Jammu & Kashmir High Court
Des Raj vs State Of Jammu And Kashmir on 22 March, 2024
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
OWP No.634/2004
Reserved on : 11.03.2024
Pronounced on: 22.03.2024
1. Des Raj, age 64 years
2. Trilok Chand, age 62 years
Both sons of Amru
3. Krishanu, age 50 years S/o Sh. Ganga Ram
4. Parkash, age 40 years, S/o Sh. Chand
5. Rano Devi, age 46 years
6. Makhni Devi, age 44 years
7. Kali Devi, age 42 years
8. Soma Devi, age 38 years
9. Kodi Devi, age 36 years
Petitioner No.5 to 9 Daughters of Sh. Chand
10. Babli, age 26 years, Wd/o Suram Chand
(S/o Basantu)
11. Gurdeep, age 4 years (minor) S/o Suram Chand
Through his mother Babli
12. Baldlev, age 42 years
13. Subhash, age 38 years
Petitioner Nos.12 & 13 Sons of Basantu
14. Darshna, age 36 years, D/o Basantu
15. Jamitu, age 66 years, S/o Sh. Kamla
16. Ashok Kumar, age 32 years
17. Bibtoo, 27 years
Petitioner Nos. 16 & 17 Sons of Shankar
All residents of Padhano, Tehsil and District
Udhampur ....Petitioner(s)
Through :- Mr. R.S.Thakur, Sr. Advocate with
Mr. Vasharan Thakur, Advocate
V/s
1. State of Jammu and Kashmir, through the Secretary Revenue,
Government of J&K, Jammu
2. Jammu and Kashmir Special Tribunal, Jammu.
3. Jia Lal
4. Khem Raj
5. Madan Lal
6. Subhash Chander
Respondent Nos. 3 to 6 Sons of Sh. Mansa Ram
7. Raj Kumar
8. Sanjay Kumar
9. Yashpal
10. Chaman Lal
11. Bhushan Kumar
Respondent Nos. 7 to 11 Sons of Prem Nath
All residents of Padhano, Tehsil and District Udhampur.
....Respondent(s)
Through :- Mr. Virender Dev Singh, Advocate vice
Ms. Monika Kohli, Sr. AAG for R-1
Mr. K.S.Puri, Advocate for R-3 to 11
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
JUDGMENT
1. The petitioners are aggrieved and have assailed an order dated 28th April, 2004 passed by the Jammu & Kashmir Special Tribunal, Jammu [„the Tribunal"] in file No.210 (Revision) titled Jia Lal and another v. Des Raj and others , whereby the order of Commissioner Agrarian Reforms (Additional Deputy Commissioner), Udhampur dated 2nd July, 2001 and those of Additional Tehsildar, Udhampur passed on Mutation No.178, 324 and 351 dated 15th May, 1974, 29th March, 1991 and 14th September, 1991 respectively have been set aside.
