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2023 DIGILAW 467 (JK)

Mohamad Yousuf Mir v. State of J&K

2023-09-01

SANJAY DHAR

body2023
JUDGMENT : 1. The petitioner has challenged order dated 26.06.2014 passed by the J&K Special Tribunal as also order dated 22.06.1995 passed by Joint Commissioner Agrarian Reforms, Srinagar. A direction has also been sought upon respondents No.3 to 5 to identify the land sold to the petitioner and to restore the same to him. 2. According to the petitioner, his father Gulla Mir had purchased a piece of land measuring 04 kanals 04 marlas in terms of sale deed dated 15.10.1958 from one Habib Dar. The land in question was falling in Survey No.341/312 in Village Chandigam Tehsil Pahalgam. It is averred that under mutation No.134, entry in respect of the said land was made in favour of father of the petitioner. 3. It has been alleged by the petitioner that respondent No.7, who was a revenue official, in connivance with her relative, Mst. Raja, the predecessor-in-interest of respondents No.10 to 12, tampered with the revenue record and showed one Shri Ama Bhat, the predecessor-in-interest of private respondents No.7 to 9, as tenant in respect of the aforesaid land. Accordingly, mutation No.288 dated 26.08.1982 was attested in respect of the land in question and the land was shown in the tenancy of Ama Bhat with father of the petitioner as prospective owner. It has been further submitted that subsequently fraudulent mutation Nos.296 dated 22.01.1983 and 297 dated 03.02.1983 were attested whereby the private respondents were shown to be the tenants in possession of the land in question. It has been submitted that private respondents No.10 to 12 filed an appeal against mutation No.288 dated 26.08.1982 and the father of the petitioner was arrayed as a respondent in the said appeal. The mutation was set aside by the Joint Agrarian Reforms Commissioner, Anantnag, and on spot enquiry was directed. 4. It has been contended that since the land measuring 04 kanals 04 marlas in Khasra No.341/312 had been purchased by father of the petitioner, as such, provisions of Agrarian Reforms Act could not have been made applicable to the said land but the official respondents, in connivance with respondent No.7 taking advantage of illiteracy of the petitioner’s father, brought the land in question within the purview of Agrarian Reforms Act by showing private respondents as tenants in possession of the said land and, accordingly, mutation No.398 dated 25.12.1995 was attested. All these mutations were challenged by the petitioner by way of four appeals before the Additional Deputy Commissioner (Joint Agrarian Reforms Commissioner), Anantnag, but the same were dismissed by the said Authority vide order dated 07.08.2010 without application of mind and without appreciating the facts and circumstances of the case. 5. It has been contended that the delay in filing the appeal warranted to be condoned in the facts and circumstances of the case but the Joint Agrarian Reforms Commissioner did not appreciate the facts and circumstances of the case and dismissed the appeal. The petitioner preferred revision petition against the said order passed by the Joint Agrarian Reforms Commissioner but the same was dismissed by the Special Tribunal vide impugned order dated 26.06.2014. 6. The petitioner has challenged both the aforesaid orders i.e., orders passed by Joint Agrarian Reforms Commissioner and the order passed by J&K Special Tribunal, Srinagar, on the grounds that the mutations have been attested in a fraudulent manner so as to bring the land of the petitioner within the purview of Agrarian Reforms Act though the said land was purchased by father of the petitioner way back in the year 1958. It has been further submitted that the mutations have been attested at the back of the petitioner under the influence of respondent No.7 who was a revenue official. 7. The writ petition has been contested by the private respondents by filing a reply thereto. In their reply, they have submitted that the sale deed executed by Habib Dar in favour of father of the petitioner is a fraudulent and forged document. It has been submitted that there is an insertion in the said sale deed and the quantity of the land has been changed from 05 kanals 11 marlas to 07 kanals 17 marlas. It has been further submitted that the facts pleaded by the petitioner in the writ petition are contradictory, inasmuch as he has claimed that his father had purchased land measuring 04 Kanal 04 Marlas but as per the sale deed dated 15.10.1958, transaction of 07 Kanals and 17 Marlas is shown. It has been further submitted that the facts pleaded