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2018 DIGILAW 771 (JK)

Mohammad Amin Mir v. Joint Financial Commr

2018-10-01

RASHID ALI DAR

body2018
ORDER : Rashid Ali Dar, J. 1. Order dated 24.01.2018, passed by respondent No. 1 (Joint Financial Commissioner), on an appeal filed by respondent No. 4 against the order of Naib Tehsildar, Trehgam, dated 29.05.2013, is under challenge in this writ petition. 2. Precise factual background of the case, as referred in the writ petition, is as under: (I) The respondent No. 4 was the owner of land covered under Survey No. 448 measuring 01 kanal 10 marlas situated in Village Marhama Kupwara; (II) The petitioner has made an offer to respondent No. 4 for sale of his land who agreed to sell the same and, accordingly an agreement to sell was executed between the parties; (III) That in pursuance of the said sale, the petitioner approached the revenue agencies along with respondent No. 4 for making revenue entries in favour of the petitioner. The respondent No. 4 at the time of attestation of mutation did not object to the same and, accordingly, mutation No. 309 dated 29.05.2013 in respect of land measuring 01 kanal 10 marlas under Survey No. 448, was attested in favour of the petitioner and the petitioner took possession of the said land after making payment to the respondent No. 4; (IV) That thereafter respondent No. 4 filed an appeal before the respondent No. 1 against the aforesaid mutation. The petitioner caused his appearance before respondent No. 1 and raised a preliminary objection that the appeal is not maintainable against the orders passed by Naib Tehsildar, Trehgam and also the appeal has not been field within the prescribed period of limitation; (V) That in the meanwhile, respondent No. 4 approached the respectable persons/villagers and apologized for filing the appeal before the respondent No. 1 and a mutual compromise/agreement was arrived at between the parties wherein respondent No. 4 had agreed to withdraw the appeal on the terms and conditions laid down in the agreement; (VI) That the aforesaid agreement was placed before the respondent No. 1 but the respondent No. 1 without taking note of the agreement and also without taking note of jurisdictional aspect, has proceeded to pass order dated 24.01.2018 whereby appeal has been allowed and the mutation No. 309 dated 29.05.2013 has been set aside besides directing restoration of the position as was obtaining before the attestation of said mutation. 3. 3. Aggrieved by the aforesaid order dated 24.01.2018, passed by respondent No. 1, petitioner has filed the instant writ petition. Some of the grounds raised in the petition to canvass that the order is incorrect and erroneous, are as under: A. That as per J&K Land Revenue Act, appeal against an order passed by Naib Tehsildar can be filed before the Collector or Assistant Collector, therefore, order passed by respondent No. 1 is without jurisdiction; B. That as per Section 12 of the Land Revenue Act, the appeal is to be filed within a period of 60 days before the Collector and in case order of Collector is challenged before the higher authorities, same is to be filed within 90 days. The respondent No. 1 though has referred that the condonation application has been filed but without condoning the delay first, main appeal has been decided, therefore, impugned order is bad in law; C. That for migrant properties, the respondent No. 1 has no power to adjudicate the matter and the power in this regard lies with District Magistrate concerned. The respondent No. 1 has acceded his jurisdiction; D. The respondent No. 4 has filed appeal and the respondent No. 1 without converting the appeal into revision and applying judicial mind, has passed the impugned order. 4. Heard learned counsel for the contesting parties. 5. The learned counsel for the petitioner while reiterating the grounds taken in the petition contended that the Joint Financial Commissioner has usurped the powers which were not vested in him. While explaining the same, it is being stated that in the order passed by the respondent No. 1, it is stated that the "revision" filed by respondent No. 4 carries substance and so mutation was set aside. Respondent No. 1 had no revisory powers and so appeal filed before him could not be treated as "revision". The respondent No. 1 had no power even under Agrarian Reforms Act (hereinafter shortly referred as the Act) to convert an appeal into revision and so the impugned order is bad. It is also being put forth that the proceedings initiated before respondent No. 1 were time barred and unless the delay in filing of the same was condoned, merits of the case could not be touched. It is also being put forth that the proceedings initiated before respondent No. 1 were time barred and unless the delay in filing of the same was condoned, merits of the case could not be touched. The provisions of Jammu and Kashmir Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, make it clear that in case a person is migrant within the definition of said statute, it would be only the District Magistrate who could take care of the property and so the proceedings initiated by the respondent No. 4 before respondent No. 1 were non-est. 6. On the other hand, counsel appearing for the respondent No. 4 contended that the impugned order makes it clear that it was an appeal which was being heard by the respondent No. 1 and in which he passed order. If due to any clerical or typographical mistake in the body of the order appeal is referred as revision, that would not make the impugned order bad. It can be vividly seen from the perusal of the impugned order that the proceedings have been set forth in the caption to be an appeal against the order of Naib Tehsildar, Trehgam, with regard to property referred therein. The jurisdiction vested in respondent No. 1 has been properly exercised by him and there is no scope for issuance of writ or direction of the nature sought by the petitioner. It is also being contended by him that a separate application had been presented before the respondent No. 1 for condonation of delay along with the appeal and a copy thereof has also been submitted at the time of advancing of the arguments. 