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2014 DIGILAW 143 (JK)

Haji Sonaullah Rather v. Mohd. Yousuf Wani

2014-03-28

Zubair Ahmad Raza

body2014
1. This revision petition arises against the order dated 1.12.2008 passed by the Agrarian Reforms Commissioner, Anantnag, whereby he has accepted the appeals of the present respondent filed against the mutation No. Nil dated 22.05.1985 and mutation No. Nil dated 20.05.1985 under Section 4 & 8 of the Agrarian Reforms Act respectively with regard to Survey Nos. 96 min (13 Ms), 97 (7 Marlas) situated at village Pahalgam District Anantnag. The same impugned order be set aside. 2. In order to decide the case, it would be advantageous to give brief resume of the case. 3. Brief facts of the case are as that the land measuring 06 Kanals and 15 Marlas, comprising under various Survey Nos. 96 Min=13 Marlas; 394/96= 2 Marlas; 697/96=4 Marlas; 97 Min=02 Kanal 01 Marla; 694/97= 11 Marlas; 97 Min=07 Marlas; 98= 19 Marlas; and 99=1 kanal and 18 Marlas situated at Village Pahalgam has been in possession of the petitioner prior to 1971 and has been using it as owner and mutation under section 4 & 8 of the Agrarian Reforms Act have been attested in favour of the petitioner in the year 1985. The petitioner had constructed a hotel on the portion of land and due to militancy he was forced to close his business activity. Respondents have exploited the absence of the petitioner and encroached some of his portion of land. Petitioner with the help of some respectable members of the concerned locality tried to evict the respondents from the said portion of land but the respondents have make dejection and in this backdrop the petitioner was constrained to file a petition under section 38 before Joint Agrarian Reforms Commissioner, Anantnag for restoration of the land illegally occupied by the respondents. Petition was allowed by the ADC, Anantnag to review the order passed by Assistant Commissioner, Pahalgam and the land in dispute measuring 2 Kanals and 6 Marlas was restored to his possession. 4. Respondents were aggrieved of the said order challenged the same before the Special Tribunal, Tribunal was pleased to decide the revision petition on 10.08.2004 with the direction that order dated 16.4.1988 passed by the ACR, Pahalgam and 5.4.2002 to the extent of allowing the application under section 38 of the Act and restoring the possession to the respondents are set aside and application was send to Assistant Commissioner Revenue for a fresh disposal in accordance with law. After providing a reasonable opportunity to adduce their respective evidence in respect of application and parties were directed to appear before the ACR, Pahalgam. Parties have appeared before the ACR and contest the matter with great vision but later on, respondent relied that they are fighting a last battle and surrender the possession of land which have been under their illegal possession/occupation and preferred an appeal under section 4 & 8 of the Agrarian Reforms Act, in 2005 along with the application for extension of time. 5. Petitioner has filed his objection in application for condonation of delay, seriously controverted the contention of the appellant as it is time barred. Agrarian Commissioner has allowed the application for condonation of delay on 01.12.2008. The petitioner is aggrieved of that order and challenged the same on various grounds mentioned herein below:- 6. Impugned order is quite, clearly reveals that Agrarian Commissioner has not considered the objections which are filed in support of the application for condonation of delay and has not been complied the objections filed by the respondents. It is well principle of law that if finding of fact has been arrived without applying of mind then finding of fact is nothing but finding which vitiated by substantial error or law. While allowing the application for condonation of delay court below has not given any support of his order, as such, order impugned is liable to be set aside. Ld Agrarian Commissioner has not exercised the discretion according to the well established judicial principles and according to the reasons but is has exercised in a arbitrary manner. It is respectfully submitted that contention of present respondent is not correct because no bona-fide litigation or review petition is pending before the Special Tribunal. In fact, the order passed by the ADC, Anantnag in respect of application moved by the petitioner under section 38 of Agrarian Reforms Act for the restoration of possession of land which had been illegally occupied by the respondents. But the Agrarian Commissioner has not considered this critical aspect of the case, as such, the order is liable to be set aside. 7. But the Agrarian Commissioner has not considered this critical aspect of the case, as such, the order is liable to be set aside. 7. The revision petition of the present respondents has been decided on 10.08.2004 and appeal against the mutation under No. 414 and 415 on village Pahalgam have been preferred on 11.08.2005 and without giving any explanation regarding heard of application, Learned Agrarian Commissioner has not considered this aspect of the case also in the impugned order, as such, impugned order is liable to be set aside. 8. Heard learned counsel for both the sides and also perused the record available. 