam Nabi Katoo & Ors. ...Petitioner(s)/Appellant(s)
Through: Mr. J. H. Reshi, Adv.
Vs.
Dr. Mohammad Afzal Bhat & Ors. ...Respondent(s)
Through: None
CORAM:
HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
HON'BLE MR. JUSTICE MA CHOWDHARY, JUDGE
JUDGMENT
Sanjeev Kumar, J 1 This intra-court appeal is directed against the judgment dated 11th October 2018 passed by learned Single Judge of this Court ["the writ Court"] in OWP No. 493/2007 titled Ghulam Rasool Bhat vs. J&K Special Tribunal & Ors.
2 Briefly put the facts leading to the filing of this appeal are that the writ petitioner Ghulam Rasool Bhat, who has since died and is substituted by his legal heirs i.e., respondent Nos. 1 to 5 was owner of land measuring 6 Kanals, 8 marlas comprised under Survey No. 1311 situated in village Tailbal, Srinagar ["the subject land"]. The subject land was under cultivating possession of tenants namely Khaliq Katoo and Qadir Katoo, both sons of Gaffar Katoo in equal shares. It is appropriate to note here that both Khaliq Katoo & Qadir Katoo too have died and are now represented by their legal heirs i.e., appellants in this appeal.
3 Since the subject land was not under personal cultivation of its owners in Kharif, 1971, as such, by operation of Section 4 of the J&K Agrarian Reforms Act, 1976 ["1976 Act"], the subject land vested in the State and accordingly a mutation bearing No. 1375 dated 01.11.1981 was attested. In this way, the ownership rights of the owner Late Shri Ghulam Rasool Bhat LPA No. 157/2020 Page 1 of 10 got extinguished and the tenants/tillers Late Khaliq Katoo & Late Qadir Katoo were recorded as prospective owners. The ex-owner Late Shri Ghulam Rasool Bhat presented an application for resumption of land under Section 7 of 1976 Act before the Naib-Tehsildar which subsequently came to be transferred to Tehsildar. The application for resumption was rejected by the Tehsildar, Srinagar vide order dated 4th January 1982, inter alia, on the ground the same was not presented before the appropriate forum. The Tehsildar also found another defect in the application to the extent that it was not signed by the ex- owner. This order of Tehsildar, Srinagar dated 4th January 1982 was challenged in an appeal by the ex-owner Late Ghulam Rasool Bhat before the Commissioner, Agrarian Reforms Srinagar. Vide order dated 14 th May 1986, the appeal preferred by ex-owner was dismissed by the Commissioner and the order of Tehsildar Srinagar upheld. The order of Commissioner, Agrarian Reforms dated 14th May 1986 was assailed by the ex-owner before the J&K Special Tribunal by way of a revision petition. The revision petition too was dismissed and the order of the Agrarian Reforms Commissioner was upheld by the J&K Special Tribunal ["the Tribunal"] 4 Feeling aggrieved and dissatisfied with the judgment of the Tribunal dated 4th November 1992, the ex-owner filed OWP No. 493/2007 before the writ court. The writ petition was dismissed by the writ court and the LPA No. 129/1997 filed by ex-owner before the Division Bench of this Court also met the same fate. As a matter of fact, the Division Bench dismissed the LPA as withdrawn vide order dated 20.02.2022 with liberty to file a fresh application before the competent forum, if law so permits. In the exercise of the liberty granted by the Division Bench of this Court vide order dated 20th February 2002, the ex-landlord filed a fresh application for resumption of land under Section 7 of 1976 Act before the Tehsildar, Srinagar. The aforesaid application was allowed by the Tehsildar vide his order dated 26th June 2002 and ex-owner was held entitled to resume land measuring 3 kanals and 4 marlas. The tenants/tillers took the matter to the Financial Commissioner with powers of Commissioner, Agrarian Reforms J&K by way of an appeal.
