Jammu & Kashmir High Court - Srinagar Bench
Mst. Mali vs Financial Commissioner (Revenue), ... on 27 May, 2016
Author: Mohammad Yaqoob Mir
Bench: Mohammad Yaqoob Mir
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
OWP No.1833/2015
CMP No.01/2015 Date of order:27.05.2016
Mst. Mali
Vs.
Financial Commissioner (Revenue), Srinagar & ors.
Coram:
HON'BLE MR. JUSTICE MOHAMMAD YAQOOB MIR, JUDGE
APPEARING COUNSEL:-
For the Petitioner/Appellant(s): Mr. Mir Majid Bashir.
For the Respondent(s): None for R1 to R3.
Mr. M. A. Qayoom-for R4 to R6
i) Whether approved for reporting in Media/Press : YES/NO
ii) Whether approved for reporting in Journal/Digest : YES/NO/OPTIONAL
1. Instant petition has been filed seeking direction in the nature of Certiorari for quashing order dated 10.09.2015 passed by Financial Commissioner, Revenue, J&K.
2. Basically, one Subhan Bhat, estate holder, has died leaving behind three daughters, namely, Mst. Jana, Mst. Shafeeqa and Mst. Mali(Khana-nisheen daughter). Mst. Jana is dead, is survived by Gulla (Ghulam Rasool) (Son), Abdul Gani(Son) and Mst.
Rafeeqa(daughter). Following pedigree table will
make the position clear
Subhan Bhat(deceased)
Shafeeqa Mali Jana
(Daughter) (Daughter) (Deceased)
(Daughter)
Ghulam Rasool Abdul Gani
Rafeeqa
(Son) (Son)
(Daughter)
3. The deceased Estate Holder has left behind landed property in three villages i.e. Bemihama, Drugmulla and Anderhama. Regarding estate at Bemihana, succession mutation No.694 and for the estate in Village Drugmulla mutation No.1038 have been attested in the year 1994 in favour of Mst. Mali (Khana Nisheen) daughter. Mst. Shafeeqa and Mst. Jana were married as "Khana Beeron" daughters, therefore, as pr custom they were excluded from succession.
4. Mst Shafeeqa(daughter of deceased estate holder) and two sons and one daughter of Mst. Jana (daughter of estate holder) have filed an appeal against mutation Nos.695 and 1038 before Additional Deputy Commissioner, Kupwara. Same has been dismissed vide detailed order dated 02.11.1999. Then after a long gap of nearly 14 years, they filed revision petition before the Joint Financial Commissioner, J&K, on 09.04.2014, which has been allowed and the order of the Additional Deputy Commissioner, Kupwara, as well as orders recorded on mutation Nos.695 and 1038 have been set aside and case remanded to Tehsildar concerned for passing fresh orders under J&K Muslim Personal (Shariat) Application Act, 2007 in presence of the parties concerned. Dissatisfied therewith, instant writ petition has been filed.
5. Learned counsel for the petitioner contended that the Financial commissioner has not looked into the question of delay in preferring the revision petition nor has said anything about the same, instead has allowed the revision petition. Learned counsel would contend that the course adopted by the Financial Commissioner is not appropriate, after all there has to be a reasonable time for filing the revision petition. Respondents have shown indolence in not challenging the order of Appellate Court for a period of 14 longs years. Even though the period of limitation is not prescribed for invoking revisional powers but that will not permit the authorities to exercise the power arbitrarily. Focusing on this ground has placed reliance on the judgment of the Hon'ble Apex Court rendered in the case "Joint Collector Ranga Reddy District and another Vs. D. Narsing Rao and others, (2015) 3 SCC 695.
6. According to learned counsel for respondents No.4 to 6, when there is no period of limitation prescribed, therefore, no bar operates for exercising revisional jurisdiction. In addition, submitted that the mutations were attested in derogation to the Muslim Personal Law applicable to the parties. No doubt, there is delay in filing the revision petition but turbulent conditions as were prevalent in the Valley prevented the respondents from filing the revision petition.
