SARSA Vs. SPECIAL TRIBUNAL, J&K

JUDGEMENT

(1.) THE short submission made by the learned counsel appearing for the petitioners is that respondent No.2, Agrarian Reforms Commissioner, Jammu instead of deciding the case on merits, as directed by this court vide order dated 11.9.2001 passed in OWP No. 948 of 1999, entitled Sarsa and another versus State of Jammu & Kashmir and others, dismissed the appeal of the petitioner on the ground of limitation only and respondent No.1, J&K Special Tribunal, Jammu up -held the order of the respondent No.2, without going into the merits of the case.

(2.) THE dispute pertains to the payment of rent to one Vaishno Dass, respondent No.4 landlord, by the petitioner who is tenant under him. The landlord, respondent No.4, approached the Tehsildar, Jammu regarding recovery of rent against the petitioner and other tenants of the land which was owned by respondent No.4 and in possession of tenants. The Tehsildar, vide its orders dated 1.10.1991 and 10.7.1993 accepted the claim of respondent No.4. Aggrieved by the order of the Tehsildar, the petitioner tenant impugned its correctness before the Financial Commissioner (Revenue) with powers of Commissioner Agrarian Reforms, Jammu and the order of the Tehsildar was modified on the basis of some agreement reached between the parties. The order passed by the Financial Commissioner dated 26.09.1996, however, came to be challenged before the J&K Special Tribunal, Jammu where the order of the Financial Commissioner was set -aside and that of Tehsildar, Jammu was up -held. The matter did not end up here and was agitated in writ petition before this court by petitioner, tenant. The case, however, was remanded back to the Financial Commissioner with a direction to decide the appeal on merits and, if any, objection to the maintainability of the appeal is raised, that shall also be considered. The matter was heard by the Financial Commissioner (Revenue), Jammu and he dismissed the appeal on the ground of being time barred, vide order dated 26.5.2003. This order of the Financial Commissioner again was challenged in revision under section 21(2) of the J&K Agrarian Reforms Act, 1976 before the J & K Special Tribunal, Jammu. The revision was, however, found possessing no merit and was dismissed, vide order dated 11.2.2004 which is subject -matter of challenge in this writ petition.

(3.) THE sole ground taken by the Mr. S.S.Lehar, learned counsel for the petitioners, in this writ petition and strenuously vouched in his debate is that the matter was remanded to the Financial Commissioner (Revenue) to be heard and decide on merits, but the appellate authority without going into the merits of the case dismissed the appeal on the ground of being barred by limitation. It was further submitted by Mr. S.S.Lehar that the appeal could not be dismissed on the point of limitation alone in view of a specific direction issued by this court to go into merits of the case. Further contention of Mr. S.S.Lehar is that the plea of limitation cannot be raised for the first time in appeal. All facts which are necessary to support the plea must be taken in appeal on record. It is further stated that any objection that the appeal being time barred, if not raised, at any time earlier than at the time of the arguments in appeal, must be rejected. It is relevant to refer section -3 of the Limitation Act(1995) which reads as under;