(This Judgment Delivered at Srinagar Bench)

1. This appeal under Clause 12 of the Letters Patent is directed against the judgment dated 15.07.2014 passed by learned Single while disposing of OWP Nos.1279/2011 and 1682/2011.

2. Land covered by Survey Nos.244-min (6 kanals 17 marlas) and 245-min(2 kanals 8 marlas) situated at Larkipora Tehsil Awantipora, in the year 1971, is shown recorded in the personal cultivation of its owners i.e. Aziz and Jabbar sons of Razak Dar in equal shares. Both of them are dead, survived by the appellants.

3. In the year 1975, mutation for correction of entries bearing No.594 has been attested on 15.09.1975, where-under land covered by survey No.244-min measuring 2 kanals and 245-min measuring 2 kanals, in total 4 kanals, has been ordered to be recorded in cultivation of Mohammad Bhat S/O Samad Bhat (respondent No.4 herein) with effect from 1971 as tenant on payment of rent as NAQDI HASBI PARTI DEH.

4. Vide mutation No.721 attested on 07.08.1982, land covered by survey No.244-min (4 kanals 8 marlas) and 245-min (4 marlas) (in total 4 kanals 12 marlas) has been mutated under Section 4 of the Agrarian Reforms Act extinguishing ownership of Aziz and declaring respondent No.4 as prospective owner. Then vide mutation No.725, respondent No.4 has been conferred ownership rights under Section 8 of the Agrarian Reforms Act.

5. Respondent No.4 had filed a suit for permanent injunction before the Court of Sub Judge, Pulwama. Copy of the plaint available on the records would suggest that the respondent No.4 had claimed to be owner in possession of land measuring 7 kanals 9 marlas covered by Survey No.1419(new 244) and 245 (old) situated at Village Larkipora Padgampora. It is also averred that mutation Nos.594, 725 and 726 regarding said land have been attested in his favour. It is also mentioned therein that the appellants have challenged the said mutations in an appeal before Additional Deputy Commissioner which has been dismissed. The said suit has been withdrawn unconditionally on 07.07.2014, as is clear from the copy of the order recorded by the Court of Sub-Judge, Pulwama, as placed on records.

6. Appellants have filed appeals against all three mutations before the Additional Deputy Commissioner (with powers of Commissioner Agrarian Reforms) Pulwama. The appeals were time barred. Applications seeking condonation of delay have been dismissed by the Appellate Authority vide its order dated 24.05.2010. As against that order, appellants filed revision petition before the J&K Special Tribunal. Learned Tribunal noticing the features of the case, orders passed and the distortion of facts accepted the revision petition, allowed application for condonation of delay, while setting aside mutations remanded case to Tehsildar, Pulwama for de novo enquiry.

7. Dissatisfied therewith, respondent No.2 has filed two writ petitions bearing OWP No.1279/2011 on 27.09.2011 and OWP No.1682/2011 on 21.11.2011 seeking quashment of order dated 15.09.2011 passed by J&K Special Tribunal.

8. Both the two writ petitions have been allowed by the learned Single Judge vide its judgment dated 15.07.2014. Counsel who had appeared on behalf of respondent No.4 had stated that he has no objection if the applications seeking condonation of delay in filing the appeals before the Additional Deputy Commissioner are allowed and the appeals are heard on merits. Learned Single Judge has opined that once applications for condonation of delay were dismissed and the appeals dismissed as barred by limitation, then it was not within the powers of Tribunal to have enlarged the scope of the revision petition and to hear and determine the appeal itself. The Tribunal has obviously exceeded its jurisdiction rendering its remand order as illegal and bad in law. Finally, learned Single Judge has partially allowed the writ petitions and quashed the order of the Tribunal to the extent of setting aside mutation orders and de-novo enquiry by the Tehsildar.

9. Appellants dissatisfied with the judgment have filed two instant LPAs because by common judgment two writ petitions were disposed of.

