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2017 DIGILAW 449 (JK)

Mohd. Ganaie v. Mohd. Amin Shah

2017-07-26

KOSSAR AHMAD QURESHI

body2017
JUDGMENT : 1. The above titled revision petition is against the order dated 06.05.2013 passed by the ld. Additional Commissioner Pulwama, in an appeal case titled Muhammad Ganaie and Others vs. Noor-ud-din Shah bearing File No. 77/ADC/APP. 2. The brief matrix of the case are that the respondent has moved an application for demarcation of his land, which was disposed of by Tehsildar concerned vide his order dated 06.10.2004, with the direction that respondents shall move to the Civil Court for recovery of possession of land for which the respondents were found out of possession and has consigned the application for demarcation to records. The respondents have not followed the order passed by Tehsildar dated 06.10.2004, moved an application to the Ld. Assistant Commissioner, Pulwama who in a most doubtful manner with adhering the mandate of law and procedure laid down at law, disposed of the said application vide his order dated 28.10.2006, whereby he directed the Tehsildar Pampore, to have a fresh demarcation of lands of the parties and thereafter, if he finds that any land of respondents is in possession of the petitioners that may be handed over back to the respondents. The petitioners felt aggrieved by the said order of Ld. Assistant Commissioner, Pulwama, submitted an appeal before Ld. Additional Deputy Commissioner, Pulwama, who vide order dated 06.05.2013, and dismissed the appeal on the count of limitation. Aggrieved by the order of Ld. Additional Deputy Commissioner, Pulwama and the order passed by the Assistant Commissioner, Pulwama assailed these orders on the following counts before this Tribunal. (i) That the order impugned dated 06.05.2013, passed by ld. ADC, Pulwama, is result of an illegal and irregularly exercise of jurisdiction, which has caused clear abuse of process of law and total miscarriage of justice to the petitioners. The Ld. ADC in a most cursory and arbitrary manner without any factual and legal basis passed the impugned order, despite the fact that the plea of limitation is always a question of fact, which can be proved and disproved by providing a chance to the parties to lead evidence. Hence in view of this celebrated position of law, the impugned order is liable to be set aside. (ii) That otherwise also the dismissing the appeal of the petitioners, the appellate authority has put a seal on an order passed by ld. Hence in view of this celebrated position of law, the impugned order is liable to be set aside. (ii) That otherwise also the dismissing the appeal of the petitioners, the appellate authority has put a seal on an order passed by ld. Assistant Commissioner, which is void ab-initio, nullity under law and has been passed without jurisdiction. The appellate authority has failed to appreciate the explanation which the petitioners have submitted in their application for condonation of delay. He has neither provided a chance to the petitioners to prove his case for condonation, nor has taken into account, the written arguments supported by case law and has passed the order impugned in a slip shot manner without returning a finding acceptable to law. Hence the impugned order under these circumstances is unsustainable and is liable to be set aside. (iii) The appellant authority has passed the impugned order in a most arbitrary and cursory manner in clear abuse of process of law. (iv) That the impugned has been passed in derogation of mandate of law as laid down under Order 41 R. 31 of CPC. (v) That the petitioner has a strong case on merit in context of law, but the court below has thrown out the case of the appellants on a technicality of limitation, despite the requests from the petitioners for submission of case to this Tribunal in terms of Rule 52 of J&K Agrarian Reforms Rules. The same resulted in total miscarriage of justice; (vi) That the Ld. Assistant Commissioner Revenue, designated as Collector Agrarian Reforms has powers in terms of Section 19 of J&K Agrarian Reforms Act, 1976, to deal with the dispute regarding the possession of agricultural land on the touchstone of "authorized possession" or "un-authorized possession." The Collector if finds that the possession is authorized one, as in case in hand, the application is liable to rejection and if he find that the possession is authorized one then he has jurisdiction to restore it to the claimant. But in the instant case, the respondent has moved an application for relief of possession, but the ld. Collector in routine manner without adhering the mandate of law, passed an order which on the face of it seems to be colorable exercise of powers. But in the instant case, the respondent has moved an application for relief of possession, but the ld. Collector in routine manner without adhering the mandate of law, passed an order which on the face of it seems to be colorable exercise of powers. But the court below has also ignored the legal position and thrown out a case of petitioners on the technicality of limitation without taking into account the legal position. So under these circumstances, the impugned order is cryptic, perverse against the provisions of J&K Agrarian Reforms Act 1976 and Rules there under and is as such liable to set aside. (vii) That the impugned orders have been passed in a routine manner, without adhering the judicial procedure and as such, liable to be set aside on this court also. 3. Heard the Learned counsel for the parties at length and perused the available record on file and the record file maintained by the court below which was called for examination. 