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2010 DIGILAW 144 (JK)

Ravi Kumar v. Ved Raj

2010-03-18

A.K.Shan

body2010
1. This revision petition has been filed against the order of Commissioner Agrarian Reforms Doda dated 3.7.1999 dismissing the appeal of the petitioner challenging the order passed on mutation No:1463 under Section 7 of the Agrarian Reforms Act by Tehsildar Bhaderwah on 15.12.1992, with the prayer for setting aside the same. 2. The petition was filed way back in the year 1999 but could not be decided mainly for absence of the counsel for the parties from time to time. 3. Since I assumed the charge in the month of January 2009, nobody has been appearing for the parties. As the revision petition cannot be dismissed for absence of the petitioner so I decided to dispose of this revision suo moto in order to find out as to whether the impugned order is in conformity with the law and as to whether in that background question of law has been raised by the petitioner or not. 4. The brief facts of the case are that the petitioner and proforma respondents are the owner of the land under khasra Nos:65 and 66 measuring 28 kanals 5 marlas situated in village Gatha Tehsil Bhaderwah. This land was under the tendency of respondent No:1 on payment of rent to the share of = of the produce. 5. After the advent of the Agrarian Reforms Act 1976,(here-in-after the Act) the petitioner and proforma respondent filed an application for resumption of land as contemplated by Section 7 of the said Act. 6. It is claimed in the revision petition that Tehsildar Bhaderwah at the back of the petitioner and proforma respondents took up their application for resumption of the land and attested the mutation on 15.12.1992 allowing the resumption application but only to the extent of 4 kanals whereas they were entitled to resume half of the land i.e. more than 14 kanals. It is further claimed that mutation was attested at their back without summoning them and at the headquarter in violation of Rule 36 and Rule 39 of the Standing order No:23-A. It is further pleaded that the appellate court has dismissed the appeal of the petitioner purely on the question of limitation which is not sustainable as the mutation was attested in their absence and the time will run from the date of knowledge of the attestation of the mutation which has not been considered by the appellate court resulting in the miscarriage of the justice. 7. Although other grounds have been adopted in the memo of appeal but I propose to decide the validity of the mutation at the back of the petitioner and the proforma respondents. The determination of this question will also govern with the out come of the appeal filed by the petitioner before the Commissioner Agrarian Doda. 8. After going through the mutation attested by Tehsildar on 15.12.1992 it is noticed that the matter was taken up on the report of Patwari on 12.5.1992 in the presence of the petitioner. The respondent No:1 was also present who had objected to the entertainment of the resumption on the ground that the owner had sold the land after 1971 a condition for dismissing the resumption application under the Act. The Tehsildar adjourned the matter with a direction to the respondent No:1 to substantiate his claim by documentary evidence. However no date was fixed for appearance of the parties. The matter was then suddenly take up on 5.9.1992 at headquarter by the Tehsildar. On that date petitioner and respondent No:1 were not present. Despite this fact the matter was adjourned to 7.9.1992 for submitting the proof as claimed by the respondent No:1. 9. Instead of taking up the matter on 7.9.1992, the same was taken up at headquarter on 26.11.1992 in presence of proforma respondent No:3 Romesh Chander. The petitioner and the respondent No:1 were absent. The respondent No:1 was directed to be summoned but not the petitioner who had filed the resumption application and the case was adjourned to 6.12.1992. 10. The matter was not taken up on due date but on 15.12.1992 at the head quarter instead of the village where the land is situated. On that day only the respondent No:1 was present. The respondent No:1 was directed to be summoned but not the petitioner who had filed the resumption application and the case was adjourned to 6.12.1992. 10. The matter was not taken up on due date but on 15.12.1992 at the head quarter instead of the village where the land is situated. On that day only the respondent No:1 was present. By that time he had not submitted any documentary proof as demanded by the Tehsildar. On the very same day the mutation in question was attested and the application of the petitioner accepted to the extent of 4 kanals only. Thus the mutation was attested at the back of the petitioner or any of the proforma respondents. No attempt was made to summon them which amounts to the violation of the rule of natural justice as well as q the statutory requirement of Standing order 23-A. 11. As per Rule 14 of the Agrarian Reforms Rule 1977 mutation under Sections 4,7 and 8 of the Act shall be attested in accordance with the procedure provided by Standing order 23-A in or near the village to which these pertain. By sub rule (2) it has been provided that ex-parte proceedings on mutation, even if permitted shall be avoided, as far as possible and where such proceedings are taken in accordance with law, the mutation order and the record accompanying such mutation, shall show that sufficient steps were taken to give notice to the person against whom such proceedings have been taken. 