SYED MANZOOR AHMAD Vs. STATE OF J&K
LAWS(J&K)-2006-11-18
HIGH COURT OF JAMMU AND KASHMIR
Decided on November 03,2006

Syed Manzoor Ahmad Appellant
VERSUS
STATE OF JANDK Respondents

JUDGEMENT

- (1.) 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 under section 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 under section 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.
(2.) 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 under section 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.
(3.) 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 under section 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 Khana -nisheen 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 whereunder 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 under section 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 under section 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.;


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