Jammu & Kashmir High Court - Srinagar Bench
Ayoub Gojar & Others vs Financial Commissioner Revenue & ... on 14 March, 2018
Author: M. K. Hanjura
Bench: M. K. Hanjura
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
OWP No.184/2015
Date of order: 14.03.2018
Ayoub Gojar & others
Vs.
Financial Commissioner Revenue & others.
Coram:
Hon'ble Mr. Justice M. K. Hanjura, Judge
Appearing counsel:
For Petitioner(s) : Mr. Nazim Khan, Advocate.
For respondent(s) : Mr. M. A. Wani, Advocate, and
Mr. Zainul Aabidin, Advocate.
i) Whether approved for reporting in Law journals etc. : Yes/No ii) Whether approved for publication in press : Yes/No
1. In this petition, filed under Article 226 of the Constitution of India read with Section 103 of the Constitution of the State of Jammu and Kashmir, the petitioners crave the indulgence of this Court in quashing the order dated 28.01.2015 passed by the Ld. Financial Commissioner (Revenue), in a revision petition bearing file No.290/FC-AP. The petitioners also implore for the grant of a writ of mandamus commanding the respondents not to disturb their possession in respect of the land that forms the subject matter of the petition on the grounds, inter alia, that the respondent No.3 herein (the petitioner before the Ld. Financial Commissioner) has abused the process of law with ulterior motives. The judgment passed by the learned Financial Commissioner is illegal. The Shariat Act of 2007 does not apply to the case in hand where the mutations have been attested before a period of more than five decades, and that if such an interpretation is allowed to be given to the Act, thousands of mutations attested under the Customary Law will have to be set aside which will open a Pandora's Box.
2. The facts under the shade and cover of which this petition has been filed require to be enumerated here and these are that the respondent No.3 here in this petition OWP No.184/2015 Page 1 of 15 filed a revision on 15.05.2013 before the learned Financial Commissioner, J&K, Srinagar, against the mutation Nos.176 and 179 attested on 23.09.1959 viz-a-viz the landed estate of Jamal-ud-Din situate at Margund, Tehsil Ganderbal (now Kangan). Jamal-ud-Din had contracted two marriages, one with Mst. Bakhti and the other with Mst. Saira. Mst. Bakhti gave birth to a son from the ribs of Jamal- ud-Din and his name was Yaqoob. The petitioner before the learned Financial Commissioner and Reshma were born from the thighs of Mst. Sara. Reshma is the mother of respondent Nos.6 and 7 as they figured before the learned Financial Commissioner. Yaqoob died during the life time of his father leaving behind two sons, namely, Ayoub Gojar, respondent No.1 in the revision petition and Mehboob, who is survived by four daughters, respondent Nos.2 to 5 before the learned Financial Commissioner.
3. In order to understand the relation of the parties in the right perspective the pedigree table as it relates to them is delineated herein below:
Jamal Din Mst. Bakhti (Ist Wife) Mst. Sara (2nd Wife) Yaqoob Mst. Galu Gh. Rasool Mst. Reshma Ayub Mehboob Rafeeqa Shafeeqa Azra Zaie Zuhra Zainub
4. The petitioner assailed the order passed in the two mutations detailed herein, before the learned Financial Commissioner, mainly on the grounds: (a) that the parties being Muslims are governed by the norms of Muslim Personal Law and the impugned mutations have neither been attested under the Muslim Personal OWP No.184/2015 Page 2 of 15 Law nor under the Customary Law; (b) that no enquiry has been conducted by the mutating officer before attesting the mutations; (c) that two separate mutations have been attested in respect of the one and the same inheritance; (d) that the petitioner was a minor at the time of the attestation of the mutations; and (e) that the respectable persons of the village were not associated with the mutation proceedings.
