NABIR BHAT Vs. MALA HAMZA

JUDGEMENT

(1.) THIS is a writ petition under section 103 of the Constitution of Jammu and Kashmir.

(2.) THE facts are few and simple. One, Samad Ganai, died in the year 2001 Bk. leaving behind considerable landed property in village Krankashiwan, Tehsil Sopore. Following the death of Samad Ganai, his landed property was mutated in the name of his widow, Mst. Sahbi, his son, Mohd Maqbool, and his three daughters, Mst. Sabi, Mst. Khurshi and Mst. Azizi as legal heirs and successors of the deceased. The order of mutation was passed on 23rd of Bhadoon, 2007 by Special Tehsildar, So pore, Soon after the Big Landed Estates Abolition Act, 2007 came into force whereby ownership rights were conferred 011 tenants -occupants of lands owned by a person in excess of the ceiling area. Respondents 1 to 5 herein, where the tenants -occupants of a portion of the land owned by the deceased Samad Ganai. In order to get the benefit of the provisions of the Big Landed Estates Abolition Act conferring proprietary title on the tenants -occupants, they raised a dispute about the correctness of order of mutation which was finally settled by the then Financial Commissioner by his order dated 31 -8 -1961 upholding the order of mutation. Aggrieved by the order of the Financial Commissioner, the respondents 1 to 5 herein, filed a revision before the Government, which was dismissed in default on 2 -11 -1970. An application for restoration filed by them too was rejected. Thereafter they filed another revision petition before the Government on 2 -6 -1971 which was decided by the Revenue Minister acting on behalf of the Government, by his judgment dated 3 -7 -1972. The Revenue Minister reversed the decision of the Financial Commissioner and remanded the case for fresh enquiry. Aggrieved by this order the petitioners have filed this writ petition and challenged the order as ultra vires and without jurisdiction.

(3.) THE case of the petitioners is that by Notification SRO -135 dated 3 -4 -1968, the Government in exercise of the powers conferred by section 4 of the J&K Consolidation of Holdings Act, 1962 declared its decision to make a scheme of consolidation for 48 villages including village Krankashiwan where the land in dispute was situated and as such the Revenue Minister had no jurisdiction to entertain the revision petition much less to decide the same. The case of the respondents in reply is that the Revenue Minister was competent to hear and dispose of the revision petition and, in any case, the petitioners not having raised this point before him, they were stopped from attacking the judgment on this ground. Two points arise for determination: -