RAMUN Vs. REVENUE MINISTER, J&K

JUDGEMENT

(1.) THE petitioners seek the quashing of the order dated 12 -7 -72 of respondent No. 1 and also the order dated 10 -4 -1972 of respondent No. 2 by means of a writ of certiorari. The petitioners have averred that they are tillers of the land as described in mutation Nos. 886, 738, 746, 740, 741 and 903 situate In village Kotli Tehsil Samba; that they have been in occupation of the said land as tillers for many years before the relevant date of the promulgation of the Big Landed Estates Abolition Act. i. e. 1st. Kartik 2007; that the respondents are Big Landlords and were given due notices under the provisions of the Big Landed Estates Abolition Act by the concerned authorities for selecting the prescribed unit of 182 kanals, buy they intentionally did not appear and did not make selection of the land and therefore the Revenue authorities made selection of the requisite units for them on their behalf and attested the mutation as mentioned above. It is averred that this order of selection was passed by the Tehsildar on 15th Bhadon 2008 Samvat and the land which was left out from the selection units of the respondents was mutated in favor of the petitioners as propertors on the strength that they were tillers of the .said land. After conferment of the proprietary rights on the petitioners they made great improvements in the land. Respondents, however, approached the revenue authorities for cancellation of the above -mentioned orders by which selection of the land was made by the Tehsildar. The Financial Commissioner vide his order dated 10 -4 -1962 accepted the revision of the respondents by which the respondents have been given the tight to make fresh selection of their units and mutations by which selection was made by the Tehsildar have been set aside. When the petitioner came to know of the said order they preferred a revision petition before respondent No. l for setting aside of the order of the Financial Commissioner dated 10 -4 -1962, but the revision was rejected by the respondent No. 1 on 12 -7 -1972. The petitioners seek the quashing of these orders on the following grounds; - (a) That the orders were passed without making the petitioners parties before the Divisional Commissioner and the Financial Commissioner. They were not given any opportunity to meet the case of the respondents and petitioners have been condemned unheard. -These orders have been passed in contravention of principle of natural justice. They are therefore illegal and without jurisdiction. Respondent No. 1 failed to consider the fact that the respondents were given notices under section 14 of the Big Landed Estates Abolition Act but they did not avail of the same. Therefore the order suffers from an error that is apparent on the face of the record. (b) Once a selection was made by the Tehsildar for the respondents that selection could not be assailed especially when the proprietary rights of the respondents had extinguished in the land not kept for their selection. The land so left was transferred in favor of the petitioners as proprietors in whose favor mutations were attested. (c) Selection could be made only once whether it is by the Tehsildar or by the proprietors themselves and this could not subsequently be challenged in any court of law. (d) No fraud or undue influence, or coercion was alleged against the Tehsildar and therefore the selection could not be up set. (e) Mutations conferring proprietary rights on the petitioners were attested in the year 2008 and it was after 21 years that they were being discharged and their claims disregarded in a summary way.

(2.) RESPONDENTS Nos. 1 and 2 have not filed any reply affidavit. Objections have, however been filed on their behalf by the Assistant Advocate General. In these objections it has been admitted that Special Tehsildar Samba made selection for the landlords in pursuance of which mutations were attested in the year 2008. As regards the dispute raised by the petitioners that notices under section 14 of the Big Landed Estates Abolition Act were sent to the landlords it has been submitted that this question was gone into by the revenue authorities and they had come to the finding that no such notices were served on them (vide Annexures A&B). The Special Tehsildar Samba ex -proprieted the said landlords from the lands in question suo moto and without compliance of the provisions of Section 14 -of the Big Landed Estates Abolition Act. This illegal ex -proprietion was further crowned by another illegal act by attestation of mutations in favor of the tillers of the land. The position that the petitioners have become the proprietors of the land pursuant to the mutations has not been accepted. It is admitted that the revision petition filed by the petitioners was dismissed by the respondent No. 1. The orders of the Divisional Commissioner and the Financial Commissioner merged with the order of the 1st respondent. The petitioners were given ample opportunity by the respondent No. 1 to be heard in the matter. The entire record was before the first respondent. This opportunity was availed of by the petitioners but they failed to substantiate the allegations that the landlords were given the requisite notices. The grounds urged by the petitioners for quashing the order have not been admitted by the respondents. It has further been averred that the petitioners were not necessary parties before the Revenue authorities and therefore the allegation made is misconceived.

(3.) RESPONDENT No. 3,7,9,10,11,12 and 13 have also filed their objections. In their objections they have stated that Prakash Singh respondent No. 4 and Masu respondent No. 3 died long before the filing of the writ petition, therefore, the writ petition being against dead persons is liable to be dismissed. No persons of the names of Harnam Singh son of Khojoo respondent No. 13, Nahar Son of Khoju respondent No. 14, Hanja son of Anwara exist. The writ petition has been presented against wrong persons. On merits it is stated that Kaka, Puran Singh, Nagar Sigh, Tara, Lachhman, Harnam Singh, Nar Dehi landlords who were given right of selection in the disputed lands have not been made parties. Non -impleadment of these persons is fatal to the petition. Only one landlord Jabbar Singh selected land in collusion with the Tehsildar out of the Joint holders without the knowledge of the other landlords the respondents. Therefore, the action of the Tehsildar in selecting land without the consent of other landlords was illegal. It has been denied that the petitioners were the tillers of the land at the relevant time. Respondentsâ„¢ landlords were never given notices under the provisions of the big landed Estates Abolition Act by the concerned authorities to select the prescribed unit of land. This has also been held by all the Revenue officers including respondent No. 1. The petitioners had an opportunity to meet the case and therefore there was no violation of the principle of natural justice.