JAN MOHAMMAD Vs. REVENUE MINISTER AND OTHERS

JUDGEMENT

(1.) This is a letters Patent appeal directed against the judgment of the learned Single Judge of this Court (Jaswant Singh J.) dated Dec. 6, 1971 by which the writ petition filed by the present appellant was dismissed. The short facts which led to the filing of the aforesaid writ petition briefly stated are as follows :-

(2.) The appellant filed the aforesaid writ petition praying for a writ of certiorari for quashing the order of revenue Minister respondent No. 1 dated 23-4-7l. The case of the appellant is that he is a permanent resident of the State of Jammu and Kashmir and is a Gojar by caste and belongs to village Chani Raman, Tehsil Jammu On account of the unfortunate riots which took place in Samvat 2001 the petitioner alongwith other Muslims of the Village were forced to leave their homes and had to run to Pakistan to save their skins. A piece of land measuring 118 kanals 3 marlas comprised of Survey plot No: 1, 34 Kanals, Survey Plot No: 17, 37 kanals and 11 marlas and Survey No: 18, 46 kanah and 12 marlas situate in Chhani Raman Sehsil Jammu belonged to Kapoor Singh and others. They were big landlords and came within the purview of the Jammu and Kashmir Big Landed Estates Abolition Act, 2007, Act No: XVII of 2007 (hereinafter referred to as the Act') These aforesaid persons did not select this piece of land in their claim as required by the provisions of the Act One Kanshi Ramson of Totaram was an occupancy tenant under the aforesaid proprietothers but he also being a big landlord did not get any right in respect of this land. This aforesaid land was being cultivated by Nashar Din, who continued tilling the land till 2004 Samvat when on account of the circumstances beyond his control he was forced to leave the State. The appellant Jan Mohamad is the son of the aforesaid Nasher Din There was a mutation case No. 121 and mutation was sanctioned in favour of the state who is respondent No. 2 and proprietory right were conferred on the State but all these proceedings were exparte in as much as no notice was served on Nasher Din or the appellant and it was without their knowledge. The appellant came to know of this mutation in August 1968 and he then filed a revision application before the Commissioner Jammu who by his order dated 19-12-1968 rejected the same, holding that the revision of the appellant was barred by time. He also held that the appellant came back from Pakistan in 2007 Samvat and at the time of attestation of mutation the land was in possession of the Remount Department and when the petitioner re-settled in his village in 2007 Samvat it was obligatory on his part to make enquiries about the said land and there would have been no difficulty in obtaining possession of the land if he was a bona fide tiller of the land and the fact that he did not do so for a period of 18 years clearly showed that he was not a bona fide tenant i. e tiller of the land. The appellant then moved the Financial Commissioner in revision who by his order dated 8-7-1969 accepted the revision application holding that the law of limitation does not apply application in revision under Sec, 30 of the Act. He also further held that the Revenue Officers should have mutated the property in the name of Nasher Din as an owner unless he was found not to be a permanent resident and thereafter it would have been declared as an evacuee property but the omission of any reference to Nasher Din in the proceedings indicates to show that the presumption of Nasher Din having been killed in the disturbance of 1947 or that he had gone to Pakistan was present in the mind of the mutating officer and that was the reason why he did not consider it worthwhile to mention him in the mutation order. The Financial Commissioner also observed that it was the function of all officers superior to Special Tehsildar to move for cancellation of this order in revision on the ground that the land could not have been declared escheated to the State unless Nasher Din's rights as a tiller of this land was first considered and disposed of. The Financial Commissioner had also observed that there was no surprise that the revision petition had been filed after such a long time because the Revenue Department was still dealing with the cases of restoration of evacuee property of Muslims in Jammu District, who in the wake of disturbances of 1947 had escaped for the sake of safety to other places in the State and having returned to their village; more than decade ago are yet wandering for recovery of the possession of the property. Finally the Financial Commissioner held that the application of the appellant if rejected on the ground of limitation then the appellant would have no other remedy before him because the jurisdiction of the Civil Courts in matters falling within the purview of the Act has been expressly barred by Sec. 32 of the Act On a consideration of these facts and circumstances the Financial Commissioner set aside the order of the Commissioner and remanded the case to the Tehsildar Jammu for afresh enquiry and orders and further ordered that if o her conditions prescribed by the Act are satisfied such as that he is a tiller and a permanent resident of the State then Nasher Din or his heirs are entitled to be given ownership rights of this land, and it would be mutated in his name.

(3.) Respondent Nos 2 to 4 then preferred are vision before the Revenue Minister who is respondent No: 1 and by his order dated 23-4-1971 he accepted the revision and set aside the order of the Financial Commissioner dated 8-7-1969 and restored the mutation order dated 26 pah 2007 Samvat passed by the Special Tehsilder Jammu.