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2018 DIGILAW 135 (JK)

Ali Mohd. Gujree v. State of J&K

2018-03-06

M.K.HANJURA

body2018
JUDGMENT : M.K. Hanjura, J. 1. To put them straight, the facts as these surface from the instant petitions are that the respondent Nos. 1 and 2 herein these petitions challenged the validity of the orders of Naib Tehsildar Ganderbal passed in two mutations bearing Nos. 164 and 192 attested on the dates 14.08.1993 and 09.04.1994 respectively viz-a-viz the land situate at village Nagabal, Ganderbal, before the learned Financial Commissioner J&K, Srinagar, in two revision petitions and they carved his indulgence in quashing the same. 2. The revision petitions were filed before the authority aforesaid on 25th of July 2005 i.e. after an approximate period of 11 years from the dates of their attestation. The petitioner (respondent No. 3 in the two revisions) filed an application before the learned Financial Commissioner pleading therein that the petitions are time barred and, therefore, these merit dismissal on that score alone. The Ld. Financial Commissioner, did not find favour with this argument and dismissed the application on 17th of September 2012, by holding that both the revision petitions are within time. It needs must be said that the petitioners in the revision petitions had not filed any application for the condonation of delay before the Ld. Financial Commissioner, except for stating that they were oblivious of the fact that any mutations have been attested and that they came to know about the orders on the dates 21st of July 2005 and 26th of July 2005. The petitioner before this Court in these petitions has stated that the plea of limitation can be raised at any stage and even at a belated point of time and the condition precedent in a case which is ex facie barred by time is that the persons seeking condonation of delay has/have to satisfy the authority that he/they has/have a sufficient cause in maintaining a petition which fact has to be pleaded and proved. In the end it has been urged that the learned Financial Commissioner Revenue has exceeded his jurisdiction and has committed a grave illegality in dismissing the application of the petitioner herein these petitions by holding that the revisions are within time. 3. Heard and considered. 4. In the end it has been urged that the learned Financial Commissioner Revenue has exceeded his jurisdiction and has committed a grave illegality in dismissing the application of the petitioner herein these petitions by holding that the revisions are within time. 3. Heard and considered. 4. The order of Joint Financial Commissioner dated 17.09.2012 passed in the two revision petitions has a direct bearing on the subject matter of the controversy raised in this petition and, therefore, the relevant extracts thereof require to be reproduced herein below word for word and letter for letter in order to analyse and scan them on the touchstone of the law holding the field. These are as under:- "I have considered the arguments of ld. counsels of both the parties and also perused the record placed on file the instant revision petition has been instituted in this Court on 28.07.2005 and the respondent No. 3 firstly appeared in this Court on 23.08.2005 perused the case for two years and came up with the application on 05.09.2007 with the prayer that the instant revision be dismissed as time barred. Why did he not take this preliminarily issue at the initial stage and check at the thresh hold is a point to be considered. The copy of the impugned mutation No. 164 placed on file was perused also. The mutating officer is the sole signatory on the mutation sheet which indicates that top secrecy has been maintained while attesting the impugned mutation which had to be attested otherwise on spot in the estate in presence of the Lambardar/Chowkidar and all the interested parties. The mutation No. 192 also does not bear the signature or thumb impressions of the petitioners but only their names are written on mutation sheet which makes their presence doubtful. This court gives weightage to the submissions of petitioner under para No. 8 of the memo of revision regarding mutation No. 164 and under para No. 10 of the memo of revision regarding mutation No. 192 and the petitioner got the knowledge of the impugned mutation No. 26.07.2005 and 21.07.2005 respectively and considers the revision petitions filed on 28.07.2005 within time limits." 5. The law on the limitation is well settled. The law on the limitation is well settled. The plea of limitation can be raised at any stage and even if it is not raised the court or any authority passing an order has the power and jurisdiction to determine such a plea suo-moto. The learned Financial Commissioner has tried to carve out a case in favour of the petitioners in the revision petitions by holding that the mutation No. 164 bears the signature of the mutating officer only and the mutation No. 192 does not bear the signature or thumb impression of the petitioners which make their presence at the time of the attestation of the mutations doubtful. On this analogy he has contended that due weightage has to be given the submissions of the petitioners as pleaded by them in para No. 8 of the revision in light of mutation No. 164 and in regard to mutation No. 192, he has held that the petitioner attained the knowledge of its attestation on 26.07.2005. 