4. The instant revision petition has been moved against the order dated 06.05.2013, passed by the ld. ADC Pulwama designated as Commissioner Agrarian Reforms vide SRO-59 of 1997 in an appeal titled Muhammad Ganaie and Others vs. Mohammad Amin Shah and Others, whereby ld. Additional Deputy Commissioner held the appeal is time barred and has accordingly dismissed the same. The Ld. Additional Deputy Commissioner ignoring the averments made in the appeal/application for condonation of delay. 5. The Ld. Additional Deputy Commissioner Pulwama has passed the impugned order in most arbitrary and routine manner without assigning reasons as envisaged under law. The counsel for the applicant has further submitted that the petitioner has raised various questions of law as well as of facts in his revision petition. Also submitted the written arguments before this court/Tribunal. 6. The Ld. Counsel for the respondents submitted that the order dated 06.10.2004 passed by the Tehsildar Pampore wherein the respondents father, namely, Noor-ud-Din Shah was found to be having less area (01 Kanal, 07 Marias) under Survey No. 204 of the village Sambura Tehsil Pampore, as per his recorded share. Less area was categorically found to be in unauthorized occupation of the present petitioners and was supposed to be restored in favour of the rightful owner/owners. Less area was categorically found to be in unauthorized occupation of the present petitioners and was supposed to be restored in favour of the rightful owner/owners. The present respondents while taking due course of law, approached Assistant Commissioner Revenue, Pulwama on 20.11.2004 with an application for restoration of possession as per demarcation order/report of Tehsildar Pampore dated 06.10.2004. The said application after hearing both the parties in dispute, was decided by Assistant Commissioner Revenue Pulwama dated 08.10.2006. During the proceedings, both the parties were provided ample opportunity of being heard and after taking due course of law and procedure, the Naib Tehsildar Pulwama, executed the order of ACR, Pulwama on 04.06.2008 and handed over the possession of restored land to the present respondents. The Learned counsel for the respondents further submitted that the order passed by the ACR, Pulwama was challenged by the present petitioners before the Additional Deputy Commissioner Pulwama (joint Agrarian reforms Commissioner) in appeal on 17.06.2008 and the same was ultimately decided after hearing both the parties in dispute at length for five years by the learned Additional Deputy Commissioner Pulwama on 06.05.2013 which is impugned in this tribunal. The Learned counsel for the respondents also submitted that since the appeal pending disposal before the Additional Deputy commissioner Pulwama was filed much after the prescribed period as provided under law (2 months) application for condonation of delay under section 3/5 of the Limitation Act, was also filed before Learned Additional Deputy Commissioner Pulwama and objections to the said application was filed by the present respondents before the learned Additional Deputy Commissioner Pulwama and as per established law, the application for condoning the delay in filling the appeal was taken up by the court below first. After going through the process of law and proper procedure, the learned Additional deputy Commissioner did not condone the delay and, therefore, dismissed the appeal. 7. The learned counsel for the respondents has relied on a judgment laid down by the Hon'ble Supreme Court in the case titled P.K. Rama Chandran vs. State of Kerala, 1999 SLJ 222, wherein at 5 and 6, it has been held as under:- "5. This can hardly be said to be a reasonable satisfactory or even a proper explanation for seeking condonation of delay. This can hardly be said to be a reasonable satisfactory or even a proper explanation for seeking condonation of delay. In the reply filed to the application seeking condonation of delay by the appellant in the High Court, it is asserted that after the judgment and decree was pronounced by the learned Sub Judge Kollam on 30.10.1993, the scope for filing of the appeal was examined by the District Government Pleader, Special Law Officer, Law Secretary and the Advocate General and in accordance with their opinion, it was decided that there was no scope for filing the appeal but later on despite the opinion referred to above the appeal was filed as late as on 18.01.1996 without disclosing why it was being filed. The High Court does not appear to have examined the reply filed by the appellant as reference to the same is conspicuous by its absence from the order. We are not satisfied that in the facts and circumstances of this case, any explanation much less a reasonable or satisfactory one had been offered by the respondent state for condonation of the inordinate delay of 565 days. 6. Law of Limitation may harshly affect a particular party but is has to be applied with all its rigour when the statue 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." 