Reserved On 12.05.2022 vs Financial Commissioner And Ors
2022 Latest Caselaw 642 j&K/2

       HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT SRINAGAR


                                                  WP(C ) No. 605/2020
                                                  CM No.1298/2020,
                                                  CM No.4761/2020

                                                Reserved on 12.05.2022.
                                                Pronounced on 20.05.2022.
Aziz Dar
                                                             ..... petitioner (s)

                                Through :- Mr. R.A.Jan Sr. Advocate with
                                           Mr. Taha Khalil Advocate

                          V/s

Financial Commissioner and ors                              .....Respondent(s)

                                Through :- Mr. Jahangir Iqbal Ganai
                                           Sr. Advocate with Mr. Faizan Shah
                                           Advocate

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE


                                 JUDGMENT

1. The petitioner is aggrieved and has challenged order dated

18.02.2020 [„the impugned order‟] passed by the Financial Commissioner

(Revenue), J&K, Srinagar [„the Revisional Authority‟] in a revision petition

filed by respondent Nos. 2 to 4 against the petitioner and four others whereby

the Revisional Authority has set aside mutation No.9 dated 28.10.1968,

mutation No. 311 dated 16.01.1989 and mutation No. 497 dated 22.05.1957

and has remanded the matter to Tehsildar, Pattan for attestation of fresh

mutations in respect of the landed property of late Habib Dar and Rahim Dar

strictly as per the Muslim law and in accordance with the procedure laid down

in Standing Order 23-A.

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2 Before adverting to the grounds of challenge urged by

Mr. R.A.Jan learned Senior Counsel to assail the impugned order, it is

necessary to briefly state few relevant facts. Two brothers, namely Rahim Dar

and Habib Dar owned landed property in village Sriwarpora, Tehsil Pattan.

Both the brothers have died since long. Habib Dar died issueless and was

survived by his widow Mst. Mukhti, whereas Rahim Dar is survived by four

male issues which included respondent Nos. 2 and 3 and the petitioner herein.

After the death of Habib Dar, his landed property was mutated in the name of

the petitioner (adopted son) and wife Mst. Mukhti in equal shares. This is

reflected in mutation No.9 attested by the Naib-Tehsildar concerned on

28.10.1968. After the death of Mst. Mukhti, her share which she had inherited

from her husband too was mutated in the name of the petitioner claimably

adopted son of late Habib Dar. This is so reflected in mutation No. 311 attested

on 16.01.1989. So far as the estate of Rahim Dar is concerned, the same upon

his death was mutated in the name of his three sons and widow through

mutation No. 497 attested on 22.05.1957. The petitioner, who was biological

son of Rahim Dar, was excluded from inheriting the estate of Rahim Dar on the

ground that on his adoption by Habib Dar he had ceased to be the son of Rahim

Dar and was, thus, not entitled to succeed to his estate along with his other

three brothers.

3 The aforesaid three mutations were assailed by respondent Nos. 2

to 4 (respondent Nos. 2 and 3 being sons of Abdul Rahim Dar and respondent

No.4 being son of late Salam Dar, 3rd son of late Rahim Dar, by filing three

different revisions petitions under Section 15 of the J&K Land Revenue Act,

1996 [„the Revenue Act‟] directly before the Revisional Authority. The

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aforesaid revision petitions were instituted on 01.06.2018 and were disposed of

vide order impugned dated 18.02.2020.

4 As stated above, all the three mutations attested on 28 th October

1968, 16.01.1989 and 22.05.1957 were set aside by the Revisional Authority

and the matter remanded to the Tehsildar concerned to attest fresh mutations

concerning the estate of Habib Dar and Rahim Dar strictly as per the Muslim

Law and in accordance with the procedure laid down in the Standing Order No.

23-A. It is this order of the Revisional Authority which is assailed by the

petitioner in this petition filed under Article 226 of the Constitution of India.

5 The impugned order has been challenged by the petitioner on

various grounds, but the ground which was laid great emphasis on is that the

Revisional Authority entertained the three revision petitions which were highly

belated and were hit by huge delay and laches. It is contended by Mr. Jan,

learned Senior Counsel that mutation No. 9 was challenged for the first time

after 50 years, whereas mutation No.497 was challenged after 61 years. The

third mutation i.e Mutation No. 311 was also assailed after a gap of 29 years.