5 The Appellate Authority i.e., Commissioner, Agrarian Reforms J&K vide his order dated 1st July 2003 upheld the order passed by the Tehsildar, Srinagar and dismissed the appeal filed by the tillers. The matter LPA No. 157/2020 Page 2 of 10 was taken to the Tribunal by way of a revision petition filed by the tenants. The J&K Special Tribunal, Srinagar vide its order dated 25 th June 2007 held the application submitted by the ex-landlord for resumption under Section 7 read with Section 32 of the 1976 Act barred by limitation. The order of Commissioner, Agrarian Reforms as also mutation No. 1409 dated 26 th June 2002 attested by Tehsildar Srinagar were set-aside while allowing the revision petition. The ex-landlord challenged the order of J&K Special Tribunal, dated 25th June 2007 in OWP No. 493/2007.
6 The writ court after taking note of provisions of Section 7 (2), Section 32 of 1976 Act and Section 29(2) of the Limitation Act, Svt. 1995 and relying upon the plethora of case law on the subject concluded that the provisions of Limitation Act were applicable to all the proceedings under 1976 Act and, therefore, the order of J&K Special Tribunal, Srinagar holding that the Tehsildar could not have entertained the time barred application under Section 7 (5) filed by the ex-owner was not correct view in law. Accordingly, the writ court vide judgment impugned set-aside the order of J&K Special Tribunal dated 26th June 2007, the order of Financial Commissioner, Revenue/ Commissioner, Agrarian Reforms, J&K, dated 1st July 2003 and the mutation dated 26th June 2002 attested by Tehsildar, Srinagar under Section 7 of the 1976 Act. The Tehsildar, Srinagar was directed to first decide the application preferred by the ex-owner under Section 5 of the Limitation Act by passing a speaking order after affording an opportunity of hearing to the parties. It was further provided that if the Tehsildar would come to the conclusion that the ex-landlord was able to make out sufficient cause for condoning the delay, he shall proceed to adjudicate the application under Section 7 of the 1976 Act within a period of three months. It is this judgment of the writ court which is called in question by the appellants, who are none other than the legal heirs of the tillers who are opposing the resumption of subject land under Section 7 of 1976 Act by the ex-landlord now represented by respondent Nos. 1 to 5.
7 As is apparent from the proceedings recorded in the order sheets, the respondents despite notice have chosen not to appear and therefore this Court was constrained to hear the matter in ex-parte.
8 We have heard Mr. J. H. Reshi, learned counsel appearing for the appellants and perused the relevant material on record.
9. The only question that arises for determination is as under:-
LPA No. 157/2020 Page 3 of 10"Whether the provisions of Limitation Act apply to the proceedings under the J&K Agrarian Reforms Act, 1976?"
10. With a view to determine the aforesaid question effectively, it is necessary to first determine and adjudicate as to whether the authorities under 1976 Act i.e., Tehsildar, Commissioner Agrarian Reforms (Appellate Authority) and J&K Special Tribunal (Revisional Authority) are Courts within the meaning of term "used" in the Limitation Act so as to attract the applicability of provisions of the Limitation Act to the proceedings pending before these authorities."
11 The 1976 Act was enacted by the J&K State Legislature in the year 1976 to provide for transfer of land to tillers thereof subject to certain conditions and for better utilization of the land in the then State of J&K. Apart from other salient aims and objects of the legislation, the Act primarily aimed at denuding the owners/landlords of right to own and possess the agricultural land other than for personal cultivation and to confer the ownership rights on the landless tillers. The practice of cultivating agricultural lands through tillers by creating tenancy was done away with. It is a giant step towards implementing agrarian reforms in the State.
