1 OWP No. 348/2003 HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR Reserved on 08.05.2025 Pronounced on 06.06.2025 OWP No. 348/2003 Gulzar Ahmad Khan …Petitioner(s)/Appellant(s) Through: Mr. M. A. Khan, Adv. v/s State of J&K and others …. Respondent(s) Through: Mr. Allau Din Ganie, AAG with Ms. Shaila Shameem, AC for Nos. 1 to 3 Mr. Rizwan-Ul-Zaman, Adv. for Nos. 4 to 7 CORAM: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE. JUDGMENT 1. The brief facts are that the land measuring 10 kanals 18 marlas comprising khasra No. 679(3 kanals 14 marlas), 680(2 kanals 1 marla) and 681 (5 kanals 3 marlas) situated in Village Hardu Shichan Pati Shichan Tehsil Anantnag was in ownership of Mohammad Abdullah Ganai and Ghulam Ahmad Ganie S/o Rehman Ganai, residents of Sherpora Anantnag. The petitioner, and proforma respondents claim to be in possession of the land measuring 5 kanals 15 marlas as tenants prior and after 1971. After the enactment of Agrarian Reforms Act, Mutation bearing No. 851 was attested under section 4 of the Agrarian Reform Act as such, the petitioner and proforma respondents were declared as prospective owners. It is stated by the petitioners that in the year, 1985, ex-owners executed a document in favour of the petitioners and also in favour of the Mehda Ganie S/o Moma 2 OWP No. 348/2003 Ganie wherein predecessors-in-interest of the contesting respondents admitted that they had received the levy of the aforesaid land from the petitioners and other persons regarding which a compromise came to be arrived at between the parties on 02.04.1985. It is further stated that after the execution of the abovementioned document, Mohd. Abdullah Ganie and Ghulam Ahmed Ganie died, and their descendants became dishonest and managed to get the mutation No. 860 attested under section 7 of the Agrarian Reforms Act on 16.01.1990 at Headquarters in league with the Tehsildar at the back to the petitioner and proforma respondents. 2. The petitioner challenged the said mutation through the medium of appeal, before respondent No. 2-Agrarian Reform Commissioner, but the same was dismissed as being time-barred vide order dated 31.10.2001. The petitioner thereafter assailed the said order before the learned J&K Special Tribunal but without any success, as the J&K Special Tribunal vide its order dated 01.11.2002 upheld the order of the Commissioner, Agrarian Reforms Act and dismissed the revision preferred by the petitioner. 3. The petitioner being aggrieved of attestation of mutation dated 16.01.1990, order dated 31.10.2001 passed by the Agrarian Reform Commissioner and thereafter order dated 01.06.2002 passed by the Special Tribunal, has filed this writ petition for quashing the same primarily on the ground that the mutation under section 7 of the Agrarian Reforms Act was attested at the back of the petitioner and both the appellate authority as well as revisional authority have wrongly applied the provision of limitation for dismissing the appeal and the revision respectively preferred by the petitioner. 3 OWP No. 348/2003 4. The contesting respondents have filed the counter affidavit by stating therein that they are in possession of their share to the extent of 2 kanals 17 1/2 marlas of land as they were allowed to resume the land by the competent authority. It is further stated that the agreement enclosed by the petitioner is forged which is substantiated by the fact that the document allegedly has been executed by the parties on 01.04.1985, whereas the father of respondent No. 7, Ghulam Ahmed Ganie, one of the ex-owners to whom the execution of the document/agreement has been attributed, came to demise on 26.06.1982. A copy of the death certificate demonstrating the demise of father of respondent No. 7 has been annexed by the respondents. It is also stated that the mutation under section 7 of the Agrarian Reforms Act bearing No. 860 of Village Hardu Shichan Pati Shichan Tehsil Anantnag dated 16.01.1990 has been rightly attested in favour of the ex- owners and in fact the petitioner and proforma respondents were present at the time of attestation of mutation. The petitioner had definite and specific knowledge about attestation of mutation on the very date of attestation of mutation and on this count only, the appeal filed by the petitioner before the Joint Commissioner Agrarian Reforms Act was dismissed being time- barred. It is also the stand of the contesting respondents that the contradictory stands have been taken by the petitioner because at one hand, he has alleged in the application that there was an agreement between the petitioner and ex-owners, namely, Mohammad Ahmed Ganie and Ghulam Ahmed Ganie in the year, 1985 wherein they had alleged that ex-owners have agreed to cancel the mutation No. 860 and at the same time, he has alleged that he had no knowledge about the mutation. Even the petitioner 4 OWP No. 348/2003 did not mention any date in the application for condoning the delay when he acquired the knowledge of attestation of mutation. 5. During the pendency of this petition, the petitioner filed an application for placing on record the report of the Patwari to demonstrate that the ex- owners had not filed any application for resumption of the land. 6. Learned counsel for the petitioner has argued that both the appellate authority as well as revisional authority have not determined the controversy in its right perspective as such, orders impugned are not sustainable in law. He further stated that no resumption application was filed by the ex-owners. 7. Per contra, Mr. Rizwan-Ul-Zaman, learned counsel appearing for respondent Nos. 4 to 7 has vehemently argued that both the appellate as well as revisional authorities have rightly come to the conclusion that the petitioner has not been able to demonstrate the sufficient cause in the application seeking condonation of delay in filing the appeal and further it was never the case of the petitioner either before the appellate or revisional authority that the application for resumption of land was not filed by the ex-owners pursuant to which mutation impugned was attested. 8. Heard and perused the record. 