Jammu & Kashmir High Court - Srinagar Bench

Sona Waza vs J&K Special Tribunal And Ors on 8 February, 2021

                                   HIGH COURT OF JAMMU AND KASHMIR
                                              AT SRINAGAR
                                           (THROUGH VIRTUAL MODE)
                                                                  OWP 1790/2017

                                                                         Reserved on : 28.01.2021
                                                                         Pronounced on: 08.02.2021

               Sona Waza
                                                                                   .....petitioner(s)

                                               Through :- Mr. M.A.Qayoom Advocate.


                                       V/s

               J&K Special Tribunal and ors                         .....Respondent(s)
                                      Through :- Mr. Ateeb Kanth Advocate.

               Coram: HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE

                                               JUDGMENT

1 Through the medium of instant petition, the petitioner has challenged

order dated 29.07.2015 passed by the ADC/Agrarian Reforms

Commissioner, Budgam and order dated 31.10.2017 passed by the J&K

Special Tribunal, Srinagar.

2 Briefly stated, the case of the petitioner is that he has all along been

in actual physical and cultivating possession of land measuring 1 kanal,

3 ½ marlas comprised in khasra No. 2100/536 of village Beerwah. After

coming into force of J&K Agrarian Reforms Act, 1976 (for short „the Act‟)

mutation bearing No. 2511 dated 20.08.1989 came to be attested in favour

of the petitioner in terms of Section 4 of the Act thereby conferring

prospective ownership rights of the land in question in her favour. Vide

Mutation bearing no. 2728 dated 01.08.1991, exclusive ownership rights of

the aforesaid land was conferred in favour of the petitioner in terms of

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Section 8 of the Act after he had deposited the requisite levy in respect of

the said land.

3 It is the further case of the petitioner that after a lapse of more than

21 years, respondent No.4 without any locus standi filed an appeal against

the mutation orders bearing No. 2511 dated 20.08.1989 and 2728 dated

01.08.1991 before Joint Agrarian Commissioner, Srinagar. The appeal was

allowed by the said Authority vide its order dated 08.10.2011 and the

aforesaid mutation orders were set aside. The said order came to be

challenged by the petitioner before respondent No.1. Vide its order dated

20.06.2013, respondent No.1 set aside the order dated 08.10.2011 and

remanded the case back to the Agrarian Commissioner, Budgam for

disposal in accordance with law. The said Authority vide its order dated

08.11.2014 decided the issue of limitation in favour of respondent No.4

and thereafter vide its order dated 29.07.2015, respondent No.2 reiterated

the order dated 08.10.2011 passed by the Joint Agrarian Reforms

Commissioner, Srinagar. The said order came to be challenged by the

petitioner by way of revision petition before respondent No.1. Vide its

order dated 31.10.2017, respondent No.1, while upholding the order

regarding setting aside of aforesaid mutation orders, dismissed the revision

petition.

4 In the backdrop of aforesaid facts, the petitioner has challenged

order dated 29.07.2015 passed by respondent No.2 as also the order dated

31.10.2017 passed by respondent No.1 on the grounds that order dated

08.11.2014, whereby the application for condonation of delay was allowed,

has been passed by respondent No.2 without affording the petitioner an

opportunity of being heard; that respondent No.4, at whose instance the

mutation orders in question have been subjected to challenge, has no locus MOHAMMAD ALTAF BHAT 2021.02.08 16:57 I attest to the accuracy and integrity of this document 3 OWP 1790/2017

standi; that the observation of respondent No.1 that the petitioner had not

challenged the order passed by respondent No.2 on the issue of limitation is

contrary to the record which shows that the impugned order passed by

respondent No.1 has been passed in a mechanical manner; that respondent

No.1, while passing the impugned order, has failed to notice that in the

order dated 20.08.1989 whereunder the Mutating Officer has attested the

mutation under Section 4 of the Act, had in terms of Rule 4 of Agrarian

Reforms Rules, 1977 (for short „Rules of 1977‟) made necessary

correction in the records so as to bring the revenue record in consonance

with the spot position thereby changing the kind of land from orchard to

„Maidani‟ and that the ex-owner of the land did not challenge the

mutations in question, but the same were challenged by respondent No.4

after a lapse of 21 years without any right or justification.

5 Respondent No.4 has contested the petition by filing her reply

wherein, after giving the factual background of the litigation that has taken

place between her and the petitioner, she has contended that the revenue

extracts of year 1966 fortify the fact that the land in question was orchard,

as such, the provisions of J&K Agrarian Reforms Act, 1976 are not

applicable to the said land. It has been further contended that respondent

No.4 was managing the land in question and she has inherited the land in

question besides being a Power of Attorney Holder of the same. It has been

contended that the delay in filing the proceedings against the mutations

attested in favour of the petitioner has been condoned by a well reasoned

order, which order does not call for any interference.

