Jammu & Kashmir High Court - Srinagar Bench
Lassa And Others vs Divisional Commissioner Kashmir And ... on 2 June, 2023
Author: Vinod Chatterji Koul
Bench: Vinod Chatterji Koul
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
...
WP(C) no.2793/2022
CM no.7031/2022
Reserved on: 06 .02.2023
Pronounced on: 02.06.2023
Lassa and others
.......Petitioner(s)
Through: Mr Mir Manzoor Ahmad, Advocate
Versus
Divisional Commissioner Kashmir and others
......Respondent(s)
Through: Mr Ateeb Kanth, Advocate
CORAM:
HON'BLE MR JUSTICE VINOD CHATTERJI KOUL, JUDGE
JUDGEMENT
1. Petitioners seeks quashment of Order no.224/RDS-ADP/20/40 dated 26th December 2020, passed by Regional Director, Survey & Land Records, Srinagar (respondent no.2) in an appeal titled as Assad and others v. Lassa. Petitioners also pray for quashment of Order dated 19th October 2022, passed by Divisional Commissioner, Kashmir (respondent no.1) in Revision Petition titled as Lassa and others v. Assad and others. A direction is also sought to be passed to respondents not to disturb present position and possession of petitioners.
2. I have heard learned counsel for parties and considered the matter.
3. Learned counsel appearing for petitioners has stated that respondent no.2 has no jurisdiction to hear a regular appeal under the Land Revenue Act inasmuch as respondent no.2 has been given jurisdiction only in those cases and appeals which are referred to him by Financial Commissioner (Revenue) and also powers of a Collector during settlement process. He also contends that uncles of petitioners' mother (grandfather of respondents) had no objection to the decision of their father in giving share to his granddaughter during his life time and that mother of petitioners and then petitioners are in possession of property since 1958. It is contended that respondent no.2 was not himself satisfied with the order he has passed as he has used the word it seems the attesting authority has not followed Shariat Law and that respondent no.2 has not answered legal submissions made by petitioners in support of their stand. Respondent no.2 is said to have failed to appreciate the law governing the field while passing order impugned, whereby he has set-aside the mutation order no.1283 of the year 1958. He asserts that private respondents preferred appeal after long and inordinate delay of 55 years, on the plea that few months ago they came to know about mutation order passed in the year 1958, which on the face of it seems to be an incorrect version. It is also averred that in case any fraud was played with him/her she could have filed the appeal immediately on attaining the age of majority. Private respondents and respondents 1&2 have maintained a complete silence regarding the time as 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, but the mutations have been given effect in the annual records and the record of rights. Learned counsel also states that respondents cannot be heard saying after a gap of long time that they were oblivious of the attestation of the mutations. According to learned counsel, impugned order is silent regarding delay in filing the appeal and that respondent no.1 has also failed to consider and appreciate the law governing the subject.
4. Perusal of the record on the file would reveal that an Appeal was preferred by private respondents against Mutation Order no.1283, stated to have been attested way back in the year 1958. Was it open for private respondents herein to come up with a motion in the shape of an Appeal, or even for that matter with any other motion under the guise of revision etc., that too after so long and inordinate delay to challenge an order on mutation attested way back in the year 1958. Answer to it is always in negative.
5. The Division Bench of this Court (of which I am also a member) in an Appeal, being LPAOW no.33/2017, titled as Ghulam Qadir Bhat and others v. Financial Commissioner (Revenue) and others, vide its judgement dated 24th September 2021, has set at rest all the questions and issues as have arisen and come up for discussion and determination in the case in hand; relevant portion thereof is necessary to be reproduced hereunder:
"15. In view of the above, the question that arises is even if no limitation is provided for filing a revision, whether the revision could have been entertained after such a long gap of time so as to disturb the entries on the basis of which the property has exchanged hands and many other entries have come to be recorded subsequently.
16. The law of limitation is based upon the public law doctrine that there should be an end to a litigation and that there ought to be finality attained to a decision with the passage of time. The purpose to provide limitation for taking recourse to a legal remedy is not to destroy the rights of parties but to ensure that parties do not resort to dilatory tactics and seek their remedy within the prescribed time or a reasonable time so that the matter may not remain alive forever.
17. In a way, statutes of limitation and prescription are statutes of peace and repose. The interest of state requires that there should be an end to litigation. The public policy therefore requires application of law of limitation. The object of the law of limitation is to prevent disturbance of what has been acquired in equity and justice by long enjoyment and not to restore what may have been lost by party's own inaction.
18. The learned Single Judge in deciding the writ petition has unnecessarily brushed aside his own decision in OWP No. 1833/2015 Mst. Mali v. Financial Commissioner (Revenue) and others on 27.05.2016 wherein he himself held that the delay of 14 years in challenging the mutation entries by way of a revision amounts to inordinate delay and therefore the Financial Commissioner was not justified in overlooking the question of delay in filing the revision.
