Research › Search › Judgment

J&K High Court · body

2023 DIGILAW 210 (JK)

Sanjeev Anthal v. J&K Special Tribunal Jammu

2023-05-29

PUNEET GUPTA, SANJEEV KUMAR

body2023
JUDGMENT : Sanjeev Kumar, J. 1. One Sh. Mehandi was the occupancy tenant of land measuring 32 kanals, 12 marlas underlying khasra No. 50 situate at village Batna, Tehsil Chenani, District Udhampur [“the subject land”]. It is claimed by the respondents [“the private respondents”] that” in the year 1968, they all migrated from village Dhanmasta Tehsil Banihal to village Batna and started cultivating the subject land as tenants under the occupancy tenant, namely Mehandi. The entry in the revenue record, however, continued in the name of Mehandi and his brother Titru. After inducting the private respondents as tenants, both Mehandi and Titru left the village and settled somewhere in village Kud. It is claimed that subsequent to the migration of Mehandi and Titru from village Batna, the private respondents came to be recorded in cultivating possession in the khasra girdwari of Rabi 1984. The private respondents approached Tehsildar Chenani for conferment of ownership rights upon them qua the subject land on the ground that they were in cultivating possession as tenants since 1970. They were, however, informed by the revenue Authorities that mutation No. 62 dated 29.08.1980 had already been attested in favour of Mehandi. This mutation was called in question by Chatter Singh, the predecessor-in-interest of respondents No. 7 to 12 by way of an appeal before the Additional Deputy Commissioner (with powers of Commissioner Agrarian Reforms), Udhampur [“ the Appellate Authority”]. The said appeal was filed against Sh. Panjabu son of Mehandi, who, by that time, had passed away. Some of the private respondents herein and the predecessor-in-interest of other respondents, were also arrayed as proforma respondents in the said appeal. 2. The aforesaid appeal was allowed by the Appellate Authority vide its judgment dated 27.10.2005 and the mutation order No. 62 dated 29.08.1980 was set aside. The matter was remanded to Tehsildar Chenani for conducting the de novo enquiry. It may be pertinent to note that one Udhay Chand was owner of subject land and on his sad demise, his estate devolved on his sons, namely Sukhdev Chand, Yashpal Chand, Sat Pal Chand and Ghulab Chand. The mutation of inheritance bearing No. 60 was attested on 30.09.1978. The recorded owner had not challenged mutation No. 62 dated 29.08.1980. Be that as it may, upon remand, the Tehsildar Chenani attested a fresh mutation bearing No. 126 dated 01.08.2006 and conferred ownership rights upon respondents 7 to 12. The mutation of inheritance bearing No. 60 was attested on 30.09.1978. The recorded owner had not challenged mutation No. 62 dated 29.08.1980. Be that as it may, upon remand, the Tehsildar Chenani attested a fresh mutation bearing No. 126 dated 01.08.2006 and conferred ownership rights upon respondents 7 to 12. This mutation was called in question by the appellant herein after more than five and half years by way of an appeal filed on 21.02.2012 before the Appellate Authority. The appeal was patently barred by limitation and there was no separate application seeking condonation of delay filed by the appellant. 3. The Appellate Authority vide its judgment and order dated 10.11.2006 allowed the appeal and set aside mutation No. 126 dated 27.05.2010 qua the subject land which order of the appellate Authority was called in question by respondents No. 4 to 6 and the predecessor-in-interest of respondents 7 to 13 before the J&K Special Tribunal [“the Tribunal”]. The Tribunal vide its order dated 16.02.2018 dismissed the revision petition. It is this order of the Tribunal which was challenged by respondents No. 4 to 12 before the learned Single Judge [“the Writ Court”]. The Writ Court, vide its judgment dated 07.05.2012, allowed OWP No.416/2018 titled “Heam Devi and others vs. J&K Special Tribunal and others” filed by the private respondents and set aside the order of Tribunal and the order of the Appellate Authority. This is how the appellant is before us in this appeal to seek setting aside the impugned judgment dated 07.05.2022 passed by the Writ Court. 4. Having heard learned counsel for the parties and perused the material on record, we find that the Writ Court has set aside both the orders, one passed by the Appellate Authority/Additional Deputy Commissioner, Udhampur and the other passed by the Tribunal primarily on the ground that the appellant herein had preferred an appeal against mutation No. 62 after a period of more than five and half years without making any formal application for condonation of delay. The Writ Court relied upon Rule 48 of the J&K Agrarian Reforms Rules, 1977 [“the Rules of 1977”] to come to the conclusion that the provisions of Code of Civil Procedure were applicable mutatis mutandis to all the appeals under the J&K Agrarian Reforms Act, 1976 [“the Act of 1976”]. The Writ Court relied upon Rule 48 of the J&K Agrarian Reforms Rules, 1977 [“the Rules of 1977”] to come to the conclusion that the provisions of Code of Civil Procedure were applicable mutatis mutandis to all the appeals under the J&K Agrarian Reforms Act, 1976 [“the Act of 1976”]. In short, the Writ Court accepted the writ petition filed by the private respondents on the solitary ground that, in the absence of formal application filed seeking condonation of delay, it was not open to the Appellate Authority to consider the appeal and dispose of the same on merits. The Writ Court also found similar fault in the order passed by the Tribunal. 