The learned Financial Commissioner after scanning and evaluating the pleadings of the parties and the material placed before him, came to the following conclusion:
"2. The case was heard over several dates. Both counsels filed written arguments. Learned Counsel for the petitioner has repeated the grounds taken by him in the memo of Revision. Learned Counsel for the Respondents has stated that the petitioner himself is a beneficiary of the mutation; has no locus to challenge the mutations, and that the Revision is time barred. He has justified attestation of two mutation for the estate of Jamal Din on the ground that the said estate holder had inherited two inheritances, one from his natural father and other from his adoptive father. The Petitioner has sold by way of an agreement 01 kanal 21/2 marlas under khasra No. 192 to Respondents. Petitioner has also been selling land to different persons which are attested vide mutation Nos 351 & 470. It is only greed that has prevailed upon the petitioner to make him challenge the mutation after 55 years. So far, as the legal heirs of the deceased estate holder Jamal din are concerned, there is no controversy except that the counsel for the petitioner has mentioned that Jamal Din from his first wife Mst Bakhti had only one son Yaqoob, while as the counsel for Respondents has shown a daughter Mst. Bibi as well in the pedigree table.
3. The plea that Revision is time barred is not worth consideration as it has been held in a number of cases that no limitation is prescribed for a Revision under Section 15 of the Land Revenue Act. That the petitioner was a minor in 1959 when the impugned mutation was attested, entitle him to challenge the mutation any time after he attains majority and gains knowledge of the mutation. Secondly once the estate had devolved upon Jamal din which as per the counsel for Respondents he had inherited from both his fathers, natural and adoptive, it constituted a single estate belonging to Jamal Din. So it could have been devolved by attestation of a single mutation being located in the same village. Thus attestation of two separate mutations for the same inheritance is unwarranted and is a deviation from the instructions contained in Standing Order 23-A dealing with mutations.
4. Again no proper enquiry appears to have been made by the mutating officer, who has simply relied upon the statement of Mst. Bakhti and has not associated the Lambardar and Chowkidar of the village concerned OWP No.184/2015 Page 3 of 15 with the mutation proceedings. The report of GQ certifying the correctness of the entries recorded by Patwari is also missing.
5. Lastly, the Hon'ble High Court of J&K at Srinagar in LPA No. 07/2010 in case titled Ahad Sheikh v. Murad Ahmad Shah & Ors., has held that:
"The rule of decision" in case where parties are Muslims shall be the Muslim Personal Law. The injunction is one directed against the Court; it is enjoined to apply the Muslim Personal Law in all cases relating to the matters specified notwithstanding any custom or usage to the contrary. The intention of the legislature appears to be clear; the Act applies to all suits and proceedings which were pending on the date when the Act came into operation as well as to suits and proceedings filed after that date. It is true that suits and proceedings which have been finally decided would not be affected by the enactment of the Shariat Act, but if such a suit or proceeding be pending even in appeal on the date when the Act was brought into operation, the law applicable for decision would be the Muslim Personal Law if the other conditions prescribed by the Act are fulfilled."
Applying the same dictum to case in hand, the mutations do not stand the test of law and are liable to be set aside.
6. For the reasons supra, the revision petition is accepted and the mutation Nos. 176 and 179 both dated 23.09.1959 of estate Mirgund, Tehsil Ganderbal now Kangan are set aside. The case is remanded to the Tehsildar concerned for passing appropriate orders strictly in accordance with Muslim Personal Law and as per the procedure laid down in Standing Order 23-A. Interim orders, if any, granted in the matter are vacated. File be consigned to records after due completion."
5. Heard and considered.
6. Learned counsel for the petitioner herein has strenuously and vehemently argued that the mutations have been attested before a period of more than five decades and in case the order of the learned Financial Commissioner is allowed to operate, it will upset and reverse the position as it prevailed between the parties during this period of more than five decades. He has proceeded to state that all the beneficiaries under these mutations i.e. legal heirs of Jamal Din acted upon these mutations and enjoyed the property and its usufructs and after a long period of 55 years, the respondent No.3 out of greed filed a revision petition which on the face of it is barred by time. The mutations have been set aside on vague and unjustified grounds. The petitioner in the revision petition, i.e., respondent No.3 herein pleaded before the learned Financial Commissioner, that he attained the knowledge of these mutations in the year 2013 which is an incorrect narration of OWP No.184/2015 Page 4 of 15 facts. The respondent No.3 is about 60 years of age and being a co-sharer and a relative of the petitioners herein was well aware of the attestation of these mutations and, therefore, it can by no stretch of imagination, be said that he was ignorant about the attestation of these mutations. It has also been pleaded and argued that a chain of mutations with regard to the landed estate left by late Jamal Din have been attested, whereby third party interests have been created from time to time and the details of these mutations are as under:
Mutation No. 542, inheritance of Reshma, sister of respondent No. 3. Mutation No. 217, inheritance of Mst. Bakhti 1st wife of Jamal Din in favour of Mehboob, Ayoub, and Gh. Rasool S/o Reshma.