Factual Matrix
2. Respondent Nos. 3 to 11 ["private respondents"] were the owners of the land in dispute, however, the petitioners herein had been shown in cultivating possession thereof long prior to kharief 1971. The petitioners also claim to be in cultivating possession of the said land in kharief 1971 and thereafter. The Additional Tehsildar ["Tehsildar Agrarian Reforms, Udhampur]" attested mutation Nos.178 dated 15th May, 1974 under Section 4 of the Jammu & OWP No. 634/2004 2 Kashmir Agrarian Reforms Act, 1976 ["the Act"] to vest the land in question in State and declared the petitioners prospective owners. As a consequence thereof, mutation Nos. 324 and 352 dated 29.03.1991 and 14.09.1991 respectively were attested under Section 8 of the Act conferring ownership rights upon the petitioners on payment of levy. The private respondents, feeling aggrieved of the mutation orders, filed three separate appeals before the Commissioner Agrarian Reforms, Udhampur on 14.09.2000. The said appeals came to be dismissed by the Commissioner, Agrarian Reforms, Udhampur vide his order dated 02.07.2001 on the ground that the appeals were hopelessly time barred. Feeling dissatisfied and aggrieved by order dated 02.07.2001 passed by the Commissioner Agrarian Reforms, the private respondents filed a revision petition challenging the aforesaid composite order before the Jammu & Kashmir Special Tribunal, Jammu ["the Tribunal"]. The revision petition was accepted and the impugned order in three appeals filed by the private respondents passed by the Commissioner Agrarian Reforms, Udhampur was set aside. It is this order of the Tribunal, which is called in question in this petition filed under Article 226 of the Constitution of India. Submissions
3. The order impugned is challenged by the petitioners primarily on two counts:-
i) That the Tribunal has not appreciated correctly the aspect of delay and laches in filing the appeals by the private OWP No. 634/2004 3 respondents before the Commissioner Agrarian Reforms, Udhampur. It is submitted that the cause of action to file the appeals against the orders of Tehsil Agrarian Reforms on first mutation accrued to the private respondents in the year 1974 when mutation under Section 4 was attested and the land of the private respondents was vested in the State. The cause of action also accrued to the private respondents on 29 th March, 1991 and 14th September, 1991 when two mutations under Section 8 of the Act came to be attested conferring ownership rights on the petitioners. The petitioners claim that one of the co-sharer of the private respondents was even present at the time of attestation of mutation dated 15.05.1974 (Section 4 Mutation). Private respondents, however, filed appeals challenging these three mutations only on 14th September, 2000 i.e. 26 years after the attestation of mutation under Section 4 of the Act and 9 years after the attestation of mutations under Section 8 of the Act, that too, without explaining huge delay.
ii) That the interpretation put by the Tribunal on Subsection (2) of Section 2 of the Act is erroneous and completely flawed. The Tribunal has erroneously held that the land in dispute, which is recorded as Banjar kadeem/gair mumkin is land to which the provisions of Section 4 and 8 of the Act are not applicable and such land shall be deemed to be in personal cultivation of the owners.
OWP No. 634/2004 4
4. Per contra, Mr. K.S.Puri, learned counsel, who represents private respondents, submits that the writ petition filed by the petitioners raises complicated disputed questions of fact, which cannot be adjudicated by this Court in the exercise of extraordinary jurisdiction vested in this Court by Article 226 of the Constitution of India. He submits that since the private respondents were not party to the impugned mutations attested by the Tehsildar Agrarian Reforms, Udhampur, therefore, the appeals were preferred by them as and when it came to their notice that Additional Tehsildar, Udhampur had attested three mutations against them at their back. Mr. Puri argues that having regard to the merit of the case, it is beyond the pale of any discussion that a palpably erroneous order was passed by the Commissioner Agrarian Reforms so was the position of the orders on mutations passed by the Additional Tehsildar Udhampur. The Tribunal, thus, took a progressive view in the matter and ignored the „delay and laches‟ aspect of the appeals filed before the Commissioner Agrarian Reforms, Udhampur belatedly.
Discussion and Analysis
5. Having heard learned counsel for the parties and perused the material on record, the questions that fall for determination in this petition are as under:-
i) Whether the appeals filed by the private respondents before the Appellate Authority (The Commissioner Agrarian Reforms, Udhampur) against the mutations OWP No. 634/2004 5 attested by the Additional Tehsildar, Udhampr (Tehsildar Agrarian Reforms) under Sections 4 and 8 of the Act were hopelessly time barred and were rightly rejected in the absence of any sufficient cause pleaded and demonstrated by the private respondents (appellants therein)?
ii) Whether the land recorded in kharief, 1971 as "banjar kadeem" and "gair mumkin" shall be deemed to be in personal cultivation of the owner? The answer to this question would turn on the interpretation of Cause (2) of Section 2 of the Act.
