BASHIR A.KIRMANI, J. -
(1.) ON 27.2.1989, petitioners herein instituted an appeal before Commissioner, Agrarian Reforms against mutation order purporting to have been attested by respondent No. 1 on 4.2.1999 which got dismissed in default on 31.7.1995 prompting the petitioners to file an application for re -admission thereof which too appears to have been dismissed as time barred on 18.8.1998 prompting them to institute a revision petition against the dismissal order of re -admission application before the JK Special Tribunal. That too was dismissed on 15.9.2003 whereupon the round of litigation ultimately concluded. Aggrieved thereby the petitioners have now instituted this writ petition for quashment of orders passed by Commissioner, Agrarian Reforms and Special Tribunal; as aforesaid on the ground that both the orders have been passed in total disregard of attending circumstances of the matter which if objectively assessed would have sufficiently justified re -admission of petitioners appeal dismissed by Commissioner Agrarian Reforms. During course of submissions, petitioners counsel has reiterated the grounds with reference to records of case whereas respondents counsel has defended impugned orders on the ground that they were well founded in fact and law and did not require indulgence.
(2.) I have heard learned Counsel and considered the matter. Before proceedings ahead, it would be appropriate to observe the re -admission of appeal on petitioners time barred application after condonation of delay involved as sought by petitioners before Commissioner, Agrarian Reforms is perfectly a discretionary matter which would ordinarily not invite indulgence of this Court in case the discretion is found to have bee exercised judiciously and on sound principles of law and procedure. To find out the same, reference to record of proceedings as maintained on the file of Commissioner, Agrarian Reforms becomes necessary, perusal whereof reveals that after institution of appeal on 27.2.1989, it appears to have come up on 15 -5 -1989, the next date appointed in the matter, while respondents were yet to appear. On following date i.e. 12.7.1989 the counsel appearing for respondents sought time to furnish his power of attorney and proceedings continued on that stage till 30.01.1990 when respondents counsel filed objections. Till 12.8.1991 the proceedings continued on different dates with either of the parties absenting and proceedings being held up due to frequent hartals while on that date some of the parties were present and matter was posted for hearing on 20.8.1991. Thereafter proceedings again continued with regular interruptions and absence of either of the parties due to public disorder till 5.10.1994, from that date till 21.6.1995. On 21.6.1995, however, the matter appears to have been called out while respondents counsel only was present and it was accordingly posted by desk clerk on 31.7.1995. On 31.7.1995, on which date two orders appear to have been recorded on the file, one in Urdu, apparently written by concerned desk clerk, according to which the appeal was dismissed for want of prosecution while appellant was absent and respondents counsel present and interim stay order cancelled, and the other English written on the margin of the order sheet, perhaps in the hand of Commissioner, Agrarian Reforms which reads: Respondents counsel present. Dismissed in default.
On 20.1.1998 the petitioners appear to have instituted application for re -admission of appeal wherein respondents counsel entered appearance on 10.6.1998 which ultimately came to be dismissed on 18.8.1998 as being time barred by two half years without anything to explain the same. In its revisional order the Special Tribunal also found itself in agreement with opinion expressed by Commissioner, Agrarian Reforms and upholding dismissal of readmission petition as time barred, dismissed the revision petition also and that is how the matter landed in this Court, after completing 15 years of chequeared proceedings in different fora below.
(3.) IN the given circumstantial backdrop as summarized above, the moot question is whether the discretion of disallowing extension of time in filling the readmission application was rightly exercised by Commissioner, Agrarian Reforms in relation to petitioners readmission application regarding his appeal against mutation order No. 3081 attested by concerned Tehsildar on 4.2.1989, and whether it was rightly up -held by Tribunal. Before coming to that question directly, it would be appropriate to notice that under the mutation order impugned before Commissioner, Agrarian Reforms, the attesting officer has allowed resumption of 97 kanals and 15 marlas of land situated at Tulamulla -Ganderbal in favour of respondents as owners thereof under Section 7 of the Agrarian Reforms Act, while leaving rest of land measuring 193 kanals and 02 marlas to be mutated in favour of petitioners as owners under Section 8 of the Agrarian Act, and directing concerned Naib Tehsildar to demarcate the land on spot and deliver possession to respondents. In view of this fact the learned Commissioner, Agrarian Reforms while considering readmission of petitioners appeal which had till date of dismissal in default, completed 6 years of its pendency in that office, was required to take notice of certain important features attending the matter. First, the abnormal conditions prevalent in the valley, in view whereof non -appearance of petitioners on appointed date should not have been viewed so seriously as to entail a total demolition of their claim, case and cause. Secondly, that petitioners before Commissioner, Agrarian Reforms were tenants of land for whose benefit the Agrarian Reforms Act has been enacted, seeking to project their grievance against resumption of land by owners thereof even while it was in their possession as indicated by last part of Tehsildar's mutation order whereunder he has asked concerned Naib Tehsildar to demarcate the land and deliver possession of resumed land to respondents; and thirdly, that area of land that was subject matter of appeal was so huge that the appeal could just not be thrown out on a mere technical ground like non -appearance of appellants or for that matter condonation of delay. None of the features, however, appear to have been present to the mind of Commissioner, Agrarian Reforms while dismissing petitioners re -admission application as time barred or for that matter the appeal itself in default. Instead the matter appears to have been considered hypertechnically, which should not have been done, particularly in view of the fact, that in first place the appeal ordinarily should not have remained pending before Commissioner, for all the six years, and after such a long pendency, the matter deserved a substantial consideration on merits rather than an unceremonious dismissal in default. In so far as interest of respondents in the proceedings was concerned, it could and perhaps should have been taken care of by awarding adequate costs to them while condoning delay and passing orders on readmission of appeal.;