12. In the present case the Tehsildar has observed the Standing order 23-A and Rule 14 supra in breach. The mutation attested by him does not indicate that any steps were taken to summon the petitioner or the proforma respondent before attesting the same. 1st day when proceedings were taken up on 12.5.1992 petitioner was present and the matter was adjourned without giving any next date and suddenly on the back of the parties the matter was taken up on 5.9.1992. No steps was taken to summon the owners of the land. Though the matter was adjourned to 7.9.1992 but without notice to the parties the same was taken up on 26.11.1992, in the presence of one of the proforma respondent Romesh Chander but no steps were taken to summon the other owners and the matter was adjourned to 6.12.1992. No steps was taken to summon the owners of the land. Though the matter was adjourned to 7.9.1992 but without notice to the parties the same was taken up on 26.11.1992, in the presence of one of the proforma respondent Romesh Chander but no steps were taken to summon the other owners and the matter was adjourned to 6.12.1992. On that date the matter was not taken up and without notice to proforma respondent No:3 or the other proforma respondents and petitioner the matter was taken up on 15.12.1992. The sequence of events suggest that the Tehsildar failed to adopt the procedure prescribed by the Standing Order 23-A and rule 14 supra. How on 12.5.1992 petitioner would have come to know the matter will be taken up on 5.9.1992 or for that purpose how proforma respondent No:3 on 26.11.1992 would have come to know the matter will be taken up on 15.12.1992 instead of 6.12.1992 does not appear to the common sense. All these facts have escaped the notice of the appellate court. 13. The question of law is as to whether mutation passed at the back of a party is valid or not. 14. In 1996 SLJ 285 it has been held that mutation attested ex-parties is non est in the eyes of law. The said judgment is squarely attracted in the present case. 15. So far the appellate court is concerned, it has failed to take into consideration the requirement of law for attestation of mutation and facts as disclosed at , leading to attestation of mutation by Tehsildar Bhaderwah. Rather The perverse findings have been returned which are totally contrary to the record. 16. The appellate court has held that petitioner was present before attesting officer in the camp on 12.5.1992 and on 5.9.1992. This finding is true to the extent of 12.5.1992 and not of 5.9.1992. 17. The appellate court has also landed into an error by holding that on 26.12.1992 when proforma respondent Romesh Chander was present, the petitioner and other proforma respondent will be deemed to have acknowledge on the proceeding of the mutation. This observation is palpably unjustified. 18. As indicated here-in-above by this Tribunal there was no occasion for the petitioner to have the knowledge of proceedings when on 12.5.1992 the matter was adjourned for unknown date. This observation is palpably unjustified. 18. As indicated here-in-above by this Tribunal there was no occasion for the petitioner to have the knowledge of proceedings when on 12.5.1992 the matter was adjourned for unknown date. Similarly it has been noticed that Tehsildar Bhaderwah never took steps to summon the petitioner and proforma respondent on the date when he attested the mutation in question. 19. In this background the order of the appellate court that petitioner and proforma respondent had no knowledge of the mutation is totally perverse and wrong. 20. Presuming that appellate court was right for argument sake, to held that petitioner and proforma respondent had knowledge of the mutation in question, the appeal should have been dismissed as time barred. Instead of doing so appellate court proceeded to discuss the merit of the case and thus committed an illegality. Under Order 41 Rule 3-A of C.P.C. when appeal is time barred the same cannot be dismissed by discussing the merits of the case but only as time barred. 21. In the light of the discussion rendered here-in-above, the impugned order passed by the appellate court as well as the order passed by Tehsildar Bhaderwah attesting the mutation in question is set aside. 22. The case is remanded to Tehsildar Bhaderwah for passing a fresh order in the light of the observation made above after summoning the parties. 23. Record of the court below is sent back along with copy of this order for information. 24. File of this Court be consigned to record after due compilation.