Jammu & Kashmir High Court - Srinagar Bench
Mohammad Amin Mir & Ors vs State And Ors on 4 December, 2018
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
Case no.: Date of decision: 04.12.2018
OWP no. 324/2007
IA nos. 01 & 02 of 2007
Mohammad Amin Mir & ors.
v.
Settlement Commissioner, J&K & ors.
Coram:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Appearance:
For Petitioner(s): Mr. M. A. Qayoom, Advocate with
Mr. Mian Tufail Ahmad, Advocate.
For Respondent(s):Mir Majid Bashir, Advocate.
i) Whether approved for reporting in Law Journals etc.: Yes / No
ii) Whether approved for publication in print media: Yes / No
1. The petitioners have filed this writ petition seeking quashing of order dated 30.11.2005 passed by respondent no.2, i.e., the Joint Agrarian Reforms Commissioner (Deputy Commissioner), Kupwara, in an appeal filed against mutation order no. 147 dated 26.10.1997 passed by the Naib Tehsildar, Kupwara, pertaining to land measuring 16 Kanals and 16 Marlas comprised in Khasra no. 662/307 (to the extent of 03 Kanals, 08 Marlas0; Khasra no.310 (to the extent of 02 Kanals, 19 Marlas); Khasra no. 310/2 (09 Marlas); Khasra OWP No. 324/2007 Page 1 of 8 no.324 (04 Kanals, 07 Marlas); and Khasra no. 325 (05 Kanals and 13 marlas) situate in village Chowkibal, Kupwara. The petitioners have also challenged order dated 17.04.2007 passed by respondent no.1 herein, i.e., Settlement Commissioner, J&K, dismissing the appeal filed before him by the writ petitioners against the aforesaid order dated 30.11.2005 of Joint Agrarian Reforms Commissioner (Dy. Commissioner), Kujpwara.
2. The case of the petitioners is that they are in possession of the land in question, and that, if the official respondents were of the opinion that the mutation order was made on a wrong premise, they ought to have remanded the case to the Naib Tehsildar, Kupwara, for holding an inquiry into the matter. It is admitted by the petitioners that the Naib Tehsildar mutated the land in the name of their father, basing the same on an oral gift, but, according to them, the fact of the matter is that the land was sold by the private respondents to deceased father of the petitioners for consideration of a huge sum of money. It is asserted that even if the mutation order had wrongly been passed by the Naib Tehsildar concerned, yet, while allowing the appeal against the said order, the appellate authority was bound to remand the case to the competent authority for passing appropriate order in the matter. It is also stated that the private respondents have filed a suit in the Court of Munsiff, Kupwara, against the petitioners concerning the very same land wherein they have also challenged the legality of mutation order no.147. It is stated that therein, the learned trial court has passed an interim order dated 03.11.2005 directing the parties to maintain existing position of the suit property till final outcome of the suit.
OWP No. 324/2007 Page 2 of 83. The private respondents in their reply, referring to the categorical stand of the writ petitioners taken by them in their appeal before respondent no.1, i.e., the Settlement Commissioner, Kashmir, that it was not an oral gift but an agreement to sell and, have stated that mutation could not be passed on mere agreement to sell. On that count, it is stated that the order passed by the learned appellate authority, i.e., the Joint Agrarian Commissioner (Dy. Commissioner), Kupwara, was well founded and in accordance with law. It is stated by them that they are owners in physical possession of the land in question. It is admitted by them that they have filed a suit wherein the trial court has passed an order directing the parties to maintain status quo of possession. It is, however, stated that the writ petitioners have been committing illegal trespasses into the land for which contempt petitions have been filed by them.
4. The official respondents in their reply have stated the facts about filing of appeals and the result thereof.
5. Heard learned counsel for the parties, and considered the matter.
6. Learned counsel for the parties argued their cases on the lines of their respective pleadings. Mr. M. A. Qayoom, learned counsel for the petitioners, however, took up a legal issue that the appeal filed by the private respondents before the Joint Agrarian Reforms Commissioner (Dy. Commissioner), Kupwara, was time barred and that the respondents, while filing that appeal, had not filed any application seeking condonation of delay. He submitted that on that count the OWP No. 324/2007 Page 3 of 8 appeal the appeal merited outright dismissal, but the learned appellate authority has failed to take note of such a grave defect in the appeal. He submitted that the order passed by the learned Joint Agrarian Reforms Commissioner (Dy. Commissioner), Kupwara, therefore, was and is not sustainable. Learned counsel for the writ petitioners also referred to and relied upon the proceedings taken and orders passed in the Civil suits between the parties filed on behalf of the private respondents.
7. During the course of argument, Mr. M. A. Qayoom, cited and relied upon the judgments of the Court reported as Shiv Kumar v. Ajudhia Nath,1972, 231 (FB); Gh. Qadir v. Hussain, 1972 JKLR 236 (FB); Mst. Mali v. Financial Commissioner, 2017(1) SLJ 178; Ali Mohammad Gujree v. State of J&K,2018(1) SLJ 484 ; and order dated 04.06.2014 passed by the Division Bench of this Court in LPA no.65/2006, titled Mst. Rafiqa v. Ghulam Mohammad Matoo.