6. Since the revisions were expressly barred by time, therefore, it was incumbent for the petitioners in both the revision petitions to file an application for the condonation of delay which admittedly has not been filed by the petitioners and the application filed by the respondent No. 3 wherein he canvassed before the Ld. Financial Commissioner that such a course is unknown to the provisions of the law met the fate of dismissal. 7. The law on the subject as delivered in the case of Ragho Singh vs. Mohan Singh, (2001) 9 SCC 717 is lucid and clear and para No. 6 of this judicial dictum which assumes significance in the context of the decision of the petitions lays down as under:- We have heard learned counsel for the parties. Since it is not disputed that the appeal filed before the Additional Collector was beyond time by 10 days and an application under section 5 of the Limitation Act was not filed for condonation of delay, there was no jurisdiction in the Additional Collector to allow that appeal. The appeal was liable to be dismissed on the ground of limitation. The Board of Revenue before which the question of limitation was agitated was of the view that though an application for condonation of delay was not filed, the delay shall be deemed to have been condoned. This is patently erroneous. The appeal was liable to be dismissed on the ground of limitation. The Board of Revenue before which the question of limitation was agitated was of the view that though an application for condonation of delay was not filed, the delay shall be deemed to have been condoned. This is patently erroneous. In this situation, the High Court was right in setting aside the judgment of the Additional Collector as also of the Board of Revenue. We find no infirmity in the impugned judgment. The appeal is dismissed. No costs. 8. On the face of the law evolved on the subject by the Apex Court of the country, as reproduced above the petitioners in both the revisions where obliged under law to file an application for the condonation of delay in filing the revision petitions. The petitioners have not done so and, therefore, the order of the learned Financial Commissioner making out a case for them is bad and in complete contradiction to the law governing the field. 9. Looking at the petitions from another perspective section 12 of the Land Revenue Act reads as under:- 12. Limitation for appeal, revisions and reviews - (1) Save as otherwise provided in this Act] the period of limitation for an appeal under the last foregoing section shall be as follows:- (a) When the appeal lies to the [Collector or an Assistant Collector of the first class] 60 days. (b) When the appeal lies to [xxx] the [Financial Commissioner] or [Divisional Commissioner] 90 days. Provided that, in the District of Ladakh and Gilgit twice the ordinary period of limitation for appeals under this section shall be allowed. (2) Such provisions of the Limitation Act as apply to appeals, applications for revision and review in civil suits shall also apply to appeals, applications for revisions and review under this Act. 10. This Court in case titled Lt. Col. Sunit Singh (Retd.) vs. The Financial Commissioner, 2017 (4) JKLRJ 64, while dealing with an identical issue held that when the revision is initiated on an application of the party and not suo-moto, the law of the limitation applies to such a case both in vigor and rigor. The Ld. Financial Commissioner, did not deal with the revisions on his own. The Ld. Financial Commissioner, did not deal with the revisions on his own. He did not exercise the Suo-moto powers as envisaged under Section 15 of the Land Revenue Act but exercised these powers on the asking of the petitioners who filed the revision petitions before him seeking the reversal of the orders passed in two mutations. Therefore it was necessary for the party invoking the jurisdiction of the court of the Ld. Financial Commissioner to plead and show that they had a sufficient cause in filing the revisions after such a huge and inordinate delay of eleven years approximately. 11. In the Letters Patent Appeal No. 52 of 1997 filed in case Rajinder Singh alias Prithipal Singh vs. Mst. Damodari and Others, the Division Bench of this High Court in its order dated 03rd of June 1986 held as under:- "We would like to mention here that any authority empowered to exercise suo-moto powers under the law either to review or revision can do so only after notice to the respective parties signifying his intention to the parties that the authority chooses to exercise the suo-moto powers. In the absence of such an exercise of power when the review or revision is initiated on an application by any party, the authority or the person concerned is bound by the law of limitation." 12. In view of the preceding analysis, the petitions of the petitioner merit to be allowed as a consequence of which the order dated 17.09.2012 passed by the Ld. Financial Commissioner in the two revision petitions filed against the orders of Naib Tehsildar, Ganderbal, recorded in the mutations bearing numbers 164 and 192 of village Nagabal, Ganderbal, passed on the dates 14.08.1993 and 09.04.1994 is set aside. 13. The respondents in this petition shall be at liberty to seek the redressal of their grievances, if any, before the competent forum, if available and whether the remedy would or would not be barred by the law of Limitation shall be determined by that forum alone.