6. Before adverting to the aforesaid questions, a brief survey of the facts leadings to the filing of this petition deserves to be made. Indisputably, the private respondents were owners of the land in question prior to, during and after kharief 1971, the relevant date mentioned in the Act. The land in question was, however, under cultivating possession of the predecessor-in-interest of the petitioners as non-occupancy tenants. This was the position in the revenue record prior to and during kharief 1971. By operation of Section 4 of the Act, all rights, title and interests in land of any person not cultivating it personally shall be deemed to have been extinguished and vested in State free from all encumbrances with effect from first day of May, 1973. This is notwithstanding anything contained in any law for the time being in force but subject to the provisions of Chapter II of the Act. Since the private respondents were not cultivating the land in question personally, that is, in kharief 1971, as such, the Tehsildar Agrarian Reforms, OWP No. 634/2004 6 Udhampur attested mutation under Section 4 of the Jammu & Kashmir Agrarian Reforms Act, 1972, which was then in force and extinguished rights of the private respondents in the land in question and vested the same in the State. The predecessor-in- interest of the petitioners i.e. Amru and Ganga etc were in kharief 1971 shown in cultivating possession and, therefore, entered as prospective owners to be conferred ownership rights under Section 8 of the Act subject to the provisions of Section 7 of the Act.
7. The Jammu & Kashmir Agrarian Reforms Act, 1972, the vires whereof was challenged initially in this Court and thereafter before the Supreme Court of India, came to be declared ultra vires the Constitution. This prompted the State to come up with J&K Agrarian Reforms Act, 1976. In terms of Section 43 of the Act, anything done or suffered under the repealed Act insofar as the same was not inconsistent with the provisions of the Act was saved. It is quite intriguing to find that mutation under Section 4 of the Act in respect of the land in question was attested on 15 th May, 1974, which, in terms of the provisions of the Act was to be followed by attestation of mutation under Section 8 of the Act subject of course to the provisions of Section 7 of the Act, if attracted in the case.
8. Interestingly and without there being any explanation coming forth, mutations under Section 8 for conferring ownership rights on the petitioners was be attested on 29th March, 1991 and 14th September, 1991 i.e. after a period of about seventeen years. This aspect has not been noticed either by the appellate authority or the revisional authority. The long interval and time gap between the OWP No. 634/2004 7 attestation of mutation under Section 4 and those attested under Section 8 creates reasonable suspicion with regard to the fairness of the attestation of mutations. This would clearly demonstrate that the mutations have been attested at the back of the private respondents. True it is that the signatures of one of the co-sharers of the private respondents, namely, Isher Dass are found on the Section 4 Mutation attested on 15.05.1974. However, none from the private respondents (erstwhile owners) was present during attestation of mutation under Section 8 of the Act. There is nothing on record to come to a definite conclusion as to whether the levy payable to the erstwhile owners under Section 8 of the Act was ever disbursed to and received by the private respondents.
9. Undoubtedly, the order passed on mutation, whether it is under Section 4 or 8 of the Act, is challengable by way of an appeal before the appellate authority i.e. Commissioner Agrarian Reforms having jurisdiction in the area where the subject land is situated. And such appeal in terms of Section 22 of the of the Act is required to be made within a period of sixty days from the date of order appealed from. By virtue of Subsection (2) of Section 22 of the Act, provisions of Jammu & Kashmir Limitation Act, 1995 apply to the appeals under the Act.
10. There may not be any dispute that in terms of Section 22, the period of limitation for filing appeal is to be reckoned from the date of order appealed from. However, in a case where the order appealed from is passed at the back of the appellant and otherwise does not OWP No. 634/2004 8 come to his/her notice, the period of limitation shall begin to run from the date of knowledge of such order.
11. From a reading of the order passed by the appellate authority, it is not forthcoming as to what were the pleadings of the private respondents in the appeal with regard to delay. However, the appellate authority has observed that there was no explanation offered by the appellants therein (private respondents herein) for filing the appeals after a delay of more than 26 years in the case of mutation under Section 4 and 09 years after the attestation of mutations under Section 8 of the Act.