7. I have given thoughtful consideration to the material available on the file. On perusal of the documents annexed with the petition, it transpires that an agreement has been executed by respondent No. 4 and petitioner herein for transfer of land measuring 01 kanal 10 marlas. Consideration is shown to have been received in token of the transaction and a Xerox copy of the receipt has also been annexed with the petition. Khasra Girdawari of the year 2017 depicts the property under Survey No. 1133/448 in the tenancy of Noordin (1 kanal 17 marlas) and Din Mohammad (1 kanal 7 marlas) (being cultivated by petitioner herein). Consideration is shown to have been received in token of the transaction and a Xerox copy of the receipt has also been annexed with the petition. Khasra Girdawari of the year 2017 depicts the property under Survey No. 1133/448 in the tenancy of Noordin (1 kanal 17 marlas) and Din Mohammad (1 kanal 7 marlas) (being cultivated by petitioner herein). There is also a copy of compromise on record dated 19.05.2014 wherein it is being recited that the land has been purchased by the petitioner herein. Copy of a mutation attested in favour of petitioner placed on record shows the same having been attested on 29.05.2013 and the land forming subject matter of present proceedings ordered to be entered in personal cultivation of the petitioner herein "Naqdi Hasbi Parti Deh" from 2012. 8. The impugned order, as has been canvassed by learned counsel for respondent No. 4, shows an appeal having been preferred against the order of Naib Tehsildar with regard to attestation of mutation referred supra. Same has been presented before the respondent No. 1 having the powers of Financial Commissioner (Revenue) and Commissioner Agrarian Reforms. The impugned order starts with the word "This instant appeal has been filed against the order passed by Naib Tehsildar, Trehgam". Reference is also made of filing an application for condonation of delay. It is referred therein that the present petitioner had appeared on earlier dates but subsequently remained absent. The case has been accordingly heard in ex-parte. One of the contentions, as recorded in the impugned order, is that Section 13 of the Act bars creation of tenancy after Kharief 1971 (the pertinent date in terms of Section 4 of the Act). The mutation so attested has been pleaded to be in breach of the provisions of the Act. After considering the contentions as raised on behalf of the respondent No. 4, observation has been made by respondent No. 1 that the mutation is not covered by any provision of law. It has also been remarked that the tenancy has wrongly been created on the manipulation of the petitioner therein. Opinion has accordingly been framed that the tenancy rights were shown to have been created in terms of the mutation by the Mutating Officer in violation of the provisions of the Act. In the conclusion, however, the proceedings initiated have been referred as "revision petition" and the mutation, accordingly, set aside. 9. Opinion has accordingly been framed that the tenancy rights were shown to have been created in terms of the mutation by the Mutating Officer in violation of the provisions of the Act. In the conclusion, however, the proceedings initiated have been referred as "revision petition" and the mutation, accordingly, set aside. 9. Under Section 21 of the Act, an appeal can be preferred against the order passed by a Revenue Officer or a Collector before the Commissioner having jurisdiction in the area to which the appeal relates. Revisory powers have been vested only with the Revenue Minister (which, however, are now exercised by the Special Tribunal). The period of limitation in filing the appeal has been fixed as 60 days. The provisions of Limitation Act are shown in Section 22 of the Act to be applicable to the proceedings initiated under Section 21 of the Act. No application for review can lie against any order passed under the Act or the Rules framed thereunder but clerical or arithmetical mistakes in orders or errors arising therein from any accidental slip or omission may, at any time, be corrected by the authority which has made such order. 