The Bench of Justice Rajnesh Oswal observed that the revision petition filed at the instance of aggrieved party would attract the provisions of limitation.
Revisional powers cannot be exercised arbitrarily after an inordinate delay of the passing of the order sought to be revised, observed by the Court.
The Court was hearing a writ petition filed by the petitioners who were aggrieved of the order passed by the Ld. Financial Commissioner in the revision petitions.
A mutation of inheritance bearing no. 305 dated 28/08/1989 came to be attested with regard to the estate of Aziz Sheikh (deceased) in favor of his wife and son (who is the petitioner no. 1 and petitioner no. 2 respectively).
Thereafter, two other mutations bearing no. 50 dated 22/06/2005 and no. 53 were attested in favor of petitioner no. 3 and petitioner no. 4 respectively on the basis of gift deeds executed by the petitioner no. 2.
Before the Financial Commissioner:
The respondent no. 3 challenged all three mutations bearing no. 305, 50, 53 before the Ld. Financial Commissioner by filing Revision Petitions on 05-09-2007.
In response, the petitioners had objected to the maintainability of the revision petitions on the ground that mutation of inheritance was attested in the year 1989 in presence of both the legal heirs of the deceased estate holder and every form of order emerging out of Land Revenue Act is to be challenged as provided under section 12 of Land Revenue Act within the period of 60 days from the date of the order.
Further, the impugned mutation bearing No. 305 was attested in the year 1989 and that too in the presence of the respondent No. 3 and as such the said revision petition was hopelessly time-barred. So far as other mutations bearing numbers 50 and 53 are concerned it was stated that the same were attested on the basis of registered gift deeds and the gift deeds are required to be challenged before the civil court.
However, the Ld. Financial Commissioner, without considering the plea of limitation, vide its Order dated 28-01-2015 set aside all three mutations and the said order was challenged in the instant petition.
In the instant Writ Petition:
The petitioners assailed the impugned order on the ground that the challenge thrown to the mutations was hopelessly time-barred as the mutation of inheritance bearing No. 305 was attested in the year 1989 but was assailed in the year 2007.
Mr. M.S Reshi, Ld. counsel appearing for the petitioners emphasized that the period of limitation is applicable to the revision petitions filed under Land Revenue Act and the mutation of inheritance bearing No. 305 was attested in the year 1989 and after 18 years, the respondent No. 3 filed the revision petition challenging the same which was hopelessly time-barred.
On the other hand, Mr. Nisar Ahmed submitted that the mutation bearing No. 305 was attested in utter disregard of the mandate of standing order 23-A and further, the mutation has been attested contrary to Muslim personal Law and is in fact a nullity.
Observations of the Court:
The Court after perusing the record noted that a specific plea was taken by the petitioners before the Learned Financial Commissioner that the revision petitions were filed after inordinate delay as the mutation of inheritance bearing No. 305 was attested in the year 1989 whereas the revision petition challenging the same was filed in the year 2007.
The Court further noted that the Ld. Financial Commissioner has not at all considered the plea of delay in filing the revision petition, as raised by the petitioners.
The Court referred to the judgment in Wali Mohd. Magrey & Ors Vs. Ali Mohammed Gujree & Ors (2022(1) JKJ(HC) 307) wherein it is observed
13. Coming to the relevant provisions of the Land Revenue Act, with which we are concerned herein, it is seen that Section 12 thereof provides for limitation for appeals, revisions and reviews and Section 15 provides for power to revise order. The two Sections are quoted hereunder:
12. Limitation for appeals, revisions and reviews-
1. Save as otherwise provided in this Act, the period of limitation for an appeal under the last foregoing section shall be as follows:-
a) when the appeal lies to the Collector or an Assistant Collector of the first class … 60 days;
b) when the appeal lies to the Financial Commissioner or Divisional Commissioner … 90 days:
Provided that, in the Districts of Ladakh and Gilgit twice the ordinary period of limitation for appeals under this section shall be allowed.
2. Such provisions of the Limitation Act as apply to appeals, applications for revision and review in civil suits shall also apply to appeals, applications for revision and review under this Act.
15. Power to revise order-
1. The Financial Commissioner may at any time call for the records of any case pending before or disposed of by any Revenue Officer under his control.
2. The Divisional Commissioner may call for the record of any case pending before or disposed of by any Revenue officer subordinate to him.
3. If in any case in which the Divisional Commissioner has called for a record he is of opinion that the proceedings taken or order made should be modified or revised he shall report that case with his opinion thereon for the orders of the Financial Commissioner.
4. The Financial Commissioner may, in any case called for by him under sub-section (1) or reported to him under sub-section (3) pass such order as he thinks fit:
Provided that he shall not under this section pass an order reversing or modifying any proceeding or order of a subordinate officer affecting any question of right between private persons without giving those persons an opportunity of being heard.
It be seen that whereas sub-section (1) of Section 15, providing for power to revise orders, uses the phrase ‘at any time’, meaning at any time, without reference to limitation, sub-section (2) of Section 12 provides that such provisions of Limitation Act as apply to applications for revision etc. in civil suits shall also apply to revisions etc. under the said Act. Obviously, Sub- section (1) refers to the suo moto exercise of power of revision by the Financial Commissioner and sub-section (2) of Section 12 refers to the revisions initiated under Section 15 of the Act at the instance of an aggrieved party. The provision of the law in sub-section (2) of Section 12 of the Land Revenue Act, thus, expressly, clearly and unambiguously provides limitation period for revision applications under the Act, as being the same as provided for revisions under the Limitation Act in civil suits.
It may also be equally relevant to mention here that, of course, there is no limitation period as such prescribed under the Limitation Act for revision applications in civil suits. However, it has been consistently held by this Court that normally a revision petition shall be filed within the same period as is prescribed for filing an appeal against a decree or order, which, admittedly, is 90 days (See Rahman Labroo v. Rajab Labroo, 1982 SLJ 489. We reiterate the law so laid down.
The Court after referring to the judgment (supra) observed that:
“10. Admittedly in the instant case, the revision petition was filed after 18 years of the attestation of the mutation. This Court is of the considered opinion that once the plea of limitation was raised by the petitioners, it was obligatory on the part of the Ld. financial Commissioner to decide the same notwithstanding the fact that the respondent No. 3 had claimed to have acquired the knowledge of the mutations in the month of June 2007. The perusal of the order impugned reveals that the Ld. financial Commissioner has not at all considered the plea of delay in filing the revision petition, as raised by the petitioners.…..”
The Court also referred to the judgment in Ghulam Qadir Bhat versus Financial commissioner (Revenue) & Ors” (2021(5) JKJ(HC) 1) wherein it is held:
The case at hand is a classic example of inordinate and unreasonable delay in exercise of revisional power. The said power has been exercised without recording any satisfaction as to the delay in exercising it more particularly when the two earlier generations of the revisionist have not come forward to object to the mutation or to challenge it by filing a revision. Thus, it is a clear case of unreasonable delay in exercise of revisional power.
In view of the above circumstances, the Court set aside the impugned order and directed that the Ld. Financial Commissioner shall decide the issue of limitation after hearing both the parties.