12 Section 4 of the 1976 Act provides for vesting in the State of rights in land which is not held by the landlord in personal cultivation Kharif, 1971 was the relevant date chosen for giving effect to the provisions of 1976 Act. By operation of Section 4 which is given overriding effect on any law which was in force at the time of promulgation of 1976 Act clearly provides that all rights, title and interest in land of any person not cultivating it personally in Kharif, 1971 shall be deemed to have extinguished and vested in the State free from all encumbrances with effect from 1st day of May 1973. Section 7 was engrafted in 1976 Act to give an opportunity to the ex-landlords to resume some portion of the land for bona fide cultivation. Any person whose rights in the land have been extinguished by Section 4 and who was entitled to recover rent in Kharif, 1971 directly from the tiller was permitted to resume land outside demarcated forests for purposes of bona fide personal cultivation. The resumption of land by the ex-landlord was, however, subject to certain conditions which, inter alia, included the making of an application for resumption in the prescribed manner within one year of the commencement of 1976 Act. That apart, the ex-landlord making an LPA No. 157/2020 Page 4 of 10 application was under an obligation to take up normal residence for the purpose of cultivating resumed land personally in the village within a period of six months from the date of resumption. This was again subject to certain exceptions which are, however, not relevant for our purpose. Section 7 read in entirety does not make any provision for condonation of delay in making the application for resumption.
13 Section 8 deals with vesting of ownership rights in land in prospective owner. The prospective owner is the tiller, who is found in cultivating possession of the land in Kharif, 1971. Section 18 lays down the nomenclature and hierarchy of the authorities responsible for implementation of the different provisions of the 1976 Act. Sub-Section 1 of Section 18 enumerates the following authorities:-
(a) Commissioner, Agrarian Reforms and Joint
Commissioner Agrarian Reforms
(b) Collector;
(c) Assistant Commissioner;
(d) Tehsildar; and
(e) Naib-Tehsildar.
14 General Superintendence and control over all such Revenue
Officers vests with the Government. The Tehsildar and Naib-Tehsildar are the mutating officers, the orders of Collector or any other authority lower than the Collector are appealable before the Commissioner, Agrarian Reforms. The Revenue Minister whose powers were vested in the J&K Special Tribunal is conferred the power to call for the record of any case and exercise the power of revision against the orders passed by any Revenue Officer subordinate to it. The term "court" is not defined anywhere, however, the term "civil court"
does find mention in sub-section 5 of Section 19 which provides for ouster of jurisdiction of civil Court in respect of certain matters enumerated in sub- section 3 of Section 19.
15. We have adverted to the objects of 1976 Act, the hierarchy of authorities constituted under the Act as also the scheme of the Act to find out and understand the nature of jurisdiction that is exercised by the authorities under the 1976 Act.LPA No. 157/2020 Page 5 of 10
16 On careful perusal and close analysis of the Scheme of 1976 Act and various provisions dealing with the exercise of jurisdiction by the authorities under the 1976 Act, we find that Revenue Officer, considering and adjudicating an application for resumption under Section 7, is not a "Court"
within the meaning of the term used in the Limitation Act nor the jurisdiction exercised by Revenue Officer has any trappings of the Civil Court. Section 7, thus, prescribes a fixed timeline for making an application for resumption which is one year from the date of commencement of the 1976 Act. However, there is no provision either in Section 7 or elsewhere in the 1976 Act which confers any power or jurisdiction on the Revenue Officer to entertain an application for resumption even beyond the period of one year by condoning the delay.
17 In contra-distinction to the provisions of Section 7, Section 22 provides for the period of limitation of 60 days for filing an appeal from the date of the order appealed from. This period of limitation for filing appeal is applicable to all appeals filed under the Act, but in case of the appeals pertaining to District Ladakh, Sub-Division Gurez, Machhil Illaqa of Tehsil Kupwara and Tehsil Karnah in the district of Baramulla, in Tehsil Gool Gulabgarh, in Niabat Panchari, Dudoo Basantgarh and Bermen etc., the period of limitation provided is 120 days. This longer period of limitation has been prescribed keeping in view the topography and inaccessibility of these areas to the forum of appeal.
18. Sub-Section 2 of Section 22 specifically provides that the provisions of J&K Limitation Act would apply to the appeals under the Act.
