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J&K High Court · body

2000 DIGILAW 289 (JK)

Bishno Devi v. State Of J. &K.

2000-12-12

T.S.DOABIA

body2000
1. An order passed by the Financial Commissioner (Revenue) on 09-06-2000 is a subject matter of challenge in this petition. The facts in brief are as under: 2. That one Kanshu Ram was a land owner. He died in Feb. 1953. At that time, he left behind a widow Lakho, four sons and four daughters. The mutation regarding inheritance came to be made in Sept. 1961. This mutation was made in favour of all the heirs including the daughters. Later on, sons challenged this mutation before the Joint Settlement Commissioner. The said officer refused to interfere. This was on the ground of delay. The matter was taken up in the revision before Financial Commissioner (Revenue). The Financial Commissioner (Revenue) expressed an opinion that matter is required to be looked into afresh. It is this order which is the subject matter of challenge in this petition. What is urged is that; i) that the mutation was made in the year 1961, if any party was aggrieved against this mutation then challenge could be made within the period of limitation as prescribed under the Land Revenue Act. The period of limitation is said to be maximum of 90 days, ii) that the Financial Commissioner (Revenue) could not direct reconducting of the enquiry after the lapse of period of limitation. 3. The above argument is sought o be refuted by taking a plea that Financial "commissioner has exercised suo-moto powers is vested in the said officer in terms of section 5 of the Land Revenue Act. Reliance is being placed on the following observation made by the Financial Commissioner (Revenue); "Once such an order has come to the notice of the revisional authority under the Land Revenue Act, it will be unjust to refuse interference on the ground of limitation." 4. I am of the opinion that the Financial Commissioner (Revenue) (Revisional Authority) has exercised suo-moto powers and his could be done at any time. Section 15 of the Land Revenue Act reads as under: "Section 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. 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 in 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 that 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 subsection (1) or reported to him under subsection (3), pass such order as he thinks fit. Provided that, he shall under this section pass an order reversing or modifying any proceeding or order of subordinate officer affecting any question of right between private persons without giving those persons an opportunity of being heard." 5. Somewhat similar issue arose and (sic) decided by a Full Bench of Punjab High Court in case reported as Balwant Kour Vs. Chief Settlement Commissioner, AIR 1964 Punjab 33, Interpreting Section 24 of the dis-3laced persons (Compensation and Rehabilitation) Act, 1954, it was held that he words at any time would mean at any time. What is said is noticed below: There was one other matter, which was argued before us and required determination and it is this. Section 24 of the Act says that the Chief Settlement Commissioner may at any time call for the record of any proceeding under this Act and may pass such order in relation thereto as he thinks fit." What is the meaning of the words "at any time" occurring in this section that is to say within what time limit can Chief Settlement Commissioner exercise his revisional powers either suo moto or on the application of any aggrieved party? Rule 104 lays down that a petition for revision under the Act shall be presented with the same period as a a memorandum of appeal shall be presented within 30 days of the date of the order appealed against. Thus, it will be seen that an aggrieved party has to file a revision within 30 days and no period has been prescribed for a suo moto revision by the Chief Settlement Commissioner. Thus, it will be seen that an aggrieved party has to file a revision within 30 days and no period has been prescribed for a suo moto revision by the Chief Settlement Commissioner. Ordinarily, a petitioner will have to file his revision within 30 days, unless, of course, there were special circumstances, which prevented him from doing so. The invariable rule in such cases in that the aggrieved party must approach the Chief Settlement Commissioner at the earliest possible moment. Where there has been a great unexplained delay or laches in filing the revision, the Chief Settlement Commissioner will naturally refuse to interfere. It is difficult to lay down any hard and fast rule in this connection. It will depend on the facts of each particular case as to whether there are ground for entertaining the revision after the period of limitation prescribed in the rules. However, the Chief Settlement Commissioner suo moto can interfere with the orders of his subordinates and no limitation is prescribed for that either in the rules or in the statute, but it is understood that he would interfere within a reasonable time depending on the circumstances of each case. It is assumed that he would exercise his discretion in a reasonable manner and not arbitrarily. As I have already said in this case also no hard and fast rule can be laid down. A similar matter came up for consideration before their Lordships of the Supreme Court in Purshotam Lal Dhawan Vs. Diwan Chaman Lal, AIR 1961 SC 1371. In Section 27 of the Administration of Evacuee Property Act, 1950, the words used were "The Custodian General may at any time either on his own motion or on application made to him in this behalf call for the record of any proceedings in which any Custodian has passed an order for the purpose of satisfying himself as to the legality or propriety of any such order and may pass such order in relation thereto as he thinks fit." Rule 31 (5), framed under that Act, laid down that any petition for revision when made to the Custodian General would ordinarily, be made within 60 days of the date of the order sought to be revised. While dealing with these provisions, the learned Judge observed that Section 27 of the Act, conferred plenary power on revision on the Custodian General and has empowered him to exercise his revisional powers either suo moto or on application made to him in that behalf at any time. The phrase "at any time indicated that the power of the Custodian General was uncontrolled by any time factor, but only by the scope of the Act, within which he functioned. The Government could not obviously make a rule unless section 56 (dealing with rule making power) of the Act conferred on it an express power to impose a time-fetter on the Custodian Generals powers. So the Rule could only be read consistent with the power conferred on the Custodian General under Section 27 of the Act. That was the reason why Rule 31(5) did not prescribe any limitation on the Custodian General to exercise suo moto his revisional power. His powers under Section 27 read with Rule 31(5) were not intended to be exercised arbitrarily. Being a judicial power, he had to exercise his discretion reasonably and it was for him to consider whether in a particular case he should entertain a revision beyond a period of 60 days stated in Rule 31(5). It is needless to mentioned that if the Chief Settlement Commissioner exceeds his powers in interfering with the orders of his subordinate officers, either on the point of jurisdiction or on the question of limitation, there are simple safeguards provided for the same under the Act. The Central Government can interfere under Section 33 and in certain cases under Section 24 (4) of the Act. The aggrieved party can also approach this Court under Article 226 and 227 of the Constitution." 