Mustation No. 351, the respondent No. 3, sold 4 kanals to Gh. Ahmad S/o Ahmad Wani by way of sale.
Mutation No. 396 (sale) in favour of Rehman S/o Subhan Bhat. Mutation No. 325 u/s 4 of Agrarian Reforms Act in favour of Qazi Habib. Mutation No. 470, 3 Kanals sold by Ghulam Rasool Gojar to Ghulam Mohammad S/o Ahmad Bhat, 339/85, 3 Kanals by way of sale.
7. Per contra, learned counsel for the respondents has argued that the mutations under challenge before the learned Financial Commissioner were not attested by the Tehsildar in accordance with the provisions of law and the respondent No.3 being a minor at the time of attestation of these mutations could not challenge the same during his minority. The mutations had to be attested under the Shariat Act, applicable in the State of Jammu and Kashmir. The Law governing Inheritance was not applied properly by the Attesting Officer, i.e., Tehsildar. One of the sons of Jamal-ud-Din had died during the life time of his father and, as such, neither he nor his legal heirs were entitled to succeed to the estate of Jamal-ud-Din, but the Tehsildar overlooked this aspect of the case in attesting the mutations. The respondent No.3 was entitled to two shares as compared to his sister Mst. Reshma, who was entitled to only one share but they have succeeded to the estate in equal shares in the impugned mutations and the widow of the deceased Jamal Din i.e. the mother of answering respondent has not been given any share at all. The petitioners in this petition based their case on a Will of Jamal-ud-Din, but no such Will was ever executed by him. The Grand Mufti, Sh. Bashir Ud Din has OWP No.184/2015 Page 5 of 15 certified that the father of the petitioners died during the lifetime of his father and, as such, neither he nor any his children had any right of inheritance in the property. Under Section 15 of the Land Revenue Act, the Financial Commissioner has the powers to revise any order at any time and no limitation is prescribed for filing the revision petition. Therefore, the petitioners before this Court cannot take away the right of the respondent No.3 in violation of the Muslim Personal Law. In the end it has been argued that the petition of the petitioners entails dismissal and it may be dismissed accordingly.
8. Heard and considered.
9. Testing the arguments of the learned counsel for the parties on the above parameters the first Question that strikes ones mind is whether the Law of Limitation does or does not apply to a revision filed before the Financial Commissioner. What can be said in answer to this question is that there are conflicting judicial dictums on the subject. Some judicial pronouncements lay down that Section 12 of the Land Revenue Act which includes within its ambit, scope and purview, a revision also, prescribes a period within which a revision can be filed by a party aggrieved of an order passed in a mutation by an officer subordinate to the Financial Commissioner. On the contrary, there are judgments of law which hold that the powers of the Financial Commissioner in revision petitions are unfettered and a revision can be entertained by the Financial Commissioner at any point of time under Section 15 of the Land Revenue Act.
10. Section 15 of the Land Revenue Act envisages and encompasses a situation where the Financial Commissioner can exercise suo moto powers in a revision and in this behalf the judicial opinion in some of decided cases is that it is only where the Financial Commissioner exercises the suo moto powers that the law of Limitation does not apply but where a party knocks at the door of the competent authority, i.e., Financial Commissioner by filing a revision, the law of limitation has its application both in vigor and rigor in view of what is postulated and provided under Section 12 of the land Revenue Act.
OWP No.184/2015 Page 6 of 1511. Be that as it may, and assuming, but not admitting that the law of limitation does not apply to a revision petition filed before the Financial Commissioner, the question simplicitor is whether the Financial Commissioner can exercise such a power after a great lull of 55 years approximately from the date of the attestation of the mutations in a case like the present one and the answer to it should be a big "No" in view of the logical interpretation of this aspect of the case by the Supreme Court of India in the law laid down in the case of Joint Collector Ranga Reddy District & Anr. Vs. D. Narsing Rao & others, (2015) 3 SCC 695, wherein it has been held as under:
"12.1 In the decision in State of Gujarat vs. Patil Raghav Natha, this Court while adverting to Sections 65 and 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 and that was held to be too late.
