Jan Mohammad vs Revenue Minister and others

Syed WasiudDin, J.

(1) This is a letters Patent appeal directed against the judgment of the learned Single Judge of this Court (Jaswant Singh J.) dated Dec. 6, 1971 by

which the writ petition filed by the present appellant was dismissed. The short facts which led to the filing of the aforesaid writ petition briefly stated

are as follows :

(2) The appellant filed the aforesaid writ petition praying for a writ of certiorari for quashing the order of revenue Minister respondent No. 1 dated

2347l. The case of the appellant is that he is a permanent resident of the State of Jammu and Kashmir and is a Gojar by caste and belongs to

village Chani Raman, Tehsil Jammu On account of the unfortunate riots which took place in Samvat 2001 the petitioner alongwith other Muslims of

the Village were forced to leave their homes and had to run to Pakistan to save their skins. A piece of land measuring 118 kanals 3 marlas

comprised of Survey plot No: 1, 34 Kanals, Survey Plot No: 17, 37 kanals and 11 marlas and Survey No: 18, 46 kanah and 12 marlas situate in

Chhani Raman Sehsil Jammu belonged to Kapoor Singh and others. They were big landlords and came within the purview of the Jammu and

Kashmir Big Landed Estates Abolition Act, 2007, Act No: XVII of 2007 (hereinafter referred to as the Act') These aforesaid persons did not

select this piece of land in their claim as required by the provisions of the Act One Kanshi Ramson of Totaram was an occupancy tenant under the

aforesaid proprietothers but he also being a big landlord did not get any right in respect of this land. This aforesaid land was being cultivated by

Nashar Din, who continued tilling the land till 2004 Samvat when on account of the circumstances beyond his control he was forced to leave the

State. The appellant Jan Mohamad is the son of the aforesaid Nasher Din There was a mutation case No. 121 and mutation was sanctioned in

favour of the state who is respondent No. 2 and proprietory right were conferred on the State but all these proceedings were exparte in as much

as no notice was served on Nasher Din or the appellant and it was without their knowledge. The appellant came to know of this mutation in August

1968 and he then filed a revision application before the Commissioner Jammu who by his order dated 19121968 rejected the same, holding that

the revision of the appellant was barred by time. He also held that the appellant came back from Pakistan in 2007 Samvat and at the time of

attestation of mutation the land was in possession of the Remount Department and when the petitioner resettled in his village in 2007 Samvat it was

obligatory on his part to make enquiries about the said land and there would have been no difficulty in obtaining possession of the land if he was a

bona fide tiller of the land and the fact that he did not do so for a period of 18 years clearly showed that he was not a bona fide tenant i. e tiller of

the land. The appellant then moved the Financial Commissioner in revision who by his order dated 871969 accepted the revision application

holding that the law of limitation does not apply application in revision under Sec, 30 of the Act. He also further held that the Revenue Officers

should have mutated the property in the name of Nasher Din as an owner unless he was found not to be a permanent resident and thereafter it

would have been declared as an evacuee property but the omission of any reference to Nasher Din in the proceedings indicates to show that the

presumption of Nasher Din having been killed in the disturbance of 1947 or that he had gone to Pakistan was present in the mind of the mutating

officer and that was the reason why he did not consider it worthwhile to mention him in the mutation order. The Financial Commissioner also

observed that it was the function of all officers superior to Special Tehsildar to move for cancellation of this order in revision on the ground that the

land could not have been declared escheated to the State unless Nasher Din's rights as a tiller of this land was first considered and disposed of.

The Financial Commissioner had also observed that there was no surprise that the revision petition had been filed after such a long time because

the Revenue Department was still dealing with the cases of restoration of evacuee property of Muslims in Jammu District, who in the wake of

disturbances of 1947 had escaped for the sake of safety to other places in the State and having returned to their village; more than decade ago are

yet wandering for recovery of the possession of the property. Finally the Financial Commissioner held that the application of the appellant if

rejected on the ground of limitation then the appellant would have no other remedy before him because the jurisdiction of the Civil Courts in

matters falling within the purview of the Act has been expressly barred by Sec. 32 of the Act On a consideration of these facts and circumstances

the Financial Commissioner set aside the order of the Commissioner and remanded the case to the Tehsildar Jammu for afresh enquiry and orders

and further ordered that if o her conditions prescribed by the Act are satisfied such as that he is a tiller and a permanent resident of the State then

Nasher Din or his heirs are entitled to be given ownership rights of this land, and it would be mutated in his name.