Neither respondent No.2 to 4 could offer any explanation for filing such hugely

belatedly revision petitions, nor the Revisional Authority applied its mind and

formally condoned the delay. The Revisional Authority, as is apparent from

reading of the impugned order, dispensed with the issue of limitation.

Mr. Jan, learned Senior Counsel, thus, assails the order impugned primarily on

the ground that the Revisional Authority has committed glaring illegality and

grave impropriety in entertaining the revision petitions without formally

condoning the delay.

6 Per contra, Mr. Jahangir Iqbal, learned Senior Counsel appearing

for the private respondents submits that from a reading of the impugned order,

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it is abundantly clear that the Revisional Authority was aware that there was

delay in filing the revisions petitions, but having regard to the facts and

circumstances of the case, it condoned the delay in the interest of justice and

considered the revision petitions on merits. Learned Senior Counsel argues that

the mutation No. 9 dated 28th October, 1968 is nullity in the eyes of law, for,

the Muslim Law does not permit adoption, nor there is any custom prevalent in

the valley in this regard. Learned Senior Counsel submits that mutation

No. 311 dated 16.01.1989 whereby the landed estate of Mst. Mukhti was

mutated in the name of the petitioner is also nullity in the eyes of law, in that,

an adopted son, even if his adoption is held to be permissible under customary

law, cannot inherit from the relatives of his adoptive father. Learned Senior

Counsel further submits that mutation No. 497 dated 22.05.1957 whereby the

estate of late Abdul Rahim Dar was mutated in favour of his sons to the

exclusion of the petitioner is equally bad in the eye of law, for, in the absence

of valid adoption of the petitioner Aziz Dar by late Habib Dar, he could not

have been excluded from inheriting the estate of his father Rahim Dar. Learned

Senior Counsel submits that Section 15 of the Revenue Act does not prescribe

any period of limitation for filing a revision petition and the Revisional

Authority is competent to call for record of any case pending before or

disposed of by the revenue officer subordinate to him at any time. He takes this

Court to the order impugned to submit that the Revisional Court was well

aware that all the three revisions petitions were highly belated, but having

regard to the fact that the impugned mutations were nullity in the eyes of law,

the revisional authority condoned the delay and considered the revision

petitions on merits.

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7 Having heard learned counsel for the parties and perused the

record, I am of the considered view that the decision of this petition turns on

the determination of following two questions;

(i) What is the period of limitation prescribed for filing a revision petition under Section 15 of the Revenue Act; and,

(ii) Whether the Revisonal Authority has applied its mind and has condoned the delay after accepting the explanation tendered by respondent Nos. 2 to 4 in filing highly belated revision petitions.

8 Section 15 of the Revenue Act deals with power to revise orders

and the same reads as under:

"15. Power to revise orders.

(1) The Financial Commissioner may at any time call for the record of any case pending before or disposed of by any Revenue Officer under his control.

,

(2) The Divisional Commissioner may call for the record of any case pending before or disposed of by any Revenue Officer subordinate to him.

(3). If any case in which, the Divisional Commissioner has called for a record he is of opinion that the proceedings taken or order made should be modified or revised he shall report case with his opinion thereon for the orders of the Financial Commissioner"

(4) The Financial Commissioner may, in any case called for by him under sub-section (1) or reported to him under sub-section (3),pass such order as he thinks fit:

Provided that, he shall not under this section pass an order reversing or modifying any proceeding or order of a subordinate officer affecting any question of right between private persons without giving those persons an opportunity affecting any question of right between private persons without giving those persons an opportunity of being heard."

9 From a plain reading of Section 15(1) of the Revenue Act, it is

evident that the Revisional Authority (Financial Commissioner) is empowered

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to call for record of any case pending before or disposed of by any revenue

officer under his control at any time. The expression "at any time" clearly

denotes that the Revisional Authority is empowered to call for the record of

any case which is pending before or disposed of by the Revenue Officer

subordinate to him. The expression "at any time" would mean that either when

the case is pending before or same is disposed of by the revenue officer

subordinate to the Revisional Authority. Viewed thus, the expression "at any

time" cannot be construed to confer power on the Revisional Authority to

entertain the revision at any time even if it is inordinately delayed by decades.