12.2 In the decision in Mohamad Kavi Mohamad Amin vs. Fatmabai Ibrahim, this Court while dealing with Section 84-C of the Bombay Tenancy and Agricultural Lands Act, 1976 held that though the said Section does not prescribe for any time limit for initiation of proceeding such power should be exercised within a reasonable time and on the facts of the case, the suo motu enquiry initiated under the said Section after a period of nine months was held to be beyond reasonable time.
12.3 In the decision in Santoshkumar Shivgonda Patil vs. Balasaheb Tukaram Shevale, this Court while dealing with the power of revision under Section 257 of the Maharashtra Land Revenue Code, 1966 held as follows (SCC pp. 356-57, paras 11-12).
"11. It seems to be fairly settled that if a statute does not prescribe the time-limit for exercise of revisional power, it does not mean that such power can be exercised at any time; rather it should be exercised within a reasonable time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. Where the legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu or otherwise, it is plain that exercise of such power within reasonable time is inherent therein.
12. Ordinarily, the reasonable period within which the power of revision may be exercised would be three years under Section 257 of the Maharashtra Land Revenue Code subject, of course, to the exceptional circumstances in a given case, but surely exercise of revisional power after a lapse of 17 years is not a reasonable time.OWP No.184/2015 Page 7 of 15
Invocation of revisional power by the Sub- Divisional Officer under Section 257 of the Maharashtra Land Revenue Code is plainly an abuse of process in the facts and circumstances of the case assuming that the order of the Tahsildar passed on 30-3- 1976 is flawed and legally not correct."
12.4 In the decision in State of Punjab vs. Bhatinda District Cooperative Milk Producers Union Ltd., this Court while dealing with the revisional power under Section 21 of the Punjab General Sales Tax Act, 1948 held thus : (SCC p 367, paras 17-19)/ "17. A bare reading of Section 21 of the Act would reveal that although no period of limitation has been prescribed therefor, the same would not mean that the suo motu power can be exercised at any time.
18. It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors.
19. Revisional jurisdiction, in our opinion, should ordinarily be exercised within a period of three years having regard to the purport in terms of the said Act. In any event, the same should not exceed the period of five years................"
12.5 In the decision in Ibrahimpatnam Taluk Vyavasaya Coolie Sangham vs. K. Suresh Reddy, this Court while dealing with suo motu power of revision under Section 50-B(4) of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Land Act, 1950 held as follows : (SCC pp. 676-77, para 9).
"9. ...............In the absence of necessary and sufficient particulars pleaded as regards fraud and the date or period of discovery of fraud and more so when the contention that the suo motu power could be exercised within a reasonable period from the date of discovery of fraud was not urged, the learned Single Judge as well as the Division Bench of the High Court were right in not examining the question of fraud alleged to have been committed by the non-official respondents. Use of the words "at any time" in sub-section (4) of Section 50-B of the Act only indicates that no specific period of limitation is prescribed within which the suo motu power could be exercised reckoning or starting from a particular date advisedly and contextually. Exercise of suo motu power depended on facts and circumstances of each case. In cases of fraud, this power could be exercised within a reasonable time from the date of detection or discovery of fraud. While exercising such power, several factors need to be kept in mind such as effect on the rights of the third parties over the immovable property due to passage of considerable time, change of hands by subsequent bona fide transfers, the orders attaining finality under the provisions of other Acts (such as the Land Ceiling Act). Hence, it appears that without stating from what date the period of limitation starts and within what period the suo motu power is OWP No.184/2015 Page 8 of 15 to be exercised, in sub-section (4) of Section 50-B of the Act, the words "at any time" are used so that the suo motu power could be exercised within reasonable period from the date of discovery of fraud depending on facts and circumstances of each case in the context of the statute and nature of rights of the parties. Use of the words "at any time" in sub- section (4) of Section 50-B of the Act cannot be rigidly read letter by letter. It must be read and construed contextually and reasonably. If one has to simply proceed on the basis of the dictionary meaning of the words "at any time", the suo motu power under sub-section (4) of Section 50-B of the Act could be exercised even after decades and then it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties, that too, over immovable properties. Orders attaining finality and certainty of the rights of the parties accrued in the light of the orders passed must have sanctity. Exercise of suo motu power "at any time" only means that no specific period such as days, months or years are not (sic) prescribed reckoning from a particular date. But that does not mean that "at any time" should be unguided and arbitrary. In this view, "at any time" must be understood as within a reasonable time depending on the facts and circumstances of each case in the absence of prescribed period of limitation."
