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2018 DIGILAW 431 (JK)

Taja v. Qadir Dar

2018-07-02

DHIRAJ SINGH THAKUR

body2018
JUDGMENT : 1. Petitioner challenges the order dated 18th May, 2018 passed by the Joint Financial Commissioner with the powers of Financial Commissioner (Revenue) and Commissioner Agrarian Reforms, J&K, Srinagar, whereby the revision petition filed by the petitioner has been dismissed primarily on the ground that the same was filed as an after thought after lapse of more than 33 years. 2. Briefly stated the material facts are as under: - xxx xxxx 3. Mutation bearing No.680 came to be attested in regard to the property belonging to one, Shaban Dar, who was holding land in village Gasoo, Tehsil Srinagar. According to the said mutation, 10 marlas of land came to be attested in the name of Mst. Jana and rest of the property was attested in the name of two sons of deceased Shaban Dar in equal shares. The petitioner, Mst. Taja, also was one of the daughters of the deceased Shaban Dar. However, in the order of mutation, it was recorded that the petitioner was not interested in getting any share in the property of the deceased and, therefore, it was held that she had abandoned her share. Mutation No.680 came to be attested in the year 1985, however, the same was challenged by the petitioner after lapse of more than 33 years on the grounds that; (a) it was in gross violation of the provisions of Standing Order 23-A which govern attestation of mutation of inheritance; (b) it was recorded in absence of the petitioner; and (c) the factum of surrender or abandonment of her share in the property of deceased Shaban Dar was without any legal basis inasmuch as according to the Muslim Personal Law, the petitioner would become the owner to the extent of her share immediately upon the death of the deceased. (d) in the absence of any document in the shape of a gift deed, sale deed or a family settlement, rights in property could neither be abandoned nor surrendered in favour of any of the surviving co-sharers. 4. (d) in the absence of any document in the shape of a gift deed, sale deed or a family settlement, rights in property could neither be abandoned nor surrendered in favour of any of the surviving co-sharers. 4. It appears that the Joint Financial Commissioner by virtue of order impugned dated 18th May, 2018, dismissed the revision petition on the ground that; (a) The mutation had been attested with the consent of the petitioner; (b) The petitioner was trying to unsettle a settled matter after lapse of more than 33 years and, therefore, was barred by limitation; (c) The petitioner had surrendered her share with her free will and consent and, therefore, could not be permitted to resile from her commitment after lapse of 33 years. 5. The Apex Court in Joint Collector Ranga Reddy District and anr. v. D. Narsing Rao and others : (2015) 3 SCC 695 , relied upon Sulochana Chanrakant Galande v. Pune Municipal Transport : (2010) 8 SCC 467 , wherein the Apex Court held thus: "28.The legislature in its wisdom did not fix a time-limit for exercising the revisional power nor inserted the words "at any time" in Section 34 of the 1976 Act. It does not mean that the legislature intended to leave the orders passed under the Act open to variation for an indefinite period inasmuch as it would have the effect of rendering title of the holders/allottees permanently precarious and in a state of perpetual uncertainty. In case, it is assumed that the legislature has conferred an everlasting and interminable power in point of time, the title over the declared surplus land, in the hands of the State/allottee, would forever remain virtually insecure. The Court has to construe the statutory provision in a way which makes the provisions workable, advancing the purpose and object of enactment of the statute". The Apex Court also relied upon State of H.P. v. Rajkumar Brijender Singh : (2004) 10 SCC 585 in the same spirit. 6. The Apex Court after relying upon Dehri Rohtas Light Railway Co. Ltd. v. District Board, Shojpur : (1992) 2 SCC 598 , in paragraph 31 summed up the principles in regard to delayed exercise of revisional jurisdiction thus: - “31. 6. The Apex Court after relying upon Dehri Rohtas Light Railway Co. Ltd. v. District Board, Shojpur : (1992) 2 SCC 598 , in paragraph 31 summed up the principles in regard to delayed exercise of revisional jurisdiction thus: - “31. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority.” 7. Following the ratio of the aforementioned judgments, in my opinion, the view expressed by the Joint Financial Commissioner to the extent that the order was challenged belatedly cannot be said to be in any manner perverse or illegal more so, when the petitioner had failed to express specifically the date of knowledge regarding the mutation in question. However, having held the revision petition to be barred on account of delay and laches it was not necessary for the revisional authority to comment on the merits of the controversy. Be that as it may, the order impugned is upheld to the extent the revision petition was dismissed on grounds of delay and laches. 8. Dismissed.