Akhtara vs State of J&K & Ors.

Invoking powers of revision under section 15 of Land Revenue Act, learned Financial Commissioner has set aside two mutations, one bearing

no. 2855 dated 25.03.1999 and another no. 2853 dated 09.12.1999. Two revision petitions against the said two mutations were instituted on

10.07.2002.

The counsel for the petitioner would contend that both the revisions were barred by limitation should have been dismissed as such as warranted

under Section 3 of the Limitation Act. Instead, Financial Commissioner has held that the issue of limitation is irrelevant. Though mutations

admittedly have been attested at the back of the respondents but they had the knowledge which they had gained while pursuing the case pending in

the Court of Munsiff, Chadoora, petitioner has sought issuance of writ of certiorari for quashing the order of learned Financial Commissioner.

Counsel appearing for the Respondents 2 to 6 contended that no period of limitation is prescribed for filing the revision. Power vested with

Financial Commissioner has an object of undoing the wrong so as to bring record in tune with the factual requirements. In support of his

contention, learned counsel has relied on the judgments of this Court being reported in 2005 (II) SLJ 716, 2001 SLJ 86, 2003 (II) SLJ 509 and

2005 SLJ 767.

Before addressing as to whether any period of limitation is prescribed for filing revision under the provisions of Land Revenue Act, noticing of

factual aspect is indispensable.

One Ama Khanday has died survived by five daughters and the widow. Succession mutation No. 2853 has been attested on 09.12.1999

whereunder legacy of the deceased has been attested to the extent of 1/8th in favour of Mst. Khatiji, widow and rest in favour of Mst. Akhtara

(petitioner). In the mutation, Patwari concerned has recorded Pedigree table showing Mst. Akhtara as only daughter. Tehsildar with eyes shut has

attested the mutation. Both Tehsildar and Patwari have acted in derogation of STANDING ORDER 23A. The mutation on the face of it has been

illegally attested that too at the back of the respondents (legal heirs of the deceased). The mutation is neither covered by personal law nor covered

by customary law.

Another mutation no. 2855 attested on 25.03.1999 has also been attested at the back of the respondents (legal heirs) whereunder 6 kanals and

15 marlas of land covered under Survey No. 1366 based on oral gift has been attested that too in a casual fashion. The learned Financial

Commissioner, noticing the nature of the mutations attested, has rightly opined that the mutations have been attested illegally and he shall be failing

in his duty in not rectifying the wrong committed and has finally remitted the matter back to the Tehsildar, Chadoora for fresh orders and has also

observed that the administrative action be taken against the attesting officer concerned.

According to appearing counsel for the petitioner, Sub Section 2 of Section 12 of Land Revenue Act is applicable. So as per Section 3 of

Limitation Act, revision should have been dismissed as barred by limitation. It is true that when any suit, appeal and application are filed after the

period of limitation prescribed by first Schedule, it shall have to be dismissed, although limitation has not been set up as defence.

The question is as to whether any period is prescribed for filing revision under Land Revenue Act so as to attract applicability of Section 3 of the

Limitation Act, my answer is in negative for the following reasons :

(a) Conjoint reading of sections 11,12,13 and 15 of Land Revenue Act clearly indicate that the legislature in its wisdom has not prescribed any

period of limitation for exercising re visional power under section 15 of Land Revenue Act. For appeals as per Section 12, period of limitation is

prescribed, for review, as per Section 13, period of limitation is prescribed, whereas under Section 15 no period of limitation is prescribed. The

supervisory power vested in Financial Commissioner power is permissible to be exercised at any point of time so as to modify or revise any

proceedings or order which is in contravention and in consistent with the provisions of Land Revenue Act. Exercise of such power is for setting the

revenue records right so as to prevent any mischief and miscarriage. There is no doubt as rightly pointed out by learned counsel, as per Section 12

(2) of the Land Revenue Act the provisions of the Limitation Act shall apply to the appeals, revisions and review but Section 3 of the Limitation

Act is not applicable in the instant case.

(b) For appeal and review period of limitation is prescribed so Section 3 of the Limitation Act fully applies but for revision no period of limitation is

prescribed so question of dismissing the revision on the point of limitation is not tenable.

(c) Latches may stand in the way of exercise of revisional power provided there is no case of mischief or miscarriage of justice. The intent of the

legislature in not prescribing the period of limitation for filing revision coupled with conferment of suomoto power to the Financial Commission is to

ensure the genuineness in the proceedings and the revenue records. Thus Financial Commissioner has rightly opined that the question of limitation is

irrelevant.

It shall be quite relevant to quote para 12 of the judgment reported in 2005 II, SLJ.

Keeping in view the language used in Section 15 of the Land Revenue Act which confers revisional jurisdiction upon the Financial Commissioner

and Division Commissioner and the ratio of the judgments noticed above, I am of the considered opinion that the observations made in case

reported in SLJ 1983 J&K 1, neither lay down a sound proposition of law nor does it create a binding precedent. Applying the ratio of judgments

of Full Bench and Division Bench (Supra) of this court, there can not be two opinions that both the authorities below have committed glaring

illegality by applying the limitation to reject the revision application filed by the petitioners. It is also relevant to note that what is the period of

limitation, has not been indicated in the impugned order.

In the judgment reported in 2003(11) SLJ 599, the order of Financial Commissioner was not disturbed even though power was exercised

after the period of 60 years. The said order of Financial Commissioner was held to be within his jurisdiction.

Limitation apart, the mutations attested, as noticed above, are totally bereft of merit, appear to be considerational.

The way mutations have been attested, more particularly mutation of succession wherein in the pedigree table five daughters of the deceased

have been omitted, speaks about the background in which the mutation have been attested.

Viewed thus, the order impugned sustains. Tehsildar Chadoora to whom matter has been remanded shall proceed in the matter in accordance

with law and pass appropriate orders visavis mutation of succession as well as other mutation after hearing both the parties.

The Patwari who had entered the mutation and the Tehsildar who attested the mutation of succession shall be located and shall be

administratively dealt with. Financial Commissioner shall monitor the administrative action as shall be taken against them. Action so taken shall be

reported to the Registrar Judicial within three months from now. Registrar Judicial shall maintain the index separately on receipt of the action taken

report shall close index.

Disposed of as above.