8. Learned counsel for the private respondents cited and relied upon three decisions of the Supreme Court in State of M.P. v. Pradeep Kumar, (2000) 7 SCC 372; Ragho Singh v. Mohan Singh, (2001) 9 SCC 717; and Suraj Lamp & Industries (P) Ltd. (2) v. State of Haryana, (2012) 1 SCC656; the following decisions of this Court in Gh. Mohammad Matoo v. Gh. Rasool Sofi, 2004 (II) SLJ 736; SKNMI Trust v. State of J&K, 2005(I) SLJ 282; Mst. Taja v. Financial Commissioner, 2017(II) SLJ 836; and two decisions of the Delhi High Court in Imtiaz Ali v. Nasim Ahmad, AIR 1987 Delhi 36; and G. Ram v. Delhi Development Authority, AIR 2003 Delhi 120.
OWP No. 324/2007 Page 4 of 89. Given the fact that the learned counsel for the petitioners has taken a legal point as to maintainability of the appeal before the Joint Agrarian Reforms Commissioner (Dy. Commissioner), Kupwara, on account of the same being barred by limitation and no application having been filed by the private respondents seeking condonation of delay and the learned appellate authority having omitted to consider this aspect of the matter, I need not refer to all the decisions cited and relied upon by the learned counsel for the parties or go to the proceedings taken in the two civil suits filed by private respondents herein against the writ petitioners, for, the time barred appeal may itself be fatal to the sustenance or otherwise of the decision rendered thereon by the learned Joint Agrarian Reforms Commissioner (Dy. Commissioner), Kupwara.
10. It is not disputed or denied on behalf of the private respondents that the appeal filed by them before the Joint Agrarian Reforms Commissioner (Dy. Commissioner) Kupwara, was barred by time and that no application for condonation of delay was made. It is, however, argued that if an appeal is filed without an application for condonation of delay, the consequences are not fatal to the appeal. The learned counsel in this regard heavily relied upon the judgment of the Supreme Court in State of M.P. v. Pradeep Kumar (supra). It is seen that therein the Supreme Court held that there was no rule prescribing the rejection of memorandum of appeal in a case where the appeal was not accompanied by an application for condoning the delay. If the memorandum of appeal is filed without accompanying the application to condone delay, the consequence cannot be fatal. The Court can OWP No. 324/2007 Page 5 of 8 regard in such a case that there was no valid presentation of the appeal. In turn it means that if the appellant subsequently files an application to condone the delay before the appeal is rejected, the same should be taken up alongwith the already filed memorandum of appeal. Only then the court can treat the appeal as lawfully presented. There is nothing wrong if the court returns the memorandum of appeal which was not accompanied by an application explaining the delay, as defective. Such defect can be cured by the party concerned and the appeal presented again without further delay.
11. I think the above judgment clinches the issue. In absence of an application seeking condonation of the delay in filing the appeal, it can safely be said that the appeal that was filed by the private respondents before the Joint Agrarian Reforms Commissioner, (Dy. Commissioner), Kupwara, was not lawfully presented and, therefore, the appellate authority could not have decided it either way. The only course available to the appellate authority, in terms of the above decision of the Supreme Court, was to return it to the private respondents to be re-presented by them alongwith the requisite application, if they had so chosen. In any case, the appellate authority could not have passed any final order therein, either allowing it or dismissing it. Since the Joint Agrarian Reforms Commissioner, Kupwara, has proceeded to allow the appeal without following the mandate of law, the order cannot withstand the scrutiny of law, as discussed above.
12. The Settlement Commissioner has also fallen into a grave error in considering this vital aspect of the matter while dismissing the OWP No. 324/2007 Page 6 of 8 appeal filed by the writ petitioners. That order, too, therefore, is not sustainable.
13. It may be mentioned here that in the other case cited and relied upon by the learned counsel for the private respondents viz. Ragho Singh v. Mohan Singh (supra), the Supreme Court has said that condonation of delay in absence of any application for such condonation is not permissible and that, where the appeal filed before the Additional Collector was beyond time by 10 days, it was liable to be dismissed in absence of the application under Section 5 of the Limitation Act for condonation of delay. Therein it is also held that there was no jurisdiction in the Additional Collector to allow that appeal.
14. In light of the above, I think, the appropriate course available is to set aside both the impugned orders and direct the Joint Agrarian Reforms Commissioner (Dy. Commissioner), Kupwara, to re-hear the appeal after private respondents remove the defect by filing an application seeking condonation of delay on the available grounds. The private respondents have to show sufficient cause for seeking condonation of delay against mutation order no.147 dated 26.10.1997 from the date of order till filing of the appeal.
15. The period spend in litigation from the filing of the appeal till disposal of the writ petition need not to be explained by the private respondents while seeking condonation of delay as the same be treated as condoned by this Court. After filing of the application seeking OWP No. 324/2007 Page 7 of 8 condonation of delay, the appellate authority shall proceed in the matter afresh in accordance with law.
16. I order accordingly.
17. The original records produced before the Court pursuant to Court order dated 09.05.2013 are returned to Mr. N.H Shah, learned AAG, in the open Court. The trial court records received be returned to the concerned quarters forthwith.
18. No order as to costs.
(Ali Mohammad Magrey) Judge Srinagar, 04.12.2018 "TAHIR"
OWP No. 324/2007 Page 8 of 8