Showkat Ahmad Puchloo vs State and Others

Mansoor Ahmad Mir, J.—Challenge in this writ petition is to the order passed by Financial Commissioner whereby and whereunder the

appeal filed in terms of J&K Migrant Immovable Property (Preservation, Protection and Restraint on Distress Sales) Act, 1997, came to be

dismissed, for short the impugned order.

The Divisional Commissioner-respondent No. 2 vide order dated 11th of December, 2004 granted permission to respondent No. 4, Khurshid

Ahmad Bhat to alienate the property in question came to be questioned by the writ petitioner by the medium of an appeal-was dismissed in terms

of impugned order on two grounds; one that appeal is time barred and second that appellant had the knowledge of the proceedings.

Learned Counsel for the petitioner argued that the writ petitioner-appellant came to know about the said order on 1st of March, 2005 and filed

the appeal on 7th of March, 2005. Thus, the limitation has to run from the date of knowledge i.e. 1st of March, 2005 and thus, the appeal was

within time.

The appeal came to be resisted by the private respondents on the grounds that in terms of the provisions of the Act, delay cannot be condoned

and Section 5 of the Limitation Act has no application and the appellant-writ petitioner was in know of the proceedings and had knowledge about

the order. The appellate court held that the appellant was in know of the proceedings because he was in litigation/lis viz-a-viz the property in

question right from the year 2001 and in terms of the direction of Divisional Commissioner notice came to be issued in two leading dailies and

accordingly dismissed the appeal.

This Court in case titled Smt. Sarishta Devi v. Omkar Lal reported in 1981 KLJ 427 has held that benefit of Section 5 of the Limitation Act

cannot be invoked in order to file appeal under Hindu Marriage Act in terms of Section 29(2) of the Limitation Act.

Division Bench of this Court in case titled Pushpa Devi v. Nanak Singh reported in 1982 SLJ 198 has held that Section 5 of the Limitation Act

can be attracted when specifically made applicable by local law otherwise Section 5 of Limitation Act has no application. The provisions of the Act

nowhere provides that Section 5 is applicable.

This Court in cases reported as 1990 KLJ 83 and 2001 SLJ 439 has laid down the same law.

This Court in case titled Abdul Gani Dar and Ors. v. Financial Commissioner and Ors. reported as 2006 SLJ (II) 624 held that the appeal is to

be filed within a period of 15 days as provided and prescribed u/s 7 of the Act and Section 5 of the Limitation Act cannot be invoked in order to

condone delay. It is profitable to reproduce relevant portion of para-4 of the said judgment herein:

...Thus in law the petitioners' appeal before Financial Commissioner having been admittedly time barred and the provisions relating to extension

of time and condonation of delay not having been available to them, their prayer as such appears to have been rightly turned down by Financial

Commissioner which automatically resulted in rejection of their appeal. As regards the issues of fact pertaining to nature of land in question, factum

and nature of possession and texture of the conflicting claims of the parties etc. involved in the matter, learned Financial Commissioner's

findings/observations appear to be uncalled for as the matter before him was not considered on merit.

Thus, Section 5 of the Limitation Act has no application to the instant case.

The argument of the learned Counsel for the petitioner that appellate court has fallen in error while holding that the appellant had the

knowledge, is a question of fact cannot be gone into by writ court and the writ of certiorari cannot be issued for quashing such orders.

My this view is fortified by the judgment of this Court delivered in case titled Mst. Azizi v. Mst. Fata 2003 JKJ 626 (HC). The court has held

that even if a decision is erroneous that cannot be corrected by exercising writ jurisdiction. It is profitable to reproduce last para of the said

judgment herein:

While exercising writ jurisdiction under article 226, this Court is not to examine the matter as an Appellate or Revisional Court. Decision even if,

erroneous cannot be corrected in writ jurisdiction. In above view of the matte, the petition is dismissed at threshold.

Apex Court in a case titled B.K. Muniraju v. State of Karnataka and Ors. reported as 2008 AIR SCW 1463 held as under:

Now let us consider the jurisdiction of the High Court for interference in a factual decision arrived at by the authorities. It is relevant to point out

that the appellant and Mr. Gopal filed Writ Petition No. 809 of 2000 before the High Court praying to quash the orders dated 11-3-1999 and 20-

9-1999 issued by the Assistant and Deputy Commissioner- respondent Nos. 2 and 3 herein, by issuance or Certiorari. It is settled law that a writ

of Certiorari can only be issued in exercise of extraordinary jurisdiction which is different from appellate jurisdiction. The writ jurisdiction extends

only to cases where orders are passed by inferior Courts of tribunals or authorities in excess of their jurisdiction or as a result of their refusal to

exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave mis-carriage or justice. In

regard to a finding of fact recorded by an inferior tribunal or authority, a writ of Certiorari can be issued only if in recording such a finding, the

tribunal/authority has acted on evidence which is legally inadmissible, or has refused to admit an admissible evidence, of or the finding is not

supported by any evidence at all, because in such cases the error amounts to an error or law. It is needless to mention that a pure error of fact,

however grave, cannot be corrected by a writ. It is useful to refer the decision of this Court in Surya Dev Rai Vs. Ram Chander Rai and Others,

wherein, in para 38, held as under:

..(3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate Court is found to

have acted (i) without jurisdiction-by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction-overstepping or crossing the

limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in I violation of principles of natural justice where

there is no procedure specified, and thereby occasioning failure of justice.

Writ jurisdiction for issuance of writ of Certiorari or the supervisory jurisdiction cannot be invoked in order to correct the error of fact or law

unless the error is manifest and apparent on the face of law and is based on clear ignorance or in utter disregard of the provisions of law or if a

grave injustice or failure of justice has occasioned. Apex Court has taken the same view in case titled Surya Dev Rai v. Ram Chander Rai and Ors.

reported as 2008 AIR SCW 3872.

Whether the petitioner had knowledge or otherwise is a question of fact cannot be gone through by the medium of writ petition.

Accordingly the writ petition is dismissed in limine along with all connected CMPs. Interim direction, if any, shall stand vacated.