5. We have considered the entire material in the light of relevant provisions of the Act and the Rules framed thereunder and we regret our inability to agree with the view taken by the Writ Court. 6. Having read all the relevant provisions and the case law on the subject, we are of the considered opinion that the Appellate Authority under the Act may condone the delay in filing the appeal if the appellant has shown sufficient cause for such delay. It is sufficient if the appellant, in the memo of appeal, gives sufficient reasons for delayed filing of the appeal and a formal application to be made separately to seek condonation of delay may not be mandatory. Under Section 21 of the Act of 1976, a person aggrieved by a final order of a Collector or a Revenue Officer of a class lower than that of a Collector is entitled to prefer an appeal to the Commissioner Agrarian Reforms having jurisdiction in the area to which the appeal relates. Section 22 of the Act of 1976 prescribes limitation for appeals and it lays down that the period of limitation shall be 60 days in the case of an appeal from the date of the order appealed from. Sub-section (2) of Section 22 of the Act of 1976, which is relevant for our purpose, reads thus: “22(2).Save as otherwise provided in sub-Section (1), the provisions of the Jammu and Kashmir Limitation Act, Samvat 1995 shall apply to appeals under this Act” 7. Sub-section (2) of Section 22 of the Act of 1976, which is relevant for our purpose, reads thus: “22(2).Save as otherwise provided in sub-Section (1), the provisions of the Jammu and Kashmir Limitation Act, Samvat 1995 shall apply to appeals under this Act” 7. From a reading of Section 22, in particular sub-Section (2) reproduced above, it is abundantly clear that, though there is no specific provision made in the Act of 1976 to provide for condonation of delay in filing the appeal under the Act of 1976, yet, by applying the Jammu and Kashmir Limitation Act, Svt. 1995, condonation of delay in filing the appeal may be claimed under section 5 of the Limitation Act by showing sufficient cause for delay. So far as Section 5 of the Limitation Act is concerned, it does not require filing of a formal application mandatorily, though the Court may, in appropriate case, insist for filing such application supported by an affidavit. Section 5 of the Limitation Act lays down that, an appeal or an application other than an application under any of the provisions of Order 21 of the Code of Civil Procedure may be admitted after the prescribed period of limitation if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period. Section 5 of the Limitation Act gives the Courts a discretion to entertain an appeal/application after the prescribed period of limitation and the condition precedent for exercise of such discretion is the existence of sufficient cause for not preferring the appeal/application within the prescribed period of limitation. 8. We are aware that, what is conferred by Section 5 of the Limitation Act on the Courts is a judicial discretion which ought to be exercised upon well known parameters. As is repeatedly held by the Supreme Court that the expression “sufficient cause” should be liberally construed to advance substantial justice. 9. From a reading of Section 5 of the Limitation Act, one would not find any requirement of filing a separate application seeking condonation of delay in filing an appeal/ application. There is, thus, no bar to the exercise of discretion by the Court/Tribunal to condone the delay in the absence of a formal application. 9. From a reading of Section 5 of the Limitation Act, one would not find any requirement of filing a separate application seeking condonation of delay in filing an appeal/ application. There is, thus, no bar to the exercise of discretion by the Court/Tribunal to condone the delay in the absence of a formal application. If the appellant or the applicant from the pleadings in the appeal or from the documents on record, is in a position to satisfy the Court that he was prevented by sufficient cause for not making the application or preferring the appeal within the time prescribed, the Court shall condone the delay without insisting for a formal application. 10. The Hon’ble Supreme Court in the recent judgment rendered in the case of Shesh Nath Singh and another vs. Baidyabati Sheoraphuli Cooperative Bank Ltd and another, (2021) 7 Supreme Court Cases 313, has, in paras (59) to (62) set the controversy at rest, which, for facility of reference, are reproduced hereunder: “59. The condition precedent for condonation of the delay in filing an application or appeal, is the existence of sufficient cause. Whether the explanation furnished for the delay would constitute “sufficient cause” or not would dependent upon facts of each case. There cannot be any straight jacket formula for accepting or rejecting the explanation furnished by the applicant/appellant for the delay in taking steps. Acceptance of explanation furnished should be the rule and refusal an exception, when no negligence or inaction or want of bona fides can be imputed to the defaulting party. 