10. On a summary view of the mutation, it appears to have been attested under the colour of powers under the Act. The legality of the mutation has to be tested under the said Act. It may also require a mention here that the provisions of various Acts including under Land Revenue Act and Tenancy Act have been made inapplicable on enactment of the Agrarian Reforms Act so far as they are inconsistent with the provisions of the said Act and the Rules framed thereunder. It may also require to be underscored herein that the scope for tenancy including one in lieu of payment of rent in cash with the status of tenant paying rent on pro-rate basis (Naqdi Hasbi Parti Deh) stands concealed under the Act. In the instant case, there is nothing on record or otherwise has been brought to the notice of the Court that there was ever any relationship of landlord and tenant between the parties which led Naib Tehsildar to reflect the same in record by way of attestation of mutation, challenged in appeal before respondent No. 1. In the instant case, there is nothing on record or otherwise has been brought to the notice of the Court that there was ever any relationship of landlord and tenant between the parties which led Naib Tehsildar to reflect the same in record by way of attestation of mutation, challenged in appeal before respondent No. 1. Naib Tehsildar, admittedly, is a revenue officer within the meaning of Section 18 of the Act and so any order passed by him could be challenged by the aggrieved person before the authorities created under the Act. The respondent No. 1 having been conferred with the powers to hear the appeals could hear the appeal against the order of Nab Tehsildar and could also consider the scope for condoning the delay. 11. Section 5 of the Limitation Act necessitates a person interested in getting the delay condoned to project a sufficient cause for extension of time but it does not require any court or authority in all cases to record reasons in writing for condoning the same. Suffice to say, if mind has been applied by the Court or the authority and it is, prima facie, gatherable that this aspect of the case was in the mind of the officer or the Court, it cannot be stated that the main matter was heard without there being any power to do so. Rather if a party had made a prayer for condoning the delay and the Court was alive to this situation and, thus, heard the matter on merits, it can be inferred that the nod for extension of limitation has been given impliedly. Recording of reasons, however, may be imperative for turning down a prayer made for condoning the delay. Delay has been even condoned at times by Courts on an oral prayer. For a party, thus, the only obligation caste in terms of Section 5 of the Limitation Act would be to carve out a sufficient cause for condoning the delay and the obligation caste on the court is to consider the same. Writing of a separate and detailed order for condoning the delay, thus, cannot be insisted upon as suggested by the learned counsel for the petitioner. 12. Writing of a separate and detailed order for condoning the delay, thus, cannot be insisted upon as suggested by the learned counsel for the petitioner. 12. Though the Constitution does not place any restriction on the power of High court in grant of appropriate writ or direction but it is well known that as a matter of prudence and propriety, judicial decisions have evolved certain restrictions over a period of years taking into consideration rights infringed or threatened to be infringed. Mere errors of law or facts cannot, in all cases, be rectified or corrected in exercise of discretionary power. The power can also not be exercised to convert the High Court as a Court of appeal or revision. When it is open to the aggrieved person to move any appropriate Tribunal or Court or to exhaust the remedy in terms of any statute, the High Courts are hesitant in exercising writ jurisdiction. High Court also does not exercise jurisdiction under Article 226 for determination of questions which demand an elaborate examination of evidence to establish a right. Similarly, High Court cannot interfere on merits with the determination of issues made by the authorities invested with the statutory power. 13. In the instant case, it can be safely stated that the respondent No. 1 has exercised jurisdiction as a statutory authority under Section 21 of the Act. The inadvertence or clerical error referred hereinabove in certain lines of the impugned order "as a revision petition for appeal" cannot be treated as a base to invalidate what has been directed by the respondent No. 1 to be done with regard to the matter. The mistake appears to be an inadvertent one which, as stated above, can be corrected by the respondent No. 1, if approached in this regard. 14. The learned counsel for the petitioner has not been able to show to the satisfaction of the Court as to how Naib Tehsildar exercised the jurisdiction either under the Act or any other statute while attesting mutation. Creation of tenancy in terms of the impugned mutation on pro-rate basis was, vividly, militating the provisions of the Act and so setting it aside in terms of the impugned order cannot be said to be an act done by respondent No. 1 without jurisdiction or in excess of the jurisdiction vested in him. Creation of tenancy in terms of the impugned mutation on pro-rate basis was, vividly, militating the provisions of the Act and so setting it aside in terms of the impugned order cannot be said to be an act done by respondent No. 1 without jurisdiction or in excess of the jurisdiction vested in him. May it be so, it may also need mention here that the petitioner herein, if aggrieved of the order passed by respondent No. 1, could have availed the remedy of revision before the authority prescribed under the Act and the remedy so prescribed is, ex-facie, equally efficacious. Even otherwise, if interested, petitioner may approach Civil Court for scrutinizing the documents referred in the petition and for declaration or establishing a right, if any he has in the immovable property on the basis of said documents. 15. For what has been stated above, I am of the opinion that no ground has been made out for admission of the petition or grant of Writ of Mandamus or Certiorari as sought in the writ petition. The petition, being without merit, is dismissed along with connected IA. No order as to costs.