8. Also relied on a judgment laid down by the Hon'ble High Court of J&K in the case titled Riyaz Ahmad Bhat vs. Ab. Majid Bhat, 2004 (1) JKJ 608 : 2004 (1) SLJ 246, wherein at para 9 of the said judgment, it has been held as under:- "9. No costs." 8. Also relied on a judgment laid down by the Hon'ble High Court of J&K in the case titled Riyaz Ahmad Bhat vs. Ab. Majid Bhat, 2004 (1) JKJ 608 : 2004 (1) SLJ 246, wherein at para 9 of the said judgment, it has been held as under:- "9. Contextually the appellate court also took into consideration the circumstances that after 22.04.2001 the date on the memo, revision petitioner-defendant appeared before Trial court through counsel on 11.05.2001 to seek an adjournment for filing written statement without mentioning anything of the sort that the other party had agreed to withdraw the suit, as is being given out now at the appellate stage. The appellate court on scrutiny of the record and on evaluation and consideration of circumstances and facts on record came to the conclusion that the petitioner has not made out "sufficient cause" to qualify for condonation of delay. Due care and diligence is wanting on his part. Therefore, the appellant court in its discretion rejected the application for condonation. Notwithstanding the liberal approach of the Courts in the matter of condonation of delay, yet it cannot be at the cost of defeating the provisions of Section 5 of the Limitation Act. It is imperative that delay has to be explained satisfactorily/sufficiency of cause is to be made out." 9. On the other hand, the learned counsel for the petitioner has submitted that the respondents have suppressed the order of learned Tehsildar who made an application to the Collector Agrarian Reforms Pulwama/ACR for recovery of possession of land measuring 1 kanal 7 marlas which the Ld. Collector Agrarian Reforms have decided vide order dated 28.10.2006, in a most cursory and arbitrary manner without returning a findings on the count as Tehsildar Pampore has initiated the proceedings on a demarcation report dated 12.03.2003 and has decided this matter vide order dated 06.10.2004 where under he has held that recovery of possession is exclusive jurisdiction of Civil Court and has accordingly consigned the file to records. 10. The learned counsel for the petitioner further submitted that the Collector Agrarian Reforms Pulwama/ACR was supposed to return a finding on the following issues which he has submitted and are narrated as under:- (i) What is the effect of the order dated 06.10.2004, passed by the Tehsildar Pampore on the proceedings initiated by him on the application of respondents. 10. The learned counsel for the petitioner further submitted that the Collector Agrarian Reforms Pulwama/ACR was supposed to return a finding on the following issues which he has submitted and are narrated as under:- (i) What is the effect of the order dated 06.10.2004, passed by the Tehsildar Pampore on the proceedings initiated by him on the application of respondents. (ii) Otherwise the Ld. Collector ignored the contents of the application of respondents and objections submitted by the petitioners herein. (iii) Whether the respondents herein are ever in possession of land from which they sought recovery of possession. (iv) If the answer of the plea supra is in affirmative, then what is date of dispossession of the respondents from the land for which they sought recovery of possession? 11. The Learned Collector Agrarian Reforms Pulwama/ACR has failed to appreciate all these pleas and has delegated the matter once again to Tehsildar Pampore who vide his own order dated 06.10.2004 held that he has no jurisdiction to try the matter regarding the possession of land and it is exclusive jurisdiction of civil court. All these submissions have overlooked by the Ld. Additional Deputy Commissioner, Pulwama while passing of the impugned order. 12. The counsel for the petitioner has also submitted a judgment of our Hon'ble Supreme Court before the Learned Assistant Commissioner Pulwama along with his written argument reported in AIR 2011 SC 977 . It has been held at para 3 of the said judgment as under:- "3. having examined the averments made in the applications for condonation of delay in filing all the appeals and after hearing the learned counsel for the parties, we are satisfied that the application for condonation of delay in preferring the appeals must be allowed as the statements in the applications for condonation of delay, in our view, do constitute sufficient cause in not preferring the appeals within the period of limitation. We, therefore, condone delay in all the appeals. We have taken such a view in this matter as we feel that there is a strong arguable case on behalf of the appellants and, therefore, it is felt necessary that the court should decide the matter on merit by giving the expression sufficient cause a pragmatic justice--oriented approach". 13. But despite that the Ld. ADC ignoring the judgment supra and has passed the impugned order without any legal and factual basis. 