(3) Respondent Nos 2 to 4 then preferred are vision before the Revenue Minister who is respondent No: 1 and by his order dated 2341971 he

accepted the revision and set aside the order of the Financial Commissioner dated 871969 and restored the mutation order dated 26 pah 2007

Samvat passed by the Special Tehsilder Jammu.

(4) In the petition the appellant challenged the order of the Revenue Minister i e, respondent No : 1 on ground inter alia that the order of

respondent No 1 was without jurisdiction because under Subsection (6) of Sec. 30 of the Act, the Revenue Minister in a revision against the

Financial Commissioner could interfere only if it involved a substantial question of law or a question of public interest but no such question was

involved here and that the Revenue Minister has given no reason for holding his views that the matter involved such questions. It was also urged in

the petition that the respondent No. 1 in agreement with the finding of the Financial Commissioner held that no period of limitation was prescribed

for filing a revision before the Financial Commissioner and the provisions of Limitation Act were not attracted so it was not open to respondent

No. 1 to hold that the revision application before the Financial Commissioner was barred by time. The order of respondent No. 1 was therefore,

bad and without jurisdiction. Respondent No. 1 was also not competent to lay down that revision .application could be filed only within one year.

Respondent No. 1 also went beyond his competence and scope of his jurisdiction in holding that the disturbances of 1947 were over towards the

close of 1948 and the year 1949 and 1950 were normal years and as such the findings by him were not only uncalled for but they related to fact's

and not law and as such beyond the jurisdiction of respondent No. 1. Further it was also contended that respondent No. 1 dealt with the matter as

if he was sitting as a court of appeal. The fact that the appellant came to know about the mutation in the year 1968 was supported by an affidavit

filed by him and that was a question of fact and respondent No. 1 could not enter into that question. It was also urged that the State in whose

favour the mutation was sanctioned did not challenge the correctness of the order of Financial Commissioner and so this was also a matter which

should have been considered. Lastly it was urged that Nastier Din was a recorded tenant and therefore he was a tiller within a meaning of section 2

(d) of the Act.

(5) Respondents filed counter affidavits and the faces which I have stated above culminating in the order passed by respondent No. 1 have not

been challenged but they have raised certain contention in their respective counter affidavits. It was contended firstly that the question of serving

any notice on the appellant at the time of the mutation stage did not arise because the appellant on his own showing had migrated to Pakistan and

was not in Jammu and Kashmir State and even if he had returned he should have taken possession of the land which was lying fallow and the

respondent No. 1 found in his judgment that the appellant had taken possession of the land lying in the vicinity of the land in dispute, so it was

incorrect to say that the appellant came to know of the mutation in the year 1968. It was also urged that it was a clear case of abandonment of

land on the part of the appellant and the approach and the findings of the Financial Commissioner were erroneous. As regards the question

whether there was any substantial question of law or question of public interest it has been urged that a perusal of the order of respondent No 1

would show that he had given reasons for holding that the case involved substantial question of law and public interest and the finding of

respondent No. I in respect of fixation did not materially affect the case one way or the other.

(6) The learned Judge in his judgment came to the finding that in the instant case both the conditions viz substantial question of law and public

interest were duly satisfied. He was also of the view that the question of the exercise of revisional jurisdiction of the Financial Commissioner or

Commissioner under Subsection (3) of Sec. 30 of the Act being inextricably linked up with the question of limitation, the question as to whether the

revision could be entertained after an inordinate delay of well nigh 18 years i. e. even after the expiry of the period prescribed for filing of an

ordinary suit for possession in a civil court .was over was certainly a substantial question of law and a question of public interest and respondent

No. 1 could exercise the revisional jurisdiction more so when there was no authoritative pronouncement and the question was still an open one. As

regards the question whether it was a matter of public interest or not, the learned Judge was of the view that after expropriation under section 6 (1)

of the Act, the State could settle the land with the displaced persons under Section 6 (2) of the Act and that if such applications are allowed after

such a long time, then it will pose a problem of great magnitude. The learned Judge towards the concluding portion of his judgment was also of the

view that the petition filed by the appellant was liable to be dismissed on the short ground that the petitioner has neither impleaded the State whose

rights he is challenging nor has he made any application to add the State as a party. For the reasons mentioned above, the learned Judge was

pleased to dismiss the writ petition and the appellant being aggrieved by the aforesaid judgment has preferred this Letters Patent Appeal.

