Rahim Shah And Ors @APPELLANT@Hash Jammu & Kashmir Special Tribunal And Ors

Rajesh Bindal, J

The order dated 17.04.2019 passed by the Jammu and Kashmir Special Tribunal, Srinagar has been impugned by filing the present petition. Vide aforesaid order, revision petition filed against the order dated 05.09.2018 passed by the Additional Deputy Commissioner, Kupwara, was dismissed.

Brief facts are that petitioners had challenged mutation No. 191 dated 15.01.1989 registered under Section 8 of the Jammu and Kashmir Agrarian Reforms Act, 1976, ( for short 'the Act'), after a gap of 27 years. The application was filed on 31.07.2015. The Additional Deputy Commissioner, Kupwara, dismissed the application seeking condonation of delay. The order was upheld in revision by the Tribunal.

Learned counsel for the petitioners submitted that the Tribunal had gone wrong while opining that the revision filed by the petitioners was not maintainable. Section 21 (2) of the Act clearly provides that a final order passed by the Commissioner can be challenged before the Tribunal and there is no limitation provided there for. The aforesaid section also gives suo moto powers to the Tribunal to call for record of any case. He has further submitted that the aforesaid mutation was attested without notice to the petitioners. Hence, they did not have any knowledge thereof. Same could not be challenged immediately thereafter. The moment it came to the notice of the petitioners, they challenged the same. To buttress his case on merits reliance was placed on judgments of this Court in Baldev Raj vs. J&K Special Tribunal and ors, 2014 (3) JKJ 134 (HC), Harminder Singh vs. J&K Special Tribunal and ors, 2015(1) S.L.J 175 and Gh. Mohammad Dar and ors vs. State of J&K and ors, 2018(1) S.L.J 98.

On the other hand learned counsel for respondent No. 6 submitted that challenge to the mutation dated 15.01.1989 after a gap of 27 years was rightly negative by the Additional Deputy Commissioner, Kupwara by not condoning the delay. The petitioners had been too causal. They did not disclose any fact as to how they came to know about attestation of the mutation to challenge the same after a gap of 27 years. The stand taken before the Tribunal was also contradictory wherein it was claimed that petitioners came to know about the mutation in the year 2017 whereas the appeal was filed before the Additional Deputy Commissioner, Kupwara in the year 2015. It was further submitted that the petitioners had only challenged the mutation attested under Section 8 of the Act without challenging the order passed under Section 4 thereof. In the absence thereof the petitioners does not get any effective relief.

It was further submitted that the petitioners had not been able to make out a case for condonation of delay of 27 years in filing the appeal and the Tribunal has recorded a definite finding thereon. Any other finding by the Tribunal regarding maintainability may not be that relevant as the revision by the Tribunal deserved to be dismissed at that stage only.

Heard learned counsel for the parties and perused the paper book.

It is not in dispute that petitioners filed appeal before the Additional Deputy Commissioner, Kupwara against order dated 15.01.1989 passed under Section 8 of the Act concerning attestation of mutation regarding the land in dispute. In the application filed along with appeal seeking condonation of 27 years delay in filing thereof, no specific plea was taken explaining the delay while saying that petitioners did not come to know or were not served with the copy of the order passed. The petitioners having failed to convince the Additional Deputy Commissioner, Kupwara on the huge delay in filing the appeal, the application was dismissed and consequently the appeal. The order was challenged by the petitioners by filing revision before the Tribunal. The Tribunal reiterated the findings recorded by the Additional Deputy Commissioner, Kupwara while specifically recording that there was no explanation what to talk of plausible explanation regarding huge delay of 27 years in filing the appeal. No details had been furnished by the petitioners. They were not even clear as to when they came to know about attestation of mutation as the plea taken was that they came to know about the attestation of mutation in the year 2017 whereas the appeal had been preferred in the year 2015. With the aforesaid finding recorded by the Tribunal, the order of the Additional Deputy Commissioner, Kupwara was upheld. However, still further, though there was no requirement as such but the Tribunal went on to discuss the other issues raised by the petitioners on merits, which can very well be ignored as merits of the controversy could not have been gone into. Reference can be made to judgment of Hon'ble the Supreme Court in Commissioner Nagar Parishad Bhilwara vs. Labour Court Bhilwara and anr, (2009) 3 SCC 525. Hence, the order passed by the First Appellate Authority, rejecting the application seeking condonation of delay in filing the appeal deserves to be upheld. The first appellate authority had also not discussed the issue on merits as such as no finding had been recorded thereon.

For the reasons mentioned above, I do not find any merit in the present petition and the same is, accordingly, dismissed.