MALA HAMZA Vs. MOHD MAQBOOL

JUDGEMENT

(1.) THIS is a letters patent appeal against the judgment of a Single Judge of this Court allowing the writ petition No. 50 of 1972.

(2.) BRIEFLY speaking the facts that gave rise to the litigation between the parties are that one Samad Ganai died in the year 2001 Bikrimi (corresponding to the year 1944) leaving behind considerable landed property situate in village Krankashiwan, Tehsil Sopore. Samad Ganai left behind his widow, son and three daughters as his legal heirs. Although the succession opened on the death of Samad Ganai the deceased in the year 2001 Bk. yet the mutation was not attested by the Special Tehsildar as late as in the month of Bhadoon 2007 whereafter the Big Landed, Estates Abolition Act of 2007 (hereinafter called the Abolition Act) came into force. According to the said Act ownership rights were conferred on tenants who were in cultivating possession of the lands owned by a landlord in excess of 182 kanals the ceiling area fixed under the Abolition Act. The appellants herein described themselves as the tenants in occupation of portion of the land and therefore by virtue of the Abolition Act claimed proprietary rights in respect of the land in excess of the ceiling area held by the landlords. They therefore challenged the correctness and propriety of the order of mutation in favour of the respondents landlords herein. Proceedings by way of appeals, and revisions were taken which finally concluded in favour of the respondents landlords by the Financial Commissioner vide his order dated 31 -8 -61 upholding the order of the mutation of Special Tehsildar. The matter was, however, taken in revision before the Government which was dismissed in default on 2 -11 -1970. Application for restoration of the revision petition was also rejected. Thereafter the appellants filed a second revision petition before the Government which was heard and decided by the Revenue Minister who by that time was authorised by the Government to hear and dispose of the revision petitions under the Abolition Act. He allowed the revision petition, ever -set the order of the Financial Commissioner and remanded the case to the latter for holding fresh enquiry. The respondents herein thereafter moved the High Court by means of a writ petition challenging the validity of the order of the Revenue Minister. The petition was heard by Mufti Baha -ud -Din J. who found that the Revenue Minister was not competent to entertain, hear and dispose of the revision petition because of the operation of the Consolidation of Holdings Act of 1962 which excluded the jurisdiction of the civil and the revenue courts and also of the authorities to hear such revision petitions. Repelling the objection of the appellants that the Respondents herein were estopped from challenging the order on the ground of excess of jurisdiction as they had not raised this plea before the Revenue Minister in the course of revision, the learned Judge observed that acquiescence or even consent by parties would not confer jurisdiction on a court or an authority to hear and determine a matter where such court or authority lacks inherent jurisdiction to hear and determine the same. He therefore allowed the writ petition and quashed the impugned order. Aggrieved by this the appellants have come up in Letters Patent Appeal.

(3.) NO body has appeared on behalf of the contesting respondents in the case. Mr. Hardev Singh Oberoi appearing on behalf of the Revenue Minister has supported the appellants and has assailed the judgment of the learned Single Judge on the lines indicated below :