Jammu & Kashmir High Court

2025:Jklhc-Jmu:3486 vs Jammu & Kashmir Special on 18 October, 2025

Author: Sanjay Dhar

Bench: Sanjay Dhar

                                                                      2025:JKLHC-JMU:3486




 HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                 AT JAMMU
                                                   Reserved on: 16.10.2025
                                                Pronounced on: 18.10.2025
                                                   Uploaded on 20.10.2025
                                              Whether the operative part or
                                               full judgment is pronounced


Case No.:- OWP No. 1748/2015



Romesh Kumar

                                                          .....Petitioner(s)

               Through: Mr. G.S. Thakur, Advocate.

             Vs
Jammu & Kashmir Special
Tribunal, Jammu & Ors.
                                                       ..... Respondent(s)

                 Through: Mrs. Monika Kohli, Sr. AAG
                           Mr. D.R. Khajuria, Advocate.



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

                               JUDGMENT

1. The petitioner, through the medium of the present

petition, has challenged order dated 30.10.2015 passed by

Jammu and Kashmir Special Tribunal, Jammu (hereinafter to be

referred to as 'Tribunal') whereby revision petitions filed by the

petitioner and eight more persons against order dated 01.03.2012

passed by Additional Deputy Commissioner (with powers of

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Agrarian Reforms Commissioner), Udhampur has been upheld

and the revision petitions have been dismissed.

2. It appears that mutation No. 225 in respect of land

measuring 4 kanals 8 marlas under khasra No. 242 situated at

village Kallar Himmiti, tehsil and district Udhampur came to be

attested on 17.12.1981 by Tehsildar, Udhampur under Section 4

of the Jammu and Kashmir Agrarian Reforms Act (hereinafter to

be referred to as 'Act') in favour of Sh. Isher Lal, the predecessor-

in-interest of the contesting respondents. Vide order dated 238

dated 21.12.1982 mutation under Section 4 of the Act came to be

attested in respect of land measuring 11 kanals 10 marlas under

khasra No. 225 in favour of Sh. Isher Lal. Thereafter vide

mutation No. 243 attested under Section 8 of the Act by the

orders of the Tehsildar, Udhampur on 23.02.1983, proprietary

rights in the aforesaid land were conferred upon Sh. Isher Lal.

Vide Mutation No. 311 dated 19.11.1986 under Section 4 of the

Act, Sh. Isher Lal has been declared as prospective owner in

respect of the land measuring 7 kanals under khasra No. 225

whereafter vide mutation No. 312 dated 24.11.1986 attested

under Section 8 of the Act, proprietary rights in respect of the

aforesaid land were conferred upon Sh. Isher Lal, the

predecessor-in-interest of the contesting respondents.

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3. All the aforesaid mutation orders were challenged by the

petitioner and other co-owners by virtue of four appeals before

the Commissioner Agrarian Reforms (Additional Deputy

Commissioner), Udhampur on 04.04.2009. The said appeals

were dismissed by the Commissioner in terms of four separate

orders dated 01.03.2012 by holding that the appeals filed by the

appellants are barred by time. The said orders came to be

challenged by the petitioner by way of four revision petitions

before the J&K Special Tribunal. These Revision Petitions have

been dismissed by the Tribunal by virtue of common order dated

30.10.2015, which is under challenge by way of present petition.

4. It has been contended by the petitioner that the land

measuring 11 kanals 10 marlas under khasra No. 225 min shown

as shamlat deh is 'Banjar Kadeem'. It has been further submitted

that in the revenue record, land measuring 1 kanal 14 marlas,

out of the aforesaid land, has been shown as 'Banjar Kadeem',

land measuring 9 kanals 3 marlas has been shown as 'gair

mumkin khambian', land measuring 10 marlas has been shown

as 'talab' and land measuring 8 marlas has been shown as

'sadak' (road). It has been further submitted that the said land

was initially converted into 'kah charai' vide mutation order No.