12. I have gone through the order dated 2nd July, 2001 passed by the appellate authority and am in agreement with the appellate authority that in the absence of sufficient cause being shown such belated appeals could not have been entertained. That apart, the private respondents have, nowhere in their appeals before the appellate authority, given any date on which they acquired the knowledge of passing of the mutations impugned in the appeals. In these circumstances, when there is no application for condonation of delay under Section 5 of the Limitation Act filed nor any date of acquisition of knowledge of the attestation of the impugned mutations is given nor is there any sufficient cause pleaded and demonstrated, the appellate authority shall have no option but to dismiss the appeals being filed after expiry of the period of limitation prescribed under Section 22 of the Act.
13. The order of revisional authority, impugned in this petition, has dealt with the issue purely on merits and has not gone to the aspect OWP No. 634/2004 9 of delay. From a reading of the order impugned passed by the Tribunal, it clearly transpires that the Tribunal has not adverted to the question of delay and laches on the basis whereof the appeals preferred by the private respondents had been dismissed by the appellate authority, but has allowed the revision petition by exercising its suo moto revisional jurisdiction vested under Subsection (2) of Section 21 of the Act.
14. Before proceeding further, it would be appropriate to set out Section 21 of the Act. It reads thus:-
"1) Any person aggrieved by a final order of a Collector or a Revenue Officer of a class lower than that of a Collector may prefer an appeal to the Commissioner having jurisdiction in the area to which the appeal relates.
(2) The Revenue Minister may at any time call for the record of any case in which a Tehsildar or an Assistant Commissioner has passed orders in respect of any evacuees' land or State land or of any case in which Commissioner has passed final order and if he finds that a question of law or public interest is involved in the case, he may pass such orders thereon as he thinks fit:
Provided that no order shall be passed against any party without affording that party an opportunity of being heard. (3) No application for review shall lie against any order passed under Act or the rules made thereunder, but clerical or arithmetical mistakes in orders or errors arising therein from any accidental slip or omission may, at any time, be corrected by the authority which has made such order.
(4) First appeal against a final order passed under the Jammu and Kashmir Agrarian Reforms Act, 1972 or the rules framed thereunder pending at the commencement of this Act, shall be transferred to the Commissioner having, jurisdiction in the area to which such appeal relates and the Commissioner shall thereupon dispose of such appeal in accordance with the provisions of this Act.OWP No. 634/2004 10
(5) Second appeal against a final order pending before the Financial Commissioner or any revision against a final order pending before the Revenue Minister under the Jammu and Kashmir Agrarian Reforms Act, 1972 or rules framed thereunder shall be disposed of in accordance with the provisions of this Act by the Revenue Minister, the second appeal before the Financial Commissioner being treated as an application for revision under this Act.
(6) Any appeal or revision against any other order passed under the Jammu and Kashmir Agrarian Reforms Act, 1972 or the rules framed thereunder, pending at the commencement of this Act, shall abate, but nothing herein shall deprive an aggrieved party from contesting such order in an appeal or a revision against a final order that may be passed in the proceedings from which such appeal or revision had arisen.
(7) (a) Where in an appeal or revision, an application for stay is made, the appellate or the revisional authority, as the case may be, shall in all cases, except where it appears that the object of granting stay would be defeated by the delay, before granting the stay, direct notice of the application for the same to be given to the opposite party.
(b) Where the appellate or revisional authority grants a stay, such stay shall be granted on such terms as to the duration thereof, keeping an account, giving security or otherwise as the authority thinks fit.
(8) A stay, granted by an appellate or a revisional authority in an appeal or revision shall, in cases where such appeal or revision stands transferred by sub-section (4) to the Commissioner or by sub-section (5) to the Revenue Minister, stand vacated after a period of twenty days from the date of such transfer unless such stay is in the meanwhile re-affirmed in accordance with the provisions of sub-section (7)."
