Syed Manzoor Ahmad and Others vs State of Jammu & Kashmir and Others

Bashir A. Kirmani, J.—On 27.12.1988 the Settlement Tehsildar of Anantnag mutated 5 kanals of land situated in village

Anchidoora/Azadpora under Survey No. 500/min in favour of petitioners father u/s 4 of the Agrarian Reforms Act (for short the Act) vide

mutation No. 1795 in favour of petitioners father which was followed by mutation No. 1961 of 3.5.1995 attested u/s 8 of the Act vesting

ownership rights of the land in him as cultivating tenant of the land. On 22.9.1999 the respondent No. 5 claiming to be the owner in possession of

aforesaid land filed an appeal against aforesaid mutation orders before Commissioner Agrarian Reforms who over set the both vide his order

dated: 9.8.2000 with a direction for restoration of the position of the land as it existed in revenue records from 1971 up to the date of first

mutation. This order was challenged by petitioners before J&K Special Tribunal through a revision petition on various factual and legal grounds,

which was dismissed on 26.6.2003 by the Tribunal.

Aggrieved thereby the petitioners have instituted this writ petition for quashment of orders passed by Special Tribunal and Commissioner

Agrarian Reforms as aforesaid, on the ground that the mutations u/s 4 and 8 of the Act were rightly attested by competent revenue officer in favour

of petitioners father who was cultivating tenant of the land; while respondent No. 5 being a city dweller of Srinagar was never in possession and

that both the impugned orders were factually wrong and legally perverse as having been passed without application of mind with reference to order

passed by Commissioner, Agrarian Reforms, it has been specifically pleaded that 5th respondents appeal before him was badly hit by limitation

which was wrongly condoned by him on the wrong premise, that time of limitation would start running from the date of knowledge of mutation and

not the mutation itself which was further up-held by Tribunal again on the same wrong notion of law. It has also been pleaded that the appellate

order impugned was passed without hearing petitioners.

In his reply respondent No. 5 who is the only contesting respondent in the case, others being official respondents, has stated that she was

holding the land in her proprietary possession and the petitioners had only managed the mutations u/s 4 and 8 of the Act in their favour by

fraudulent manipulations in view whereof both the orders, appellate and revisional, were well founded in law and fact. During course of submissions

counsel appearing for rival sides have reiterated the contents of their respective pleadings.

I have heard learned Counsel and considered the matter. Perusal of records appended with writ petition reveals that till 1988 when mutation

No. 1798 was attested in favour of father of present petitioners, the land in question was recorded in proprietary possession of 5th respondents as

Khananisheen daughter of Abdullah Khan. Contents of the said mutation order also reveal that the attesting officer has observed on some

undisclosed information that the land in question under ownership of 5th respondent was found to be in cultivating possession of the father of

petitioner without any mention of materials information relied upon for arriving at that conclusion in the mutation order, which in addition does also

not contain anything to suggest that 5th respondent was either present at the time of said mutation or had been given any previous notice regarding

it. This has been followed by mutation No. 1961 of 3.5.1993 where under while observing that father of petitioners had deposited the amount of

levy on 1.5.1993 under receipt No. 262338, the land has been mutated in his favour u/s 8 of the Act vesting ownership thereof in him. Again there

is nothing in the mutation order to suggest that respondent No. 5 was present at the time of mutation or had any previous knowledge thereof nor

does the mutation order reveal anything to indicate as to why father of petitioner had waited for as long as nearly five years to deposit the levy

pursuant to mutation No. 1988 attested in his favour u/s 4 of the Act. However on appeal, the appellate authority appointed under the Act after

proceeding against respondents i.e. present petitioners ex parte after their failure to appear before him, heard and decided the matter and while

observing that the mutations impugned had been attested in gross violation of law, rules and procedure quashed both the mutations, observing inter

alia that the time of limitation for filing the appeal would run from date of knowledge etc. In their revision petition against the appellate order

aforesaid the petitioners sought over setting the same on various factual grounds including their claim of being in cultivating possession of land and

absence of 5th respondent from the village for decades etc. as also that the appeal was decided without issuance of summons against them. It

appears that the revision petition was filed before the revisional authority on purely factual grounds and no question of law was urged before it for

being adjudicated upon to impugn the appellate order in question or for that matter any objection to condone the alleged delay involved in

institution of appeal by respondent No. 5. During course of arguments however as per impugned judgment of special Tribunal the petitioners

counsel appears to have raised the question of limitation as such. After hearing the parties however the Tribunal he dismissed the revision petition

directing follow up action in terms of appellate order of Commissioner, Agrarian Reforms.

In backdrop of above mentioned circumstances the first question that falls for determination which has been raised by petitioners counsel before

Tribunal also is, whether the appellate authority was right in entertaining 5th respondents appeal against mutations purporting to have been attested

in favour of petitioners father u/s 4 and 8 of the Act, instituted after considerable delay on the ground that time in the matter would start running on

the date of 5th respondents knowledge of said mutations and not the date of their attestation. This perhaps is the only question of law that was

involved in the matter which could fall for determination of Tribunal in terms of Section 21 of the Act where under it can exercise revisional

jurisdiction after final orders passed by appellate authority only where a question of law or that of public interest is involved. As no public interest

whatsoever has been pleaded in the matter involvement of question of law would be the only element conferring power on Tribunal to exercise its

revisional jurisdiction. Incidentally however the Tribunal does not appear to have addressed this question in requisite detail though of course it has

been positively agreed with the appellate authority's observation that time in the matter would start running from 5th respondents knowledge of

mutations impugned before him and not from the date of their attestation. However it would be appropriate to consider this question in some detail.