119 dated 10.08.2010 BK. Thereafter it was restored back as

„shamlat deh‟ vide fresh mutation No. 209 dated 26.03.1977

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attested pursuant to order passed by the Deputy Commissioner,

Collector, Udhampur on 21.05.1975, which was restored by the

Tribunal, after the said order had been set aside by the Financial

Commissioner.

5. It has been contended that the predecessor-in-interest of

the contesting respondents viz., Sh. Isher Lal was neither the

original owner nor he had any concern or right over the „shamlat‟

land falling under khasra No. 225. It has also been contended

that the mutation in respect of the aforesaid land was attested in

favour of Sh. Isher Lal without hearing the petitioner or his

predecessor-in-interest despite they being the interested and

affected persons. According to the petitioner, it was incumbent

upon the mutating officer to summon and hear all the interested

persons including the petitioner and his predecessor-in-interest,

which has not been done in the present case.

6. It has been contended that because the land in question

was recorded as 'Banjar Kadeem', as such, even if the possession

of the land was with the contesting respondents, the same, in

terms of the provisions of the Act, is to be deemed with the

owners. Therefore, mutations under Sections 4 and 8 in respect

of the said land could not have been attested in favour of the

predecessor-in-interest of the contesting respondents. It has also

been contended that the contesting respondents belonged to

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Mahajan community, which is a non-agricultural class in terms

of Section 6 of the Alienation of Land Act, therefore, mutation

under Sections 4 and 8 of the Act could not have been attested in

their favour. Lastly, it has been contended that there has been

clear breach of the provisions of the Act and the Rules framed

thereunder in the present case while attesting the mutations in

respect of the land in question, therefore, limitation would not

come in the way of this Court to set aside the illegalities.

7. Contesting respondents have filed their reply to the writ

petition in which they have contended that the petitioner has no

locus standi to file the writ petition inasmuch as he was not the

owner of the land in question. It has been submitted that the

Will, executed by Sh. Parmanand in favour of the petitioner, is

suspicious in nature. It has been further submitted that while

attesting mutations under Section 4 of the Act in respect of the

land, which was recorded as 'Banjar Kadeem', the said land was

converted into 'warhal mandi' by correction of entry on spot by

the Tehsildar, Agrarian Reforms. It has been submitted that the

land is culturable and not 'gair mumkin', therefore, the Tehsildar,

concerned was well within his powers to correct the entry which

has been made in presence of the village body and in presence of

co-owners of the land in question. It has been submitted that the

mutations attested in favour of the predecessor-in-interest of the

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contesting respondents under Sections 4 and 8 of the Act have

never been challenged by the petitioner and his co-owners for

several decades and now the petitioner cannot challenge the same

after more than 24 years. It has been further contended that the

situation on spot has changed as the contesting respondents

have built their houses on the land in question about 40 years

back, therefore, at this stage, the petitioner cannot lay challenge

to the mutation orders. It has also been contended that the other

co-owners of the land in question have not challenged the

mutation orders and have not joined the petitioner in the present

writ petition, which shows that they have acquiesced in the

mutation orders passed in favour of the contesting respondents.

8. I have heard learned counsel for the parties and perused

record of the case.

9. As is clear from the record, the mutation orders under

Sections 4 and 8 of the Act, which are subject matter of the

present petition, have been attested in favour of predecessor-in-

interest of the contesting respondents, namely, Sh. Isher Lal in

the years 1981 to 1986. The challenge to these mutation orders

has been laid by the petitioner and co-owners of the land in

question in the year 2009 by filing appeals there against after

about 24 years. In fact, the other co-owners have not joined the

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petitioner in challenging the impugned order passed by the

Tribunal.

10. Before proceeding to decide the merits of this petition, it

would be appropriate to deal with the issue of limitation, as

admittedly, the appeals against the mutation orders have been

filed after a period of about 24 years.

11. As per Section 22 of the Agrarian Reforms Act, the

period of limitation which has been prescribed is 60 days from

the date of order appealed from. In terms of Sub-section (2) of

Section 20 of the said Act, the provisions of Limitation Act have

been made applicable to appeals under the said Act. Thus,

Section 5 of the Limitation Act which provides for condonation of

delay in filing applications/appeals etc. is applicable to the

appeals filed under the Agrarian Reforms Act.

