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2024 DIGILAW 4 (JK)

Zaffar Ahmed, S/o Late Mohd Iqbal v. UT of J&K

2024-01-11

WASIM SADIQ NARGAL

body2024
ORDER : 1. Petitioners through the medium of instant petition are aggrieved of order dated 15.12.2023 passed by the respondent No. 1, whereby transfer application filed by the petitioners regarding transfer of appeal titled, “Abdul Hussain Vs. Zaffar Ahmed and ors.” from the Court of learned Additional Deputy Commissioner (with the powers of Commissioner Agrarian Reforms), Rajouri to any other Court of competent jurisdiction either in District Rajouri or at Jammu, was dismissed without providing an opportunity of being heard to the petitioners and also without appreciating the arguments projected by the learned counsel for the petitioners as well the grounds taken by the petitioners in the said transfer application. 2. The case of the petitioners is that the respondent No. 3 had filed time barred appeals, challenging the mutation Nos. 68 and 69 dated 12.11.1981 with respect to land falling under Khasra Nos. 778/246 measuring 104 Kanals and 06 Marlas situated at Village Mangalnar, Tehsil Manjakote, District Rajouri after a long period of more than 42 years and the respondent No. 2 without examining the contents of the appeal filed by the respondent No. 3 had issued notices to the petitioners in time barred appeals on 04.04.2023 and that too without deciding the issue of delay and laches in the first instance. The further case of the petitioners is that no such application was accompanying the time barred appeals so filed and without deciding the question of limitation, the order could not have been passed by the Court below. 3. Learned counsel for the petitioners submits that the appeals, which have been filed by the respondent No. 3 were time barred and without condoning the delay in filing of the statutory appeals, the appellate authority, i.e., respondent No. 2 has acted without jurisdiction. 4. Learned counsel for the petitioners also submits that the Presiding Officer was proceeding in time barred appeals mentioned (supra) and has passed the order dated 21.11.2023 regarding serving of notices upon the petitioners through police in clear cut violation of procedure envisaged in Civil Procedure Code (in short, the “CPC”), as there was no such provision for service of respondents through police at the first instance. He further submits that the respondent No. 1 has dismissed the transfer application vide impugned order dated 15.12.2023 without going into the allegations leveled against the Presiding Officer and also without appreciating the grounds urged in the transfer application. He further submits that the respondent No. 1 has dismissed the transfer application vide impugned order dated 15.12.2023 without going into the allegations leveled against the Presiding Officer and also without appreciating the grounds urged in the transfer application. 5. Learned counsel further submits that the respondent No. 1 without appreciating the arguments projected by the counsel appearing on behalf of the petitioners as well as the grounds mentioned in the said transfer application, has decided the said application in a haste manner and without application of mind and that too, without following the procedure, which is unheard of, being arbitrary and bad in the eyes of law. 6. The record further reveals that the respondent No. 3 had filed an appeal, challenging the mutation after a long period of more than 42 years, which was not signed by him and the respondent No. 2 with a malafide intention with a view to confer undue benefits on the private respondent and without condoning the delay in filing of the statutory appeals, initiated the proceedings and finally vide order dated 21.11.2023, the respondent No. 2 has issued notices to the petitioners through police in derogation to the mandate of the CPC. Under these backgrounds, the petitioners have filed the transfer application for seeking transfer of the appeals from the Court of learned Additional Deputy Commissioner (with the powers of Commissioner Agrarian Reforms), Rajouri to any other Court of competent jurisdiction either in District Rajouri or at Jammu, as the respondent No. 1 without appreciating the material facts on record and the grounds urged in the said application, in a hastely manner decided the said application. 7. Heard learned Senior counsel for the petitioners at length and perused the record. 8. Issue notice to the respondents. 9. On asking of the Court, Ms. Priyanka Bhat, assisting counsel to Mrs. Monika Kohli, Sr. AAG waives notice on behalf of respondent Nos. 1 and 2. 10. 7. Heard learned Senior counsel for the petitioners at length and perused the record. 8. Issue notice to the respondents. 9. On asking of the Court, Ms. Priyanka Bhat, assisting counsel to Mrs. Monika Kohli, Sr. AAG waives notice on behalf of respondent Nos. 1 and 2. 10. With the consent of learned counsel for the parties, the instant petition is taken up for final disposal and is disposed of, at this stage, by remanding the case back to respondent No. 1 to decide the transfer application of the petitioners afresh after providing opportunity of being heard to the petitioners and other contesting parties with respect to the grounds urged in the said application strictly under rules and as per law within a period of six weeks from the date a certified copy of this order is provided to the said respondent by the petitioners. As a necessary corollary, the order dated 15.12.2023 passed by the respondent No. 1 is quashed. 11. Parties are directed to appear before the respondent No. 1-Financial Commissioner (Revenue), J&K Jammu on 30.01.2024. 12. Till the matter is heard and decided by the respondent No. 1 with respect to transfer application, as directed by this Court, the proceedings pending before the Court of learned Additional Deputy Commissioner (with the powers of Commissioner Agrarian Reforms), Rajouri shall remain stayed. 13. Petition is, accordingly, disposed of alongwith connected CM.