by the petitioner in the writ petition are contradictory, inasmuch as he has claimed that his father had purchased land measuring 04 Kanal 04 Marlas but as per the sale deed dated 15.10.1958, transaction of 07 Kanals and 17 Marlas is shown. It has been further submitted that as per the sale deed, the land under Survey No. 160/312 is the subject matter of the said sale deed but as per the case of the petitioner, the land under Survey No. 341/312 was purchased by his father regarding which mutation No. 134 dated 22.12.958 was attested. It has also been submitted that as per the mutation No. 134 ownership rights of Ahad with respect to land measuring 11 Kanals, 8 Marlas under Survey Nos. 361 and 307 have been recorded in the name of father of the petitioner but in mutation No. 134 dated 22.12.1958, there is no mention of Habib from whom father of the petitioner is allegedly to have purchased the land. According to the private respondents they have been in possession of the land in question from the times immemorial and it was the petitioner and his brother who had managed fraudulent entry in the revenue record vide Mutation No. 288 dated 26.08.1982 and got themselves recorded as prospective owners of the land. 8. According to the private respondents, the aforesaid mutation was challenged by way of an appeal before the Joint Agrarian Reforms Commissioner who, after visiting the spot and finding the said respondents in possession of the said land, set aside the order of mutation bearing No. 288 vide his order dated 22.06.1995 and remanded the case to the Tehsildar for holding enquiry on spot in presence of the parties and revenue officials. It has been submitted that after passing of the order dated 22.06.1995, an enquiry was conducted and another mutation bearing No.398 dated 25.12.1995 was recorded in the name of private respondents. Since the land was within the purview of the Agrarian Reforms Act, as such, in terms of mutation Order Nos. 296 dated 22.01.1983 and 297 dated 03.02.1983, the land was mutated in the name of private respondents. It is averred by the private respondents that the suit filed by the petitioner and his brother challenging these mutations was dismissed on 13.03.2006. whereafter the petitioner challenged mutation Nos. 296 dated 22.01.1983 and 297 dated 03.02.1983, the land was mutated in the name of private respondents. It is averred by the private respondents that the suit filed by the petitioner and his brother challenging these mutations was dismissed on 13.03.2006. whereafter the petitioner challenged mutation Nos. 296 dated 22.1.1983, 398 dated 25.12.1995, 297 dated 03.02.1983 and 288 dated 26.08.1982 before the Joint Agrarian Reforms Commission, Anantnag who vide order dated 05.08.2010 dismissed all the four appeals holding that the petitioner was never in possession of the land in question and it was the private respondents who were in possession of the said land. It has been submitted that all the mutations orders bearing Nos. 296, 297 and 398 have been passed by the relevant revenue authorities in accordance with law and the petitioner could not have challenged the same after the expiry of period of limitation. 9. I have heard learned counsel for the parties and perused the record. 10. If we have a look at the impugned order dated 22.06.1995, the Joint Agrarian Reforms Commissioner has set aside mutation No. 288 dated 26.08.1982 on the ground that the Naib Tehsildar under the provisions of the Agrarian Reforms Act is not competent to attest the mutation. It is in these circumstances that the Joint Agrarian Reforms Commissioner has held the impugned mutation order without jurisdiction and remanded the case back to the Tehsildar for holding a fresh enquiry. The order is perfectly is in accordance with law and the petitioner cannot have any grievance against the said order. 11. Now coming to order dated 05.08.2010 passed by the Joint Agrarian Reforms Commissioner, Anantnag whereby the petitioner and his brother have challenged mutations Nos. 296, 297 and 398 and 288, it has been observed in the said order that mutation No. 288 has already been set aside and fresh mutation No. 398 has been attested. The learned Commissioner has also observed that during spot inspection it was found that the land in question is in physical possession of the private respondents and the petitioners were never in possession of the said land. In addition to this, the learned Commissioner has also held that the appeal has been filed belatedly and no ground has been shown by the appellant (petitioner herein) for condonation of the delay. In addition to this, the learned Commissioner has also held that the appeal has been filed belatedly and no ground has been shown by the appellant (petitioner herein) for condonation of the delay. The said order has been upheld by the J&K Special Tribunal vide impugned order dated 26.06.2014. 