12. In the present case, the petitioner and co-owners have

filed appeals before the Commissioner Agrarian Reforms

(Additional Deputy Commissioner), Udhampur on 04.04.2009 on

the question of delay. It was pleaded by the appellants before the

appellate forum that the impugned mutation orders were passed

behind their back and that the same are contrary to the statutes

as the land in question being 'banjar kadeem' cannot be subject

matter of mutations under Sections 4 and 8 of the Act. The

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learned appellate forum has not accepted this reasoning and has

dismissed the appeals being barred by limitation.

13. The question that arises for determination is as to

whether the appellants had carved out a sufficient cause within

the meaning of Section 5 of the Limitation Act that would have

entitled them to seek condonation of delay for filing the appeals.

As already stated, in this regard, the contention of the appellants

as projected before the appellate forum was that the impugned

mutation orders were passed at their back and the said orders,

being contrary to the statutory position, cannot be sustained in

law even if challenge has been put to the said orders after the

expiry of limitation period.

14. A perusal of the record of the case would reveal that co-

owner Des Raj was present at the time of attestation of mutations

and he has appended his signatures on the mutation orders.

Even the father of the petitioner Dina Nath was present on spot at

the time of attestation of mutation No. 225 dated 17.12.1981 and

his signatures are also appearing on the mutation order. It is

correct that Sh. Parmanand, through whom the petitioner is

claiming his right in the land in question, is not a signatory to

any of the mutation orders but that does not mean that the

petitioner or his predecessor-in-interest was not aware about

these mutation orders. In fact the predecessor-in-interest of the

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petitioner Sh. Parmanand has not challenged the mutation orders

during his life time. It is pertinent to mention that

Sh. Parmanand is stated to have died in the year 1992, well after

the attestation of the mutation orders. This means that

predecessor-in-interest of the petitioner had acquiesced in these

orders. The petitioner cannot now turn around and challenge

these mutation orders after more than two decades.

15. Apart from the above, it is not in dispute that the

contesting respondents and their predecessor-in-interest has

been in continuous possession of the land in question for past

many decades and they have even constructed their houses on

the land in question. The petitioner is residing in the same village

in which the contesting respondents are residing. The land in

question is also located in the same village. In these

circumstances, the petitioner cannot be heard to say that he was

not aware about the attestation of the mutations in favour of the

predecessor-in-interest of the contesting respondents. The

explanation offered by the petitioner for the delay in filing the

appeals could not have been accepted by the appellate forum.

The learned Commissioner, in these circumstances, has rightly

declined to accept the explanation of the petitioner.

16. The other contention raised by the petitioner is that his

case is meritorious, therefore, technicalities of Limitation Act

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should not come in the way of substantial justice. In this regard,

it is to be noted that Supreme Court in the case of Pathapati

Subha Reddy Vs. Special Deputy Collector; 2024 SCC OnLine

SC 513 has clearly held that merits of the case are not required

to be considered in condoning the delay.

17. Para 26 of the aforesaid judgment is relevant to the

context and the same is reproduced as under:

"26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:

(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;

(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;

(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;

(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;

(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for

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various factors such as, where there is inordinate delay, negligence and want of due diligence;

(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;

(vii) Merits of the case are not required to be considered in condoning the delay; and

(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision."

18. Recently, the Supreme Court has, in the case of

"Shivamma (Dead) By Lrs Vs. Karnataka Housing Board &

Ors", 2025 Live Law (SC) 899, while analyzing the issue relating

to technical considerations vis-à-vis substantive justice, observed

as under:

135. In construing "sufficient cause" it must be borne in mind that rules of procedure are handmaids of justice. Procedural rigidity should not become an instrument of injustice. In the context of Section 5 of the Limitation Act, this balance assumes special significance. Courts have repeatedly underscored that while limitation provisions are founded on sound principles of finality and certainty, their application cannot be divorced from the overarching objective of ensuring that litigants are not shut out from the doors of justice merely on account of technicalities.

