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2023 DIGILAW 181 (JK)

Mohan Lal v. State of J&K

2023-05-09

JAVED IQBAL WANI

body2023
JUDGMENT : 1. Through the medium of instant petition filed under Article 226 of the Constitution of India, the petitioners seek quashment of order dated, 23.08.2016, passed by the respondent 3 herein along with the order dated, 05.02.2016, passed by the respondent 2 herein. 2. The facts giving rise to the filing of the instant petition as emerging therefrom would reveal that the respondent 5 to 9 herein filed a revision petition before respondent 3 herein against Mutation No. 510, dated 30.09.1998, having been attested in favour of the respondent 1 to 3 being petitioners herein on multiple grounds urged in the revision petition. The said revision petition came to be contested by the respondents -petitioners herein and consequently the same came to be allowed by the respondent 3 in terms of order dated 05.02.2016, and while allowing the same, a reference thereof came to be made by the respondent 3 to respondent 2 in terms of Section 15 sub-section (3) of the J&K Land Revenue Act, Svt. 1996. 3. Being aggrieved of the order dated, 05.02.2016, supra passed by the respondent 3 whereby the impugned mutation 510 had been set-aside and reference made to the respondent 2, the respondents-petitioners herein also filed an independent revision petition calling in question the order of respondent 3, dated 05.02.2016, supra. The respondent 2 upon considering the reference order dated, 05.02.2016, as also the revision petition supra filed against the said reference order by the respondents-petitioners herein passed impugned order dated, 23.08.2016, and the respondent 2 while on one hand allowed the reference made by the respondent 3 in terms of order dated 05.02.2016, on the other hand dismissed the revision petition filed by the respondents-petitioners herein against the order dated, 05.02.2016. 4. Both the orders dated, 05.02.2016 and 23.08.2016, are being challenged in the instant petition by the petitioners on the grounds urged in the petition. 5. Objections to the petition have been filed by the respondents opposing the contentions raised and grounds urged therein the petition. Heard learned counsel for the parties and perused the record. 6. Mr. 4. Both the orders dated, 05.02.2016 and 23.08.2016, are being challenged in the instant petition by the petitioners on the grounds urged in the petition. 5. Objections to the petition have been filed by the respondents opposing the contentions raised and grounds urged therein the petition. Heard learned counsel for the parties and perused the record. 6. Mr. K.S. Puri, appearing counsel for the petitioners while making his submission would contend that the impugned orders passed by the respondent 3 and 2 respectively have been passed overlooking the factual aspect of the matter, in that, the petitioners herein have had acquired the land in question pursuant to an agreement to sell and consequently got mutation attested thereof. Mr. Puri would further contend that the respondent 3, while entertaining the revision petition filed by the respondent 5 to 9, herein against the mutation No. 510, did not consider and appreciate the objections raised by the petitioners herein qua the maintainability of the revision petition as the respondent 5 to 9, herein have had a statutory remedy of appeal available under the Act of 1996. Mr. Puri would further contend that the respondent 2 and 3 also did not advert to the question of limitation prescribed for filing of the revision petition filed by the respondent 5 to 9 herein against the mutation in question and instead proceeded to decide the revision petitions overlooking the judgment passed by this Court in case titled as "Rakesh Khajuria & Anr. v. State & Ors." in LPAW No. 92/2002. 7. Mr. Pawan Kumar Manni appearing counsel for the respondent 5 to 9, while resisting and controverting the contentions raised by Mr. Puri would contend that the both respondent 2 and 3 passed the orders under challenge in accordance with law. Mr. Manni would further contend that the impugned mutation challenged before respondent no. 3 was not legally sustainable for having been attested in breach and violation of the provisions of the Agrarian Reforms Act, 1976, Evacuees (Administration of Property) Act, 2006, as also Standing Order 23-A and that, as such, the said mutation being nonest in the eyes of law could not come in the way of the respondents in challenging the same in the revision petition even after the expiry of period of limitation or else necessitated the availing of statutory remedy of appeal for the purpose. 8. 8. Admittedly, record tends to show that respondent 5 to 9 herein while throwing challenge to the mutation in question had pleaded before the respondent 3 that the said mutation have had been attested in respect of land measuring 3 kanals 15 marlas covered under Survey No. 1314/66, being their proprietary land as also in respect of State land measuring 1 kanals 3 marla, 6 kanals 8 marlas, 5 kanals 15 marlas, 4 kanals 8 marlas, 1 kanals 19 marlas and 6 kanals 2 marlas and also in respect of land measuring 1 kanals 15 marlas and 1 kanals 14 marlas being an evacuee land allotted to them and respondent 3 have had been alive to the said factual position while considering the revision petition and passing of impugned order dated, 05.02.2016. 9. Indisputably the authority who attested the mutation in question has overlooked this position and has not only observed the mechanism provided under Standing Order 23-A in general and Rule 36 made thereunder in particular which provide for attendance of parties for attestation of mutation in breach. Furthermore even otherwise also no such mutation could have been attested in view of Section 12 and 13 of the Agrarian Reforms Act, 1976. Not only that, the said authority had also failed to advert to the fact that the land in question in respect of which mutation was to be attested included a parcel of State Land and at the time of attestation of mutation no officer of the State was as well present even if it is assumed that such mutation could have been attested in respect of the said parcel of land. Further in respect of the parcel of evacuee land, the said mutation as well could not been attested in view of Section 3 of the Act of 2006, which provides for an overriding effect of the said Act over other laws in force inasmuch as in view of Section 35 of the Act and Circular No. Rev/LB/133/83-1, dated 03.10.1983, which inter alia has forbidden the attestation of a mutation by a revenue officer in respect of the land belonging to an evacuee without prior consultation and written consent of Evacuee Property Department. In totality of the circumstances what is manifest that the mutation 510 had been attested illegally by the attesting authority and, as such, same cannot but said to be non-est in law. In totality of the circumstances what is manifest that the mutation 510 had been attested illegally by the attesting authority and, as such, same cannot but said to be non-est in law. The contention of the counsel for the petitioners that the revisional forum ought not to have entertained the revision petition or else allowed the same in presence of a statutory remedy of appeal does not lend any support to the case of the petitioners, in that, the revisional jurisdiction provided under the provisions of the Land Revenue Act, Svt. 1996, has been held to be exercisable by the authority on well recognized grounds including the exercise jurisdiction, acting with material irregularity or illegally in the exercise of jurisdiction or passing of the orders or taking proceedings, causing failure of justice or all matters held to be read and understood in the context of said revisional power, by this Court in case titled as "Fata Alias Beeda v. Tasleema" reported in 1999 KLJ 238 . The contention that the revisionist respondent herein did not avail statutory remedy of appeal under the Act of 1996 and instead chose to file revision petition and that the respondents 2 and 3 wrongly entertained the said revision petition cannot said to be convincing and appealing in that the attesting authority patently had acted illegally and, as such, the availability of the remedy of appeal in the facts and circumstances of the case could not said to be a bar to the revisionist respondents herein in invoking the revisional jurisdiction of the revisional authority. Furthermore, the plea of limitation being raised by the counsel for the petitioners qua the revision filed by the respondents 5 to 9 herein before respondent no. 3 cannot be entertained now as the said plea had never been raised by the petitioners herein before respondent no. 3. 10. For what has been observed, considered and analyzed in the preceding paras, the impugned orders does not call for any interference more so in view of concurrent findings arrived at by respondents 2 and 3 in the matter. This Court, thus, is not inclined to exercise discretion in the matter. 11. Resultantly, petition fails and is accordingly dismissed along with all connected applications.