(7) At the time of the hearing of this appeal Mr. Gupta appearing for the appellant contended that the learned Judge took an erroneous view of the

matter that the State was not a party to the proceedings and he overlooked the fact that the State was a party and was represented before him

also. It is clear from the materials on record that respondent No. 1 was the Revenue Minister and respondent No, 2 the State of Jammu and

Kashmir. The judgment of the learned Judge also shows that Mr. Amarnath, the Additional Advocate General appeared both for respondents 1

and 2. It also appears that the State was also made a party before the Commissioner in revision as well as before the Financial Commissioner. In

view of these facts it appears that this aspect of the matter was overlooked and this finding of the learned Judge was not correct that the writ

petition could be dismissed on this short ground that the petitioner had not impleaded the State as a party.

(8) Mr. Gupta appearing for the appellant has submitted that respondent No : 1 in his order agreed with the finding of t he Financial Commissioner

that no period of limitation has been provided and the provisions of the limitation Act would not be applicable but still he Laid down in his order

that the period of limitation for such applications would be one year from the date of the order of the Revenue officer and therefore respondent No

i 1 acted without jurisdiction because he had no power to lay down such a law. It was therefore urged that the learned Judge did not consider this

aspect of the matter. Further it has also been urged that when no limitation has been Laid down by law then it does not raise any substantial

question of hw and neither it would be a matter of public interest because the public will not be interested to know as to what would be the

limitation when the, statute does not itself lay down period of limitation It was also further urged that the order of the Financial Commissioner which

was interfered with by respondent Not 1 was not a final order but only an interim order because he had remanded the case and respondent No : 1

was also not acting within his jurisdiction in interfering with such an order , It has been urged on behalf of respondents by Mr. Amarchand that

since no limitation had been Laid down by law, so it was desirable that some period should be Laid down and in such circumstances it will be a

substantial question of law and further the public and the person who may be effected would also be concerned and interested to know as to what

period has been Laid down and therefore this was a matter of public interest also.

(9) The relevant provision in this connection is Sec 30 and it runs as under :•

(1) Save as otherwise provided by this Act an appeal from an original order of a Revenue officer shall lie as follows, namely :

(a) to the Collector when the order is made by an Assistant Collector of either class;

(b) to the Commissioner when the order is made by a Collector.

(2) No appeal shall lie from an order made by a Collector or Commissioner in appeal.

(3) The Financial Commissioner or Commissioner may call for the record of any case pending before or disposed of by any Revenue Officer

subordinate to him.

(4) If in any case in which a Commissioner has called for the record he is of the opinion that the proceedings taken or the order made should be

modified or reversed, he shall report that case with his report thereon for the order of the Financial Commissioner.

(5) The Financial Commissioner may, in any case called for by him under Subsection (3) or reported to him under Subsection (4) pass such order

as he /thinks fit.

(6) Whenever it is made to appear to the Government that a case decided by the Financial Commissioner involves a substantial question of law or

a question of public Interest, it may call for the record of the case and pass such order thereon as it thinks fit.

(7) The period of limitation for an appeal under subsection 1 shall be 60 days from the date of the order appealed against :

Provided that in the Districts of Gilgit Rajouri, Poonch and Doda and the Niabat of Arnas in the Reasi Tehsil of Udhampur District, twice the

period of limitation prescribed for appeals under this section shall be allowed.

(8) Notwithstanding anything contained Pin this Act, all appeals and revision applications pending before the Revenue Minister on the date of

commencement of the Jammu and Kashmir Land Revenue and Allied Laws (Amendment) Ordinance, 1956, shall be disposed of by him

Subsection (3) quoted above read with subsection (5) quoted above clearly show that the Financial Commissioner has the power in any case to

call for the record and pass such order as ha thinks fit. Sub section (6) confers power of revision on the Government also and in the present case

admittedly the Government would be the Revenue Minister i. e. respondent No. 1. Under Sub section (6) a revision would lie against the decision

of the Financial Commissioner and the Government is empowered to interfere only if it involves a substantial question of law or a question of public

interest . Compiling the language and the word used in Subsections (3) and (5) with Subsection (6) the position is clear that the powers of the

Financial Commissioner in respect of applications in revision before him are wider than that of Government. The powers of the Government which

are exercised under sub section (b) are circumscribed and subject to two requisite conditions mentioned therein but that is not so in the case of the

power exercised by a Financial Commissioner. Subsection (7) lays down the period of limitation for an appeal but no period of limitation has been

Laid down for a revision It may also be mentioned here that there has been a concurrent finding both of the Financial Commissioner as well of the

respondent No. 1 firstly that there is no period of limitation for such applications in revision and secondly that the provisions of the Limitation Act

would not be attracted It was conceded by the learned counsel for both the parties that the findings of both the Financial Commissioner as well as

of respondent No 1 were correct and the position therefore is that the Act does not provide/ or lay down any period of limitation for such

applications in revision and the provisions of the Limitation Act would also not be attracted.

