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2009 DIGILAW 363 (JK)

Mohd. Ismail Padder v. Ab. Salam Padder

2009-07-27

Ab.Rashid Bhat

body2009
1. The instant revision petition has been filed against the order passed on 28-04-2008 by the court of Additional Deputy Commissioner, Anantnag with the powers of Commissioner Agrarian Reforms in file No. 135-ADC/R titled Muhammad Ismail Padder Vs. Abdul Salam Padder and another. 2. Briefly put, the circumstances giving rise to the present revision petition are that after the mutation Nos. 2026, 2116, 2470, 2478 and 2591 were attested by Tehsildar Dooru, the same were challenged by Abdul Salam Padder (the respondent No. 1 in the present Revision petition) by way of an appeal before the Commissioner Agrarian Reforms, Anantnag on 20-01-2001. The Ld. Commissioner while disposing of the appeal vide his order dated 16-06-2005 set aside the mutations attested by Tehsildar Dooru and simultaneously ordered for de novo inquiry by Tehsildar concerned. The operative part of the said order reads as under:- "The appeals are accepted and the impugned mutations are set aside. The matter is remanded to Tehsildar concerned for denovo inquiry on spot in presence of parties and to attest fresh mutations in view of the partition made by the parties". 3. This order made by the Ld. Commissioner was not challenged by either of the parties and accordingly acting in compliance with the said order, the Tehsildar concerned made a fresh order attesting mutation No. 3092 on 15-02-2007. This order/attestation made by Tehsildar concerned was challenged by the present petitioner before the court of Commissioner Agrarian Reforms/Addl. Deputy Commissioner, Anantnag on various grounds but the appeal filed by the present petitioner was dismissed on 28-04-2008 on a technical point of limitation by rejecting the application for condonation of delay. This order passed by the ADC Anantnag has been now challenged through the instant revision petition on the following grounds:- i) That the impugned order has been passed without application of mind to the factual aspects as well as the legal aspects of the case without proper consideration and application of law laid down regarding the subject. ii) That the impugned order has been passed in a mechanical and casual manner without any adjudication upon the correctness of mutation attested by Tehsildar concerned and without ascertaining as to whether Tehsildar concerned had conducted the denovo inquiry on spot in presence of the parties and in terms of court direction dated 16-06-2005. iii) That the Ld. ii) That the impugned order has been passed in a mechanical and casual manner without any adjudication upon the correctness of mutation attested by Tehsildar concerned and without ascertaining as to whether Tehsildar concerned had conducted the denovo inquiry on spot in presence of the parties and in terms of court direction dated 16-06-2005. iii) That the Ld. Commissioner without considering the factual as well as legal aspects of the matter has taken a short cut method to dismiss the appeal on a technical ground without any just cause by ignoring the submissions made by the petitioner before the Ld. Court to the effect that impugned mutation by Tehsildar concerned was attested at his back on 25-12-2006 and revised on 15-02-2007 without any notice to him, about which the petitioner got knowledge on 2-7-2007. The petitioner had applied for certified copy which was issued to him on 10-07-2007 and accordingly the appeal was filed by him on 11-07-2007 without any delay. iv) That though the petitioner had got the knowledge of order passed by the Tehsildar on 10-07-2007 and appeal was filed on 11-07-2007, still then a separate application was filed for condonation of delay but without making any kind of inquiry as to whether impugned mutation attested by Tehsildar was actually attested at the back of the petitioner as was contended by petitioner or otherwise the Ld. Commissioner has erred in making observation in contrast to the official record vis-a-vis the alleged signature of the petitioner on the copy of mutation and his participation in the denovo inquiry before Tehsildar concerned. v) That the impugned order has been passed without any reasoning and the mandate of law laid down on the subject. 4. Heard counsel for the parties and perused the record of the case carefully. 5. The Ld. Counsel for the petitioner has agitated all the grounds taken by him in the present revision petition and contended that the impugned order passed by the Ld. Commissioner is bad in law and cannot sustain and needs to be set aside. The Ld. 4. Heard counsel for the parties and perused the record of the case carefully. 