9. The Learned counsel for the petitioner without arguing that respondents have filed a review in the year 1986 before the Collector against the mutation No. 414 and 415 means that it is clear that despite the knowledge of attestation of mutation did not prefer any appeal against the same. One more proceeding filed by the petitioner for removal of the encroachment made by the petitioner and a revision petition against the said order of ACR before this Tribunal whereby order was set aside and application was again send to ACR for providing an opportunity of adducing the evidence which has been decided in favour of the respondents. So it is clear, that the mutation under the context has already been up held by this Tribunal in the first round of litigation. There is no genuine cause for condoning the delay of more than 20 years because they have every knowledge when they have filed the revision petition about the same mutation. Moreover, the respondents have not mentioned when they got the knowledge of the mutation but court below while allowing the application for condonation of delay has not at all discussed in the impugned order or about anything objections filed by the petitioner. Note it is well settled law of the possession as held by the Apex Court that contention of delay is a revisable order and if any order passed without any reason is revisable. In support of his contention he has cited some case law also. 10. On the other hand, the learned counsel for the respondents has stressed that this Tribunal can exercise revisional jurisdiction under section 21(2) of the Agrarian Reforms Act only against a final order passed by the Commissioner. In support of his contention he has cited some case law also. 10. On the other hand, the learned counsel for the respondents has stressed that this Tribunal can exercise revisional jurisdiction under section 21(2) of the Agrarian Reforms Act only against a final order passed by the Commissioner. In the instant case, no final order has been passed by the Commissioner and only interim order has been passed whereby application for condonation of delay has been filed. Impugned appeal is still subjudice before the Assistant Commissioner, Revenue, Pahalgam. The present revision petition is against the interim order is not maintainable and merits to be rejected. Our Hon'ble Apex Court has held that the appellate court has the jurisdiction to condoned the delay, when delay is condoned such an order could not be interfered with an exercise of the revisional jurisdiction even this Tribunal has decided so many cases on this point also. In support of his contention he has cited the following case law:- 1. AIR 1973 SC page 582 2. AIR 1984 SC page 1984 3. AIR 1987 SC page 1353 4. SLJ 1999 page 245 : JKJ Soft JKJ/24098 11. The petitioner has filed the instant revision petition against the order of Commissioner, Agrarian Reforms Anantnag dated 1.12.2008. By virtue of this order, application for condonation of delay has been allowed as there is no deliberate delay, negligence or inaction on part of the appellant in filing the appeal. So the application for condonation of delay has been allowed and main appeal came up for argument. On the perusal of the impugned order it is clear that application for condonation of delay under section 5 was contested by the respondent (herein petitioner) by filing the objections. The applicant's contention for condoning the delay are that the basic mutation under section 4 and 8 of Agrarian Reforms Act have been passed in violation of law. Against the impugned order applicants filed a review petition which was accepted by the Special Tribunal but the same was not up-held on the ground that it was not maintainable. Appeal is a proper remedy. It is further alleged that land under dispute is in physical possession of appellant (herein respondent) so the mutations are nullity. But the court below has not considered the objections file by other side. Appeal is a proper remedy. It is further alleged that land under dispute is in physical possession of appellant (herein respondent) so the mutations are nullity. But the court below has not considered the objections file by other side. To these points neither court has given the reasons for condoning the delay for a period of twenty years. Operating part of the order is reproduced herein below:- "keeping in view the above discussion, I am of the considered opinion that there is no deliberate delay, negligence or inaction on part of the applicant on filing the appeals, therefore, the application for condonation of delay is accepted and delay is condoned, main appeal will come up for argument on 30.12.2012 and application shall become the part of the main file. 12. In the revision petition, petitioner has challenged the impugned order on the ground that respondents have filed a revision petition in the year 1986 before the Collector against mutation No. 14 and 15, therefore, the respondents having knowledge about the said mutation since 1986, while as the appeal has been preferred against the mutation in the year 2005.Appellants have not mention when they have got the knowledge of the impugned mutation. Court below while allowing the application has not at all discussed the objections filed by the respondents (herein petitioner). When once the petition for condonation of delay is apposed, whether counter has been filed or not, and arguments are addressed by the counsel opposing the petition, it is incumbent on the part of the court to give reasons on the question whether the party has explained satisfactorily every day's delay or not. Not adverting to any of the contentions raided by the counsel being callous, and the order should be set aside. In the instant case, court below has not mentioned anything about the objection filed by the other side and wherein they have raised a valuable contention that parties have filed a review petition before the Assistant Commissioner in the year 1986 about these impugned mutations which are under challenged. Its meaning the court below was callous, determining the real question. In the instant case, court below has not mentioned anything about the objection filed by the other side and wherein they have raised a valuable contention that parties have filed a review petition before the Assistant Commissioner in the year 1986 about these impugned mutations which are under challenged. Its meaning the court below was callous, determining the real question. In support of my contention I have laid my hand to an authority of our Hon'ble Apex Court in Supreme Court Cases 2011 page 628, relevant para 12 is reproduced herein below:- "...............it is a settled principle of law that a court has a duty to give reasons as its judgement effects the rights and the obligations of the litigating parties, who are entitled to know why the court came to its decision. This duty to give reasons is even more necessary when the High Court disagrees with the judgement of the lower court and sets it aside". 