(10) Now before I take up a discussion of the findings of respondent No 1, I may refer here to another important provision in the Act. It may be

mentioned here as would be apparent from the facts stated above that the appellant's case is that he is a tiller as contemplated by the provisions of

the Act. The word 'tiller' has been defined in Clause (d) of Section 2 of the Act. The definition clearly shows that it includes the tenant who after

1st of Baisakh 2004 Samvat which would correspond to 1947 A D. has been ejected otherwise than in due course of law or has ceased to

cultivate the land owing to reasons beyond his control. The case of the appellant is that his father Nasur Din had ceased to cultivate the land owing

to reasons beyond his control and it may also be mentioned here that this position was not disputed at the time of the hearing of this appeal that

Nasur Din, the father of the appellant would be a tiller within the meaning of the Act He was therefore entitled to file a revision and undoubtedly

this application was filed after a long lapse of time The Financial Commissioner took one view of the matter and he allowed the application and

remanded the case but respondent No. 1 took another view of the matter and now the important question arises for consideration as to whether a

substantial question of law or a question of public interest was involved thereinNow turning to the impugned order, respondent No: 1 after having

stated the relevant facts in Para 5 of his judgment, he has stated the contentions which were raised before him by the learned counsel for both the

parties and in view of the contentions raised before him, he expressed the view that the matter involves not only a substantial question of law but

also a question of public interest. After further discussion vide Para 8 of his judgment, he held that the provisions of the Limitation Act are not

attracted to any proceedings under section 30 of the Act. In Para 9 and 10 on wards he entered into the facts regarding the circumstances and

then in Para 12 be held as follows:

.....That revision is a discretionary remedy is well settled. Even where no limitation is provided in an enactment, a revision is allowed only to be

made within a period which appears to be reasonable in the facts and circumstances of a case. I think that, in respect of the proceedings taken

under the Act, such reasonable period can be one year from the date of the original order of the revenue officer made by him under section 5 of

the Act on a mutation and not beyond. If this limitation is not put and the door is left open for any person to come any impugn an order at any time,

it will, as discussed hereinbefore, apart from creating social problems, entail hardships not once but many a time in future. I accordingly accept this

application, and in setting aside the order of the learned Financial Commissioner dated 771969, restore that of the Special Tehsildar dated 26ch

Feb. 2007.

(11) The relevant portion quoted above will therefore, show that the respondent No. I virtually laid down that for such applications in revision the

period of limitation will be one year. A very pertinent question arises whether he could do so and whether he could arrogate to himself the power

of a legislature because it would be competent for the legislature alone to lay down the period of limitation. If the legislature has not Laid down any

limitation then there may be a lacuna in the Act but it could not be filled up in the manner as it has been done by the respondent No. 1. I am also of

the opinion that the power conferred under Subsection (6) of Section 30 of the Act cannot be construed to mean that he had power .to do which

could be done by the legislature. Now even assuming that he could do so, then could he do so in the present case or he could lay down as a guide

line for matters which may crop up in future. It is also significant that no reason has been assigned as to why a period of one year was fixed by him

and why not more or less. It was urged by Mr. Amar Chand appearing for the respondents that applications in revision under the Cede of Civil

Procedure also there is no period of limitation prescribed but the courts have held that the period should be ninety days and by this he wanted to

contended that respondent No. 1 also could lay down the period. Reference in this connection may be made to a decision of this court in the case

of Abdul Karim Mir Vs. Mala Aziz reported in AIR 1964 J and K 16. It will be apparent from that there was a settled and established practice

which was being followed as far as applications in revision are concerned and then again there was reasons why such a practice was being

followed. Now besides this although the courts ordinarily would nor entertain an application in revision after expiry of ninety days but the powers

of the Court are not fettered and in the ends of justice may entertain applications even beyond chat period when the legislature in its wisdom

advisedly has not laid down any period of limitation. Respondent No. 1 as will appear from the relevant portion quoted above, has bid down an

absolute rule of one year without any ream for deviation from the same. It would indeed be very hard because the question whether there were

circumstances in which the petition could have been filed earlier or not will be a matter dependent on the facts and circumstances of each case.

Reliance has also been placed on a decision of the Supreme Court in the case of Sir Chuni Lal V, Mehta and Sons Ltd. Vs. Century Spinning and

Manufacturing Co. Ltd. reported in AIR 1962 SC 1314 where it was held as follows :

The proper test for determining whether a, question of law raised in the case is substantial would be whether it is of general public importance or

whether it directly or substantially affects the rights of the 'parties and if so whether it is either an open question in the sense that it is not finally

settled by this court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the

question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is mere question

of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.