7. In terms of Section 15 of the Land Revenue Act, revisional authority can exercise power at any time but delay must not be unreasonable. True it is that attestation of mutation or entries in the records are meant only for fiscal purposes, same do not confer title but, in effect, all transactions vis-à-vis land are carried into effect on the basis of revenue entries though same are rebuttable.
8. Earlier this Court while dealing with the question of limitation observed that once there is no limitation, there is purpose in it i.e. to update the records for fiscal purposes, therefore, such power has to be exercised at any time but now law has been laid down by the Hon'ble Apex Court which has to be followed.
9. In the reported judgment, it was noticed that for exercising revisional power under Section 166-B, no period of limitation is prescribed but if the power is allowed to be exercised, it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties over immovable properties. On such basis, it has been held 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. Para 16 and 25 are relevant to be quoted:
"16. No time limit is prescribed in the above Section for the exercise of suo motu power but the question is as to whether the suo motu power could be exercised after a period of 50 years. The Government as early as in the year 1991 passed an order reserving 477 acres of land in Survey Nos. 36 and 37 of Gopanpally village for house-sites to the government employees. In other words, the Government had every occasion to verify the revenue entries pertaining to the said lands while passing the Government Order dated 24.9.1991 but no exception was taken to the entries found. Further the respondents herein filed Writ Petition No.21719 of 1997 challenging the Government order dated 24.9.1991 and even at that point of time no action was initiated pertaining to the entries in the said survey numbers. Thereafter, the purchasers of land from respondents 1 and 2 herein filed a civil suit in O.S.No.12 of 2001 on the file of Additional District Judge, Ranga Reddy District praying for a declaration that they were lawful owners and possessors of certain plots of land in survey No.36, and after contest, the suit was decreed and said decree is allowed to become final. By the impugned Notice dated 31.12.2004 the suo motu revision power under Section 166-B referred above is sought to be exercised after five decades and if it is allowed to do so it would lead to anomalous position leading to uncertainty and complications seriously affecting the rights of the parties over immovable properties.
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. We may briefly refer to some of the decisions only to bring home the point that the absence of a stipulated period of limitation makes little or no difference in so far as the exercise of the power is concerned which ought to be permissible only when the power is invoked within a reasonable period."
10. It may not be out of place to mention here that earlier mutations of succession were attested under Stand Order 23-A in accordance with Customary Law. The Custom would provide for marriage of a daughter as "Khana Nisheen", then added advantage to her to inherit her father as a son. Custom would also provided that the daughters married as "Khana Beeron" would not inherit the father. Such custom though contrary to Muslim Personal Law but validity of Customary Law as prepared by Shri Sant Ram Dogra was maintained by the Full Bench of this Court rendered in the case of "Mohammad Akbar Bhat v. Mohammad Akhoon and others" reported in AIR 1972 J&K 105. Subsequently, in the year 2007, J&K Muslim Personal (Shariat) Application Act, 2007, has come into force which has now persuaded those who were excluded from inheritance to challenge the mutations which were attested in terms of law as was prevalent prior to 2007. Such a situation will give rise to enormous litigation and uncertainty.
11. True it is that attestation of mutation and recording the names in the revenue records is not final but remedy for asserting a right and its determination is available by filing a regular civil suit, which course is still open subject to law of limitation and other applicable laws.
12. Learned Financial Commissioner has ignored the fact of long delay. When mutations were attested in the year 1994 and appeal against said mutation orders was dismissed in the year 1999, then how could a revision petition be entertained after a long lapse of 14 years. Financial Commissioner having not looked into the question of delay and then reasonability of entertaining the revision petition after a long lapse of time, has committed an error which renders the order impugned as unsustainable, petition, as such, is allowed. The order of Financial Commissioner impugned dated 10.09.2015 is set aside. Learned Financial Commissioner shall decide the revision petition afresh after addressing the question of reasonableness/unreasonableness of long delay of 14 years and then to pass appropriate orders, as shall be warranted under law.
13. Petition succeeds, shall stand disposed of as above along with connected CMP.
(Mohammad Yaqoob Mir) Judge Srinagar, 27.05.2016 "Mohammad Altaf"