9. A perusal of the record reveals that the petitioner filed an appeal along with an application seeking condonation of delay, against the mutation No. 860 attested on 16.01.1990 under section 7 of the Agrarian Reforms Act in respect of land measuring 10 kanals 18 marlas comprising khasra No. 679 (3 kanals 14 marlas), 680 (2 kanals 1 marla) and 681 (5 kanals 3 marlas) situated in Village Hardu-Shichan Pati Shiuchan Tehsil Anantnag. In the 5 OWP No. 348/2003 appeal, it is was stated that the prospective owners and ex-owners had divided the land privately before filing of resumption form and by virtue of said private oral agreement, the ex-owners were given land measuring 5 kanals 8 marlas comprising khasra No. 679(1 kanal 17 marlas), 680 (1 kanal) and 681 (2kanal 11 marlas) whereas the appellants i.e. the petitioner and proforma-respondents herein were given 2 kanals 18 marlas of land comprising khasra No. 679(1 kanal 17 marlas) and 680 (1 kanal and 1 marla) and Mehda Ganai was given 2 kanals 12 marlas of land comprising survey No. 681.Thereafter, ex-owners executed an agreement in favour of appellant No. 2 and 3 i.e. petitioner and proforma respondent No.9 and paid an amount of Rs. 38,000/- to ex-owners and they transferred the land to appellant Nos. 2 and 3 i.e. the petitioner and proforma respondent No.9. A panchayatnama was also executed by the ex-owners in favour of the petitioner and proforma respondent No. 9. 10. Interestingly, it was also mentioned in the appeal that although the mutation No. 860 under section 7 of the Agrarian Reforms Act was not attested till that time but it was entered, so the ex-owners agreed that they would get the said mutation set aside but thereafter militancy started. Further in para-2 of the memo of appeal, a blank space has been left where date/period was required to be mentioned, when the petitioner along with other appellants gained the knowledge of attestation of mutation. The appellate authority observed that the appeal has been preferred after a gap of more than 9 years and arrived at the conclusion that the appeal is grossly time barred and appellants including the petitioner have not been able to demonstrate the sufficient cause for condoning the delay and rather 6 OWP No. 348/2003 had kept the date of their knowledge blank in para 2 of the appeal as well as the application seeing condonation of delay. The learned Special Tribunal, after examining the record, arrived at the same conclusion with the observations that the appellants, including the petitioner claim that they got knowledge of the impugned mutation from the concerned Patwari whom they had approached for obtaining extract of khasra girdawari but omitted to mention the date on which they contacted Patwari. With these observations, the learned Special Tribunal upheld the order passed by the respondent No. 2 and dismissed the revision petition preferred by the petitioner. This Court does not find any perversity in the findings recorded by the statutory authorities that the petitioner has not demonstrated sufficient cause for condoning delay in filing the appeal. 11. This Court, while exercising the power of judicial review, cannot act as a court of appeal or revision while examining the validity of orders passed by the statutory authorities under the Agrarian Reforms Act. While exercising the power of judicial review, this Court has only to examine whether there is any jurisdictional error on the part of the statutory authority or whether there is any perversity in the orders impugned or not. Both the appellate as well as revision after examining the record have arrived at the conclusion that the petitioner along with others have not been able to demonstrate the sufficient cause for condoning the delay in filing the appeal against the mutation bearing No. 860 dated 16.01.1990. 12. Further this court finds that an attempt has been made by the petitioner to craft a new ground that application for resumption was not filed by the ex- owners, as this ground was never raised in appeal, revision as well as in 7 OWP No. 348/2003 the present writ petition. Record depicts that for the first time, for the disposal of writ petition, the relevant record was sent for vide order dated 29.10.2009. As is evident from the order dated 02.02.2011, the Tehsildar, Anantnag appeared in person and stated that some of the records were washed away by floods so he could not lay his hands on the Resumption Form as is stated to have been filed by the landlord. Tehsildar, Anantnag was directed to file affidavit in support of his claim. Thereafter, the writ petition was dismissed for non-prosecution on 09.03.2011, to be subsequently restored on 24.07.2011. Thereafter, the petitioner taking advantage of the statement made by Tehsildar, Anantnag embarked upon a journey to craft and prepare a new ground for throwing challenge to mutation No. 860 that application for resumption was not filed by the ex- owners, which as already stated above, was never raised anywhere in the appeal, revision and even in this writ petition. This court vide order dated 22.08.2024 after taking note of order dated 29.10.2009 directed Tehsildar, Anantnag to file an affidavit demonstrating as to what happened to the resumption form. An affidavit came to filed by the Tehsildar, Anantnag that after getting report from field functionaries, it transpires that Parat Sarkar of mutation No. 860 of Estate Hardu Sichan is not available in the record of this Tehsil as most of the records of this Tehsil have got destroyed due to the floods in the year 2014. The petitioner has also placed on record endorsement made on the application in respect of non- availability of resumption form, through the medium of CM No. 6654/2024. This court has not even an iota of doubt, that the story of non- availability of resumption form has been cooked by the petitioner only 8 OWP No. 348/2003 after the Tehsildar, Anantnag for the first time in the year 2011 made statement that some of the records were washed away by floods so he could not lay his hands on the Resumption Form. The petitioner in fact wants to extract the benefit from the factum of loss of record in floods and is trying to raise a new ground, which is an afterthought and as such cannot be taken note of in the writ petition. 13. For the foregoing reasons, this Court does not find any reason warranting interference at the end of this Court. Accordingly, the instant writ petition is dismissed. 14. Record be returned to Mr. Ganai, learned A.A.G. (RAJNESH OSWAL) JUDGE Srinagar 06.06.2025 Rakesh Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No Rakesh Kumar 2025.06.09 12:33 I attest to the accuracy and integrity of this document