Jammu & Kashmir High Court
Rano Devi vs State Of J&K; And Others on 16 November, 2018
Author: Dhiraj Singh Thakur
Bench: Dhiraj Singh Thakur
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
OWP No. 1508/2015,
IA No. 1/2015.
Date of Order: 16.11.2018.
Rano Devi Vs State of J&K and others
Coram:
Hon'ble Mr. Justice Dhiraj Singh Thakur, Judge
Appearance:
For the appellant(s)/petitioner (s) : Mr. C. M. Gupta, Advocate.
For the respondent(s) : Mr. S. S. Nanda, Sr. AAG for R-1 to6.
Mr. V. R. Wazir, Sr. Advocate with Mr. Neeraj Magotra, Advocate for R-7 to 9. None for others.
i. Whether approved for : Yes/No
reporting in Press/Media
ii. Whether to be reported in : Yes/ No
Digest/Journal
(Oral)
01. The present petition has been preferred against the order passed by the Special Tribunal dated 20.02.2013, whereby while exercising revisional powers in terms of Section 21(2) of the Jammu & Kashmir Agrarian Reforms Act, 1976 (in short ―Act‖), the Tribunal has directed the Appellate Authority to adjudicate the appeal afresh, keeping in view the provisions of Rule 52 of the Jammu & Kashmir Agrarian Reforms Rules, 1977 (in short ―Rules‖).
02. Briefly stated, the material facts are as under:-
OWP No. 1508/2015, IA No. 1/2015 Page 1 of 703. An appeal came to be preferred by the respondents before the Joint Commissioner, Agrarian Reforms, Jammu on 16.08.2007 under Section 21(1) of the Act, against mutation No.480 dated 16.11.1998 in regard to land measuring 06 kanals 01 marla in Survey No. 385, situate in Village Salmeri, Tehsil Samba. In terms of Section 21, the period fixed for filing an appeal ordinarily is 60 days. The aforesaid appeal was, therefore, barred by limitation. Since the appeal was filed beyond the period prescribed, an application for condonation of delay was also filed, which was considered by the Appellate Authority but not finding sufficient cause therein, dismissed the application and consequently the appeal.
04. Aggrieved of the dismissal, a revision petition was preferred in terms of Section 21 of the Act before the J&K Special Tribunal at Jammu. By virtue of order dated 20.12.2013, which is impugned in the present petition, the Tribunal allowed the same and directed the Appellate Authority to apply the provisions of Rule 52 of the Rules. Since the controversy revolves around the applicability and interpretation of Rule 52, it would be beneficial to reproduce the same hereunder:-
"52. Case where appeal fails on ground of limitation --
Where the appeal is dismissed on the ground of limitation, the appellate authority shall, if he be of the opinion that the order appealed from is one which should be revised, submit the case through proper channel to the revisional authority with a report why the order appealed from needs to be revised and what the revised order should be. On receipt of this report, the revisional OWP No. 1508/2015, IA No. 1/2015 Page 2 of 7 authority shall act as if an application for revision under the Act had been made to him."
05. Learned counsel for the petitioner urged that the Appellate Authority having found no sufficient cause for condoning the delay was right in dismissing the appeal and further that there was no obligation cast upon the Appellate Authority to necessarily record a finding as to why in its opinion, it was not a case fit to be revised.
06. It was further urged that the obligation cast upon the Appellate Authority in terms of Rule 52 of the Rules was only to be exercised in a case where the Appellate Authority was of the opinion that the order appealed from was one, which should be revised and only in those circumstances was a report to be prepared to be submitted to the revisional authority.
07. Per contra, learned counsel Mr. V. R. Wazir, learned senior arguing counsel appearing on behalf of the respondent Nos. 7 to 9 stated that the view expressed by the Tribunal was legally tenable and deserved no interference. It was urged that even when Rule 52 did not in so many words so prescribed that reasons be recorded in every case, yet the Appellate Authority is expected atleast to apply its mind to the facts of the case on merits, with a view to form an opinion in that regard.
08. In addition to the above, it was stated that after the passing of the order impugned by the J&K Special Tribunal Jammu dated 20.02.2013, the petitioner had participated in OWP No. 1508/2015, IA No. 1/2015 Page 3 of 7 the proceedings before the Appellate Authority upon remand for a period of more than two years and that the present petition was filed as late as in the year 2016. It was thus stated that the petitioner has filed the present petition as an afterthought.
09. Heard learned counsel for the parties.
10. The fact that the petitioner had participated in the appeal proceedings upon remand is not denied by the learned counsel for the petitioner. Having chosen to participate in the proceedings for a period exceeded two years, the petitioner had clearly elected to accept the order passed by the Tribunal. On the doctrine of election reference can be made to ―Joint Action Committee of Airline Pilots Association of India (ALPAI) Vs. Director General of Civil Aviation" reported in (2011) 5 SCC 435, wherein the Apex Court in paragraph 12 held as under:-
"12. The doctrine of election is based on the rule of estoppel-the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily."
The petitioner would thus be estopped in law to challenge the order impugned on this ground alone.
OWP No. 1508/2015, IA No. 1/2015 Page 4 of 711. Notwithstanding the above, with a view to understand how Rule 52 needs to be interpreted and with a view to promote the spirit for which it was framed, the following examples may be relevant:-
(a) An appeal being barred by limitation is accompanied with an application for condonation of delay. The Appellate Authority considers the application for condonation of delay dismisses the same, but also goes to the main merits of the case, which accompanies the application for condonation of delay and then forms an opinion that it is a case fit for revision by the revisional authority, notwithstanding the fact that the delay has not satisfactorily been explained leading to the dismissal of the appeal.
(b) An application along with an appeal is accompanied with an application for condonation of delay. The Appellate Authority does not consider the merits at all. Simply considers the explanation in the condonation of delay application and dismisses the same without even bothering to go to the merits of the case.
12. While in the first case, the Appellate Authority records the opinion whether or not it is a fit case for being considered by the revisional authority. In the second case, it does not at all form such an opinion. While it may not be necessary for the Appellate Authority to necessarily record in every case an opinion recommending interference by a revisional OWP No. 1508/2015, IA No. 1/2015 Page 5 of 7 authority, yet the level of consciousness and awareness of the Appellate Authority as regards the main merits of the case must be such as to enable the authority to form an opinion whether or not it a case fit for interference by the revisional authority.
13. In the present case, on a perusal of the order impugned passed by the Joint Commissioner, Agrarian Reforms, it can plainly be seen that the Appellate Authority had only touched the issue of limitation and had shown total ignorance about the main merits of the case. It appears that the Appellate Authority did not even proceed to examine as to what was contained in the main appeal, without which it was not impossible for it to form any opinion in terms of Rule 52.
The rule does not leave it to the discretion of the Appellate Authority to choose in which cases it may decide to go into the merits to decide whether it is a case for the exercise of revisional powers. The power to make a recommendation cannot at all be exercised, if the authority does not apply itself in some measure to the merits as well for failure to do so would make that power totally illusory, redundant and otiose.
14. For the aforesaid reasons, I do not find any merit in the present petition, which is, accordingly, dismissed along with connected IA.
15. The Appellate Authority shall upon a perusal of the case on merits record an opinion as to whether the mutation is OWP No. 1508/2015, IA No. 1/2015 Page 6 of 7 required to be interfered within the revisional jurisdiction or not.
( Dhiraj Singh Thakur ) Judge Jammu 16.11.2018 (Muneesh) OWP No. 1508/2015, IA No. 1/2015 Page 7 of 7