12. So far as the scope of judicial review of the decisions of Tribunals and quasi-judicial authorities in writ proceedings, is concerned, the same has been discussed by the Supreme Court in the case of Hari Vishnu Kamath vs. Syed Ahmad Ishaque and others, AIR 1955 SC 233 . The Court has laid down the following propositions : (1) Certiorari will be issued for correcting errors of jurisdiction, as when an inferior Court or Tribunal acts without jurisdiction or in excess of it, or fails to exercise it. (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice. (3) The Court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the Court will not review findings of facts reached by the inferior Court or Tribunal, even if they be erroneous. (4) An error in the decision or determination itself may also be amenable to a writ of 'certiorari' if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on a clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by 'certiorari' but not a mere wrong decision. What is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. 13. What is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. 13. From a perusal of the aforesaid analysis of law on the subject, it is clear that the scope of judicial review of the decision of Tribunals and quasi-judicial authorities is limited to correcting the errors of jurisdiction from intervention in the case where there is violation of principles of natural justice, exercise of supervisory jurisdiction and not appellate jurisdiction and correction of manifest errors apparent on the face of the proceedings when it is based on disregard to provisions of law. 14. In the instant case, at the very outset it is to be noted that the pleadings put forth by the petitioner are confusing and contradictory, inasmuch as while the petitioner claims that his father has purchased land measuring 04 kanals 04 marlas under Khasra No.341/312 vide sale deed dated 15.10.1958 but copy of the sale deed shows that it is relating to land under Survey No.160/312 and the quantity of the land is shown as 07 kanals 17 marlas. Similarly, the revenue extracts annexed to the sale deed reflect the sale of land measuring 05 kanals 11 marlas and not 04 kanals and 04 marlas as claimed by the petitioner. According to the petitioner, pursuant to the sale deed dated 15.10.1958, mutation No.134 has been attested whereby name of his father was entered in the revenue record. However, a copy of the extract of mutation register bearing No.134 shows that the same pertains to land measuring 11 kanals and 08 marlas in Khasra Nos.361, 341/313 and 309. Thus, the documents annexed by the petitioner to his petition do not correspond to the case projected by him in his pleadings. 15. Apart from the above, the Joint Agrarian Reforms Commissioner, while deciding the appeal of the petitioner and his brother against the impugned mutations, has clearly held that upon spot inspection, he found that the land in dispute is in physical possession of the private respondents and that the petitioner and his brother were never in possession of the said land. Apart from the above, the Joint Agrarian Reforms Commissioner, while deciding the appeal of the petitioner and his brother against the impugned mutations, has clearly held that upon spot inspection, he found that the land in dispute is in physical possession of the private respondents and that the petitioner and his brother were never in possession of the said land. This is a finding of fact against which no judicial review is permissible in exercise of writ jurisdiction, particularly when the petitioner has not brought anything on record to the contrary. In fact, the petitioner is not sure as to the whereabouts of the land which as per his claim was purchased by his father from Habib Dar. This is clear from the prayer (B) made in the writ petition, whereby the petitioner has sought a direction upon respondents No.3 to 5 to identify the said land. 16. In the face of confusing nature of pleadings set forth by the petitioner and disputed questions of fact raised by him in the writ petition, that too without any supporting material, it cannot be stated that the respondent authorities have committed any error apparent on the face of the proceedings while passing the impugned orders. Therefore, this Court would refuse to exercise its powers of judicial review in the instant case. 17. The writ petition is, accordingly, dismissed.