Jammu & Kashmir High Court – Srinagar Bench
Gulzar Ahmad Khan vs State Of J&K And Others on 6 June, 2025
Author: Rajnesh Oswal
Bench: Rajnesh Oswal
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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
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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.
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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
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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
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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
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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
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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
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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
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