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2023 DIGILAW 659 (JK)

Ghulam Mohammad Pall v. Financial Commr

2023-10-21

RAJNESH OSWAL

body2023
JUDGMENT : 1. The petitioners are the sons whereas the respondent No.5 i.e. Mst. Azizi (now deceased) was the daughter of Mst. Rehti respectively. On 03.08.1980, the mutation bearing No.715 was attested after the demise of Mst. Rehti, who owned and possessed land in Village Narkara Budgam, in favour of the petitioners. It is stated that the abovementioned mutation was attested in favour of the petitioners with the consent of Mst. Azizi by the competent Revenue Officer in presence of Village Guard and other respectables of the village, more particularly the father of the petitioners and Mst. Azizi. The deceased-respondent No.5, after a period of more than three decades, assailed the mutation No.715 through the medium of an appeal before the respondent No.3. The petitioners claim to have questioned the jurisdiction of the respondent No.3 in entertaining the appeal in view of order No.536 of 1999. It is alleged by the petitioners that as the respondent No.3 was exerting pressure upon them to settle the issue with respondent No.5, the petitioners filed a transfer application before the respondent No.2 for transferring the appeal from the respondent No.3 to any other court of competent jurisdiction. The respondent No.2 vide order dated 19.11.2011 called for the para-wise report to the transfer application and also sought the record of appeal from the respondent No.3 by or before 12.12.2011. It is stated that on 28.12.2011, neither the para-wise report nor the record of appeal was available with the respondent No.2 but the respondent No.2 in absence of the para-wise report, not only allowed the transfer application and transferred the appeal to its own Court but subsequently in absence of the record of the appellate authority, also disposed of the same by accepting the appeal thereby setting aside the mutation No.715 and remanded the case back to respondent No.4 with a direction to pass a fresh mutation after de-novo enquiry. 2. The petitioners being aggrieved of order dated 28.12.2011 passed by the respondent No.2, assailed the same by way of a revision petition before the respondent No.1 and the respondent No.2 also made the reference to respondent No.1 in respect of the order passed in respect of disposal of appeal. The respondent No.1 by virtue of order dated 08.08.2017, set aside mutation No.715 dated 03.08.1980 and disposed of the matter with a direction to the respondent No.4 to conduct de-novo enquiry and pass fresh orders. The respondent No.1 by virtue of order dated 08.08.2017, set aside mutation No.715 dated 03.08.1980 and disposed of the matter with a direction to the respondent No.4 to conduct de-novo enquiry and pass fresh orders. By virtue of the same order, the respondent No.1 also directed that the order dated 08.08.2017 shall also result in disposal of the appeal preferred by the respondent No.5. 3. The petitioners through the medium of present petition have impugned the order dated 08.08.2017 on the following grounds : (I) That the respondent No.1 has not considered the issue that the respondent No.5 out of her free will, volition and without any force had consented for attestation of mutation No.715 dated 03.08.1980 but after a gap of more than 32 years, she had preferred an appeal, no doubt with an application seeking condonation of delay but the respondent No.1 did not consider this aspect of the matter; (II) That the respondent No.1 has erroneously held that surrender of rights before a revenue officer is not recognized mode of transfer under any prevalent law and the argument that the impugned mutation being a consented one is covered under Section 96 of CPC, does not hold good, is contrary to the judgment passed in case titled ‘Khati & Ors. v. Ali Mohd. Sofi & Anr. [ 2014 (4) JKJ 106 ]; (III) That the observation of respondent No.1 that void and illegal order can be challenged at any time and no period of limitation can be invoked to perpetuate such illegality, is contrary to the decision of the Hon’ble Division Bench in LPA No.149/2013 titled “Inhabitants of Village Deru vs. State of J&K and others”; 4. The respondent No.5 has filed the response stating therein that the petitioners and respondent No.5 are entangled in civil litigation pending before the Court of learned Sub Judge, Budgam, and the learned Sub-Judge, Budgam, on 03.09.2012, in the suit filed by the respondent No.5 against the petitioners, has restrained the petitioners from alienating/transferring the suit property and from creating third party interest. It is stated that the petitioners have concealed this material fact from this Court. It is further stated that the respondent No.5 was never summoned or heard by the mutating officer and any thumb impression alleged to have been affixed by the respondent No.5 is fake with the sole aim to deprive her to inherit her property. It is stated that the petitioners have concealed this material fact from this Court. It is further stated that the respondent No.5 was never summoned or heard by the mutating officer and any thumb impression alleged to have been affixed by the respondent No.5 is fake with the sole aim to deprive her to inherit her property. It is also averred by the respondent No.5 that the transfer of property is permissible only by adhering to the mandate of Transfer of Property Act read with Section 17 of the Registration Act and any transfer in violation of the Act (supra) is bad in law. 5. Mr. Mian Tufail, learned counsel for the petitioners, vehemently submitted that the respondent No.1 in the impugned order has commented upon the mode and manner in which the respondent No.2 had passed two orders on the same date with regard to same subject matter but the respondent No.1 too has exceeded its jurisdiction by exercising the revisional jurisdiction when only the issue to be adjudicated upon by the respondent No.1 was in respect of the orders passed by the respondent No.2. He further submits that though the Financial Commissioner is vested with the powers of revision but once the respondent No.5 had availed the remedy of appeal accompanied with an application seeking condonation of delay and the order passed by the respondent No.2 in the transfer application was the subject matter of adjudication before the respondent No.1, it was not open for the respondent No.1 to exercise the revisional jurisdiction in respect of mutation attested in the year 1980 by completely ignoring the fact that there was a huge delay of 32 years. 