136. When technical considerations of limitation conflict with the imperative of substantial justice, the latter should ordinarily

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prevail. Rules of limitation are not designed to destroy the rights of parties but to prevent inordinate delay in seeking remedies.

Thus, the interpretation of "sufficient cause" must be liberal and purposive, aimed at advancing the cause of justice rather than defeating it. This is why the courts, while construing applications for condonation of delay, emphasize the bona fides of the applicant over the sheer arithmetical length of the delay.

137. Where strict adherence to these rules results in injustice, the Court is dutybound to apply a liberal interpretation of "sufficient cause" so as to balance technical requirements with the demands of justice. A litigant does not stand to benefit by lodging an appeal late, and therefore, a pragmatic and justice- oriented approach must inform the judicial discretion under Section 5. This decision continues to be the most frequently cited authority for the proposition that the judiciary should incline towards justice rather than technicality. Therefore, when courts interpret "sufficient cause," they are expected to exercise discretion in a manner that fosters justice, fairness, and equity, keeping in mind the realities of litigation.

138. When a Court of Law deals with an application to condone the delay filed under Section 5 of the Limitation Act, such application will have to be generally viewed in a liberal and lenient way to do substantial justice between the parties. Section 5 of the Limitation Act must be liberally construed and applied so as to advance substantial justice. It is undoubtedly true that a justice oriented approach is necessary while deciding application under Section 5 of Limitation. However, it cannot be said that in every case delay must necessarily be condoned. It is a condition precedent for Section 5 of the Limitation Act that there must be a sufficient reason for condoning the delay.

139. However, while substantial justice must be advanced, the law of limitation is equally binding, and "sufficient cause" must be shown in substance, not in empty form. This ensures that the balance between justice and certainty is not skewed in favour of unmerited litigants.

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140. However, at the same time, the courts must be mindful that strong case on merits is no ground for condonation of delay. When an application for condonation of delay is placed before the court, the inquiry is confined to whether "sufficient cause"

has been demonstrated for not filing the appeal or proceeding within the prescribed period of limitation. The merits of the underlying case are wholly extraneous to this inquiry. If courts were to look into the merits of the matter at this stage, it would blur the boundaries between preliminary procedural questions and substantive adjudication, thereby conflating two distinct stages of judicial scrutiny. The purpose of Section 5 of the Limitation Act is not to determine whether the claim is legally or factually strong, but only whether the applicant had a reasonable justification for the delay.

141. Test of "sufficient cause" cannot be substituted by an examination of the merits of the case. Condonation of delay is a matter of discretion based on explanation for the delay, not on the prospects of success in the case. If merits are considered, a litigant with a stronger case may be favoured with condonation despite negligence, while a weaker case may be rejected even if sufficient cause is made out. This would lead to an inequitable and inconsistent application of the law, undermining the uniform standard that the doctrine of limitation is designed to maintain.

142. Another practical reason why merits must not be considered at the stage of delay condonation is that it risks prejudicing the mind of the court against one party even before the matter is substantively heard. By glancing into merits prematurely, the court may inadvertently form a view that colours the fairness of the subsequent adjudication. The judicial discipline required at this stage demands that only the cause for delay be scrutinized, and nothing more. This ensures that the ultimate adjudication of rights occurs in a neutral and unprejudiced setting.

143. The law of limitation is meant to apply uniformly across cases, regardless of the intrinsic strength or weakness of the

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claims involved. To import merits into condonation proceedings would effectively dilute this uniformity.

19. In the face of aforesaid statement of law, even if it is

assumed that the case of the petitioner may be meritorious, the

huge delay of 24 years in filing the appeals against the impugned

mutation orders without any proper explanation, cannot be

condoned merely because the petitioner claims that he has a

strong case on merits.

20. It is a settled law that a writ Court while exercising its

power of judicial review of an order passed by a quasi judicial

authority has to only satisfy itself as to whether the order passed