The legislature cannot be understood to have intended to leave the orders

passed by the revenue officers under the Revenue Act open to variation for an

indefinite period, for, that would have the effect of rendering the title of the

land holders in a state of perpetual uncertainty. It is, thus, not correct to say that

the power of revision conferred upon Revisional Authority by Section 15 of the

Revenue Act can be exercised at any time as may be chosen by the Revisional

Authority. Relevant at this juncture would be a reference to Section 12 of the

Revenue Act which deals with limitation for appeals, revisions and reviews.

Section 12 of the Act reads thus:

12. Limitation for appeals, revisions and reviews.-- (1) The period of limitation for an appeal under the

last foregoing section shall be as follows:

(a) When the appeal lies to the Collector or an Assistant Collector of the first class.....60 days.

(b) When appeal lies to the Financial Commissioner or Divisional Commissioner..................90 days;

Provided that in the District of Ladakh and Gilgit twice the ordinary period of limitation under this section shall be allowed.

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(2) Such provisions of the Limitation Act as apply to appeals, applications for revision and review in civil suits shall also apply to appeals, applications for revision and review under this Act".

10 From a reading of sub-Section 2 of Section 12 of the Revenue

Act, it is manifestly clear that the provisions of the J&K Limitation Act, 1938

[„the Limitation Act‟] as these apply to appeals, applications for revision and

review in civil suits shall also apply to appeals, revisions and reviews under the

Revenue Act.

11 It is true that under Section 12 of the Revenue Act, the period of

limitation for filing an appeal is specifically provided, whereas no specific

period of limitation is provided for filing an application for revision under

Section 15 and review under Section 13 of the Revenue Ac.

12 Reading Section 15 with sub-Section 2 of Section 12 of the Act, it

is axiomatic that the period of limitation provided for filing a revision petition

under Section 115 of Code of Civil Procedure is the period of limitation

applicable to the filing of applications for revisions under Section 15 of the

Revenue Act. Under the Limitation Act, 1963 (Central Act which is now

applicable to UT of Jammu and Kashmir), the period of limitation provided

under Article 131 of Schedule-I to the Limitation Act for filing a revision

petition under the Code of Civil Procedure is 90 days. That being the clear

position emerging from reading of Section 15 along with section 12(2) of the

Revenue Act, there is now no scope for discussion that the period of limitation

for filing a revision petition under section 15 of Revenue Act too is 90 days

and in case a revision petition is filed beyond the period of 90 days, it is

incumbent upon the applicant to explain the delay in filing the belated revision

petition.

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13 The position before the J&K Reorganization Act, 2019 was,

however, different. Under the Limitation Act, there was no period of limitation

provided for filing a revision petition and it was the Judge-made law that a

revision petition under Code of Civil Procedure should ordinarily be filed

within a period of limitation prescribed for filing appeals. However, with the

reorganization of the State and applicability of the Limitation Act, 1963

(Central), the position has undergone change. Article 131 of Schedule

appended to the Limitation Act, 1963 specifically provides a period of

limitation of 90 days for filing a revision petition from the date of order.

14 The issue as to what should be the period of limitation for filing

appeal under Section 15 of the Revenue Act, is no longer res integra. Recently,

a Division Bench of this Court in the case of Wali Mohammad Magrey and

another vs. Ali Mohammad Gujree and ors, 2022 (1) JKJ (HC) 307

considered the same issue and what was opined by the Division Bench reads

thus:

"It is seen that whereas Sub-section (1) of Section 15, providing for power to revise orders, uses the phrase 'at any time', meaning at any time, without reference to limitation. Sub-section (2) of Section 12 provides that such provisions of Limitation Act as apply to applications for revision etc. in civil suits shall also apply to revisions etc. under the said Act. Obviously, Sub-section (1) refers to the suo moto exercise of power of revision by the Financial Commissioner and Sub- section (2) of Section 12 refers to the revisions initiated under Section 15 of the Act at the instance of an aggrieved party. The provision of the law in Sub- section (2) of Section 12 of the Land Revenue Act, thus, expressly, clearly and unambiguously provides limitation period for revision applications under the Act, as being the same as provided for revisions under the Limitation Act in civil suits. The plea or the contention that the law of limitation is not attracted to the revision applications under the Land Revenue Act does not hold good. The judgments cited at the Bar and relied upon by Mr. M. A. Qayoom are either not attracted or are distinguishable on facts".