15. From a plain reading of Subsection (2) of Section 21 of the Act, it is manifestly evident that the Revenue Minister (which powers are exercised by the Tribunal) is conferred suo moto power of revision, in exercise whereof, the Tribunal can call for record of any case in OWP No. 634/2004 11 which Tehsildar or Assistant Commissioner has passed orders in respect of evacuee land or State land or of any case in which Commissioner has passed final order provided it finds that a question of law of public interest is involved in the case. So far as revisional powers of the Tribunal are concerned, there are no fetters placed on the exercise thereof except that the order sought to be revised must be a final order passed by the Commissioner Agrarian Reforms and a question of law or public interest is involved in the case. This jurisdiction can be exercised by the revisional authority at any time. This suo moto revisional jurisdiction can, of course, be invoked by a party aggrieved as well.
16. Be that as it may, I find no dispute with regard to the exercise of jurisdiction by the Tribunal but the question before me is whether the Tribunal has exercised the jurisdiction properly and in consonance with well settled parameters governing exercise of such jurisdiction. The limited question before the Tribunal was whether the appellate authority was justified in rejecting the appeals filed by the private respondents on the ground of limitation. The Tribunal has very smartly skirted the issue and decided the revision petition on merits as if it has suo moto power to look into the legality or propriety of the mutation attested by the Tehsildar Agrarian Reforms.
17. The impugned order passed by the Tribunal could, probably, have been sustained had the Tribunal been conferred the suo moto revisional jurisdiction to look into and determine the legality or OWP No. 634/2004 12 propriety of the orders passed by the officer(s) subordinate to it. From a plain reading of Subsection (2) of Section 21 of the Act, it becomes abundantly clear that, though, the Tribunal shall have jurisdiction to suo moto call for record of any case in which Commissioner Agrarian Reforms has passed final order provided it finds that a question of law or public interest is involved in the case.
18. In short, other than the orders that are passed by the Tehsildar or Assistant Commissioner under the Act in respect of any evacuee or State land, the Tribunal is not conferred the revisional jurisdiction to call for the record of any case disposed of by the Tehsildar Agrarian Reforms under Section 4 or 8 of the Act. The Tribunal shall exercise revisional jurisdiction only in respect of a final order passed by the Commissioner Agrarian Reforms as an appellate authority or otherwise under the Act.
19. Viewed thus, the view taken by the Tribunal that it, in the exercise of revisional power conferred under Subsection (2) of Section 21 of the Act, can look into the legality or propriety of the mutations attested by the Tehsildar Agrarian Reforms without being deterred by delay and laches is erroneous and legally flawed.
20. In view of the facts and circumstances of the case and the legal position explained above, it was a fit case for remand to the Tribunal to adjudicate upon the issue of limitation by affording opportunity to both the sides. However, for the reasons that the power of revisional authority is now taken away with the OWP No. 634/2004 13 promulgation of J&K Reorganization Act, 2019, this course is also not available to this Court. Otherwise also, no useful purpose would be served by relegating the parties for adjudication on the issue of limitation before any authority including appellate authority for the simple reason that the private respondents have not averred in their appeals the date of acquiring knowledge of the impugned order passed on three mutations nor have they by pleading in the memorandum of appeals or by way of an application under Section 5 of the Limitation Act, shown sufficient cause for approaching the Court belatedly.It is, thus a foregone conclusion that the private respondents have waived their rights, if any, by remaining silent for a pretty long time and that too, without any ostensible reasons.
21. In view of the aforesaid discussion and having found the impugned order passed by the Tribunal untenable and unsustainable, I have ventured not to deal with question No.2, which relates to the merits of the controversy.
22. In the premises, this petition is allowed. The impugned order passed by the Tribunal is quashed. The order of the Commissioner Agrarian Reforms and the orders passed on mutations by the Tehsildar Agrarian Reforms, Udhampur are upheld.
(Sanjeev Kumar) Judge Jammu:
22.03.2024 Vinod, PS Whether the order is reportable: Yes OWP No. 634/2004 14