Disposed

Nand Kishore v. Ut of J and K Th Commissioner Secretary Deptt of Revenue and Others

J&K HC11 Dec 2023WP(C)/328/2022

Case brief

AI extract

What is this about?

The petitioner challenged an order rejecting his condonation of delay application for an appeal against a mutation order. The High Court held the Divisional Commissioner lacked jurisdiction to entertain such an appeal when passed by the Tehsildar Settlement and directed the petitioner to withdraw the condonation application and pursue remedies with the appropriate appellate authority.

What did the court decide?

Petitioner allowed to withdraw application for condonation of delay; directed to approach appropriate appellate authority.

Nand Kishore Vs Ut of J and K Th Commissioner Secretary… — Writ and Judicial Review | J&K HC (2023)

¶1

¶2

HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU

¶3

Case:WP(C) No. 328/2022 CM No. 1244/2022

¶4

Nand Kishore, Age 56 years, S/o Late Sh. Tara Mani Khajuria, R/o Village Dharmal (Muthi), Jammu.

¶5

…..Petitioner

¶6

Through: Mr. Narinder Kr. Attri, Advocate

¶7

¶8

1. Union Territory of Jammu & Kashmir through Commissioner cum Secretary, Department of Revenue, Civil Secretariat, Jammu.

¶9

2. Divisional Commissioner, Jammu.

¶10

3. Tehsildar Settlement, Jammu.

¶11

4. Anil Gaind.

¶12

5. Sunil Gaind. Respondent no. 4 & 5 both sons of Sh. Jagdish Prasad R/o Lane No. 2, H. No. 4, Talab Tillo, Jammu.

¶13

6. Kusum Bhatia D/o Late Sh. Shanti Swroop Bhatia, R/o H. No. 23 Pawan Enclave, Paloura, Jammu.

¶14

.…. Respondents

¶15

Through: Ms. Nazia Fazal, Advocate vice Mrs. Monika Kohli, Sr. AAG for R- 1 to 3. Mr. Rohit Kohli, Advocate for R- 4 & 5. None for R-6.

¶16

Coram: HON’BLE MR. JUSTICE RAHUL BHARTI, JUDGE

¶17

ORDER

¶18

11.12.2023

¶19

01. This writ petition came to be disposed of in first round by this Court vide judgment dated 11.09.2023. The disposal of the writ petition had taken place in absence of the learned counsel for the petitioner which resulted in preference of letters patent appeal LPA no. 199/2023 whereby said judgment dated 11.09.2023 came to be

¶20

2 WP(C) No. 328/2022 CM No. 1244/2022

¶21

set aside and the matter stood remanded for adjudication afresh by affording of hearing to the petitioner.

¶22

02. Heard learned counsel for the petitioner.

¶23

03. This writ petition deserves disposal on short legal point.

¶24

04. The petitioner himself chose to maintain an appeal against mutation order no. 654 dated 14.10.1995 attested with respect to khasra no. 503/505 in village Dharmal, tehsil Jammu (North) before the Divisional Commissioner, Jammu on file no. 12/appeal instituted on 24.05.2018.

¶25

05. The mutation in reference was attested by the Tehsildar Bandobast/Agrarian by purported recourse to section 121 of the Land Revenue Act, Svt. 1996, meaning thereby the Agrarian Reforms Act, 1976 was not applicable and for that reference of Tehsildar is not be read as Tehsildar Agrarian, leaving the Tehsildar concerned Jammu’s reference as a Tehsildar Bandobast i.e. Settlement attesting the said mutation.

¶26

06. The petitioner’s appeal was a time barred and, therefore, accompanied with an application for condonation of delay. This application remained pending on the docket of the Divisional Commissioner, Jammu for almost four years when by virtue of an order dated 07.01.2022 the application came to be rejected thereby not allowing condonation of delay in favour of the petitioner for maintaining the appeal against said mutation.

¶27

3 WP(C) No. 328/2022 CM No. 1244/2022

¶28

07. It is this order dated 07.01.2022 which has come to be assailed by the petitioner in the present writ petition under article 226 of the Constitution of India on the premise that the Divisional Commissioner, Jammu was not the competent appellate authority to entertain the appeal against the mutation order passed by the Tehsildar Settlement and, therefore, the Divisional Commissioner, Jammu’s order is misconceived.

¶29

08. The tone and tenor of the submission of the learned counsel for the petitioner is that the appeal of the writ petitioner itself was not maintainable before the Divisional Commissioner, Jammu and that should have been reckoned as a non-est.

¶30

09. In view of the fact that the said stand of the petitioner is being repeated that the Divisional Commissioner, Jammu at the relevant point of time was having no jurisdiction to entertain and deal with any appeal against an order of the Tehsildar Settlement, as such, this Court allows the petitioner to withdraw his application for condonation of delay so dismissed by the Divisional Commissioner, Jammu and resort to appropriate remedy before approaching the appropriate appellate authority whomsoever may be.

¶31

10. It is worth mentioning here that the petitioner was all along knowing the fact that the Divisional Commissioner, Jammu was not competent to deal with an appeal against the mutation order of

¶32

¶33

WP(C) No. 328/2022 CM No. 1244/2022

¶34

Tehsildar Settlement but despite that knowledge kept on maintaining the application for condonation of delay till its actual disposal came to take place on 07.01.2022. Therefore, the pendency of the application 24.05.2018 to 07.01.2022 cannot be said to be bona fide and, therefore, the petitioner would have to explain the limitation reckoning from the year 1995 onwards before the appropriate appellate authority whomsoever it may be before whom the petitioner intends to file an application for condonation of delay in maintaining an appeal against mutation no. 654 dated 14.10.1995.

¶35

11. Whatever observation has been made by the Divisional Commissioner, Jammu in terms of its order dated 07.01.2022 shall be read as non-est as if not existing.

¶36

12. Writ petition disposed of .

¶37

JAMMU 11.12.2023

¶38

Muneesh

¶39

(RAHUL BHARTI) JUDGE Whether the order is reportable: Yes / No Whether the order is speaking : Yes / No

Nand Kishore v. Ut of J and K Th Commissioner Secretary Deptt of Revenue and Others

Case brief

What is this about?

What did the court decide?

Nand Kishore v. Ut of J and K Th Commissioner Secretary Deptt of Revenue and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Wazir Kedar Nath Vs State Th.Revenue Deptt.and Ors.

Autar Krishan Vs Owais Ahmed .District Magistrate Shopian and Anr.

Dhian Singh and Others Vs Ut of J and K Th Commissioner Secretary Revenue Deptt Another

Shakuntla Devi and Ors. Vs State Th.Revenue Deptt.and Ors.

Sonam Choudhary Vs Union Territory of Jammu and Kashmir through Revenue Deptt and Ors.

Ajay Kumar Sharma and Another Vs U T of J and K Th Principal Secretary Finance Deptt and Others