Fateh Ali Khan vs J&K Special Tribunal & Ors

Sanjay Dhar, J

1) Petitioner has filed this petition under Article 226 and 227 of the Constitution of India challenging order dated 02.02.2013 passed by Additional Deputy Commissioner, Kupwara, and order dated 23.07.2014 passed by J&K Special Tribunal, Srinagar, whereby mutation Nos.158 and 166 dated 30.12.1989 attested in favour of the petitioner in respect of land measuring 01 kanal under Khasra No.464-min, 10 marlas under Khasra No.465-min and 10 marlas under Khasra No.469-min of Village Prada Tehsil Karnah has been set aside.

2) The case of the petitioner is that in the year 1989, he purchased the aforesaid land for an amount of Rs.15000/ and an agreement to sell was executed in his favour by the owners of the land. The petitioner is stated to have approached the Revenue Authorities for attestation of mutation in respect of land in question and, accordingly impugned mutation under Section 4 and 8 of the Agrarian Reforms Act came to be attested in his favour. It is the case of the petitioner that possession of the land in question was handed over to him after he had paid sale consideration to the owners i.e., respondents No.4 to 9 herein. It is further averred that after about 23 years, private respondents, particularly respondent No.6, filed an appeal before the Court of Additional Deputy Commissioner, Kupwara, for setting aside the aforesaid mutation. The said appeal was allowed by the Additional Deputy Commissioner, Kupwara, vide his order dated 02.02.2013, whereby impugned mutation was set aside and the case was remanded back to Tehsildar, Karnah, for de novo enquiry.

3) The aforesaid order was challenged by the petitioner by way of a revision petition before J&K Special Tribunal, Srinagar, but the revision petition also came to be dismissed by the Revisional Forum vide its order dated 23.07.2014 with the modification that there is no requirement of holding a de novo enquiry.

4) Petitioner has challenged both the aforesaid orders on the grounds that he has purchased the land in question by way of an agreement to sell and that after a gap of 23 years, the mutation could not have been challenged by the private respondents on frivolous grounds without explaining the delay. It is further contended that the impugned orders passed by the respondents No.1 and 2 are illegal and not in consonance with law.

5) The private respondents have resisted the writ petition by filing a reply thereto. In their reply, they have submitted that the impugned mutation was attested in favour of the petitioner by suppression of facts and by misrepresentation and when the private respondents came to know about it, they filed an appeal before the Additional Deputy Commissioner, Kupwara, which was accepted. It has been submitted that the petitioner without any justification had managed to get the mutation attested in his favour and that the impugned orders passed by the respondents No.1 and 2 are in accordance with law. Private respondents have denied having sold the land in question to the petitioner and have claimed that the petitioner has managed false and fraudulent documents on the basis of which he has managed attestation of the mutation in his favour.

6) I have heard learned counsel for the parties and perused the material on record.

7) The contention of petitioner is that he has come into possession of the land in question and has become owner thereof on the basis of an agreement to sell executed by private respondents in his favour. The mutation which was under challenge before respondents No.1 and 2 has been attested by Tehsildar concerned under Section 4 and 8 of Agrarian Reforms Act. It is not even the claim of the petitioner that he was a tenant of the private respondents in respect of land in question at any point of time.

8) Mutation under Section 4 of the Agrarian Reforms Act is attested in favour of the State in respect of the land which was not being cultivated personally by its owners in Kharief 1971 whereas mutation under Section 8 is attested in respect of the land which is vested in State in terms of Section 4 of the J&K Agrarian Reforms Act in favour of prospective owner i.e., the person who was holding it as a tenant. In the instant case, petitioner, admittedly, was not a tenant of the land in question and, therefore, there was no occasion for the Tehsildar concerned to attest the mutation in his favour. In fact, petitioner claims his rights over the land in question on the basis of an agreement to sell and not on the basis of tenancy. Thus, the order of attestation of mutation in respect of land in question in favour of petitioner is patently illegal. No fault can be found with the orders of Additional Deputy Commissioner, Kupwara and J&K Special Tribunal, Srinagar, to this extent.

9) So far as the contention of petitioner that the issue could not have been re-opened after 23 years of the attestation of mutation is concerned, the same is also without any merit for the reason that Additional Deputy Commissioner, Kupwara, while condoning the delay in filing the appeal, has, in order to advance the cause of substantial justice, accepted the plea of appellant in this regard. The Revisional Forum has, in its order, explicitly dealt with this aspect of the matter and has accepted the plea of the private respondents that because mutation was attested at their back, as such, they had no knowledge about the same until a few days before the filing of the appeal.

10) This Court in exercise of writ jurisdiction cannot re-examine the issue of condonation of delay, particularly when there is no material on record to suggest that delay in filing of appeal on the part of private respondents was deliberate or intentional. Therefore, it will not be open for this Court to interfere with the discretion exercised by the Additional Deputy Commissioner, Kupwara, while entertaining the appeal of the private respondents beyond the prescribed period of limitation.

11) Apart from the above, the order of attestation of mutation passed by the Tehsildar concerned in favour of the petitioner being patently illegal, inasmuch as, admittedly, it was not a case of tenancy between petitioner and private respondents, therefore, such like orders deserve to be annulled whenever the same are brought to the notice of the competent authorities.

12) For the foregoing reasons, I do not find any merit in this petition and the same is, accordingly, dismissed.