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2022 DIGILAW 607 (JK)

Vikas Dhar v. Financial Commissioner

2022-11-02

ALI MOHAMMAD MAGREY, SANJAY DHAR

body2022
JUDGMENT Sanjay Dhar, J. - The appellant has challenged order dated 30.09.2022 passed by the learned Writ Court in WP(C) No.1917/2020 filed by the appellant, whereby the writ petition has been disposed of by extending the following directions: 1.That respondent No.1 shall take up all the appeals/revisions together for consideration and decide the same finally within a period of two months from the date a copy of this order is served upon him. 2. If for any reason, it is not possible to dispose of all the appeals/revisions within the period aforesaid, the objection of the petitioner to the maintainability of these petitions on account of delay as also his request for vacation of stay shall be positively disposed of by the aforesaid period. 2. It appears that appellant had invoked the writ jurisdiction of this Court challenging the proceedings in the appeals and revision petitions filed by respondent No.2 before the Financial Commissioner, Revenue, J&K, Srinagar. It is pertinent to mention here that in the said proceedings, respondent No.2 had challenged mutation orders of Estate Sonwar Srinagar, in respect of land under Survey No.1100/945/802 measuring 05 kanals 01 marlas and 96 sqft., attested by Tehsildar, Agrarian Reforms, Srinagar. 3. The appellant challenged the proceedings pending before respondent No. 2 before the Writ Court on the grounds that the mutations under challenge have already been declared final by the High Court vide judgment dated 23.09.1988, passed in revision petition titled 'Estates Officer vs. K. K. Amla', that was passed in relation to the eviction proceedings initiated against respondent No.4 herein, with regard to the same land. Vide the aforesaid judgment of this Hon'ble Court, judgment dated 23.05.1987 passed by District Judge, Srinagar, has been upheld and it was observed that the land in question was never in possession of the Defence Authorities. It was further contended by the appellant that in view of the aforesaid finding of the Civil Court, respondent No.2 cannot claim that he had leased out the land in question to the Defence Authorities and he cannot claim that he had no knowledge about the mutations. It was also contended that order dated 27.11.2020 passed by respondent No.1 in the impugned proceedings is not in accordance with law, inasmuch as the said order has been passed without hearing the appellant. It was also contended that order dated 27.11.2020 passed by respondent No.1 in the impugned proceedings is not in accordance with law, inasmuch as the said order has been passed without hearing the appellant. Vide the said order, respondent No.1 has allowed two applications of respondent No.2, one seeking implementation of the order and the other seeking summoning of the record pertaining to disputed land from the Cantonment Authorities. 4. As already noted, the learned Writ Court, after hearing the parties, has directed respondent No.1 to take up all the appeals and revision petitions together for consideration and finally decide the same within a period of two months and it has been further provided that in case it is not possible to dispose of all the appeals and revision petitions within the aforesaid period, respondent No.1 shall at least decide the question of maintainability of the proceedings on account of delay as also his application for vacation of stay within the aforesaid period. 5. The appellant is aggrieved of the aforesaid order of the Writ Court on the grounds that the said order has been passed without proper appreciation of law and facts. It has been further contended that respondent No.1 does not have jurisdiction to reopen the impugned mutations because the issue has been finally decided by the judgment of the Civil Court as upheld by this Court and this aspect of the matter has not been considered by the learned Writ Court. It has also been contended that the learned Writ Court did not take into account the additional documents which the appellant had placed before the said Court at the time of deciding the matter. According to the appellant, two directions issued by the Writ Court are contradictory, inasmuch as in the first instance, the learned Writ Court has directed respondent No.1 to decide the proceedings within two months and subsequently a direction has been issued for deciding the maintainability of the proceedings on the ground of limitation. According to the appellant, in the first instance, the question of maintainability on the ground of limitation has to be decided before proceeding to decide the merits of the case and, as such, the impugned order is not in accordance with law. 6. While making his submissions, learned counsel for the appellant has reiterated the aforesaid grounds. 7. According to the appellant, in the first instance, the question of maintainability on the ground of limitation has to be decided before proceeding to decide the merits of the case and, as such, the impugned order is not in accordance with law. 6. While making his submissions, learned counsel for the appellant has reiterated the aforesaid grounds. 7. Learned senior counsel appearing for respondents No.2 and 3 has contended that the learned Writ Court vide the impugned order has not decided any controversy between the parties, nor has it given any finding on any issue, as such, no appeal lies against such an order. It has been further contended that the proceedings before respondent No.1 are still pending and any interference in the said proceedings at this stage is not warranted under law. 8. Heard and considered. 9. As has been already noted hereinbefore, the main grouse of the appellant is that the impugned proceedings filed by respondent No.2 before respondent No.1 are hopelessly barred by time, as the said proceedings have been initiated after 46 years of attestation of impugned mutations. Learned counsel for the appellant has relied upon the judgments of this Court passed in Rahman Labroo v. Rajab Labroo, 1982 SLJ 489 , and Wali Mohammad Magrey & anr. Vs. Ali Mohammad Gujree & Ors. (LPAOW No.29/2018 decided on 20.12.2021), wherein it has been laid down that for filing a revision petition under the provisions of Section 12 of the Land Revenue Act, the prescribed period of limitation is 90 days. It is urged that respondent No. 2 has not considered this aspect of the matter despite the appellant having moved an application for dismissal of the proceedings. The learned counsel has also contended that the observation of the District Judge in his judgement dated 23.05.1987 that mutations in question have attained finality has been upheld by the High Court in the revision petition filed against the said judgment, as such, it is not open to respondent No.1 to go into the validity of these mutations. It is further contended that the finding that the land in question was not leased out to Defence Authorities has also acquired finality and this aspect of the matter cannot be raised by respondent No.2 before respondent No.1. 10. It is further contended that the finding that the land in question was not leased out to Defence Authorities has also acquired finality and this aspect of the matter cannot be raised by respondent No.2 before respondent No.1. 10. Having noted the aforesaid contentions raised by the appellant, we are of the opinion that merits of these contentions should be left to be decided by the Financial Commissioner, Revenue/respondent No.1 herein, in the proceedings pending before him. Therefore, we are not expressing any opinion upon the merits of the contentions raised by the appellant and leave it open to respondent No.1 to take a decision on these contentions in accordance with law. We are also of the view that before going into the merits of the appeals/revisions filed by respondent No.2, the question of limitation and the question of maintainability of the proceedings needs to be addressed by respondent No.1 in the first instance and it is only if the said respondent finds that the proceedings are maintainable, it would be open for him to hear and decide the proceedings on merits. The impugned order passed by the learned Writ Court is clarified to the aforesaid extent. 11. The appeal is, therefore, disposed of in above terms. 12. A copy of this judgment be sent to respondent No.1 for information and compliance.