13. The learned counsel for the respondents main contention are as that this forum can exercise revisional jurisdiction under section 21(2) of Agrarian Reforms Act only against the order passed by the Commissioner. In the present case, no final order has been passed by the Commissioner and only interim order has been passed whereby the application for condonation of delay has been allowed. Main appeal is still subjudice as such, the revision petition is not maintainable. 14. Now the question is whether deciding the application for condonation of delay is a final order or not. Basically final order means right of the parties have been decided and terminations of the proceeding. In the instant application for condonation of delay will amount to a proceeding whether the prayer is allowed or disallowed. The proceeding will come up an end so revisions will definitely lie against the order for allowing or disallowing the application because the rights of the parties have been terminated by disposal of this application and main appeal has come up on board for further proceeding till then appeal has not come up. The proceeding will come up an end so revisions will definitely lie against the order for allowing or disallowing the application because the rights of the parties have been terminated by disposal of this application and main appeal has come up on board for further proceeding till then appeal has not come up. In support of my contention I relied on an authority of Allahabad High Court in AIR 1985 page 7, relevant para 11 is as under:- "it is correct that the District Judge, has also referred to S.5 of the Limitation Act when he says that cause for the delay in filing the appeal may be treated as sufficient, but for doing so, he has given no reasons whatsoever. What he has remarked was that sitting as an appellate Court, in order to advance the interest of justice, he could find that there was sufficient ground for condonation of delay. This is not the correct legal position. As a court of appeal, he did not have inherent power to condone the delay. He did have power to condone the delay under Section 5, if he found that the cause was sufficient." And the same view has been taken by the Apex Court in AIR 1981 SC page 73. In this matter appellate authority has not mentioned anything about the objections filed by the other side and points raised in objections have not been highlighted or given any consideration on these points. Whereas, the court below is duty bound to give finding on these points because as per respondent, they have filed a review petition against these mutations it indicates that they must have attained the knowledge when they filed the review petition. So I think court below is duty bound to give the reasons in his order where determining the rights of the parties. As I have made my reliance in an authority of Karnataka High Court in AIR 1996 page 141, relevant para 5 which is reproduced herein below:- ".......No doubt, it may be said that it is a finding of fact but it is a finding on question of fact upon which the exercise of jurisdiction to condone delay depends and it is a condition precedent for the exercise of jurisdiction under section 5 of the Limitation Act. Such finding of fact has got to be recorded after considering all the materials placed in connection thereto. Such finding of fact has got to be recorded after considering all the materials placed in connection thereto. But once the authority records the finding without applying its mind to the relevant material on record and particularly to such as the objections filed by the petitioners, it is in my opinion the finding, as mentioned earlier suffers from error of law and the appellate authority on the basis of erroneous finding has usurped and exercised jurisdiction to condone the delay and to entertain the appeal and further passed the order allowing the appeal, which may be stated to be otherwise time barred." 15. In another case Apex Court of the country has held that High Court has not examined the reply filed by the appellant as a reference to the same is a conspicuous from order. In the facts and circumstances of the case, any explanation much less a reasonable or satisfactory had to be offered with regard to in-ordinate delay. In a case AIR 1998 SC has held as under:- "Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs." 16. From the perusal of the impugned order, it is clear that appellate authority has not given any reason/justification with regard to the condonation of delay, order is in a summary manner, without discussing the delay for a long time but passed an order in the application in hush way. As such, the court below has not decided the application in terms of Order 41 Rule 3-A CPC. Court below is duty bound to give reason for allowing or disallowing the application and only then appeal will come up on board for hearing. As such, the court below has not decided the application in terms of Order 41 Rule 3-A CPC. Court below is duty bound to give reason for allowing or disallowing the application and only then appeal will come up on board for hearing. In view of the judgement cited above, it is almost clear that order in application for condonation of delay is a final order because right of the parties has been decided and proceeding in application are finally terminated. 17. Giving regard to the above discussion, this Tribunal has come to the conclusion that impugned order is liable to set aside which is hereby set aside and file is remanded back with the direction to the appellate authority to decide the application for condonation of delay first of all on merits in terms of Order 41 Rule 3-A CPC after giving proper opportunities of being heard to both side and then pass appropriate order in application for condonation of delay within a period of three months from receipt of this order. However, any observation made herein above will not impact the merit of the application as well as the appeal. Copy of this order along with the court below file send to the appellate authority. Parties are directed to appear before the court below on 18.04.2014. File shall go to records after its due compilation.