13. But despite that the Ld. ADC ignoring the judgment supra and has passed the impugned order without any legal and factual basis. The impugned order is perverse and cryptic not based on any reasons. Otherwise also, the Learned ADC has not replied the submissions of the petitioners herein, that the petitioners herein have a strong case on merits. The order passed by the Ld. Collector under challenge before him is open violation of the provisions of J&K Agrarian Reforms Act 1976 and Rules thereunder. Besides the above reoffered pleas, the Collector has failed to a give a finding regarding the date of dispossession of the respondents. The date of dispossession has neither been pleaded by the respondents in their application for recovery of possession nor has the Ld. Collector bothered to pounder with regard to this fact, despite he was under legal obligation to adjudicate and decide the date of dispossession of respondents in view of the cut out year i.e. kharif 1971 given under section 4 of J&K Agrarian reforms Act 1976 and Rules there under around which the whole scheme of the Act supra revolves. Therefore, in view of this legal position, the Learned Additional Deputy Commissioner Pulwama was prayed by the petitioner that if he feels the appeal is time barred, he shall then adopt the recourse the Rule 52 of J&K Agrarian Reforms Rules 1977. But Learned Additional deputy commissioner fell into an error. 14. The plea taken by the counsel for the respondents herein in his written arguments that this Tribunal has no jurisdiction to try and decide the revision on the count that the orders impugned passed by Learned Additional Deputy Commissioner and Assistant Commissioner Revenue Pulwama is outcome of order passed by Tehsildar Pampore dated 06.10.2004. As per him, the controversy was processed under Land Revenue Act. Hence this tribunal has no revisional authority and is lacking jurisdiction to hear the aforecaptioned revision. As per him the revisional authority for such orders are Divisional Commissioner or the Financial Commissioner. 15. Objections raised by the learned counsel for the respondents is misconceived and without any substance by his own omissions and commissions. Hence this tribunal has no revisional authority and is lacking jurisdiction to hear the aforecaptioned revision. As per him the revisional authority for such orders are Divisional Commissioner or the Financial Commissioner. 15. Objections raised by the learned counsel for the respondents is misconceived and without any substance by his own omissions and commissions. The admitted fact is that it is respondents who approached to Tehsildar Pampore who in turn consigned their prayer to records by holding that the matter is regarding possession, which is beyond his jurisdiction and it is Civil Court which has jurisdiction regarding such matter. This is the order of Tehsildar Pampore dated 06.10.2004. 16. It is the respondents herein who deliberately and intentionally suppressed this order dated 06.10.2004 passed by Learned Tehsildar Pampore, submitted an application for restoration of possession of land consisting of 1 kanal 7 marlas, comprised of survey No. 204, before Collector Agrarian reforms (ACR) Pulwama, who decided the application moved by the respondents vide his order dated 28.10.2006 in the capacity of Collector Agrarian Reforms (ACR) Pulwama. Accordingly, the petitioner herein has assailed the order of Collector Agrarian. Before Ld. Additional Deputy Commissioner designated as Commissioner Agrarian Reforms District Pulwama who has also decided the appeal of petitioners vide order under challenged by way of revision, in the capacity of commissioner Agrarian Reforms District Pulwama. More-so, this capacity of Ld. Additional Deputy Commissioner is not disputed in view of SRO 59 of 1997, where under he was authorized to her appeals arising out of J&K agrarian Reforms Act 1976 within District Pulwama as Commissioner Agrarian Reforms Pulwama. Otherwise the Ld. Additional Deputy Commissioner has neither any identify under section 6 of J&K Land Revenue Act nor under Section 18 of J&K Agrarian Reforms Act, 1976. In view of these facts, it will not lie into the mouth of respondents that the controversy is processed under the Land Revenue Act and this tribunal is not revisional authority for the case. 17. Viewed thus, keeping above discussions into consideration, the impugned orders passed by Ld. In view of these facts, it will not lie into the mouth of respondents that the controversy is processed under the Land Revenue Act and this tribunal is not revisional authority for the case. 17. Viewed thus, keeping above discussions into consideration, the impugned orders passed by Ld. Additional Deputy Commissioner designated as Commissioner Agrarian Reforms Pulwama dated 06.05.2013 along with the order dated 28.10.2006 passed by Collector Agrarian Reforms (ACR) Pulwama are set aside and the matter is remanded back to the Collector ACR (Pulwama), to adjudicate upon the application for recovery of possession of land moved by respondents herein afresh in accordance with law and procedure laid down under law after providing an opportunity of being heard to the parties. The parties are directed to appear before the court before on 21.08.2017. The revision is accordingly disposed of and shall be consigned to records after its due completion. The court below file, if called, be send back along with the copy of the order.