10. The pivotal question for consideration is as to whether the revisional authority has exceeded its jurisdiction in deciding the appeals itself. Answer has to be in negative. Revisional authority has powers under Section 21 of the Agrarian Reforms Act to look into all aspects of the controversy. Rule 52 of the Agrarian Reforms Rules, 1977 provides that when the Appellate Authority finds that the appeals are barred by limitation but have merit, then it has to dismiss the application but has to submit the case to the revisional authority. Rule 52, for facility of reference, is quoted here-under:

52. Case where appeals fails on ground of limitation.

Where the appeal is dismissed on the ground of limitation, the appellate authority shall, if he be of the opinion that the order appealed from is one which should be revised, submit the case through proper channel to the revisional authority with a report why the order appealed from needs being revised and what the revised order should be. On receipt of this report, the revisional authority shall act as if an application for revision under the Act had been made to him.

Lucid language of the rule makes it clear that when the appeals have merit even though barred by limitation, the Appellate Authority has to prepare a statement and to submit the case to the revisional authority.

11. The Appellate Authority has failed to look into the merits of the case so as to see as to whether there was requirement of submitting the case to the revisional authority in terms of Rule supra. It is in the same background, learned Tribunal in its order has noticed distortion of facts and the illegality of the orders and thereafter has allowed the applications seeking condonation of delay, while setting aside the order of Additional Deputy Commissioner has also set aside mutation orders bearing No.594, 725 and 726 and case has been remanded back to Tehsildar Pulwama for de novo enquiry.

12. In-keeping with the Rule as quoted above and Section 21 of the Agrarian Reforms Act, revisional authority has all the powers to undo the wrong, same has been done which advances the object of Agrarian Reforms Act.

13. Respondent No.4 while filing suit has claimed to be in possession as owner of the land measuring 7 kanals and 9 marlas on the strength of above three mutations. Reading of said mutations would suggest that as per mutation No.594 (correction of entries) only 4 kanals i.e. 02 kanals under Survey No.244 and 02 kanal under survey No.245 have been recorded in possession of the respondent No.4, mutation No.721 has been attested on 25.11.1982 on the basis of sale deed for land covered by Survey No.449 and 452. In mutation No.725, reference has been made of mutation No.721 as having been attested under Section 4 which is not correct. Mutation No.725 has been attested under Section 8 Agrarian Reforms Act and then mutation No.726 has also been attested under Section 8 of the Agrarian Reforms Act. Reference is made to mutation No.684 shown to have been attested under Section 4 regarding land measuring 2 kanals under Survey No.244 and 2 kanals under Survey No.245. When these distorted facts and illegalities are apparent. The fact that while attesting mutation No.594, rent has been fixed by the Tehsildar which was not within his jurisdiction, how can such orders be allowed to remain in operation. Revisional authority in the said background has rightly set aside all the orders and ordered de novo enquiry.

14. The question in essence for the purposes of attracting the provisions of Agrarian Reforms Act, more particularly Section 4 and 8 of the said Act, is that a person if in possession has to show that he was a tiller on the crucial date of 1971.

15. When learned counsel for respondent No.4 was confronted with the aforesaid legal position, he made a candid submission to the effect that de novo enquiry by any other superior officer instead of by Tehsildar may be ordered to be held which submission is not opposed.

16. For the stated facts, reasons, circumstances and the position of law, order impugned dated 15.07.2014 passed by learned Single Judge is unsustainable, as such, set aside. Order of the J&K Special Tribunal dated 15.09.2011 is modified to the extent that instead of Tehsildar, Pulwama, Assistant Commissioner (Collector), Pulwama shall hold the de novo enquiry and after hearing both the parties shall pass appropriate orders under law.

17. Parties to appear before the learned Assistant Commissioner (Collector) on 20th July, 2015.

18. Both the appeals shall, accordingly stand disposed of.