‘Attest mutations near land, not at headquarters’
No writ interference unless order suffers from illegality
Mohinder Verma
JAMMU, Mar 11: The High Court of Jammu & Kashmir and Ladakh has reiterated that Revisional jurisdiction under Section 21 of the Agrarian Reforms Act can be invoked where a question of law arises or where statutory procedure governing mutation proceedings has been violated.
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The High Court also held that orders of remand directing fresh enquiry ordinarily do not warrant interference in writ jurisdiction under Article 226 of the Constitution unless they suffer from jurisdictional error or manifest illegality.
These observations were made by Justice Wasim Sadiq Nargal while dismissing a writ petition filed by Bansi Lal and others challenging the order of the J&K Special Tribunal in Bansi Lal & Others Versus State & Others case.
The petitioners approached the High Court seeking quashing of an order dated October 17, 2018 passed by the J&K Special Tribunal, Jammu, whereby the Tribunal had set aside the order of the Appellate Authority and remanded the matter to the Tehsildar, Kathua for de novo enquiry.
The Tribunal had directed the Tehsildar to conduct a fresh enquiry into the mutation proceedings and pass an order after providing opportunity of hearing to the parties.
Aggrieved by this order, the petitioners invoked the writ jurisdiction of the High Court under Article 226 of the Constitution and contended that the Tribunal had exceeded the scope of Revisional jurisdiction under Section 21 of the Agrarian Reforms Act. It was argued that revisional jurisdiction can be exercised only where a question of law or public interest is involved. According to the petitioners, no such question of law existed in the present case and therefore the revision itself was not maintainable.
However, the respondents supported the order of the Tribunal and contended that the Revisional Authority had acted within the scope of its powers under Section 21 of the Agrarian Reforms Act.
They submitted that the Tribunal had summoned and examined the original record, which revealed serious irregularities in the decision of the Appellate Authority.
After hearing the parties and examining the record, Justice Wasim Sadiq Nargal made several important observations regarding the scope of revisional jurisdiction and legality of mutation proceedings.
The High Court observed that Revisional jurisdiction can be exercised where a question of law arises or where subordinate authorities have acted in violation of statutory procedure. “The purpose of revisional jurisdiction is to ensure legality, propriety and correctness of orders passed by subordinate authorities”, the High Court added.
The High Court found that the Tribunal had noticed serious defects in the appellate order. One such discrepancy was that the Appellate Authority recorded that Madho Lal had signed the mutation orders, whereas the original record revealed that he had affixed his thumb impression.
This discrepancy indicated that the Appellate Authority had not properly examined the original record before recording its findings, the High Court said, adding such inconsistencies raised questions relating to the legality of the decision, thereby justifying the exercise of revisional jurisdiction.
The Court also took note of the finding that the Appellate Authority condoned the delay and decided the appeals on merits on the same day, without separately examining the issue of limitation.
Referring to settled legal principles laid down by the Supreme Court, the High Court observed that the question of limitation must first be decided before examining the merits of the appeal, and failure to follow this approach constitutes a procedural irregularity.
Apart from this, serious allegations had been raised regarding illegal attestation of mutations and non-compliance with statutory procedure governing mutation proceedings, which the Appellate Authority had failed to examine”, the High Court said and also examined the statutory framework governing mutation proceedings under the Agrarian Reforms Rules.
It observed that Rule 14 of the Agrarian Reforms Rules requires mutation proceedings to be conducted in accordance with Standing Order 23-A, which provides that mutation proceedings should ordinarily be attested in or near the village where the land is situated and that ex-parte proceedings should be avoided.
The Court noted that in the present case mutations had been attested at the headquarters instead of at the village site, raising serious concerns regarding compliance with the prescribed procedure.
Reiterating a well-established legal principle, the High Court observed that when a statute prescribes a particular manner for doing an act, it must be done in that manner or not at all.
In light of these findings, the High Court held that the Revisional Authority had rightly exercised its powers under Section 21 of the Agrarian Reforms Act to correct the legal and procedural irregularities in the appellate order.
The Court clarified that the Revisional Authority did not finally decide the dispute but merely remanded the matter for fresh consideration by the Tehsildar after proper enquiry and hearing of the parties.
The High Court emphasized that orders of remand which merely direct reconsideration of the matter ordinarily do not warrant interference in writ jurisdiction, as such orders do not finally determine the rights of the parties.
Interference under Article 226, the Court observed, is justified only where the impugned order suffers from jurisdictional error, perversity or manifest illegality. Finding no illegality, perversity or jurisdictional error in the impugned order of the Revisional Authority, the High Court dismissed the writ petition as devoid of merit and upheld the order directing fresh enquiry by the Tehsildar in accordance with law.
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