19. From the reading of Section 22 particularly sub-Section 2, it is abundantly clear that the provision of Limitation Act apply only to the appeals provided under the Act and not to any other proceedings held by any other Revenue Officer under 1976 Act. We cannot even apply the provisions of the Limitation Act to the other proceedings under the Act of 1976 with the help of Section 29 of the J&K Limitation Act. Section 29(2) of the J&K Limitation Act as it was then in force reads as under:-
"29(2).Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of Section 3 shall apply, as if such period LPA No. 157/2020 Page 6 of 10 were prescribed therefor in that Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-
(a) the provisions contained in Section 4, Sections 9 to 18 and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law."
20. From plain reading of sub-Section 2 of Section 29 of the Limitation Act, it is abundantly clear that even if the special or local law prescribes for any suit, appeal or application, the period of limitation different from the period prescribed therefor by the Ist Schedule, the provisions of Section 5 of the Limitation Act would not be applicable, however, provisions contained in Section 4, Section 9 to 18 and 22 shall apply only in so far as and to the extent to which they are not expressly excluded by any such special or local laws. It is thus evident that in no case, Section 5 is attracted to the proceedings for resumption of land under Section 7 held by the Revenue Officer under the 1976 Act. Even other provisions of the Limitation Act would not be applicable as the Revenue Officer conducting proceedings under Section 7 of 1976 Act does not act as a court so as to attract the applicability of several provision of the Limitation Act by virtue of Section 29(2) thereof.
21. The reference to the term any suit, appeal or application in sub- Section 2 of Section 29 is only to such suits, appeals or applications for which the period of limitation is traceable in the First Schedule. The First Schedule of the Limitation Act refers to different period of limitation for different types of suits, appeals and applications which are filed before a court or forum having all the trappings of court. Viewed from any angle, the Revenue Officer who is called upon to attest the mutation under Section 7 of the 1976 Act is neither the court nor has the trappings of a civil court so as to attract the applicability of Section 29(2) of the Limitation Act. By the plain language of Section 29, the applicability of Section 5 is completely excluded. That apart, Section 5 as its language goes, is applicable only to the appeals and applications which are filed before the Court after the period of limitation prescribed therefor. It is abundantly clear from the language used in Section 5 that the delay in filing an appeal or an application can be condoned by the LPA No. 157/2020 Page 7 of 10 court if the appellant or applicant as the case may be satisfies the court that he had sufficient cause for not preferring the appeal or making the application within prescribed period of limitation.
22 The view which we propose to take in this case is fortified by a recent decision of the Supreme Court reported as Ganesan vs. Commissioner, Tamil Nadu Hindu Religious and Charitable Endowments Board & Ors, (2019) 7 SCC 108 . In the aforesaid case, under similar set of facts and circumstances, the Hon'ble Supreme Court framed following four questions for determination:-
1) Whether the Commissioner while hearing the appeal under Section 69 of the 1959 Act, is a Court?
2) Whether applicability of Section 29(2) of the Limitation Act is with regard to different limitation prescribed for any suit, appeal or application to be filed only in a Court or Section 29(2) can be pressed in service with regard to filing of a suit, appeal or application before statutory authorities and tribunals provided in Special or Local Laws?
3) Whether the Commissioner while hearing the appeal under Section 69 of 1959 Act is entitled to condone delay in filing an appeal applying the provisions of Section 5 of the Limitation 1963 Act?
4) Whether the statutory scheme of Act 1959 indicate that Section 5 of Limitation Act is applicable to proceedings before its authorities?
23. The Hon'ble Supreme Court after a thorough deliberation and having surveyed the entire case law answered these questions in the following manner:-
24 In Re Question No. 1When an appeal is provided against the order of the Commissioner under Section 69 to the Court which is defined under Section 6(7), there is no question of treating the Commissioner as a Court under the statutory scheme of 1959 Act, We, thus, conclude that Commissioner is not a Court within the meaning of 1959 Act.25. In Re Question No. 2 and 3 LPA No. 157/2020 Page 8 of 10
(i) The applicability of Section 29(2) of the Limitation Act is with regard to different limitations prescribed for any suit, appeal or application when to be filed in a Court.