6 I have heard learned counsel for the parties and perused the record of

the case.



MOHAMMAD ALTAF BHAT
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integrity of this document
                                                            4          OWP   1790/2017


               7          Before coming to the merits of the case, it is necessary to keep in

mind the scope of judicial review of the decisions of Tribunals and

quasi- judicial authorities in Writ proceedings. The Supreme Court in the

case of Hari Vishnu Kamath vs. Syed Ahmad Ishaque and others,

AIR 1955 SC 233 had an occasion to consider the scope of Writ of

Certiorari against the orders of Tribunals. While doing so, the Court laid

down the following propositions.

(1) Certiorari will be issued for correcting errors of jurisdiction as when an inferior Court or Tribunal acts without jurisdiction or in excess of it or fails to exercise it.

(2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice.

(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of facts reached by the inferior Court or Tribunal, even if they be erroneous.

(4) An error in the decision or determination itself may also be amenable to a writ of "certiorari" if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by "certiorari" but not a mere wrong decision. What is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.

8 From the aforesaid enunciation of law on the subject, it is clear that

the scope of judicial review of the decisions of Tribunals and quasi-judicial

authorities is limited to correcting of errors of jurisdiction, intervention in

the cases where there is violation of principles of natural justice, exercise

of supervisory and not Appellate jurisdiction and correction of manifest

errors apparent on the face of proceedings when it is based on disregard of

the provisions of law.

MOHAMMAD ALTAF BHAT
2021.02.08 16:57
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integrity of this document
                                                           5          OWP   1790/2017


               9               In the backdrop of aforesaid legal position, let me now consider the

               case at hand.

               10              The first contention raised by learned counsel for the petitioner is

that respondent No.4, the person who has thrown challenge to the orders of

mutation attested in favour of the petitioner in respect of the land in

question, had no locus standi to do so. According to the learned counsel,

the ex-owner had died in the year 1994 and during his life time, he did not

challenge these mutations. So far as this contention of learned counsel for

the petitioner is concerned, the same appears to be without any merit for

the reason that respondent No.4 happens to be the daughter of ex-owner,

namely Rishi Bhat. She has placed on record a copy of Power of Attorney

whereby she has been authorized by the widow and two sons of ex-owner,

namely Rishi Bhat to act on their behalf and do all acts pertaining to the

litigation in connection with the land in question. Therefore, it cannot be

stated that respondent No.4 had no locus standi to challenge the mutation

orders in question by virtue of which the land in question was mutated in

favour of the petitioner to the exclusion of ex-owner Rishi Bhat, who

admittedly is stated to have died in year 1994. The challenge was thrown to

the mutation orders by respondent No.4 after the death of her father, ex-

owner as she had stepped into the shoes of her father at the relevant time.

11 The next contention raised by leaned counsel for the petitioner is

that the order passed by respondent No.2, whereby delay in filing the

proceedings challenging the mutation orders has been condoned and which

has been upheld by respondent No.1 vide the impugned order, is not in

accordance with law. According to the learned counsel, respondent No.4

was unable to satisfactorily explain the delay of 21 years in filing the

proceedings and the grounds on which the delay has been condoned by MOHAMMAD ALTAF BHAT 2021.02.08 16:57 I attest to the accuracy and integrity of this document 6 OWP 1790/2017

respondent No.2 vide its order dated 08.11.2014 are specious. According to

the learned counsel, the observation of respondent No.2 that respondent

No.4 is an illiterate lady and, as such, she cannot be expected to understand

the technicalities of law, is irrelevant as ignorance of law is no excuse. It is

further contended that the law of limitation has to be made applicable with

full force and rigour. In this behalf, the learned counsel has relied upon the

judgments of the Supreme Court in the cases of P.K.Ramachandran vs.

State of Kerala and another, (1997) 7 SCC 556 and Lanka

Venkateswarlu vs State of & ors, (2011) 9 SCC 363.

12 There can be no dispute to the fact that law of limitation has to be

applied with full rigour to all proceedings, but then, Section 5 of the

Limitation Act gives jurisdiction to the Courts and Authorities to condone

the delay if sufficient cause is shown for not filing the proceedings within

the prescribed period of limitation.

13 A perusal of order dated 8.11.2014 passed by respondent No.2

whereby the delay in filing the appeal has been condoned, shows that the

Authority has not only taken into account the fact that respondent No.4 was

an illiterate lady, but it has also observed that during the period when the

mutations in question were attested, the valley was entangled in the grip of

turmoil and people were more concerned with the safety of their lives and

not about their landed properties. The reasoning given by respondent No.2

for condoning the delay in filing the appeal, appears to be plausible and

the same cannot be termed so illogical as to constitute a manifest error

apparent on the face of the proceedings.