While Agrarian Reforms Act of 1975 among other things creates authorities and fora for implementation of Act and other matters allied

therewith, the procedure for exercise of powers by prescribed authorities is laid down under Agrarian Reforms Rules of 1976 as contained in SRO

58 of 1. 2. 1977. Under Chapter II thereof, procedure for making records is provided where under subject to Rule 4 entries in Khasra Girdwari

including the verified or amended ones and authenticated under earlier rules would be taken as the authenticate record of personal cultivation of

land. Under Rule 4 when in accordance with attestation of the mutation under chapter IV, any party objects to the correctness of entry in Khasra

Girdwari whether made under earlier rule or standing order No. 22 a Revenue Officer, not below the rank of Tehsildar may conduct an inquiry on

spot in respect of such mutation giving an opportunity of being heard to all concerned and either confirm the entry or to indicate as to what it should

be. While doing so he is necessarily to have regard to the contents of Sub-rule 2, 3 and 4 of the said rule. Since the rule makes reference to

mutations under chapter IV it would be appropriate to notice that said chapter prescribes procedure for attestation of mutation u/s 5 and 6 of the

Act. Under Rule 10 of said Chapter, the concerned revenue officer shall have the statement of holding by each person whether as owner or

otherwise prepared by concerned Patwari in a particular village. The entries in the statement would be checked by Girdwar in full, by Naib

Tehsildar to the extent 50%, Tehsildar to the extent of 25% and by Collector to the extent of 5% for assuring authenticating thereof, and after

having been sanctioned by all of them shall be taken to be the correct reflection of ownership/possession of the land. Reverting back to Rule 4

when a proceedings under Rule 10 is commenced and an objection to and existing entry is taken, the same may be looked into by Tehsildar or any

other Revenue Officer above him who may pass orders thereupon after providing an opportunity to all concerned. It necessary follows that this

rule has too necessary elements; first that the officer exercising power there under must be a Tehsildar or a higher revenue officer and secondly that

while entering upon exercise of the power there under he must provide opportunity of being heard to all concerned- which implies summoning them

and securing their presence for audience. Without presence of these two elements, their exercise of power with this rule would be faulty.

Now in cumulative application of aforesaid rules to the instant case it appears that thereunder it was incumbent upon Tehsildar to issue a notice

to 5th respondent while assuring the entry regarding her proprietary cultivation of the land under cultivation to be incorrect and taking the land to

have been in cultivating possession of the father of petitioners and only thereafter he could enter upon exercise of his power to effect any change in

the entry regarding said land. Since no such notice appears to have been issued to said respondent either at the time of attestation of mutation u/s 4

or the one u/s 8, both the mutations would have to be deemed to have been passed without notice to her in that background would arise the

question whether the time of limitation against her for the purposes of seeking appellate remedy would start running from the date of attestation of

mutation or the date of her claimed knowledge.

Before coming to consider that question it would be appropriate to quote from the Supreme Court judgment reported in Madan Lal Vs. State of

U.P. and Others, captioned as Madam Lal v. State of U.P. and Ors. whereunder the Hon'ble Apex court was pleased to hold that where a notice

is required to be issued to the aggrieved party but has not been so issued, the date of order would have to be read as the date of knowledge of the

order for the simple reason that otherwise application of provision regarding limitation would result in violation of justice. The case in hand also

appears to be covered by the said judgment squarely because as gatherable from the rules above before any change in revenue entry regarding her

proprietary possession of the land in question was intended by concerned revenue officer the 5th respondent was to notice, which was never given.

So her claim that the time of limitation should run against her only after acquisition of knowledge regarding the adverse mutation and change of the

entries favouring her would be well placed. In that view of the matter the only question of law that was involved in the matter whether before the

revisional or the appellate authority below has been rightly answered by both though undoubtedly in a cryptic manner and without sufficient

reasons. On that count, therefore, no violation of jurisdiction appears to have occurred at both the levels.

Coming to other aspect of the matter which pertains to position of the land as in 1971 or the factum of possession on dates relevant in terms or

of provisions of the Act. It may be observed that the appropriate fora for determining the same are agrarian authorities whose observations/finding

on those aspects cannot be substituted by this court in exercise of writ jurisdiction even though in facts and circumstances of this case, none would

be called for. As regards the mutations impugned before the appellate authority the basic one i.e. the one attested u/s 4 of the Act under No. 1795

strangely nowhere shows as to who during proceedings under Rule 4 or otherwise objected to the entries existing then regarding the land in

question admittedly recorded in 5th respondents favour. So far as the father of petitioners is concerned, he is not even shown to have been present

at the time of attestation of mutation, so there was obviously no question of his objecting to entry. What necessitated the change of entry, perhaps

requires to be explained by the concerned Tehsildar, and coupled with the non-observance of the requirement to issue notice to 5th respondent

before attestation of said mutation, this aspect clouds the mutation which forms the very basis of the whole process of conferment of ownership

rights upon the petitioners father. All other aspects debated at bar, are purely factual, which may not be gone into these proceedings nor could they

perhaps be addressed by the subordinate Tribunal as the revisional forum, for the reason that the exercise of its revisional jurisdiction is in law

confined to legal questions and questions of public importance only.

Accordingly and for what has been discussed above, the petition is dismissed along with all connected CMPs.