6. Again suo moto power can be exercised even if attention of the concerned authority is drawn by third person. When .some illegality is brought to the notice of the authority vested with suo moto power by a third person, and action is taken then even that action would be an action taken in exercise of suo moto jurisdiction. Such was the view expressed by Punjab and Haryana High Court in Jaswant Singh Vs. State of Punjab, (1986) IPB Legal Reports and Statutes 314. What was being interpreted was Section 69 of the Punjab -Co-operative Societies Act, 1961. Such was the view expressed by Punjab and Haryana High Court in Jaswant Singh Vs. State of Punjab, (1986) IPB Legal Reports and Statutes 314. What was being interpreted was Section 69 of the Punjab -Co-operative Societies Act, 1961. This Section confers suo moto powers on the State Govt. It was observed that there is no difference in the exercise of the powers when action is taken by the State Govt. itself or when the action is taken when third person brings some illegality to the notice of the State Govt. At page 318, it was observed: I hence fail to see how the position would become diametrically different if the matter is brought to the notice of the revisional authority (which is clothed with wide powers) by one of the parties to the dispute. The State Government is not a natural person and has no personal knowledge of its own and matters are thus brought to its notice either directly or by its employees or by other and no fatality can attach to an order on the hpertechnical ground that if the State Government had acted suo moto its action would have been unreasonable but merely because the action is taken on proceedings brought to its notice by another the self-same action would become totally vitiated.� 7. Reliance be also made to the decision given by the Supreme Court in the case of Everest Apartments Co-operative Housing society Ltd. Bombay Vs. State of Maharashtra, AIR 1965 SC 1449 where the scope of Section 54 of the Maharashtra Co-operative Societies Act 1960 was under consideration. The Supreme Court was of the view that the State would exercise suo moto jurisdiction even where the Government was moved by a person not a party to the dispute. Relevant observations made by the Supreme Court be noticed again, (para 6): .....It is, of course, true that the words on an application of a party which occur in Section 150 of the Act and in similar enactments in other Acts, are also not to be found. But that does not mean that a party is prohibited from moving Government. As Government is not compelled to take action unless it thinks fit. The party who moves Government cannot claim that he has a right of appeal or revision. But that does not mean that a party is prohibited from moving Government. As Government is not compelled to take action unless it thinks fit. The party who moves Government cannot claim that he has a right of appeal or revision. On the other hand, Government should welcome such application because they draw the attention of Government to cases in some of which Government may be interested to intervene. In many statutes, as for example, the two major procedural codes, such languages has not only inhibited the making of applications to give a right to obtain intervention, although the mere making of the application has not clothed a party with any rights beyond bringing a matter to the notice of the Court. After this is done, it is for the Court to consider where to act or not.-The extreme position does not obtain here because there is no right to interference in the same way as in a judicial proceeding. Government may act or may not act; the choice is of Government. There is no right to relief as in appeal or revision under the two codes. But to say that Government has no jurisdiction at all in the matter is to err and that is what Government did in this case.� 8. The Privy Council in the Commissioner of Income Tax West Punjab Vs. The Tribune Trust, Lahore (1948) 16 ITR 214: (AIR 1948 PC 102) has observed: It is possible that there might to a contest in which words so inapt for that purpose would create a duty. But in the present case there is no such context. On the contrary section 33 follows upon a number of Sections which determine the rights of the assessee and to itself, as its language clearly indicates, intended to provide administrative machinery by which a higher executive officer may review the acts of his subordinate and take the necessary action upon such review. It appears that as a matter of convenience, a practice has grown up under which the Commissioner has been invited to act of his own motion under the section and where this occurs a certain degree of formality has been adopted. But the language of the section does not support the contention which has the root of the third question and is vital to the respondents case, that it affords a claim to relief.� 9. But the language of the section does not support the contention which has the root of the third question and is vital to the respondents case, that it affords a claim to relief.� 9. To the same effect is a decision given by a Full Bench of Punjab and Haryana High Court reported as Gurnam Kour Vs. State of Punjab (1993) 13 Legal Reports and Statutes 254. The Full Bench concluded as under: "The aforesaid provision does not specifically mention that such powers could be exercised by the Commissioner or by the Financial Commissioner suo moto or at the instance of the interested or(sic) the phraseology, it cannot be said that the Financial Commissioner or the Commissioner could not act under the provision aforesaid. Rather the statute is to be interpreted in such a manner that it fulfills the object for which the same is framed." Therefore, the plea of limitation is not attracted in this situation. 10. So far as the merit of controversy is concerned, Kanshu Ram died in the year 1955. At that point of time, Hindu Succession Act of 1956 was not applicable. The estate of Kanshu Ram was to go to sons and widow. The daughters were not to be included. Therefore, the land could be mutated in favour of sons and widow. The widow is said to have died in the year 1961. It is only the share of widow which could be inherited by sons and daughters. There can be no dispute regarding this. The share of the mother be divided between sons and daughters. Officer who has to deal with this case shall take notice of above position. Disposed of accordingly.