JAN MOHD Vs. REVENUE MINISTER, J&K

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 the Revenue Minister respondent No. 1 dated 23 -4 -71. 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 Chhani Raman, Tehsil Jammu. On account of the unfortunate riots which took place in Samvat 2004 the petitioner along with 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 kanals and 12 marlas situate in Chhani Raman, Tehsil 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 Actâ„¢). These aforesaid persons did not select this piece of land in their claim as required by the provisions of the Act. One Kanshi Ram son of Totaram was an occupancy tenant under the aforesaid proprietors but he also being a big landlord did not get any right in respect of this land. The aforesaid land was being cultivated by Nasher 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 Mohammad is the son of the aforesaid Nasher Din, here was a mutation case No. 121 and mutation was sanctioned in favour of the State who is respondent No. 2, and proprietary rights were conferred on the State but all these proceedings were ex parte inasmuch as no notice was served on Nasher Din or the appellant and it was without their knowledge. The appellant came to know of his 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 resettled 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 to applications 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 m the disturbances 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 Tehsildars 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 Dinâ„¢s right 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 lime 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 villages more than a decade ago are yet wondering for recovery of the possession of their 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 a fresh enquiry and orders and further ordered that if other 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.) IN the petition the appellant challenged the order of the Revenue Minister i.e. respondent No. 1 on the ground inter alia that the order of respondent No. 1 was without jurisdiction because under sub -section (6) of section 30 of the Act, the Revenue Minister in a revision against the order of the Financial Commissioner could interfere only if it involved a substantial question of law or a Question of public interest but no such question was involved here and that the Revenue Minister has given no reason for holding his views that the matter involved such questions. It was also urged in the petition that the respondent No. 1 in agreement with the finding of the Financial Commissioner held that no period of limitation was prescribed for filing a revision before the Financial Commissioner and the provisions of the Limitation Act were not attracted so it was not open to respondent No. 1 to hold that the revision application before the Financial Commissioner was barred by time: The order of the respondent No. 1 was therefore, bad and without jurisdiction. Respondent No. 1 was also not competent to lay down that revision application could be filed only within one year. Respondent No. 1 also went beyond his competence and scope of his jurisdiction in holding that the disturbances of 1947 were over towards the close of 1948 and the year 1949 and 1950 were normal years and as such the findings by him were not only uncalled for but they related to facts and not law and as such beyond the jurisdiction of respondent No. 1. Further it was also contended that respondent No. 1 dealt with the matter as if he was sitting as a court of appeal. The fact that the appellant came to know about the mutation in the year 1968 was supported by an affidavit filed by him and that was a question of fact and respondent No. 1 could not enter into that question. It was also urged that the State in whose favour the mutation was sanctioned did not challenge the correctness of the order of Financial Commissioner and so this was also a matter which should have been considered. Lastly it was urged that Nasher Din was a recorded tenant and therefore he was a tiller within the meaning of section 2(d) of the. Act.