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2009 DIGILAW 373 (JK)

Mohan Singh v. Special Tribunal, J&K

2009-07-30

VIRENDER SINGH

body2009
1. Since a very short controversy has arisen in this case with regard to limitation in filing appeal before Additional Deputy Commissioner, Kathua, vested with the powers of Commissioner, Agrarian Reforms Act, 1976 (hereinafter for short refers to as "the Act"), I do not want to enter into detailed discussion by giving the entire flash back of the facts. However, Mr. Mehta, while touching the facts in brief submits that against the order dated 22-12-1983 passed by Naib Tehsildar on Mutation No.672 of village Changran, Tehsil & District Kathua, by virtue of which the proprietary rights were vested to petitioner-1 (Mohan Singh) under section 4 of the Act and the other 6 petitioners who are legal representatives of Saran Singh, his father, an appeal was filed by private respondents in May, 1999, which came to be disposed of by Additional Deputy Commissioner, Kathua vide order dated 15-11-2000, whereby he had set aside the order of Naib Tehsildar and remanded the case back to Tehsildar Kathua for de-novo enquiry besides observing that the provisions of the Act were also not applicable in the instant case. The petitioners being aggrieved of the said order filed a revision under section 21 (2) of the Act before J&K Special Tribunal, Jammu (respondent-1) inter alia on many grounds, but assailed the said order primarily on the question of limitation. The said revision, however, stands dismissed by respondent-1 observing that it was premature. Aggrieved of the same, the petitioners have now knocked at the door of this Court in which while issuing notice to the respondents, an order of maintaining status quo by the parties at the spot with regard to the land in dispute was passed. It still exists till date. 2. Mr. Mehta submits that the mutation was done way back in December, 1983, whereas the appeal against the said order was filed before respondent-2 (Additional Deputy Commissioner, Kathua) after more than 15 years, whereas the limitation for filing the same is 60 days only, as is envisaged under section 22 of the Act. According to him, respondent-2 should have dealt with the aspect of limitation at the very outset and passed a separate order in this regard before touching the merits of the case. According to him, respondent-2 should have dealt with the aspect of limitation at the very outset and passed a separate order in this regard before touching the merits of the case. According to learned counsel, as per para 6 of the order (Annexure-C) passed by respondent-2, it is clear that an application for condonation of delay was also filed by the respondents but surprisingly the order is further silent about the fact as to what was the outcome of that application. He submits that even a presumption cannot be drawn in favour of the respondents that the appeal filed by them after a long delay of 15 years stood automatically condoned. Mr. Mehta further submits that despite the fact that this moot point was made debatable before Special Tribunal, Jammu (respondent-1) by the petitioners when the revision as provided under the Act was filed, but no finding is returned by it and the same is dismissed as premature one. He has drawn my attention to para 3 of the grounds of revision petition, where the petitioners have specifically taken a point of limitation. 3. On the basis of the aforesaid submissions, Mr. Mehta submits that the instant petition deserves to be allowed at least to the extent of remanding the case back to the Appellate Authority (respondent-2) to re-consider the appeal filed by the respondents against the mutation passed by Naib Tehsildar, firstly on the question of limitation before entering into merits of the case. 4. Mr. Mehta then submits that even otherwise, on one hand the case is said to be not covered under the Act and at the same time, it is sent for de-novo enquiry. These two contrary views are not sustainable. But he is primarily on the point of limitation which is the moot point. 5. Mr. Dutta, learned senior counsel, has not controverted the submissions advanced by Mr. Mehta with regard to not dealing with the aspect of limitation by both the forums below but otherwise repudiated his arguments vehemently, saying that remand of the case at this stage would not solve any purpose especially when no adverse order has been passed by respondent-2 by sending the case back to Tehsildar for de-novo enquiry. Mr. Mehta with regard to not dealing with the aspect of limitation by both the forums below but otherwise repudiated his arguments vehemently, saying that remand of the case at this stage would not solve any purpose especially when no adverse order has been passed by respondent-2 by sending the case back to Tehsildar for de-novo enquiry. Mr. Dutta submits that since certain important facts were ignored by the Naib Tehsildar in the mutation dated 22-12-1983 which were brought to the notice of respondent-2 and, therefore, in his wisdom he rightly set aside the said mutation and remanded the case for de-novo enquiry. To say so he has drawn my attention to the operative portion of the order passed by respondent-2. Mr. Dutta thus prays for dismissal of the instant petition. 6. Mr. Dutta, however, fairly states that observations of respondent-2 to the effect that the provisions of the Act are not applicable in the instant case are not in the right perspective, but that by itself would not make the order of remand bad in the eye of law. 7. After hearing learned counsel for the parties, I am of the view that both the impugned orders are not sustainable on a very short ground that point of limitation has not been dealt with by both the forums below. As per section 22 of the Act, the limitation period for filing an appeal is 60 days. Chapter IX of the Agrarian Reforms Rules, 1977 deals with the appeals to be filed under the Act. Rule 48 says that provisions of Code of Civil Procedure Svt. 1977 shall apply mutatis mutandis to all appeals under the Act. Section 3 in Part II of the Limitation Act, Svt. 1995 deals with the limitation of suits, appeals, applications. It is so worded that every suit instituted, appeal preferred and application made after the period of limitation prescribed therefor by the first Schedule shall be dismissed, although limitation has not been set up as a defence. So it becomes mandatory for the Court to see whether the appeal is within time or not. However, Order XLI Rule 3-A of Civil Procedure Act Svt. 1977 deals specifically with application for condonation of delay which no doubt can be allowed, if sufficient cause is set forth, but this exercise has to be done at the first instance before touching the merits of the care. However, Order XLI Rule 3-A of Civil Procedure Act Svt. 1977 deals specifically with application for condonation of delay which no doubt can be allowed, if sufficient cause is set forth, but this exercise has to be done at the first instance before touching the merits of the care. This is mandate of law. So from the aforesaid legal position, any appeal filed under the Act has to be dealt with, as per the provisions of Civil Procedure Code, Svt. 1977 and on the point of limitation as per the provisions of the Limitation Act, Svt. 1995. 8. As a sequel to what is discussed herein above, it can comfortably be said that if an appeal filed under the Act is barred by limitation, the application filed for condonation of delay in filing the said appeal is not to be taken in a casual manner. In other words, it calls for an order much less a speaking order at the very outset before entering into the merits of the case. This exercise is mandatory in nature and not directory and there cannot be any escape route to it. Admittedly, respondent-2 has not resorted to this exercise which is the requirement of law, as is evident from the impugned order (Annexure-C). Even respondent-1 while sitting in revision has also not bothered to enter into discussion on this vital aspect despite specific plea being taken in the grounds of revision, as is clear from annexure-D. Therefore, in my considered view, the order passed by respondent-2 which is subsequently upheld by respondent-1 deserves to be set aside and the present case warrants remand to the Appellate Authority (respondent-1) with a direction to re-hear both the parties on the point of limitation at the first instance and thereafter to proceed with the appeal on its merits. Ordered accordingly. 9. An expeditious disposal is expected in this case, as the matter has already gone very old age-wise. Both the parties with their respective counsel are directed to appear before respondent-2 on 17-08-2009. Registrar Judicial is directed to send the copy of the order to the concerned authority on or before the said date. 10. The net result is that the instant petition is allowed and disposed of in the aforesaid terms along with CMP No.118/2003.