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15 The Division Bench relying upon the judgment of this Court in the

case of Rahman Labroo vs. Rajab Labroo, 1982 SLJ 489 held that it is true

that there is no limitation period as such prescribed under the Limitation Act

for revision applications in civil suits. However, it has been consistently held

by this Court that normally a revision petition shall be filed within the same

period as is prescribed for filing an appeal against a decree or order, which,

admittedly, is 90 days.

16 It is pertinent to note that in the instant case, the revision petitions

were filed in the year 2018 i.e before the promulgation of J&K reorganization

Act and, therefore, it was the Limitation Act that governed the period of

limitation for filing the revision petitions in the instant case.

17 The Judgments of Single Bench of this Court in the case of

Mst. Akhtara v. State of J&K & ors., 2009(I) SLJ 20 and Ayoub Gujar &

ors. v. Financial Commissioner, Revenue & ors., 2018 SLJ 992 also support

the view taken by the Division Bench in Wali Mohammad Magrey's

case(supra.

18. The Supreme Court in Joint Collector Ranga Reddy District &

ors vs D.Narsing Rao & Ors , (2015) 3 SCC 695 has held as under:

"In the decision in State of Gujarat vs. Patil Raghav Natha and others (1969) 2 SCC 187 this Court while adverting to Sections 65 and 211 of the Bombay Land Revenue Code, 1879 held that though there is no period of limitation prescribed under Section 211 to revise an order made under Section 65 of the Act, the said power must be exercised in reasonable time and on the facts of the case in which the decision arose, the power came to be exercised more than one year after the order and that was held to be too late."

19. Similarly in the case of Santoshkumar Shivgonda Patil and

others vs. Balasaheb Tukaram Shevale and others (2009) 9 SCC 352, the

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Supreme Court while dealing with similar power of revision under Section 257

of the Maharashtra Land Revenue Code, 1966 held as follows :

"11. It seems to be fairly settled that if a statute does not prescribe the time-limit for exercise of revisional power, it does not mean that such power can be exercised at any time; rather it should be exercised within a reasonable time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. Where the legislature does not provide for any length of time within which the power of revision is to be exercised by the authority, suo motu or otherwise, it is plain that exercise of such power within reasonable time is inherent therein".

"12. Ordinarily, the reasonable period within which the power of revision may be exercised would be three years under Section 257 of the Maharashtra Land Revenue Code subject, of course, to the exceptional circumstances in a given case, but surely exercise of revisional power after a lapse of 17 years is not a reasonable time. Invocation of revisional power by the Sub-Divisional Officer under Section 257 of the Maharashtra Land Revenue Code is plainly an abuse of process in the facts and circumstances of the case assuming that the order of the Tahsildar passed on 30-3- 1976 is flawed and legally not correct."

20 To the similar effect is the judgment of the Supreme Court in the

case of State of Punjab and others vs. Bhatinda District Cooperative Milk

Producers Union Ltd. (2007) 11 SCC 363 in which the Apex Court was

dealing with similar revisional power under Section 21 of the Punjab General

Sales Tax Act, 1948. The apex Court, in paragraphs 17 to 19, held thus :

"17. A bare reading of Section 21 of the Act would reveal that although no period of limitation has been prescribed therefor, the same would not mean that the suo motu power can be exercised at any time".

"18. It is trite that if no period of limitation has been prescribed, statutory authority must exercise its jurisdiction within a reasonable period. What, however, shall be the reasonable period would depend upon the nature of the statute, rights and liabilities thereunder and other relevant factors".

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"19. Revisional jurisdiction, in our opinion, should ordinarily be exercised within a period of three years having regard to the purport in terms of the said Act. In any event, the same should not exceed the period of five years................"

21 The observations of the Supreme Court made in paragraph 31 of

Joint Collector Ranga Reddy‟s case (supra) are equally relevant and, therefore,

reproduced hereunder:

"To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority".