(ii) Section 29(2) cannot be pressed in service with regard to filing of suits, appeals and applications before the statutory authorities and tribunals provided in a special or local law. The Commissioner while hearing of the appeal under Section 69 of the 1959 Act, is not entitled to condone the delay in filing appeal, since, provision of Section 5 shall not be attracted by strength of Section 29(2) of the Act.
26. In Re Question No. 4 The Supreme Court held that when a special or local law provides for applicability of any provision of the Limitation Act, the provisions of the Limitation Act including Section 5 can very well be applied in deciding an appeal by the statutory authority, which is not a Court, by the statutory scheme of special or local law.
27 Applying the aforesaid dicta of law laid down by the Supreme Court, when we examine the case on hand, we find that so far as Section 7 is concerned, it only provides for filing of an application for resumption by the ex-landlord within one year of the commencement of 1976 Act and makes no provision for application of the provisions of the Limitation Act nor does it contain any independent provision providing for condonation of delay in preferring such an application on the analogy of Section 5 of the Limitation Act.
28 As we have held hereinabove, Section 29 of the Limitation Act too is not attracted to the suits, appeals or applications which are filed before the statutory authorities not qualifying to be a "Court" as defined and understood under the Limitation Act. Section 29(2) of the J&K Limitation Act specifically excludes the applicability of Section 5 of the Limitation Act.
29. Viewed from any angle, the view of the writ court that on the strength of Section 29(2) of the Limitation Act, the Revenue Officer adjudicating an application under Section 7 of 1976 Act has the power to condone the delay in filing the application for resumption beyond the prescribed period of limitation of one year from the date of commencement of LPA No. 157/2020 Page 9 of 10 the Act is totally erroneous and incorrect in law. We regret our inability to subscribe to the aforesaid view of the writ court more particularly in view of clear enunciation of law by the Supreme Court in Ganesan (supra). As is rightly held by the Supreme Court in Ganesan that a special or local law may apply the provisions of the Limitation Act or exclude their applicability altogether.
30 Once a special or local law itself applies the provisions of Limitation Act as is done by the J&K Agrarian Reforms Act in reference to the appeals before the Commissioner, Agrarian Reforms Act in terms of Sub- Section 2 of Section 22. The provisions of the Limitation Act, in particular Section 5, can be pressed into service for condoning the delay.
31. We, therefore, hold that while the Appellate Authority i.e, Commissioner, Agrarian Reforms hearing appeals under Section 19 of 1976 Act is empowered to condone the delay under Section 5 of the Limitation Act, for, the provisions of the Limitation Act have been specifically applied to the appeals under the Act. However, neither Section 5 nor any other provisions of the Limitation Act would be attracted to the proceedings before the Revenue Officer under Section 7 of 1976 Act.
32 For the foregoing reasons, the appeal is allowed and order of writ court dated 11th October 2018 impugned in this appeal is set-aside. The application for resumption under Section 7 of the J&K Agrarian Reforms Act, 1976 filed by the ex-owner of the subject land after a lapse of about 25 years as held barred by limitation.
33 We, therefore uphold the order of J&K Special Tribunal dated 25th June 2007 and set-aside the mutation order 1409 dated 26th June 2002 attested by Tehsildar, Srinagar. We, therefore, hold respondent Nos. 1 to 5 not entitled to any resumption of land under Section 7 of 1976 Act having lost their right on account of limitation.
34. The appeal is disposed of, accordingly.
(MA CHOWDHARY) (SANJEEV KUMAR)
JUDGE JUDGE
SRINAGAR:
31.01.2023
Altaf
Whether approved for reporting:Yes
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