17. In the light of what is stated above we are of the view that the Division Bench of the High Court was right in affirming the view of the learned Single Judge of the High Court that the suo motu revision undertaken after a long lapse of time, even in the absence of any period of limitation was arbitrary and opposed to the concept of rule of law.
25. The legal position is fairly well settled by a long line of decisions of this Court which have laid down that even when there is no period of limitation prescribed for the exercise of any power, revisional or otherwise, such power must be exercised within a reasonable period. This is so even in cases where allegations of fraud have necessitated the exercise of any corrective power.
26. In one of the earlier decisions of this Court in S. B. Gurbaksh Singh v. Union of India, this Court held that exercise of suo motu power of revision must also be within a reasonable time and that any unreasonable delay in the exercise may affect the validity. But what would constitute reasonable time would depend upon the facts of each case.
27. To the same effect is the decision of this Court in Ibrahimpatnam Taluk Vyavasaya Coolie Sangham v. K. Suresh Reddy, wherein this Court held that even in cases of fraud the revisional power must be exercised within a reasonable period and that several factors need to be kept in mind while deciding whether relief should be denied only on the ground of delay. The Court said: (SCC p. 677, para9).
"9.... In cases of fraud, this power could be exercised within a reasonable time from the date of detection or discovery of fraud. While exercising such power, several factors need to be kept in mind such as effect on the rights of the third parties over the immovable property due to passage of considerable OWP No.184/2015 Page 9 of 15 time, change of hands by subsequent bona fide transfers, the orders attaining finality under the provisions of other Acts (such as the Land Ceiling Act)."
28. To the same effect is the view taken by this Court in Sulochana Chandrakant Galande v. Pune Municipal transport, wherein this Court reiterated the legal position and held that the power to revise orders and proceedings cannot be exercised arbitrary and interminably. This Court observed: (SCC p. 476, para 28).
"28. The legislature in its wisdom did not fix, a time-limit for exercising the revisional power nor inserted the words 'at any time' in Section 34 of the 1976 Act. It does not mean that the legislature intended to leave the orders passed under the Act open to variation for an indefinite period inasmuch as it would have the effect of rendering title of the holders/allottee(s) permanently precarious and in a state of perpetual uncertainty. In case it is assumed that the legislature has conferred an everlasting and interminable power in point of time, the little over the declared surplus land, in the hands of the State/allottee, would forever remain virtually insecure. The Court has to construe the statutory provision in a way which makes the provisions workable, advancing the purpose and object of enactment of the statute."
29. In State of H.P. v. Rajkumar Brijender Sing, this Court held that in the absence of any special circumstances a delay of 15 years in suo motu exercise of revisional power was impermissible as the delay was unduly long and unexplained. This Court observed: (SCC pp. 588-89, para6).
"6. We are now left with the second question which was raised by the respondents before the High Court, namely, the delayed exercise of the power under sub-section (3) of Section 20. As indicated above, the Financial Commissioner exercised the power after 15 years of the order of the Collector. It is true that sub section (3) provides that such a power may be exercised at any time but this expression does not mean there would be no time limit or it is in infinity. All that is meant is that such powers should be exercised within a reasonable time. No fixed period of limitation may be laid but unreasonable delay in exercise of the power would tend to undo the things which have attained finality. It depends on the facts and circumstances of each case as to what is the reasonable time within which the power of suo motu action could be exercised. For example, in this case, as the appeal had been withdrawn but the Financial Commissioner had taken up the matter in exercise of his suo motu power, it could well be open for the State to submit that the facts and circumstances were such that it would be within reasonable time but as we have already noted that the order of the Collector which has been interfered with was passed in January 1976 and the appeal preferred by the State was also withdrawn sometime in March 1976. The learned counsel for the appellant was not able to point out such other special facts and circumstances by reason of which it could be said that exercise of suo motu power after 15 years of the order interfered with was within a reasonable time. That being the position in our view, the order of the Financial Commissioner stands vitiated having been passed after a long lapse of 15 years of the order which has been interfered with. Therefore, while holding that the Financial Commissioner would have power to proceed suo motu in a OWP No.184/2015 Page 10 of 15 suitable case even though an appeal preferred before the lower appellate authority is withdrawn, may be, by the State. Thus, the view taken by the High Court is not sustainable. But the order of the Financial Commissioner suffers from the vice of the exercise of the power after unreasonable lapse of time and such delayed action on his part nullifies the order passed by him in exercise of power under sub-section (3) of Section 20."