60. It is true that a valuable right may accrue to the other party by the law of limitation, which should not lightly be defeated by condoning delay in a routine manner. At the same time, when stakes are high, the explanation should not be rejected by taking a pedantic and hyper technical view of the matter, causing thereby irreparable loss and injury to the party against whom the lis terminates. The courts are required to strike a balance between the legitimate rights and interests of the respective parties. 61. Section 5 of the Limitation Act, 1963 does not speak of any application. The courts are required to strike a balance between the legitimate rights and interests of the respective parties. 61. Section 5 of the Limitation Act, 1963 does not speak of any application. The Section enables the Court to admit an application or appeal if the applicant or the appellant, as the case may be, satisfies the Court that he had sufficient cause for not making the application and/or preferring the appeal, within the time prescribed. Although, it is the general practice to make a formal application under Section 5 of the Limitation Act, 1963, in order to enable the Court or Tribunal to weigh the sufficiency of the cause for the inability of the appellant/applicant to approach the Court/Tribunal within the time prescribed by limitation, there is no bar to exercise by the Court/Tribunal of its discretion to condone delay, in the absence of a formal application. 62. A plain reading of Section 5 of the Limitation Act makes it amply clear that, it is not mandatory to file an application in writing before relief can be granted under the said section. Had such an application been mandatory, Section 5 of the Limitation Act would have expressly provided so. Section 5 would then have read that the Court might condone delay beyond the time prescribed by limitation for filing an application or appeal, if on consideration of the application of the appellant or the applicant, as the case may be, for condonation of delay, the Court is satisfied that the appellant/applicant had sufficient cause for not preferring the appeal or making the application within such period. Alternatively, a proviso or an Explanation would have been added to Section 5, requiring the appellant or the applicant, as the case may be, to make an application for condonation of delay. However, the Court can always insist that an application or an affidavit showing cause for the delay be filed. No applicant or appellant can claim condonation of delay under Section 5 of the Limitation Act as of right, without making an application”. 11. In view of the aforesaid clear position emerging from reading of Section 22 of the Act read with Section 5 of the Limitation Act and the law expounded by the Hon’ble Supreme Court in Sesh Nath Singh’s case (supra), no difference can be said to have been made by Rule 48 of the Rules of 1977. 11. In view of the aforesaid clear position emerging from reading of Section 22 of the Act read with Section 5 of the Limitation Act and the law expounded by the Hon’ble Supreme Court in Sesh Nath Singh’s case (supra), no difference can be said to have been made by Rule 48 of the Rules of 1977. Rule 48, for facility of reference, is reproduced hereunder: “48. Provisions of the Code of Civil Procedure to apply to appeals- The provisions of the Code of Civil Procedure, Samvat 1977 relating to appeals from original decrees shall, except as provided hereinafter in this Chapter and subject to the provisions of the Act, apply mutatis mutandis to all appeals under the Act”. 12. From a reading of Rule 48 reproduced above, it is evident that the provisions of CPC as apply to appeals against the original decrees shall apply mutatis mutandis to all appeals under the Act of 1976, but this is subject to the provisions of the Act itself. That being the position clearly emerging from reading of Rule 48, Section 22 has an overriding effect on Rule 48. It would, thus, mean that the procedural provisions laid down in the CPC for filing appeals against the original decrees would apply mutatis mutandis to all appeals under the Act, but, subject to the provisions of Section 22 of the Act. 13. It is true that under Order 41 Rule 3-A, it is laid down that when an appeal is presented after the period of limitation prescribed therefor, it shall be accompanied by an application supported by an affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. 