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2023 DIGILAW 140 (JK)

Aziz Parra v. Union Territory of J&K

2023-04-07

PUNEET GUPTA, SANJEEV KUMAR

body2023
JUDGMENT : 1. This Appeal under Clause 12 of Letters Patent of this Court is directed against the judgment dated 23rd February 2023, passed by learned Single Judge of this Court ("Writ Court”) in WP(C) No. 1700/2022 titled as Aziz Para & Ors. v. UT of J&K & Ors., whereby the writ petition filed by appellants herein ("writ petitioners” hereinafter), challenging the order dated 23rd July, 2022 passed by Commissioner, Agrarian Reforms (Additional Deputy Commissioner) Budgam, has been dismissed. 2. Briefly stated, the facts leading to filing of this appeal are that land measuring 01 Kanal 01 Marla falling under Survey No. 671 and 1193/640 situate at Village Gudsathoo Tehsil and District Budgam ("subject land") was claimed to be in cultivating possession of writ petitioners in Kharif 1971. Since it was respondent no. 4, owner of the subject land, who was shown in the personal cultivation of the subject land, as such, the writ petitioners approached the concerned revenue officer for correction of Girdawari entry pertaining to Kharif 1971, so that they are enable to reap the benefits of J&K Agrarian Reforms Act ("Act of 1976”). On the request of writ petitioners and in presence of respondent no. 4, the mutating officer vide his Order No. 866, dated 4th December 1981, attested Sehti Kasht Mutation in favour of writ petitioners. Consequent upon correction of Khasra Girdwari pertaining to Kharif 1971, Mutation No. 877, dated 28th December, 1981 and Mutation No. 892, dated 20th February, 1982 under section 4&8 respectively of the Act of 1976 came to be attested in favour of writ petitioners. 3. Feeling aggrieved, respondent no. 4, namely, Ali Parra, challenged all the three mutations attested under the Act of 1976 before the Commissioner Agrarian Reforms (Additional Deputy Commissioner) Budgam ("Commissioner” for brevity), by way of three appeals instituted on 1st July, 2006. The appeals were allowed by the Commissioner vide order dated 25th June, 2011. The writ petitioners challenged the order of the Commissioner before the J&K Special Tribunal, Srinagar. The order of the Commissioner dated 25th June, 2011 was set-aside by the Tribunal vide order dated 11th July, 2014 and the matter was remanded to the Commissioner for passing a speaking order strictly under Order XLI Rule 3A of the J&K Civil Procedure Code. 4. On remand, the Commissioner took up the application filed by respondent no. The order of the Commissioner dated 25th June, 2011 was set-aside by the Tribunal vide order dated 11th July, 2014 and the matter was remanded to the Commissioner for passing a speaking order strictly under Order XLI Rule 3A of the J&K Civil Procedure Code. 4. On remand, the Commissioner took up the application filed by respondent no. 4 seeking condonation of delay under section 5 of the Limitation Act and allowed the same vide its order dated 1st June, 2016. The appeals were admitted for regular hearing. The appeals were heard on merit and vide order dated 23rd July 2022, the Commissioner allowed the appeals and set-aside all the three mutations attested by Tehsildar, Budgam, and the matter was remanded back to Tehsildar concerned for fresh inquiry and passing fresh orders after providing an opportunity of being heard to the parties. It is this order of the Commissioner dated 23rd July 2022, which was assailed by the writ petitioners in WP(C) No. 1700/2022. The impugned order in the writ petition was assailed by the writ petitioners on the ground that the Commissioner could not have set-aside the mutations, more particularly when Mutation No. 866, dated 4th December, 1981 in respect of correction of Girdawari of Kharif 1971 had been attested in presence of respondent no. 4. The order of the Commissioner was also assailed on the ground that the Commissioner could not have condoned the huge delay of 25 years that too when respondent no. 4 - appellant before the Commissioner, was a party to the mutation attested on 4th December, 1981. They submit that subsequent mutations attested under Section 4&8 of the Act of 1976 were only consequential to mutation no.866 of 1981. The Writ Court considered the rival contentions and vide judgment impugned dismissed the writ petition filed by the writ petitioners. It is how the writ petitioners are before us in this appeal. 