6. Per contra, Mr. M. Amin Khan, learned counsel for the legal representatives of Mst. Azizi - the deceased-respondent No.5, argued that the petitioner has concealed the material facts from this Court in respect of the suit preferred by Mst. Azizi against the petitioners qua the property which was the subject matter of mutation No.715 and in respect of which, the Court of learned Sub Judge, Budgam, had issued the restraint order in respect of alienating or creating any third interest. He further argued that the mutation was not attested in accordance with law and the respondent No.1 has rightly set aside the order as any transfer of immovable property, is required to be in accordance with Transfer of Property Act. 7. He further argued that the mutation was not attested in accordance with law and the respondent No.1 has rightly set aside the order as any transfer of immovable property, is required to be in accordance with Transfer of Property Act. 7. Heard and perused the record. 8. The perusal of the order impugned reveals that respondent No.1 has observed that two contradictory orders passed by the respondent No.2 on the same date amounts to non-application of mind. Now, the issue that is required to be considered by this Court is whether the respondent No.1 has exercised the revisional jurisdiction while setting aside the mutation bearing No. 715 attested on 03.08.1980 in accordance with law. 9. It is an admitted fact that the respondent No.5 assailed the mutation No.715 dated 03.08.1980 before the respondent No.3 through the medium of an appeal, the transfer of which was sought by the petitioners by filing a transfer application before the respondent No.2 but the respondent No.2 in the transfer application passed an order, thereby not only transferring the appeal to itself but also set aside the mutation by virtue of order dated 28.12.2011. The petitioners filed the revision petition against the order dated 28.12.2011 before the respondent No.1 and the respondent No.2 also made a reference to the respondent No.1 in respect of order dated 28.12.2011. Now the respondent No.1 was seized of two matters i.e. the revision petition preferred by the petitioners against the order dated 28.12.2011 and the reference dated 28.12.2011 made by respondent No.2 to respondent No.1. The respondent No.2 had allowed the appeal which was, admittedly, time barred but was accompanied with an application seeking condonation of delay. The respondent No.1 quashed both the orders passed by respondent No.2 but in exercise of revisional jurisdiction set aside mutation No.715 dated 03.08.1980. The Financial Commissioner has been vested with the power of revision in terms of section 15 of the Land Revenue Act but the issue is whether he could have exercised revisional jurisdiction particularly in view of expression “at any time” used in section 15(1) of the Land Revenue Act, even after three decades of attestation of mutation. The Division Bench of this court in “Wali Mohd. Magrey & Anr. V. Ali Mohd. Gujree”, 2022 (1) JKJ[HC] 307, has held as under : 17. The Division Bench of this court in “Wali Mohd. Magrey & Anr. V. Ali Mohd. Gujree”, 2022 (1) JKJ[HC] 307, has held as under : 17. Now that we have come to a definite conclusion that a revision arising out of the provisions of the Land Revenue Act under Section 15 thereof, initiated at the instance of an aggrieved party, would attract the law of limitation, the judgments of the learned Single Benches, which hold to the contrary, expressing conflicting view, would continue to baffle the revenue authorities and the legal practitioners. (emphasis added) Thus, it is evident that the Division Bench of this Court has held that the law of limitation would be applicable, if the revisional powers are initiated at the instance of the aggrieved party. 10. In the case at hand, the revisional power has been exercised by the respondent No.1 suo motu after 37 years of the attestation of mutation. In State of H.P. v. Rajkumar Brijender Singh, (2004) 10 SCC 585 , Apex Court has held as under : 6. We are now left with the second question which was raised by the respondents before the High Court, namely, the delayed exercise of the power under sub-section (3) of Section 20. As indicated above, the Financial Commissioner exercised the power after 15 years of the order of the Collector. It is true that sub-section (3) provides that such a power may be exercised at any time but this expression does not mean there would be no time-limit or it is in infinity. All that is meant is that such powers should be exercised within a reasonable time. No fixed period of limitation may be laid but unreasonable delay in exercise of the power would tend to undo the things which have attained finality. It depends on the facts and circumstances of each case as to what is the reasonable time within which the power of suo motu action could be exercised. No fixed period of limitation may be laid but unreasonable delay in exercise of the power would tend to undo the things which have attained finality. It depends on the facts and circumstances of each case as to what is the reasonable time within which the power of suo motu action could be exercised. For example, in this case, as the appeal had been withdrawn but the Financial Commissioner had taken up the matter in exercise of his suo motu power, it could well be open for the State to submit that the facts and circumstances were such that it would be within reasonable