14. At this juncture, we would like to set out Rule 3-A of Order 41 herein below as well. “3-A. APPLICATION FOR CONDONATION OF DELAY- (1) When a appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. “3-A. APPLICATION FOR CONDONATION OF DELAY- (1) When a appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within such period. (2) If the Court sees no reason to reject the application without the issue of a notice to the respondent, notice hereof shall be issued to the respondent and the matter shall be finally decided by the Court before it proceeds to deal with the appeal under Rule 11 or Rule 13, as the case may be. (3) Where an application has been made under sub-rule (1) the Court shall not made an order fact the stay of execution of the decree against which the appeal is proposed to be filed so long as the Court does not, after hearing under Rule 11 decide to hear the appeal”. 15. From a reading Order 21 Rule 3-A, we find that it uses the word “shall” which would clearly imply that the requirement to file an application supported by an affidavit is mandatory, but, as held by the Supreme Court in the case of H. Dohil Constructions Co.(P) Ltd vs. Nahar Exports Ltd, (2015) 1 SCC 680 , such peremptoriness does not foreclose a chance for the Appellant to rectify the mistake, either on his own or being pointed out by the court. In an appropriate case, the Court or the Tribunal may return the memorandum of appeal which is not accompanied by an application for condonation of delay as defective. In short, it is trite that even where the belated appeal against the original decree is not accompanied by a formal application seeking condonation of delay, it is not necessary or even appropriate to dismiss the appeal, rather, it is desirable that the appeal is returned to the appellant to remove the defect by filing a formal application supported by an affidavit setting forth the facts on which the appellant relies to satisfy the Court that he had sufficient cause for not preferring the appeal within the prescribed period. The Supreme Court in the case of State of M.P and another vs. Pardeep Kumar and another, (2000) 7 SCC 372 , has clarified the legal position, in paras (10) and (11) which, for facility of reference, are reproduced hereunder: “10. What is the consequence if such an appeal is not accompanied by an application mentioned in sub-rule (1) of Rule 3-A? It must be noted that the Code indicates in the immediately preceding rule that the consequence of not complying with the requirements in Rule 1 would include rejection of the memorandum of appeal. Even so, another option is given to the court by the said rule and that is to return the memorandum of appeal to the appellant for amending it within a specified time or then and there. It is to be noted that there is no such rule prescribing for rejection of memorandum of appeal in a case where the appeal is not accompanied by an application for condoning the delay. If the memorandum of appeal is filed in such appeal without accompanying the application to condone delay the consequence cannot be fatal. The court can regard in such a case that there was no valid presentation of the appeal. In turn, it means that if the appellant subsequently files an application to condone the delay before the appeal is rejected the same should be taken up along with the already filed memorandum of appeal. Only then the court can treat the appeal as lawfully presented. There is nothing wrong if the court returns the memorandum of appeal (which was not accompanied by an application explaining the delay) as defective. Such defect can be cured by the party concerned and present the appeal without further delay. 11. No doubt sub-rule (1) of Rule 3-A has used the word "shall". It was contended that employment of the word "shall" would clearly indicate that the requirement is peremptory in tone. But such peremptoriness does not foreclose a chance for the appellant to rectify the mistake, either on his own or being pointed out by the court. The word "shall" in the context need be interpreted as an obligation case on the appellant. Why should a more restrictive interpretation be placed on the sub-rule? The rule cannot be interpreted very harshly and make the non-compliance punitive to appellant. The word "shall" in the context need be interpreted as an obligation case on the appellant. Why should a more restrictive interpretation be placed on the sub-rule? The rule cannot be interpreted very harshly and make the non-compliance punitive to appellant. It can happen that due to some mistake or lapse an appellant may omit to file the application (explaining the delay) along with the appeal” 16. That apart, Rule 48 of the Rules of 1977 uses the expression “mutatis mutandis” which expression means “all necessary changes having been made” or with the necessary changes”. The phrase indicates that, whilst, it may be necessary to make some changes to take account of different situations, the main point remains the same. In Merriam-Webster.com dictionary, the expression “mutatis mutandis” is defined as “with the necessary changes having been made or with the respective differences having been considered. As per the Cambridge Dictionary, the expression “mutatis mutandis” is used “when comparing two or more things to say that although changes will be necessary in order to take account of different situations, the basic point remains the same”. 