30. We may also refer to the decision of this Court in Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur, wherein the Court explained the legal position as under: (SCC pp. 602-03, para 13).
"13. The rule which says that the Court may not enquire into belated and state claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ Court before a parallel right is created and the other lapse of time is not attributable to any latches or negligence. The test is not as to physical running of time. Where the circumstances justifying the conduct exist, the illegality which is manifest cannot be sustained on the sole ground of laches. The decision in Tilokchand case relied on is distinguishable on the facts of the present case. The levy if based on the net profits of the railway undertaking was beyond the authority and the illegal nature of the same has been questioned though belatedly in the pending proceedings after the pronouncement of the High Court in the matter relating to the subsequent years. That being the case, the claim of the appellant cannot be turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for. We however agree that the suit has been rightly dismissed."
31. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third-party rights, that cannot be trampled by a belated exercised of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statue that vests such power in an authority.
OWP No.184/2015 Page 11 of 1512. The judicial precedent cited above does not support or reiterate the view that a person who is slack, callous and remiss in rolling the law in his favour at the opportune time can do so after a great deal of time subject to his whims and caprice. If such a situation is allowed to prevail, it will open a flood gate for uncalled litigations which cannot be controlled by the authorities while hearing and determining the revisions. Such a view, that a person filing a revision can do so at his will at any moment of time without spelling out reasons as to why he waited for pursuing the action for such a long time which did not meet the test of reasonability will lead to disastrous consequences. Taking the instant case, as an example it is repeated and reiterated here that, the respondent No.3 on attaining the age of 60 years filed a revision petition before the Court under the plea that he did not have the knowledge of the attestation of the mutations which on the face of it seems to be an incorrect version and accounts of events. In case any fraud was played with him he could have filed the revision immediately after attaining the age of majority. The petitioner before the Financial Commissioner, i.e., respondent No.3 herein, on attaining the age of majority could have assailed the mutations in a revision before the Financial Commissioner. He has maintained a complete silence regarding his age in response to the petition of the petitioner herein as well as in the affidavit though he was obliged to do so and during this period of more than five decades a lot of water has flown down the Gangas i.e. not only third party interest has been created from time to time in respect of the estate of Jamal-ud-Din to which he too has been a party as he too has sold the land to the tune of 4 Kanals in favour of Gh. Ahmad as is visible from the mutation No. 351 detailed herein before, but mutation Nos.542, 217, 396, 325 and 470 have also been attested. The respondent No.3, i.e., the petitioner in the revision petition before the learned Financial Commissioner, has also agreed to sell 1 Kanal and 2½ Marlas of land out of land bearing Khasra No.192 to Ayoub Gojar, petitioner No.1 herein, by virtue of an agreement, dated 28.09.1998, attached as Annexure-E to the petition, All these mutations have been given effect to in the annual records and the record of rights, which fact has not been denied OWP No.184/2015 Page 12 of 15 by the petitioner before the Financial Commissioner and the respondent No.3 being the co-sharer and a close relative of the petitioner cannot be heard saying after a gap of long time that he was oblivious of the attestation of these mutations.
13. If a statute does not prescribe the time limit for the exercise of revisional power, that will not give the authority determining the matter, the teach to unsettle an order after a long time of 55 years. The power has to be exercised within a reasonable time as per the law laid down in (2007) 11 SCC 363 and ordinarily it can be exercised within a period of three years and in no case beyond a period of five years even where fraud is alleged. The creation of third party interest in the case, the passage of considerable time, from the date of the attestation of the mutations, change of hands by subsequent bona fide transfers are the factors that have to be taken into consideration and had to be given due weight while exercising the revisional powers.
