BHAGAT RAM Vs. REVENUE MINISTER, J&K

JUDGEMENT

(1.) THIS is an appeal under the Letters Patent from the judgment dated December 7. 1973 of a learned Single Judge of this court dismissing a writ petition. The petition was directed against an order passed on June, 1972 by the Revenue Minister acting on behalf of the Government under section 30 (6) of the Big Landed Estates Abolition Act. The order reads: ORDER On the basis of Girdawari entry of Kharif 2007, the Tehsildar, Jammu under mutation No. 187 dated 4 -4 -56 mutated land measuring 14 kanals and 15 marlas in favour of Jafroo (the applicant) and 16 kanals and 12 marlas in favour of the non -applicant from Khasra No. 58 measuring 58 kanals and 1 marla. The non -applicants went in appeal against this order to the Deputy Commissioner, Jammu who rejected the appeal. A revision against the order of the Dy. Commissioner Jammu was preferred before the Settlement Commissioner, Jammu by the non -applicant. Bhagat Ram and Hari Saran. The Settlement Commissioner Jammu after examining the revenue records thoroughly came to the conclusion "that entry in favour of Jafroo in the year Rabi 2007 was not a manipulation because if it were so the Khatchilipa would be even in the whole of the Kashat column and there would be not appreciable gap between two sets of entries in the crops column to allow the horizontal line being drawn through it." He had, therefore, rejected the revision application. To try his luck once again the non -applicant preferred one more revision before the Financial Commissioner. The Financial Commissioner, however, came to a different decision and held vide his order dated 22.4.1964 that land under Khasra No. 58 was purchased by the non -applicants from the land owners and non -applicants had been in continuous possession of said land prior to year 2007 upto date. He, therefore, accepted the revision of the non -applicant and set aside the order of the courts below and directed that Khasra No. 58 of the non -applicant prior to 2007 and have been in continuous pos -applicants. This order of the Financial Commissioner has been assailed by the applicant in revision before me on the ground that all the courts lower below except that of Financial Commissioner held that the applicant was in possession alongwith the non -applicants of Khasra No. 58. The order of the Financial Commissioner was, therefore both against facts and law. The counsel for the applicant argued that factum of possession has been gone through not only by the court of the Tehsildar, Dy, Commissioner but even the Settlement Commissioner at length and they have concurrently held that the applicant was in possession of a part of the Khasra No. 58 and to the extent the land was mutated in favour of the applicant under the provisions of Big Landed Estates Abolition Act. The counsel for the non -applicant argued that the land under Khasra No. 58 was purchased by the non -applicant prior to 2007 and have been in continuous possession of the same. A registered deed to sell this land in favour of non -applicant was drawn as early as llth of Har 2007, in favour of non -applicants. Referring to the agreement deed the counsel sought to substantiate his point that they were in possession of this land prior to 2007 vide para 4 of the agreement deed which reads "that the land to be sold is in possession of the non applicants for the last three years". He has stressed the point that the applicant in compulsion with the Patwari has been able to find place in Kashat column of Rabi 2007 and the patwari of the time has manipulated the entry there. He maintained that the order of the Financial Commissioner was correct and may not be interfered with. I have heard the learned counsel for the parties and have examined the record on the file. The main argument of non -applicants counsel was that the applicant in collusion with the Revenue Official have manipulated entry in Rabi 2007. I have perused Girdawari abstract of Khasra No. 56, 57 and 58 right from Rabi 2006 to 2012 minutely. It is true that the non -applicant is recorded in possession of the Khasra No. 58 in Kharif 2006, and in the Rabi 2007. The Kashat of this No. Khasra is partly recorded in favour of the non -applicant and this change has duly been reflected in Roznamcha Waqiati of the Patwari. The same entry persisted in Kharif 2007 also. The contention of the counsel for the non -applicant that the applicants entry has been manipulated by over writing on Khatchilipa, I am afraid, is not correct. There is no over writing on Khatachilipa as alleged. All that the Patwari has done is that he has drawn Khatachilipa for the area under cultivation of the non -applicant and below that Khatachilipa a horizontal line has been drawn to democrate the possession of the applicant. This aspect of this entry has fully been examined, by the Settlement Commissioner. The agreement deed referred to by the counsel for the non -applicant in which it recorded that the land was in possession of non -applicant from three years prior to 2007 would not hold good against a person who is not the party to the agreement. Moreover this document does not have much value. It was drawn up in 2007 Bk when it was common knowledge that holding over a certain limit were going to be abolished and when by law sales and transfers of land had been prohibited. For all these reasons I am convinced that the order passed by the Financial Commissioner dated 22.4.1964 is against the facts and bad in law which cannot stand. I, therefore, accept the revision petition of the applicant and order that the land measuring 14 kanals and 15 marlas comprising Khasra No: 58 of village Gurah Brahmana be recorded in the name of the applicant. Sd/ - Revenue Minister"

(2.) ON behalf of the petitioner it was urged before us as before the learned Single Judge that the case did not involve any substantial question of law or a question of public interest and as such the Revenue Minister had no jurisdiction to interfere, at any rate, with the finding of fact arrived at by the Financial Commissioner. For this, reliance was placed on the provisions of section 30 of the Act. Section 30, in so far as relevant reads thus:

(3.) THE learned Single judge noticed the provisions of this Section as also other relevant provisions including provisions of Land Alienation (Temporary Powers) Restriction Ordinance, 2006 and concluded : "Now reading these ordinance alongwith sub -section (v) of Section 7 quoted above, it was clear that there could not be any transfer of the land and in this present case the petitioners relied on a sale deed which was dated llth of Har 2007 (Bk). The order of the Financial Commissioner shows that he did not take this aspect of the matter into consideration. In my opinion, therefore, this was a substantial question of law and the Revenue Minister i, e. respondent No. 1 decided the matter in light of the same. The impugned order therefore, cannot be assailed as being without jurisdiction and beyond the powers conferred on the respondent No. 1 under section 30 of the Act. The result is that the writ petition fails, and is hereby dismissed but without any order as to costs."