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2008 DIGILAW 364 (JK)

Kalvinder Singh v. Balwan Singh

2008-09-25

Vinod Gupta

body2008
1. This revision petition has been filed by the petitioners against the order dated 22.11.2007 passed by the Joint Commissioner, Agrarian Reforms, Jammu, whereby the appeals filed by the petitioners against the orders of attestation of mutations No:54 and 66 dated 26.10.1981 and 24.10.1992 under Sections 4 and 8 of Agrarian Reforms Act, 1976 respectively by Tehsildar Samba, have been dismissed. 2. The case of the petitioners is that the Tehsildar Samba attested mutations No:54 and 66 dated 26.10.1981 and 24.10.1992 under Sections 4 and 8 of the Agrarian Reforms Act respectively whereunder respondents Balwan Singh and Ors. have been vested with prospective owners for land measuring 4 kanals 10 marlas comprising Khasra No:29 situated at village Mandi Dansal Tehsil Samba. The petitioners herein filed two different appeals before the Joint Agrarian Reforms Commissioner, Jammu which were dismissed vide impugned order dated 22.11.2007 on the ground that the appeals were barred by the period of limitation. 3. The petitioners challenged the correctness of the impugned order of Joint Agrarian Reforms Commissioner, Jammu by way of this revision petition on the ground that the provisions of Agrarian Reforms Act are not applicable to the case in hand. 4. I have heard Learned counsel for the petitioners and have also considered the written arguments produced by both the parties. I have also perused the record of the Joint Agrarian Reforms Commissioner, Jammu. 5. Mr. B.R.Kundal, Advocate appearing on behalf of the petitioners, has argued that the provisions of Agrarian Reforms Act are not applicable to the land in question on the ground that the land is Banjar Kadeem and the Revenue Officer has exceeded the power by attesting mutation against the statutes. It is further submitted that this point was raised before the Appellate Authority but the appeal was decided on the ground of limitation i.e. on technical ground without discussing the merits of the case. He has further argued that there was no culpable negligence on the part of the petitioners as such the delay in filing the appeal should have been condoned. On the other hand, Shri S.N.Gupta, Advocate appearing for the respondents, has argued that the mutations have been properly attested by the Revenue Authority as per position on spot and the petitioners were negligent in filing the appeal after a lapse of long time, as such the Appellate Authority rightly dismissed the appeal on the ground of limitation. On the other hand, Shri S.N.Gupta, Advocate appearing for the respondents, has argued that the mutations have been properly attested by the Revenue Authority as per position on spot and the petitioners were negligent in filing the appeal after a lapse of long time, as such the Appellate Authority rightly dismissed the appeal on the ground of limitation. 6. In the revision petition, the petitioners have raised an objection that the Joint Agrarian Reforms Commissioner, Jammu was not having jurisdiction to decide this case after the creation of District Samba and the jurisdiction vests in the Additional Deputy Commissioner, Samba. This point was not raised and argued by the Learned counsel for the petitioners at the time of arguments when the Learned counsel for the respondents disputed this fact alleging that there is no notification by virtue of which the jurisdiction vests in Additional Deputy Commissioner Samba and powers have been conferred upon him to hear appeals under the provision of Agrarian Reforms Act. Since no notification has been produced to show that the Additional Deputy Commissioner, Samba has been vested with jurisdiction to hear appeals under the Act, as such this plea is not considered and is hereby rejected. 7. It may be pointed out here that the petitioners herein filed application for condonation of delay under Section 5 of the Limitation Act before the Appellate Authority stating therein that the mutations were attested at the back of the petitioners herein which were illegal and bad in the eyes of law. The petitioners got knowledge of the mutations and immediately filed appeals. The Appellate Authority came to the conclusion that the delay caused in filing the appeal was intentional and not justifiable. 8. It is a settled law that any mutation attested at the back of party is nonest in the eyes of law. The effected party can challenge the said mutation after getting knowledge of the same. Also the Courts should be liberal in their approach while condoning the delay in filing appeal and substantial justice shall not be defeated on technical ground. In the instant case, the Learned Joint Agrarian Reforms Commissioner did not decide the prayer of the appellants therein, petitioners herein, for condoning the delay and decided the appeal as barred by the period of limitation. Thus the Learned Joint Commissioner was not correct in holding the same on flimsy ground. 9. In the instant case, the Learned Joint Agrarian Reforms Commissioner did not decide the prayer of the appellants therein, petitioners herein, for condoning the delay and decided the appeal as barred by the period of limitation. Thus the Learned Joint Commissioner was not correct in holding the same on flimsy ground. 9. In revenue matters, it is settled law that where any order passed by any Revenue Officer is against the provisions of the law or is illegal, the delay in filing the appeal shall be ignored and the case shall be decided on merits and not on technicality. This principle also been recognized under Rule 52 of the Agrarian Reforms Rules, 1977 wherein it is specifically provided that where an appeal is dismissed on the ground of limitation and the Appellate Authority feels that the order appealed requires to be revised, submit the case before the revisional authority with his report as to why the order appealed requires to be revised. Thus where the order is illegal or against any provision of law, the question of limitation shall be considered liberally and delay caused in filing the appeal shall be condoned. 10. In the instant case, it is stated that the land in question is shamalat land and is in possession and occupancy of number of co-sharers including the parties. The land in question has been recorded as Banjar Kadeem in the revenue record for the material period i.e. Kharif 1971. It is admitted case that the land in question is part of Shamlat Deh and the land is recorded as Banjar Kadeem in revenue record. Under the provisions of Agrarian Reforms Act,1976, thee entries are presumed to be correct, unless proved otherwise. The shamalat land is treated in the personal cultivation of all owners unless contrary is proved. In case of co-sharers or co-owners, the possession of one sharer or owner shall be treated of possession of all sharers . In such circumstances, a proper enquiry is required to be conducted to come to the conclusion that as to whether the land in question is in possession of all the co-sharers or in exclusive possession of the respondents which has not been done in the present case. The mutations have been recorded and attested in the absence of petitioners and petitioners not have been afforded any opportunity of being heard in the case. The mutations have been recorded and attested in the absence of petitioners and petitioners not have been afforded any opportunity of being heard in the case. Also the mutations were recorded and attested in other village than in which land in question is situated and no proper enquiry has been made. 11. For the fore-going reasons, I would hold that the orders of mutations passed in this case are against the provisions of law and also against public policy. Accordingly, the orders of mutations No:54 dated 26.10.1981 and mutation No:66 dated 24.10.1992 under Sections 4 and 8 of the Agrarian Reforms Act, 1976 respectively are set aside and the case is remanded back to Tehsildar Agrarian Samba for conducting afresh enquiry and pass appropriate order in consonance with the provision of the Act after affording opportunity to all necessary parties. The parties in this litigation are directed through their counsel to appear before Tehsildar Samba on 11th of October,2008. 12. The record of the court below be send back and file of this Tribunal be consigned to record after due completion.