22 From the above discussion, it is now a trite law that if a statute

does not prescribe time limit for exercise of or invoking the revisional

jurisdiction, it does not mean that such power can be exercised at any time. The

orders passed under a statute which are revisable cannot be left open to

variation for an indefinite period as allowing to do so would render the title of

the holders permanently precarious and in a stage of perpetual uncertainty. As

is held by the Supreme Court in Joint Collector Ranga Reddy‟s case (supra),

delayed exercise of revisional jurisdiction is frowned upon because if actions

or transactions were to remain forever open to challenge, it will mean

avoidable and endless uncertainty in human affairs, which is not the policy of

law and, therefore, even if there is no specific period of limitation prescribed

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for exercise of such power, such power should be invoked within a reasonable

period. What would be the reasonable period would depend upon the nature of

statute, rights and liabilities thereunder and other relevant factors. This is

precisely the answer to the first question.

23 In the instant case, as noticed above, the mutations were

challenged after a gap of 29 to 61 years and, therefore, the revision petitions,

by all means, were inordinately delayed.

24 It is true that in the revision petitions filed by the respondents

No. 2 to 4, an explanation is tendered in the following words:

"that the petitioners were minors at the time when the impugned mutations have been made. Secondly, whole property left behind by Rahim Dar and Habib Dar was joint between the parties. It is jointly owned as well as possessed by the parties on spot. No partition till date has been affected. Therefore, petitioners never knew anything about the impugned mutations They at all had no knowledge of the mutations till the end of February 2018. On getting knowledge, petitioners applied for copies and after getting the same revisions filed under proper legal advice".

25 It is seen that though the revisional authority has shown his

awareness with regard to the highly belated revision petitions filed by the

respondents 2 to 4, yet instead of dealing with the explanation tendered by

respondent Nos. 2 to 4 on merits, the revisional authority has chosen to

dispense with the issue of limitation. Such course is admittedly not permissible

in law. The revisional authority was under an obligation to adjudicate upon the

question of limitation in proper perspective. As is claimed by respondent Nos.

2 to 4 that they were minor at the time of attestation of impugned mutations

and that the properties between the parties were joint and un-partioned, as such,

all these questions were questions of fact which would necessarily require

evidence to prove. The Revisional Authority has dispensed with the point of

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limitation probably being influenced by its perceived strong merits of the case

set up by respondent Nos. 2 to 4 in the revision petition. The Revisional

Authority very conveniently omitted to consider the plea of limitation which, in

the instant case, was a case of huge delay of 29 to 61 years.

26 It is true, prior to reorganization of the erstwhile State of Jammu

and Kashmir, period of limitation for filing suit, appeal or application for

revision was regulated by J&K Limitation Act. In the instant case, revision

petitions were filed in the year 2018 i.e before reorganization of J&K State

and, therefore, these were governed by J&K Limitation Act. Ordinarily, period

of limitation for filing revision petition should be the same as the period for

filing appeal. The Revisional Authority (Financial Commissioner) may,

however, exercise discretion in treating a revision petition within time,

provided he is satisfied that the delay in filing the revision petition is

sufficiently explained. It is not only the duty of the Financial Commissioner to

be so satisfied, but he must express his satisfaction in clear words in the

judgment (See: Mst Zaina v. Financial Commissioner and Ors, SLJ 1983

J&K). Impugned order is silent about it, rather the Financial Commissioner

has dispensed with the issue of limitation. From reading of impugned order, it

clearly transpires that the Financial Commissioner was so satisfied with case of

respondents No.2 to 4 on merits that he decided to ignore the plea of limitation

as if it was consequential. This vitiates the impugned order in its entirety.

27 For the foregoing reasons, the petition is allowed and the

impugned order passed by the Revisional Authority (Financial Commissioner)

is set aside. The matter is remanded to the Revisional Authority to consider the

issue of limitation in the first instance and then proceed to consider the revision

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petition on merit only after it finds the explanation tendered by respondent

Nos. 2 to 4 sufficient for condoning the huge delay of 29 to 61 years.

(SANJEEV KUMAR) JUDGE Srinagar 20.05.2022 Sanjeev

Whether order is speaking: Yes

Whether order is reportable: Yes