MEHTA RAM LAL Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) THE Petitioner seeks annulment of two orders i.e. order dated 10 -4 -1971 passed by the Financial Commissioner (Appeals,) respondent No. 1 and order dated 6 -11 -1957 passed by the Tehsildar respondent No. 2 on mutation No. 35 of Qasba Bala Tehsil Nowshera.

(2.) THE petitioners case is that he being a big land owner selected his unit of 182 kanals of land under the big Landed Estates Abolition Act, 2007 but did not include therein land measuring 53 kanals comprised in khasra Nos. 128, 129 and 130 on the ground that part of this land was under an orchard, part of it under buildings and the remaining of it had been occupied by Army in 1947 and remained under its occupation even after Kharif 2007. This land, according to the petitioner, not falling within the definition of land as given in section 2(a) of the Jammu and Kashmir Big Landed Estates Abolition Act, hereinafter referred to as "the Act", the petitioner could not be expropriated from it. The petitioner has further stated that this land was being occupied before the communal disturbances of the year 1947 by Nizam -ud -Din and others who were tenants -at -will qua this land under the petitioner. In the wake of the communal disturbances Nizam -ud -Din and others crossed over to Pakistan as a consequence whereof the petitioner came into possession of this land in Assuj 2004. Thereafter the Indian Army took possession of this land and the petitioner continued receiving rent from the Army authorities till Poh 2007. On 1 -5 -2008 one Mulkh Raj Patwari made a report that this land being not in possession of any one in Kharif, 2007 be escheated to the State. A different report was made by the another Patwari on 7 -5 -1957 that this land was in possession of respondents Nos. 3 to 7 and therefore, the proprietory lights qua it under the Act should be conferred upon respondents Nos. 3 to 7. According to the petitioner the Tehsildar not being satisfied with the subsequent report of the Patwari dated 7 -5 -1957 cancelled the Mutation entered upon the basis of the said report vide his order dated 6 -12 -1957. The petitioner further goes on to say that these respondents had made an application to the Tehsildar some time earlier that the girdawari" entries pertaining to Kharif 2007 may be corrected and the land shown in personal cultivation of respondents Nos.

(3.) TO 7 in Kharif 2007. The Tehsildar granted this application vide his order dated 21st Magh, 2009 and corrected the entries. This, according to the petitioner, was done without summoning the petitioner. The correction of these entries resulted in conferment of proprietory rights under the Act upon respondents Nos. 3 to 7 and mutation No. 35 came to be attested on 6 -11 -1957 in favour of respondents Nos. 3 to 7. Net being satisfied with this mutation the petitioner challenged the same before the Divisional Commissioner. The Divisional Commissioner made a recommendation that the mutation be set aside as according to him respondents Nos. 3 to 7 were not the tillers qua this land but they had come into possession of it without the consent of the petitioner after the Army Authorities had vacated the same. It was also recommended by the Divisional Commissioner in his order dated 14 -6 -69 that the entire land be eschacted in favour of the State. Before the Financial Commissioner (Appeals) both the parties i.e. the petitioner and respondents Nos. 3 to 7 challenged the correctness of the order passed by the Divisional Commissioner. Whereas the petitioner alleged that this land being under an orchard and other buildings and also having remained under occupation of the Indian Army in Kharif 2007, ceased to be land within the meaning of Section 2(a) of the Act and therefore, could not be escheated to the State; respondents 3 to 7 asserted that they were in possession of this Land in Kharif 2007 and were, therefore, entitled to get proprietorship thereof under Section 5 of the Act. The Financial Commissioner vide his order dated 23 -2 -1970 accepted the recommendations of the Divisional Commissioner subject to the qualification that the petitioner would not be expropriated from part of the land which was either under construction or under an orchard. He, therefore, remanded the case to the Tehsildar for proceeding further in the matter after giving a hearing to the petitioner. Respondents 3 to 7 later on filed review petition before respondent No. 1 who accepted the same holding that the land was land as defined under Section 2(a) of the Act and that there was neither any building nor any orchard existing on this land in Kharif 2007. The petitioner has challenged this order as well as mutation No. 35 dated 6 -11 -1957 on the grounds that the land not being land as defined under Section 2(a) of the Act the orders passed by respondents 1 and 2 are without jurisdiction and that respondent No. 1 had no jurisdiction to review his earlier order by taking into consideration the record referred to in the later order dated 10 -4 -1971 which in fact was before him and which he had perused earlier also. 3. The respondents have not denied the long drawn litigation that ensued between the parties culminating into the impugned order. It has also not been denied by the respondents that this land did not remain in occupation of the Indian Army from Assuj 2004 to Poh 2007. There is also no specific denial in the return of the respondents that Khasra Girdawari which was produced before respondent No. 1 when the review petition came to be decided by him on 10 -4 -1971, was not before him when he had passed the earlier order on 23 -2 -1970. They have, however, vehemently denied that the land is not land as defined under Sec. 2(a) of the Act. They have also assailed the findings of the Divisional Commissioner as well as the Financial Commissioner that they were not in possession of this land in Kharif 2007.