MIR HUSSAIN Vs. REVENUE MINISTER, J&K

JUDGEMENT

(1.) THIS writ petition under Section 103 of the Constitution of Jammu and Kashmir has been filed in the following circumstances : -

(2.) ONE Mahimal was the occupancy tenant of the land measuring 64 Kanals and 5 marlas situate in the village of Raipur Domana Tehsil Jammu The owners of this land were big landlords under the Big Landed Estates Abolition Act. The land was not included by the landlords in the unit o 182 kanals at the time of selection.

(3.) MAHIMAL , it is alleged, along with his two sons Mohd Hussain and main were in cultivating possession of this land till 2034. Mahimal is alleged to have died during the disturbance of 2004. Mohd Hussain and Sainfiled for safety to some place outside Jammu. In the year 2007 the Big Landed Estates Abolition Act came into force whereunder the Special Tehsildar, Jammu, attested a mutation of one third of this land in favour of Mahimal in his capacity as an occupancy tenant vide mutation No. 570 of 2010 dated 29 -6 -2010 Bikrami. Two more mutations were attested by the Tehsildar one being mutation No. 615 dated I5th March, 2010, in favour of respondents Nos. 2 and 3 mutating 3 kanals and 6 marlas of land in their favour on the basis that they were the tillers of the land on the commencement of the Act. The remaining 10 kanals and 11 marlas of land was mutated in favour of the State vide mutation No. 737 dated 25.2.1959. These mutations opened a flood of litigation between the parties. Mir Hussain and Sain challenged mutation No. 615 before the Deputy Commissioner in an appeal. The Deputy Commissioner directed that an enquiry, whether Mohimal was killed during the disturbances of 2104, be held and remanded the case to he Assistant Commissioner On remand the Assistant Commissioner to whom the case was remanded found as a fact that Mahimal was dead in the year 2004 and consequently mutated the entire land in favour of Mir Hussain and Sain. Against this order of the Assistant Commissioner an appeal was again brought before the Deputy Commissioner by Sant Ram and Munshi. The Deputy Commissioner while disposing of the appeal found that there was no evidence regarding the death of Mahimal in the year 2004. He, therefore, set aside the order of the Assistant Commissioner and restored mutation No 615 of 15th Magher, 2010. A revision was thereafter taken to the Divisional Commissioner by Mir Hussain. The Divisional Commissioner dismissed the revision application. He then went to the Financial Commissioner. The Financial Commissioner while disposing of the revision application held that respondents Nos. 2 and 3 namely Sane Ram and Munshi had no interest in the land in question as in case Mahimal was died in the year 2004 the land would go to his two sons and if the finding was that he was alive then the land would remain in his possession. He accordingly remanded the case to the Assistant Commissioner with a direction to give a categorical finding as to whether Mahimal was dead or not. This order was challenged in revision before Revenue Minister who dismissed the revision application and upheld the order passed by the Financial Commissioner. A review filed later was also dismissed. Financial Commissioners remand order having been upheld by the Revenue Minister an enquiry was conducted by the Tehsildar who found that Mahimal was alive and he was entitled to the whole of the land in question. Against this order Mir Hussain and Sain again field an appeal to the Deputy Commissioner who remanded the same to the Assistant Commissioner with a direction to thoroughly investigate the question whether Mahimal was dead in the year 2004. This time the Assistant Commissioner found on the basis of the evidence before him that Mahimal was dead. He, however, distributed the land into three shares, 2/3rd to the two sons and one third to respondents Nos. 2 and 3. Against this finding recorded by the Assistant Commissioner in presence of respondents Nos 2 and 3 Mir Hussain filed a revision application before the Divisional Commissioner contending that on the basis of the finding recorded by the Assistant Commissioner the respondents Nos. 2 and 3 were not entitled to any portion of the land. The Divisional Commissioner recommended to the Financial Commissioner that the orders passed by the Assistant Commissioner be modified to the extent that respondents Nos. 2 and 3 be held not entitled to any portion to the land in question and that whole of the land may be mutated in favour of Mir Hussain and Sain. This recommendation was accepted by the Financial commissioner who allowed the revision application and directed that whole of this land be mutated in favour of Mir Hussain and Sain as none except them was entitled to the same as Mahimal was already held to be dead. Against this order of the Financial Commissioner respondents Nos. 2 and 3 filed a revision application before the Government which was ultimately heard by the Revenue Minister. The Revenue Minister set aside the findings recorded by the Financial Commissioner regarding Mahimal being dead during the disturbance of 2004 and found on the basis of the evidence that Mahimal was alive. He further found that he had abandoned his rights in the tenancy as he did not return to the land even after 25 years. He, therefore, directed that whole of the land should go to the State. Regarding respondents Nos. 2 and 3 the Revenue Minister found that since they have remained in possession of the land they be treated as allottees of this land. The present writ petition has been filed calling in question the legality and validity of the order of the Revenue Minister passed by him under Section 30 of the Big Landed Estates Abolition Act and the short question which falls for consideration is, whether, the Revenue Minister had jurisdiction, to revise the order of the Financial missioner in the circumstances of the case.