5. The Ld. Counsel for the petitioner has agitated all the grounds taken by him in the present revision petition and contended that the impugned order passed by the Ld. Commissioner is bad in law and cannot sustain and needs to be set aside. The Ld. Counsel in support of his arguments has relied on the law laid down by the Hon'ble High Court of J&K reported vide 1996 SLJ page 285 wherein it has been held as under:- J&K Agrarian Reforms Act 1976: Time barred appeal against a mutation attested in absence of appellant-appeal filed without an application for condonation of delay such mutation held a nullity and nonest in the eye of law appeal held maintainable. In support of his arguments, the Ld. Counsel has further submitted the law laid down by the Hon'ble High court reported in SLJ 2004 (II) page 724, wherein it ha been observed as under:- Agrarian Reforms Act: 1976: Rules: Rule 14 (i) Standing Order No. 23-A: Constitution of India Article 226:- Procedure to be followed while attesting mutations Authorities are under obligation to avoid exparte proceedings it has to be reflected in the order itself that steps were taken to put on notice the persons against whom the proceeding have been taken Mutation attested against a person who was dead at the time of attestation of mutation the same challenged before financial commissioner delay condoned by financial commissioner such order of financial commissioner challenged in writ petition held prayer for effecting mutation was made by the petitioner against a dead person the very motion for mutation is uncalled for financial commissioner was justified in condoning the delay the mutation being a nullity and having been attested without following principles of natural justice thee being error of law on face of record writ of certiorari issued and mutation order quashed. 6. The counsel for the respondents has however, vehemently argued that the order passed by the Ld. Commissioner is proper and it suffers from no illegality and warrants no interference by this Tribunal. The Ld. Counsel has further asserted that official record is always taken to be true and factual aspect of the case cannot be adjudicated upon by this Tribunal and as such, the present revision petition merits dismissal. 7. Commissioner is proper and it suffers from no illegality and warrants no interference by this Tribunal. The Ld. Counsel has further asserted that official record is always taken to be true and factual aspect of the case cannot be adjudicated upon by this Tribunal and as such, the present revision petition merits dismissal. 7. In the instant case, it is not disputed that the petitioner while filing his appeal before the Ld. Commissioner had submitted an application for condonation of delay also. 8. From the bare perusal of the impugned order passed by the Ld. Commissioner, it is clear that the application for condonation of delay filed alongwith the appeal before the Ld. Commissioner has not been decided on the touch stone of order XLI Rule 3-A CPC as the Ld. Commissioner has not conducted any type of inquiry or provided any chance to the parties to adduce their evidence in support of their contentions viz-a-viz the application for condonation of delay as was required in the case. It is the categorical case of the petitioner that impugned mutation was attested on 25-02-2006 revised on 25-02-2007 at his back as he was not associated in the denovo inquiry conducted by the Tehsildar concerned and he had never signed the mutation in question and got knowledge about the same on 2-7-2007 only. These contentions of the petitioner with regard to condonation of delay can't escape the attention of the trial court in view of the well settled principles of law laid down on the subject. It is pertinent to point out here that that a question of fact can never be decided on mere assumptions but has always to be decided on the basis of some kind of the evidence by a trial court and in arriving at a just conclusion about the same, an inquiry is always a proper course for the trial court in such matters. However, in the instant case, the Ld. Commissioner has decided the question of limitation in a very casual manner without paying any regard to the well settled principle of law incorporated under Order XLI Rule 3-A CPC read with Order XLI Rule 31 CPC governing the subject which in turn has resulted in miscarriage of justice. 9. Viewed thus, the revision is allowed and the impugned order is set aside. The case is remanded back to the Ld. 9. Viewed thus, the revision is allowed and the impugned order is set aside. The case is remanded back to the Ld. Commissioner who shall decide the question of limitation afresh in the light of above discussed legal position on the subject after giving both the parties reasonable opportunity to lead evidence if they chose so and after hearing them afresh regarding the same. In case the Ld. Commissioner arrives at a finding that the delay should be condoned in the case, he shall decide the appeal afresh on merits. Record alongwith the copy of this judgment be sent to the Ld. Commissioner. Parties present are directed to appear before the Ld. Commissioner on 31-08-2009. The Ld. Commissioner shall issue notice to respondent No. 2 who is not present today before proceeding ahead in the case. File of this Tribunal be consigned to records after its due completion.