14. Looking at the petition of the petitioner from another perspective that is the application of Shariat Act of 2007 in light of the law laid down by this Court in LPA No.07/2010 titled "Ahad Sheikh v. Murad Ahmad Shah & others, on which the learned Financial Commissioner has put explicit reliance in carving out a case for the petitioner before him, it needs must be said that the Shariat Act came into force in the year 2007 and it reads as under:
An Act to make provisions for the application of the Muslim Personal Law (Shariat) to Muslims of the State of Jammu and Kashmir. Be it enacted by the Jammu and Kashmir State Legislature in the Fifty-eighth Year of the Republic of India as follows:-
1. Short title and commencement :-(1) This Act may be called the Jammu and Kashmir Muslim Personal Law (Shariat) Application Act, 2007.
2. It shall come into force from the date of its publication in the Government Gazette.
2.Application of Personal Law to Muslims:- Notwithstanding any customs or usages to the contrary, in all questions regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage dissolution of marriage, including talaq, ila, zihar, lain, khula and mubaraat, dower, guardianship, gifts, trusts and trust properties, the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).OWP No.184/2015 Page 13 of 15
3. Repeal:- The provisions of the Shri Partap Jammu and Kashmir Laws Consolidation Act, Samvat 1977 (1920 A. D.) shall be repealed in so far as they are inconsistent with the provisions of this Act.
15. The question whether this Act is prospective or retrospective in nature is no longer res. Integra. The fact that cannot be lost sight of it is that it applies to the suits and the proceedings which were pending as on the date when the Act came into force and it also applies to the suits and the proceedings filed after that. What is to be understood is that the mutation proceedings are summary in nature and a Mutating Officer and the Financial Commissioner are the Quasi Judicial Authorities. The mutation is a fiscal entry. It does not confer any title on any person and it is made for the upgradation of the records. The question of title is open to be decided by the civil Courts and the logic behind the judgment of law cited by the learned Financial Commissioner in his order in incorporating the words "Suits and Proceedings" pending on the date of the operation of the Act or filed thereafter seems to be to give the parties the right to agitate and settle their grievance in the civil Courts.
16. The import of the application of Shariat Act, 2007, makes it abundantly clear that from the date of its promulgation that is the year 2007, all questions detailed in Section 3 have to be decided and determined under the Muslim Personal Law (Shariat), where the parties are Muslims. The mutations here in this case have been attested a long back, that is, in the year 23.09.1959. The judicial precedent cited by the learned Financial Commissioner, in his order, lays in unequivocal terms that the Act will apply to all the suits and proceedings which were pending on the date when the Act came into force as also to the suits and proceedings filed after its enforcement. The suits and proceedings which have been finally decided would not be affected by the enactment of the Shariat Act, but if such a suit and proceedings will be pending even in appeal on the date when the Act was brought into operation, the application of law to such a case will be the Muslim Personal Law, if the other conditions prescribed therein are fulfilled.
OWP No.184/2015 Page 14 of 1517. There is no doubt in saying that the Shariat Act, 2007, will apply to all the mutations that are attested after the enactment of the Shariat Act 2007, but on the plain phraseology of the Act, it will not apply to a mutation which has been attested a long before it came into operation. Suits and proceedings as stated in the judgment encompass within its operation and scope the suits filed before the Civil Courts and the proceedings emanating there from like the execution petitions, appeals or the proceedings initiated in the suit itself. The word "Suit" as defined in the West's Encyclopedia of American law edition 2 is a generic term, of comprehensive significance, referring to any proceedings by one person or persons against another or others in a Court of law in which the plaintiff pursues the remedy that the law affords for the redress of any injury or the enforcement of a right, whether at law or in Equity. A mutation is a fiscal entry and may be a prima facie proof of the possession of the estate by the person in whose favour it is attested. It does not as is repeated here decide the title which has to be decided by the Civil Court.
18. In view of the proceeding analysis, the petition is allowed, as a corollary to which, the impugned order of the learned Financial Commissioner passed in file No. 290/FC-AP dated 28.01.2015 is set aside. The private respondents have sought the enforcement of their right in a Civil Court where they have instituted a suit, a copy of which is attached to the petition and the same shall be decided by the trial Court on its own merits without being influenced by any observation made here in this order.
(M. K. Hanjura) Judge Srinagar 14.03.2018 "Manzoor"
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