19. The Apex Court in Joint Collector Ranga Reddy Dist. & Anr. vs. D. Narsing Rao & Ors (2015) 3 SCC 695 has held that even where no limitation is prescribed for invoking the revisional power that will not permit the authorities to exercise the power arbitrarily with inordinate delay.
20. In Zaina vs. Financial Commissioner & Ors. 1983 SLJ 1, this Court in context with the filing of revision under Section 15 of the J&K Land Revenue Act held that though no limitation is prescribed for filing a revision, but it must be filed within the time prescribed for filing appeals and in case there is delay, the revisional court has power to condone it after recording reasons for doing it.
21. The Bombay Land Revenue Code, 1879 also did not provide for any limitation for exercising the revisional power by the Commissioner. The Apex Court in State of Gujarat vs. Patel Raghav Natha & Ors. AIR 1969 SC 1297 held that in spite of the fact the provisions do not prescribe for any limitation for exercising revisional power, this power must be exercised in reasonable time and the length of reasonable time must be determined by the facts of the case.
22. In state of A.P. & Anr. vs. T. Yadagiri Reddy & Ors. (2008) 16 SCC 299, it was held that where the legislature in its wisdom did not fix any time limit for exercising revisional power and inserted the words "at any time" it does not mean that the legislature intended to leave the orders passed under the Act open to alteration and variation for an indefinite period as it would perpetuate uncertainty.
23. In view of the aforesaid case law, the inescapable conclusion is that the revisional powers cannot be exercised arbitrarily after an inordinate delay of the passing of the order sought to be revised.
24. The case at hand is a classic example of inordinate and unreasonable delay in exercise of revisional power. The said power has been exercised without recording any satisfaction as to the delay in exercising it more particularly when the two earlier generations of the revisionist have not come forward to object to the mutation or to challenge it by filing a revision. Thus, it is a clear case of unreasonable delay in exercise of revisional power.
25. A complete procedure for maintaining the records or the annual record of rights is provided under the J&K Land Revenue Act. The scheme of the above Act clearly provides that the dispute as to the mutation has to be decided by the revenue authorities in a summary manner and that the final order passed by the Revenue Officer as to who is best party entitled to the property is always subject to any decree or order that may be subsequently passed by any civil court of competent jurisdiction. Section 32 of the J&K Land Revenue Act also authorizes a person aggrieved by any entry appearing in the revenue records to institute a suit before the Collector (Deputy Commissioner) for the correction of the record, and for the possession of the right claimed if he is not in possession.
26. It may be noted that the mutation entries have not been recognized as document of titles of property. They are simply meant for fiscal purposes to enable the Government to collect revenue. These entries do not either create any right, title or interest in the land of any party nor do they extinguish any such right of any party. The said entries are always subject to the decree of a civil court of competent jurisdiction. Therefore, whenever a long standing revenue entry is sought to be disturbed, it is always by way of a declaratory suit before the competent court.
27. In view of the aforesaid facts and circumstances, we are of the opinion that the writ court as well as the revisional courts have manifestly erred in law in exercising their power and in directing for the modification of the mutation entry......"
6. In the above case of Ghulam Qadir Bhat, it was tried to aver and show that Financial Commissioner (Revenue) under J&K Land Revenue Act had unfettered revisional powers and provisions of Limitation Act would not apply to petitions for revision whereas provisions of Limitation Act would apply only in the cases of appeals. The Division Bench, however, held that revisional powers could not be exercised arbitrarily after an inordinate delay of passing of the order sought to be revised.
7. In the case in hand, there is inordinate delay in preferring the Appeal against the mutation in question. Section 12 of the J&K Land Revenue Act provides and gives 60 days for filing an appeal to the Collector or an Assistant Collector of the first class; 90 days for filing appeal to Financial Commissioner or Divisional Commissioner. These important aspects of the matter have been startlingly ignored and overlooked by both Regional Director, Survey & Land Records, Srinagar and Divisional Commissioner, Kashmir, while dealing with the case in hand and passing orders impugned.
8. The Division Bench in Ghulam Qadir Bhat (supra) has also discussed all the facets of the matter including that mutation entries have not been recognized as document of titles of property because such mutations are simply meant for fiscal purposes to enable the Government to collect revenue inasmuch as these entries do not either create any right, title or interest in the land of any part nor do they extinguish any such right of any party and that such entries are always subject to the decree of a civil court of competent jurisdiction and therefore, whenever a long standing revenue entry is sought to be disturbed, it is always by way of a declaratory suit before the competent court.
9. The net result is that the instant writ petition succeeds and, as such, is accordingly allowed. Impugned Order no.224/RDS-ADP/20/40 dated 26th December 2020, passed by Regional Director, Survey & Land Records, Srinagar (respondent no.2) in the Appeal titled as Assad and others v. Lassa, as also of Order dated 19th October 2022, passed by Divisional Commissioner, Kashmir (respondent no.1) in Revision Petition titled as Lassa and others v. Assad and others, are quashed.
10.Disposed of as above.
(Vinod Chatterji Koul) Judge Srinagar 02.06.2023 Ajaz Ahmad, PS Whether approved for reporting? Yes/No.