5. Mr. J.H. Reshi, appearing for writ petitioners, assails the impugned judgment passed by the Writ Court primarily on the ground that the Writ Court has not appreciated the fact that the Commissioner had entertained the appeal against the mutations attested more than two decades back; that the correction of Girdawari pertaining to Kharif 1971 was corrected by Tehsildar Budgam in presence of respondent no. 4 and, therefore, it was not available to respondent no. 4 and, therefore, it was not available to respondent no. 4 to contend that he was not aware of the attestation of the mutations made about 20 years back; that the subject land was self-acquired property of respondent no. 4, which he had purchased and, therefore, finding of fact recorded by the Commissioner and upheld by the Writ Court to the extent that the writ petitioners and respondent no. 4 were co-sharers is factually incorrect; that the mutations attested under section 4&8 of the Act of 1976, are only a consequence of correction of Girdawari entry made in respect of Kharif 1971. 6. Per contra, Mr. Ateeb Kanth, appearing for respondent no. 4 submits that the writ petitioners having not challenged the order dated 1st June 2016, passed by the Commissioner, condoning the delay in filing the appeals, are estopped from contending that the Commissioner has erroneously condoned the delay. He argues that the writ petitioners and respondent no. 4 were recorded co-sharers qua subject land and, therefore, cultivation of one co-sharer is the cultivation of other co-sharer(s). He, therefore, submits that the writ petitioners being co-sharers could not have claimed personal cultivation of the subject land exclusively so as to claim the benefit of Section 4&8 of the Act of 1976. He urges us not to interfere with the well reasons judgment of the Writ Court, more so when it entails determination of disputed questions of fact. He relies on a Constitutional Bench judgment of the Supreme Court to urge that this Court in the exercise of writ jurisdiction may not enter into arena of determining the disputed questions of fact, more so when there are concurrent finding of fact returned by the Commissioner as well as Writ Court. 7. Heard learned counsel for parties and perused the material on record. 8. As would be evident from the Mutation No. 866, dated 4th December 1981, whereby the entry of Khasra Girdawari of Kharif 1971 qua subject land was corrected, respondent no. 4, who was entered into personal cultivation of the subject land was present. His thumb impression is affixed on the order of mutation. As a result of this mutation, the writ petitioners were shown to be in personal cultivation of the subject land instead of respondent no. 4. 4, who was entered into personal cultivation of the subject land was present. His thumb impression is affixed on the order of mutation. As a result of this mutation, the writ petitioners were shown to be in personal cultivation of the subject land instead of respondent no. 4. As a necessary consequence and by operation of Section 4&8 of the Act of 1976, the writ petitioners were first declared as prospective owners and then conferred the ownership rights. This too happened in the years 1981 and 1982 respectively. True it is that impugned mutations were not assailed by respondent no. 4 for more than two decades. It is not forth coming as to what provoked respondent no. 4 to file appeals in the year, 2006. It is surprising to note that the Commissioner earlier accepted the appeals and set-aside the mutation vide its order dated 25th June, 2011 without adverting to huge delay of two decades. 9. When the matter was taken up by the writ petitioners by way of a revision petition before the J&K Special Tribunal, the Tribunal noticing that the Commissioner had decided the appeals without formally condoning the delay, set-aside the order and remanded the case back for passing speaking order under Order XLI rule 2A, CPC. The Commissioner on 1st June, 2016 allowed the application for condonation of delay filed by respondent no. 4 under section 5 of the Limitation Act and admitted the appeals for regular hearing. It is equally true that this order condoning the delay was not assailed by writ petitioners and perhaps rightly as such orders are not amenable to revision before the Tribunal. Be that as it may, the matter was considered by the Commissioner on its merits. The Commissioner appears to be largely persuaded by his understanding that the writ petitioners and respondent no. 4 were co-sharers whereas the fact remains that subject land was purchased by respondent no. 4 and was his self-acquired property. The writ petitioners were not co-sharers with respondent no. 4. This is evident from bare reading of the mutations and the entries made in Khasra Girdawari of Kharif 1971. 