14 Even otherwise, if we have a look at the mutation orders dated

20.08.1989 and 01.08.1991, it appears that the same have not been passed

in presence of the affected parties. Rule 4 of the Agrarian Reforms Rules, MOHAMMAD ALTAF BHAT 2021.02.08 16:57 I attest to the accuracy and integrity of this document 7 OWP 1790/2017

1977 makes it incumbent upon a Revenue Officer to afford an opportunity

of being heard to all the concerned while considering the issue with regard

to correctness of entry in the khasra girdwaries. In the instant case, the

Revenue Officer concerned has effected correction in the kind of land

while making order of mutation dated 20.08.1989. The said order does not

reflect anywhere that the same has been passed after giving an opportunity

of being heard to all the concerned which goes on to show that the

mutation orders have been passed at the back of ex-owner. It is obligatory

for the Authorities to avoid ex parte proceedings. It has to be reflected in

the mutation order itself that steps were taken to put the affected parties on

notice. In the instant case, the record does not suggest that ex-owner was

put on notice before passing the mutation orders. That being the case, it

was impossible for the ex-owner or his successors to challenge these

mutation orders within the prescribed period of limitation. In these

circumstances, no fault can be found with the order of respondent No.2

whereby the delay in filing the appeal against the mutation orders has been

condoned and consequently finding of respondent No.1 whereby the order

of respondent No.2 to this extent has been upheld, does not deserve to be

interfered with.

15 It has been next contended by learned counsel for the petitioner

that the finding of respondent No.2 as upheld by respondent No.1 vide the

impugned order that the land in question is an orchard is against the

records, inasmuch as there was nothing before these authorities to record

such a finding. The learned counsel, while referring to the definition of

land as contained in Section 2 (9) of Agrarian Reforms Act has contended

that the crucial date for determining the nature of land is Kharief 1971.

According to the learned counsel, nether respondent No.4 has placed on MOHAMMAD ALTAF BHAT 2021.02.08 16:57 I attest to the accuracy and integrity of this document 8 OWP 1790/2017

record khasra girdwari of the land in question for kharief 1971, nor

respondent Nos. 1 and 2, have in their orders, referred to the khasra

girdwari of the land in question for Kharief 1971, therefore, it cannot be

sated that land in question was not the land within the definition of section

2(9) of the Agrarian Reforms Act so as to bring it outside the purview of

the said Act

16 It is correct that the crucial document for determining the nature of

land so far as proceedings under the provisions of Agrarian Reforms Act,

1976 are concerned, is the khasra girdwari for kharief 1971. Further, there

can be no dispute to the fact that an orchard does not come within the

definition of "land" as contained in Section 2(9) of Agrarian Reforms Act

and, as such, an orchard is beyond the purview of the provisions of the said

Act. Respondent No.1, while passing the impugned order, has referred to

extract of Jamabandi of the year 1996 and it has also referred to record of

the Court below to record a finding that the land in question is an orchard.

However, the learned Tribunal has not, in its order, mentioned the

particulars of record of the Court below on the basis of which it has come

to this conclusion. On this basis, the learned counsel has contended that the

finding of the Tribunal in this regard is without any basis.

17 Even if, it is assumed that the Tribunal, while recording the

aforesaid finding, has relied upon Jamabandi of the land in question for

the year 1966, still then there is other material on record, even in these

proceedings, that goes on to show that the land in question was an orchard

during kharief 1971. If we have a look at the mutation order dated

20.08.1989 ( Annexure-A to the petition), in column No.12 of the said

document, it is recorded that the correction has been effected in girdawri of

1971 vide the said mutation order. In the body of the mutation order, the MOHAMMAD ALTAF BHAT 2021.02.08 16:57 I attest to the accuracy and integrity of this document 9 OWP 1790/2017

first line records that correction has been effected in the kind of land from

orchard to "Maidani". When these two entries are read together, it is crystal

clear that in the girdwari of 1971, the land in question was recorded as

Bage khuski (orchard), whereas, while effecting mutation on 20.08.1989,

the entry has been changed from orchard to "Maidani". This shows that in

kharief 1971, the land in question was recorded as an "orchard" and not

any other kind of land. The change effected in the kind of land by virtue of

mutation dated 20.08.1989 cannot operate retrospectively and relate back

to Kharief 1971. To assume so, would be antithesis to reason and logic.

Therefore, it cannot be stated that the finding of respondent No.1, that the

land in question, was an orchard at the relevant time i.e., in kharief 1971 is

based on no record.