(12) But in my opinion even putting this matter to a test as laid down by the Supreme Court still I do not think that this would be a substantial

question of law A question whether a particular application is within time or not can of course be I a question of law but to attract the jurisdiction

conferred under subsection (6) of Section 30 of the Act it should be a substantial question of law and I think there is a word of difference between

a question of law and a substantial question of law. If the matter has rested as to what was the proper interpretation of a Section and whether in the

facts and circumstances of the case whether a particular section relating to limitation would be applicable or not, then certainly it could have been

said that it is a matter of substantial question of law but in a case as in the present one, when the law has not Laid down any limitation and the

provisions of the limitation Act are not attracted, then it cannot be a substantial question of law and more so the respondent No : 1 cannot lay

down a law in this manner.

(13) Now as regards the question whether it was a matter of public interest it has been urged on one side that it would be a matter of public

interest because person would be desirous to know as to what is the period for limitation in such cases where as on the other hand it has been

urged that it can't be a matter of public interest. True it is that persons who may be effected may by anxious and desirous to know as to what is the

period of limitation in such cases but at the same time it is also clear and well known to the people concerned that the Act does not prescribe any

period of limitation and when the laying down of a period is something contrary to law then it cannot be said to be a matter of public interest.

(14) It was also contended, as already pointed above, that there should have been no interference by respondent No: 1 because the order of the

Financial Commissioner was not a final order but only an interim order. In my opinion it cannot be said as absolute rule that there can be no

interference in the exercise of powers under Subsection (6) of Sec : 30 of the Act when the order against which the revision has been filed is an

order of remand and not a final order because it is a matter which would be dependent again on the facts and circumstances of each case but this is

quite clear that when there is a remand order passed by the Financial Commissioner and the facts and circumstances of the case require an

investigation and probing into the matter then interference with such an order would neither be a substantial question of law nor a matter of public

interest.

(15) Mr. Thakur who also appeared for some of the respondents contended that the Jammu and Kashmir Agraran Reforms Act, 1972, Act No.

XXVI of 1972 came into force and under section 51/ the provisions of the Act have been repealed to far as they are inconsistent with the

provisions of the Agrarian Ace of 1972 and shall cease to apply in the areas to which the agrarian Act of 1972 applies and therefore he has further

contended that it has to be seen whether the appellant was in personal cultivation and he would not be entitled to any relief unless he was in

personal cultivation. The words 'personal cultivation' have been defined in Subsection (7) of Sec : 2 of the Agrarian Act of 1972 but alongwith this

definition explanation (2) of the Act has also to be seen. This explanation lays down that unauthorised cultivation shall not be deemed to be

personal cultivation and where land has been occupied unauthorisedly the parson who, but for such unauthorised occupation, would have been

personally cultivating such land shall be deemed to be in personal cultivation If the appellants case be true as urged on his behalf then he would be

covered by the aforesaid explanation. Besides it is also relevant to see that Sec: 52 of the Agrarian Act of 1972 provides for abatement but clause

(h) clearly shows that nothing in Sec: 52 shall apply to appeals or revision applications against orders passed under Section 5 or 6 of the Act. This

contention of Mr. Thakur cannot as such prevail.

(16) Mr. Thakur further submitted relying on the relying on the recital in Para 6 of the writ petition that the property has become an evacuee

property and so the proper remedy for the appellant was to take appropriate action and ask for relief under the Evacuee Property Act. In para 6

of the writ petition it has been stated that under Saw it was imperative for the Special Tehsildar sanctioning the said mutation to look into the claim

of Nasher Din who was entered in the revenue record as a tenant and no steps were taken by the said officer to do so much so chat even no

notice was served upon the Custodian. The aforesaid recital cannot tantamount to an admission of the fact that the property was admitted to be an

evacuee property but impliedly it may be argued like that and irrespective of the question whether it has become an evacuee property or not, the

Financial Commissioner had remanded the matter and in the course of enquiry which would follow thereafter it can also be investigated whether it

had become evacuee property or not.

(17) Lastly it was urged by Mr. Thakur that in the event this appeal is allowed, it would mean a further long drawn proceeding which would not be

in the ends of justice. We are not concerned here with that question because the whole question has to be seen whether the impugned order of

respondent No. 1 was with or without jurisdiction.

(18) On consideration of all facts and circumstances stated above, I am of opinion that the impugned order of respondent No: 1 dated 2341971

was without jurisdiction and is therefore liable to be quashed. The appeal is therefore allowed and the order of respondent No : 1 dated 2341971

is hereby quashed. But in the circumstances of the case no order as to costs is made.