17. When we appreciate the provisions of Rule 48 of Rules of 1977 in the context explained above, we clearly find that the applicability of provisions of Rule 48 to the appeals under the Act of 1976 is subject to the provisions of the Act and would be made applicable “mutatis mutandis”. Section 22 of the Act makes the Limitation Act applicable to the appeals under the Act and, therefore, if an appeal under the Act is filed beyond the prescribed period of limitation, the appellant must show that he was prevented by sufficient cause from filing the appeal within the prescribed period of limitation in terms of Section 5 of the Limitation Act. The condonation of delay in filing the appeal is available to the appellant not under any specific provisions made under the Act of 1976, but under section 5 of the Limitation Act made applicable by virtue of sub-Section (2) of Section 22 of the Act. As explained above and is authoritatively held by the Supreme Court, no formal application is required for condonation of delay. 18. As explained above and is authoritatively held by the Supreme Court, no formal application is required for condonation of delay. 18. In one of the cases, a Single Bench of this Court, in the case of Suraj Parkash vs. Hon’ble Member J&K Special Tribunal, 1996 SLJ 285 has even gone to the extent of holding that when mutation is attested ex parte without notice to the affected persons, such mutation is non-est in the eye of law and, therefore, there is no legal bar for condonation of delay in filing the appeal even in the absence of a separate application made therefor. 19. Per contra, the judgment cited by Mr. Thakur, learned counsel for the appellant rendered in the case of Ragho Singh vs. Mohan Singh and others, (2001) 9 SCC 717 is not exactly on the point. The judgment has been rendered in the peculiar facts of the case. In the said case, there was neither an application for condonation of delay, nor was it the case where the necessary facts had been set out in the appeal justifying the delay in filing the appeal. The Board of Revenue, before which the question of limitation was agitated, was of the view that, though there was no formal application for condonation of delay filed before the Appellate Authority i.e Additional Collector, yet, the delay shall be deemed to have been condoned. It is in this context, the Supreme Court upheld the judgment of High Court setting aside the order of Board of Revenue. However, the facts of the instant case are entirely different and the legal position that would apply to the facts and circumstances of the case has already been explained above. 18. We have gone through the memorandum of appeal which was presented by the appellant herein before the Appellate Authority i.e the Additional Deputy Commissioner, Udhampur and we find that the appellant has, at more than one place, submitted that the order of impugned mutation was passed at his back and that the subject land was barren and, therefore, he filed the appeal as and when it came to his notice that some mutation has been attested. Whether or not, the cause shown by the appellant is sufficient cause justifying condonation of delay, is a matter to be considered and determined by the Appellate Authority, but, the appellant cannot be non-suited solely on the ground that he had not filed a separate formal application for seeking condonation of delay in filing the appeal as is mandated by Rule 3-A of Order 41 of CPC. 19. For condonation of delay in filing the appeal, in terms of Section 5 of the Limitation Act, the existence of sufficient cause is a sine quo non. If the appellant demonstrates the existence of sufficient cause which prevented him from filing the appeal within the period of limitation by reference to the averments made in the memorandum of appeal and/or supported by relevant material, the Court or the Tribunal can exercise its discretion and condone the delay without insisting for filing of formal application seeking condonation of delay. 20. Even if we were to accept the contention of Mr. Thakur that there was no appeal before the Appellate Authority without there being an application seeking condonation of delay, yet, we say that the defect was a curable one and the appeal ought to have been returned to the appellant for filing an application setting forth the facts constituting sufficient cause which had prevented the appellant for filing the appeal within time. 21. In the light of discussion made and the legal position adumbrated hereinabove, we are of the considered opinion that the judgment passed by the Writ Court is not sustainable in law. Accordingly, this appeal is accepted. While setting aside the impugned order dated 16.02.2018 passed by the Tribunal and the order dated 10.11.2006 passed by the Appellate Authority/Additional Deputy Commissioner, Udhampur, we remand the case back to the Appellate Authority/Additional Deputy Commissoner, Udhampur to consider and dispose of the plea of the appellant seeking condonation of delay in the first instance before embarking upon to decide the appeal on merits if required. The appellate Authority may, for deciding the plea of limitation, take into consideration the averments made by the appellant in the memo of appeal or call for additional material to substantiate the same. The judgment passed by the Writ Court is modified to the aforesaid extent. Appeal stands disposed of as such.