Jammu & Kashmir High Court
Manohar Lal And Others vs State Of J&K; And Others on 27 July, 2017
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
OWP No.271/2011
MP No.325/2011
Date of order: 27 .07.2017
Manohar Lal and others. v State of J&K and others.
Coram:
Hon'ble Mr. Justice Sanjeev Kumar, Judge
Appearing counsel:
For the Petitioner(s) : Mr. S.C.Mansotra, Advocate.
For the Respondents(s) : Mr. Ehsan Mirza, Dy. AG for R-1 to 5.
Mr. C.M.Gupta, Advocate for R-6.
i/ Whether to be reported in : Yes/No
Press/Media
ii/ Whether to be reported in : Yes/No
Digest/Journal
1. Through the medium of this petition the petitioner has called in question judgment dated 16.11.2010 passed by respondent No.2, whereby order dated 01.10.2005 passed by respondent No.3 has been set aside.
2. Briefly stated, the facts of the case as are gatherable from the records are that the petitioners and respondent No.6 were co-sharers of land measuring 7 kanal falling under Khasra No.534, 7 kanal 13 marlas falling in Khasra No.654 min and 7 kanal falling in Khasra No.734 situated in village Chak Dolma Tehsil Hiranagar and by virtue of mutation No.144 attested by the Naib-Tehsildar, Sherpur Tehsil Hiranagar on 26.12.1981, the rights of the petitioners over the said land were extinguished and the same were vested in the State and simultaneously the respondent No.6 was held as prospective OWP No.271 of 2011 Page 1 of 5 owner for the purpose of Section 8 of the Agrarian Reforms Act. Subsequently vide order dated 06.09.1993 a mutation under Section 8 of the Agrarian Reforms Act, 1976 was also attested vesting the ownership rights in the respondent No.6. Aggrieved, the petitioner challenged the aforesaid mutation before the Additional Deputy Commissioner, Kathua with the powers of Commissioner Agrarian Reforms by way of an appeal. The appeal was contested by the respondent No.6, who besides, resisting the appeal of the petitioner on merits also took the plea that the appeal was time barred and there were no cogent reasons given by the petitioner to explain the huge delay of 22 years as mutation under Section 4 was attested as back as on 26th December, 1981. The Additional Deputy Commissioner, Kathua with powers of Commissioner, Agrarian Reforms, acting as appellate authority accepted the appeal of the petitioner and set aside the impugned mutation. With regard to the issue of condonation of delay, the appellate authority i.e., respondent No.3 held that bar of limitation would not come in his way of setting aside the orders impugned as the same were totally flawed and passed in violation of principle of natural justice. With these two lines the delay was condoned and the appellants were heard on merit and impugned orders were set aside. For facility of reference, the relevant portion of the order dealing with the condonation of delay is reproduced as under:- OWP No.271 of 2011 Page 2 of 5
....."So far as the question of condonation of delay is concerned, as the both the orders as mentioned above are flawed and go against the merits of the case and have been passed without following the principle of Natural Justice and giving reasonable opportunity of being heard to the appellants, bar of limitation would not come in the way of setting aside the orders else it may result in defeating the cause of substantial justice."
3. Aggrieved, the respondent No.6 herein filed a revision petition before the Jammu & Kashmir Special Tribunal, Jammu, which after hearing both the parties accepted the revision and set aside the order passed by the Additional Deputy Commissioner, Kathua on the ground that the appellate Court ought to have considered the condonation issue first and only after condoning the delay, it should have determined the matter on merit. It is this order, which is now assailed by the petitioner through the medium of this writ petition.
4. In the given facts and circumstances of the case, the short question that calls for adjudication in this case is as to whether the appellate authority was correct in considering the appeals on merits without first considering the question of condonation of delay on the settled parameters of law.
5. Admittedly, mutation No.144 under Section 4 of the Agrarian Reforms Act was attested on 26.12.1981 and mutation No.162 under Section 8 of the Agrarian Reforms Act was attested on 06.09.1993 and the appeals against both the aforesaid mutations were filed on 07.03.2003, i.e. more than 22 years after the attestation of mutation under Section 4 of the OWP No.271 of 2011 Page 3 of 5 Agrarian Reforms Act and 10 years after the attestation of mutation under Section 8 of the Agrarian Reform Act. There was, thus, huge delay in approaching the appellate authority.
6. The appellate authority should have considered the issue of delay on the settled parameters of law and should have atleast called upon the appellants to explain such a huge delay. However, the appellate court dealt with the issue of condonation of delay casually perhaps being influenced heavily by the merits of the case. True it is that if the appellants had a good case on merits and it tendered cogent explanation in approaching the appellate authority belatedly, respondent No.3 could have exercised its discretion to condone the delay, but the manner in which the issue of condonation of delay raised by respondent No.6 was dealt with, leaves this Court with no option but to accept this writ petition and remand the matter back to the Additional Deputy Commissioner, Kathua with powers of Commissioner, Agrarian Reforms to hear both the parties on the issue of delay and after passing a reasoned order proceed further in the matter.
7. Accordingly, the matter is remanded to the Additional Deputy Commissioner with powers of Commissioner, Agrarian Reforms, Kathua to re-hear the appeals by providing an opportunity to both the parties and decide the issue of condonation of delay in light of the well settled parameters of OWP No.271 of 2011 Page 4 of 5 law and thereafter take up the appeals for their decision on merits. The order impugned dated 16.11.2010 passed by the J&K Special Tribunal shall stand modified to that extent. Parties through their learned counsel are directed to appear before the Additional Deputy Commissioner, Kathua on 10.08.2018.
8. With these observations the writ petition is disposed of.
(Sanjeev Kumar) Judge Jammu, 27.07.2017 Vinod OWP No.271 of 2011 Page 5 of 5