10. We are aware that as per Khasra Girdawari entry of Kharif 1971, respondent no. 4 was entered in personal cultivation of the subject land. It is, however, on the writ petitioners approaching the revenue officer in presence of respondent no. This is evident from bare reading of the mutations and the entries made in Khasra Girdawari of Kharif 1971. 10. We are aware that as per Khasra Girdawari entry of Kharif 1971, respondent no. 4 was entered in personal cultivation of the subject land. It is, however, on the writ petitioners approaching the revenue officer in presence of respondent no. 4, that Khasra Girdawari entry was corrected by Tehsildar Budgam. This power is available to revenue officer not below the rank of Tehsildar under Rule 4 of the J&K Agrarian Reforms Rules, 1977. One could understand a situation where a person entered in records in personal cultivation objects to correction of entry pertaining to cultivation. Respondent no. 4 was present during attestation of Mutation No. 866 of 1981 and did not object to such correction. It is nowhere the case of respondent no. 4 that he was not present at the time of attestation of mutation or that his thumb impression has been affixed by some one other than him. In the absence of such a plea having been raised by respondent no. 4, he could not have challenged the mutations on the ground that the same were attested at his back. This aspect of the matter has not been considered either by Commissioner or by the Writ Court. 11. The finding of fact recorded by the Commissioner that the writ petitioners and respondent no. 4 were co-sharers, is also factually incorrect. From the reading of the mutations it would transpire beyond any doubt that respondent no. 4 had purchased the subject land from its erstwhile owner. The expression that finds place in the mutations and Khasra Girdawari of 1971, i.e., "mushtari” would mean "vendee" and not the co-sharer. This error in translating the word "mushtari” into a co-sharer has landed the Commissioner in serious error of law, which has resulted in miscarriage of justice. 12. Another finding of fact returned by the Commissioner that attesting officer, i.e., Tehsildar, Budgam, is some unknown officer, is not supported by any record. The revenue officer attesting the mutation is not supposed to write his name. The mutation has been attested under the seal and signature of concerned revenue officer and could not have been found fault on the ground that the attesting officer is not known to the Commissioner. The entire judgment passed by the Commissioner has proceeded on a wrong premise. The revenue officer attesting the mutation is not supposed to write his name. The mutation has been attested under the seal and signature of concerned revenue officer and could not have been found fault on the ground that the attesting officer is not known to the Commissioner. The entire judgment passed by the Commissioner has proceeded on a wrong premise. 13. We are aware that ordinarily this Court in exercise of writ jurisdiction should not interfere with the findings of fact recorded concurrently by two forums below but at the same time we cannot remain mute spectators where we find the findings of fact perverse having resulted in miscarriage of justice. 14. From the order passed by the Commissioner, we have not been able to discern any reason to condone the huge delay of 24 years in filing the appeals. Perhaps, the Commissioner was persuaded by argument of respondent no. 4 that mutations had been attested at his back and, therefore, was not aware during all these 24 years. The Commissioner has not made any effort to look at the mutation of correction of entry qua cultivation attested on 4th December 1981, which clearly bears the thumb impression of respondent no. 4. 15. Viewed from any angle neither order passed by Commissioner nor judgment of the Writ Court can be sustained in law. We find sufficient merit in the appeal and the same is, accordingly, allowed. The impugned order passed by the Writ Court dated 23rd February, 2023 as also order passed by the Commissioner dated 23rd July 2022, are set-aside. 16. Disposed of.