1. A challenge is being made to an order passed by the Financial Commissioner Jammu whereby land measuring 829 kanals 7 marlas have been ordered to be utilised for Kahcharia. It is not in dispute that this land is part of Shamlat. According to the learned Financial Commissioner such reservation could be made in terms of Hadyat Amaldramad Qanoon Khatma Chakdari 2007. What is said by the learned Financial Commissioner says in this regard is being reproduced below: "I am deciding the case on merits. I have considered the arguments or the counsel for the respondent and perused the record of the case. It has transpired from the records that mutation no 343 was attested in 1968 whereby the land measuring 829 kanals 7 marlas was reserved as kahcharia out of shamlat. The Tehsildar has passed a comprehensive order on the impugned mutation indicating that no land was reserved for kahcharia in the village. He therefore acted in accordance with the provisions contained in para 14 of zamin no 1 Hadyat Amaldramad Qanoon Khatma Chakdari 2007 whereby the land was reserved for Kahcharia and "SharaAm" and "Rafa Am" Such a mechanism for earmarking of land was done as a part b of the exercise as visualized under BLEAA. Since the State land was not available the Tehsildar has strictly followed the provision of law in earmarking Shamlat land for Kahcharia and other public purpose. The impugned mutation can not be faulted on that account. There is no evidence on the record to substantiate the point that state land or kahcharai land was available in the village to renay the view point evolved by the Tehsildar. There is no reason to reopen the matter after the lapse of 30 years particularly when the action of Telisildar is in conformity with the provision of law, I therefore accept the recommendations of the Divisional Commissioner and set aside the order passed by the D.C Udhunipur. The order passed on mutation no 343 is upheld". 2.It is this aspect of the matter, which is subject matter of challenge. It is submitted that if the state land is available then shamlat land cannot be armarked for kahcharia purposes. It is submitted that about 1600 kanals of land belonging to the state is available and therefore shamlat land could not be utilised for kahcharia purpose. 2.It is this aspect of the matter, which is subject matter of challenge. It is submitted that if the state land is available then shamlat land cannot be armarked for kahcharia purposes. It is submitted that about 1600 kanals of land belonging to the state is available and therefore shamlat land could not be utilised for kahcharia purpose. With a view to sustain this argument reliance is being placed on a decision of this court Slam Rather and others versus Mohd Ganai and others AIR 1964 J&K 46 particular reliance is being placed on para 5 of the judgment,. The historical background as to how shamlat land came to be created and as to how this land is to be dealt with has been indicated in this para for facility of reference this para is being reproduced below, "(5) Shamlat and rights in shamilat were the subject matter of one of the boons which were granted by late his Highness Maharaja Hari Singh at the time of his Raj Tilak in February 1926 and to that effect a proclamation was made on the 25th of that year. The boon pertaining to shamilat was thus worded. In villages were there is at present no land entered as shamilat and where the common land in the vicinity of the village site is now entered as khalsa this land shall henceforth be shown as shamilat deh and the villagers concerned shall jointly be awarded the same rights therein which they possess in their individual holdings. There were further clarification and Ailans with respect to Shamilat land which are not very material for purposes of this case. They pertain to the size of a shamilat in a village and how and in what circumstances could nautors and bhenjars and other kinds of land be deemed as shamilat. But the basic right that was granted by this boon was that the land holder in a particular mahal would be entitled to have a share in the land declared as shamilat pro rata their holding. That means they had proprietary rights in shamilat land in proportion to the size of their holdings which they would hold in common with the other landholders. The shamilat could be got partitioned and each individual land holder get his share of the shamilat land in proportion to the size of his holding. That means they had proprietary rights in shamilat land in proportion to the size of their holdings which they would hold in common with the other landholders. The shamilat could be got partitioned and each individual land holder get his share of the shamilat land in proportion to the size of his holding. The trial court was not therefore correct in holding that all that could be transferred about shamilat land was possessory right alone but the right of ownership though joint with others can also be the subject of a shamilat land." A perusal of the above para does indicate that land holders in a particular mahal was entitled to have a share in the land declared as shamilat pro rata their holdings. If this aspect is taken into consideration and view expressed by this court in the decision referred to above is given effect to then it emerges. (1) that a person claiming any right entitlement or interest in the shamilat land must demonstrate that he is land holder in mahal. (2) that his entitlement would be pro rata to his holdings. In case a person is not having any land as owner then he would have no interest in the Shamilat land. Therefore none of his rights can be said to have been effected . Learned counsel for the respondents submits that present petitioners are unauthorised occupants. They came in possession in 1986. For this reliance is being placed on revenue record i.e. annexures R1 andR2. 3. After having heard learned counsel for the parties I am of the opinion so far as legal position is concerned no exception can be taken to the view expressed by the learned Financial Commissioner however on facts issues whichwere required to be gone into were. (i) as to whether petitioners arc land holders. (ii) As to what is their size of holdings and what would be their proportion-ale share. If finding is recorded in their favour visa-vis wliat has been said at serial no (1) and (2) then state land is taken out of that portion which is non partible. As indicated above there is a divergence of argument on the above factual issue. So far as this factual aspect is concerned both the sides have taken inconsistent stand. If finding is recorded in their favour visa-vis wliat has been said at serial no (1) and (2) then state land is taken out of that portion which is non partible. As indicated above there is a divergence of argument on the above factual issue. So far as this factual aspect is concerned both the sides have taken inconsistent stand. This is a matter which can more properly be looked be the revenue authorities, For this limited purpose learned Financial Commissioner would re-examin the above issues. Parties to appear before the Financial Commissioner on 29-04-2002. Issues to be decided be decided on that date or any other date to which the hearing is adjourned No further notice would have required lo he issued if the parties fail to appear financial commissioner would be at liberty to take expart proceedings. Disposed of as such.