time but as we have already noted that the order of the Collector which has been interfered with was passed in January 1976 and the appeal preferred by the State was also withdrawn sometime in March 1976. The learned counsel for the appellant was not able to point out such other special facts and circumstances by reason of which it could be said that exercise of suo motu power after 15 years of the order interfered with was within a reasonable time. That being the position in our view, the order of the Financial Commissioner stands vitiated having been passed after a long lapse of 15 years of the order which has been interfered with. Therefore, while holding that the Financial Commissioner would have power to proceed suo motu in a suitable case even though an appeal preferred before the lower appellate authority is withdrawn, maybe, by the State. Thus the view taken by the High Court is not sustainable. But the order of the Financial Commissioner suffers from the vice of the exercise of the power after unreasonable lapse of time and such delayed action on his part nullifies the order passed by him in exercise of power under sub-section (3) of Section 20. (emphasis added) 11. It would also be proper to take note of the observations made by the Hon’ble Apex Court in ‘Collector v. D. Narsing Rao’, (2015) 3 SCC 695 , where in it has been held as under : 31. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. To sum up, delayed exercise of revisional jurisdiction is frowned upon because if actions or transactions were to remain forever open to challenge, it will mean avoidable and endless uncertainty in human affairs, which is not the policy of law. Because, even when there is no period of limitation prescribed for exercise of such powers, the intervening delay, may have led to creation of third-party rights, that cannot be trampled by a belated exercise of a discretionary power especially when no cogent explanation for the delay is in sight. Rule of law it is said must run closely with the rule of life. Even in cases where the orders sought to be revised are fraudulent, the exercise of power must be within a reasonable period of the discovery of fraud. Simply describing an act or transaction to be fraudulent will not extend the time for its correction to infinity; for otherwise the exercise of revisional power would itself be tantamount to a fraud upon the statute that vests such power in an authority. (emphasis added) 12. From the law laid down by the Hon’ble Supreme Court it is clear that even when there is no period of limitation prescribed for exercising such power, the same may be exercised within the reasonable period. The perusal of the order impugned reveals that the respondent No.1 has observed that the mutation impugned reveals that the same has been attested in presence of the respondent, village guard, besides others. The respondent No.1 has set aside the mutation because any such surrender of rights is not recognized mode of transfer under any prevalent law. The perusal of the order impugned reveals that the respondent No.1 has observed that this order shall not be read against the transaction that has been made by the petitioners with regard to the subject matter of impugned mutation. The respondent No.1 has not adverted to the issue of limitation at all perhaps because of the reason that as per the respondent No.1, the mutation was void ab-initio. Thus, the respondent No.1 by exercising power of revision, suo-motu after 37 years of attestation of mutation, has exceeded its jurisdiction while upsetting the mutation bearing No. 715 attested on 03.08.1080, more particularly when the remedy of appeal was already availed by the respondent No.5 and the said appeal was accompanied with application for condonation of delay. Thus, the respondent No.1 by exercising power of revision, suo-motu after 37 years of attestation of mutation, has exceeded its jurisdiction while upsetting the mutation bearing No. 715 attested on 03.08.1080, more particularly when the remedy of appeal was already availed by the respondent No.5 and the said appeal was accompanied with application for condonation of delay. The order impugned, as such, is not sustainable in the eyes of law. 13. The contention of the learned counsel for respondent No. 5 that the petitioners have concealed the factum of the pendency of the suit between the contesting parties is of no consequence. When the reference was made by the respondent No.2 to the respondent No.1 vide order dated 28.12.2011, the respondent No.5 ought to have brought the factum of the pendency of the suit to the notice of the respondent No.1. Once predecessor-in-interest of the respondent No.5 did not bring to the notice of respondent No.1 the factum of pendency of the suit, the petitioners cannot be blamed for non-disclosure of the suit before this court in the writ petition. 14. The other contention of the learned counsel for respondent No. 5 that mutation amounts to transfer of property is also misconceived, as it is settled law that the mutation does not confer any title of the property. The civil court is already seized of the matter in respect of the rights of the parties qua the estate of Mst. Rehti and any decision qua the rights of the contesting parties shall be binding on the Revenue Authorities. 15. In view of the above, that the impugned order dated 08.08.2017 passed by respondent No.1 is quashed to the extent of setting aside of mutation No.715 dated 03.08.1980 by respondent No.1 and the disposal of appeal preferred by the respondent No.5. As the new officer has joined the office of the respondent No.3, therefore the transfer application filed by the petitioners stands dismissed. The respondent No.3 is directed to decide the application seeking condonation of delay in accordance with law, without getting influenced by any observation, either made by respondents No.1 and 2 or by this Court. Any order made by the Revenue Authorities shall remain subject to outcome of the civil suit pending between the parties.