Safiya Malik

The High Court of Jammu & Kashmir and Ladakh, Single Bench of Justice Wasim Sadiq Nargal , has held that revisional authorities retain jurisdiction to examine the validity of mutation proceedings conducted under the Agrarian Reforms Act where such proceedings deviate from the statutorily prescribed attestation procedure. The Court determined that mutations attested in contravention of the established procedural framework give rise to a question of law, thereby bringing the matter within the legitimate scope of revisional scrutiny under the applicable statutory scheme.

The petitioners approached the High Court seeking issuance of a writ of certiorari to quash the order dated 17.10.2018 passed by the J&K Special Tribunal, Jammu, in a revision petition whereby the tribunal had set aside the appellate authority’s order and remanded the matter to the Tehsildar, Kathua, for a de novo enquiry and for passing a fresh order after hearing the parties.

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The dispute arose from mutation proceedings concerning land situated at village Chhajiyal, Tehsil and District Kathua. Mutation No. 132 under Section 4 of the Agrarian Reforms Act was attested in favour of certain individuals, including the petitioners, based on their possession since Kharif 1971 as tenants of the landowner. Subsequently, Mutation No. 135 under Section 8 of the Agrarian Reforms Act was also attested, conferring ownership rights upon them in equal shares over the land measuring 28 kanals and 02 marlas. The petitioners contended that one of the co-sharers had acknowledged cultivation of the land and had not challenged the mutation proceedings during his lifetime, and therefore the legal heirs could not question those orders.

Appeals challenging the mutation orders were dismissed by the appellate authority, which recorded that the appellants had not approached the authority with clean hands and found no illegality in the mutation proceedings. The respondents thereafter filed a revision before the J&K Special Tribunal. The revisional authority allowed the revision, set aside the appellate order, and remanded the matter for fresh enquiry after examining the original record and hearing the parties. The petitioners challenged the remand order contending that the tribunal exceeded its revisional jurisdiction under Section 21(2) of the Agrarian Reforms Act, as no question of law or public interest was involved.

The Court examined the challenge to the remand order passed by the revisional authority and recorded that the order merely required the competent authority to reconsider the matter. The Court observed, “the impugned order passed by the revisional authority is merely an order of remand directing a de novo enquiry by the Tehsildar Kathua.” It further recorded, “the revisional authority has neither adjudicated upon the rights of the parties nor has it conclusively determined the dispute between them.”

Addressing the scope of interference in writ jurisdiction, the Court stated, “It is settled principle of law that courts while exercising writ jurisdiction do not interfere with the orders of remand particularly when such orders do not finally determine the rights or cause any grave injustice or prejudice to either of the parties.” The Court also observed, “When a matter is remanded the authority to whom it is assigned is required to re-examine the issue afresh after affording equal opportunity of being heard to the concerned parties.”

The Court examined the petitioners’ contention that revisional jurisdiction could be exercised only when a question of law or public interest was involved. After reviewing the record, the Court recorded, “the revisional authority after summoning and examining the original record noticed several serious infirmities in the order passed by the appellate authority.” It further observed, “the Appellate Authority has decided the appeal without summoning and examining the original record and the findings which were recorded were contrary to the material available on record.”

On the procedural irregularities, the Court stated, “the appellate authority recorded its findings on the basis of the record without actually summoning or examining the original record.” The Court added that such failure “renders the entire decision arbitrary and legally unsustainable.”

The Court also examined allegations relating to mutation proceedings and statutory procedure. It observed, “the mutations in question were attested at the headquarters instead of being attested on the spot in the village where the land is situated.” The Court further recorded, “Such a course adopted by the mutating authority is clearly contrary to the procedure mandated under Rule 14 read with Standing Order 23-A and renders the mutation proceedings vulnerable in law.”

Referring to the legal principle governing statutory procedure, the Court stated, “where the law prescribes a specific manner for performing an act, the same must be adhered to strictly, and any deviation from the prescribed procedure renders the action legally unsustainable.”

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The Court directed: “the impugned order passed by the Revisional Authority does not suffer from any illegality, perversity or jurisdictional error warranting interference by this Court in exercise of its extraordinary writ jurisdiction under Article 226 of the Constitution of India. The Revisional Authority was therefore fully justified in exercising its revisional jurisdiction under Section 21 of the Agrarian Reforms Act and in remanding the matter to the competent authority for a fresh enquiry in accordance with law. The writ petition being devoid of merit is dismissed along with connected applications. Registry is directed to return the records of the case to the concerned authorities forthwith.”

Advocates Representing the Parties

For the Petitioners: Mr. R P Sharma, Senior Advocate with Mr. Rohit Gupta, Advocate

For the Respondents: Ms. Priyanka Bhat, Assisting Counsel to Mrs. Monika Kohli, Senior AAG; Mr. Vishal Goel, Advocate

Case Title: Bansi Lal & Others v. State of J&K & Others
Case Number: OWP No.2210/2018
Bench: Justice Wasim Sadiq Nargal