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2008 DIGILAW 263 (JK)

Mansoor Ahmed v. Special Tribunal, J&K

2008-06-30

J.P.SINGH

body2008
1. Mutation no. 1634 attested by Naib Tehsildar Rajouri on March 11, 1997, conferring occupancy tenancy rights on Mansoor Ahmed petitioner, was called in question by Abdul Karim, the predecessor-in-interest of Begam Jan and others, the respondents, insofar as it pertained to land measuring 5 kanals comprised in Khasra no. 340 and 5 kanal 19 marlas comprised in Khasra no. 140 min, situated at Rampur Rajouri, before Additional Deputy Commissioner Rajouri. 2. Allowing the appeal, the impugned mutation was set aside and the matter remanded for fresh consideration, vide learned Additional Deputy Commissioner Rajouris order of April 17, 1999. Jammu and Kashmir Special Tribunal, however, set aside this order and directed fresh disposal of the appeal. 3. Learned Additional Deputy Commissioner Rajouri, accordingly, after hearing the parties and considering the facts and circumstances of the case dismissed respondent Abdul Karims appeal and upheld mutation no. 1634 vide his order of February 03, 2001. 4. This order of Additional Deputy Commissioner Rajouri was again set aside on respondent-Abdul Karims revision no. STJ/574 by Jammu and Kashmir Special Tribunal vide its order of November 11, 2002. 5. Aggrieved by the order of the Special Tribunal, Mansoor Ahmed petitioner has filed this writ petition, calling in question the Tribunals order inter alia on the ground that the Tribunal had set aside mutation no. 1634 even in respect of those Khasra numbers, which had not at all been questioned by Abdul Karim-respondent in his initial appeal before learned Additional Deputy Commissioner, Rajouri. Petitioners second contention questioning the Tribunals order is that it had not considered the effect of Abdul Karims fathers co-sharers becoming evacuees and, its effect on the allotment of their land to the petitioner, who had been proved to be a displaced person from Bhimber, Pakistan occupied Kashmir, and entitled to occupancy tenancy rights because of his being in possession of the land much prior to 1971. 6. Mr. S.A. Salaria, learned senior counsel appearing for the respondents, initially submitted that mutation attested in favour of the petitioner in respect of Khasra nos. 6. Mr. S.A. Salaria, learned senior counsel appearing for the respondents, initially submitted that mutation attested in favour of the petitioner in respect of Khasra nos. 340 and 140 min was bad in law because the land comprised in these Khasra numbers was not so much out of which the petitioner could claim allotment on the basis of the alleged share of the co-sharers who had become the evacuees but, when taken through the quadrennial record of rights and other revenue records, did not press his argument that land allotted to the petitioner out of Khasra no. 340 and 140 min of village Rampur Rajouri could not be allotted to him. This was so because Khasra no. 140 min of Khewat no. 196 comprised of 11 kanals and 18 marlas of land out of which 5 kanals and 19 marlas could well be allotted and mutation therefor attested under Section 3-A of the Agrarian Reforms Act in favour of petitioner Mansoor Ahmed, because the land so allotted was within the share to which the evacuee would be entitled to in the land. Likewise, khasra no. 340 too comprised of so much of land (21 kanals 15 marlas) out of which share of the evacuee co-sharer (10 kanal and 17 = marlas) could validly be allotted to the petitioner. 7. All that learned counsel for the respondents had thus to say in the background of above mentioned factual position was that the petitioner may not retain land more than that to which he was entitled to, in terms of the mutation in question. 8. I have considered the submissions of learned counsel for the parties and gone through the records including the revenue records, with the assistance of learned counsel for the parties. 9. In order to examine the first contention of the petitioner projected by his counsel Mr. Qureshi, reference need to be had to the short judgment of the Tribunal, whereby it had set aside Additional Deputy Commissioner (with powers of Commissioner Agrarian Reforms) Rajouris order of February 3, 2001, which reads thus:- This is a revision petition against order of Addl. Deputy Commissioner with powers of Commissioner Agrarian Reforms Rajouri. The brief facts of the case land comprising Khasra No. 340 and 140 min was owned jointly by petitioner with Ghani son of Gosha. Deputy Commissioner with powers of Commissioner Agrarian Reforms Rajouri. The brief facts of the case land comprising Khasra No. 340 and 140 min was owned jointly by petitioner with Ghani son of Gosha. Gosha was nephew of petitioners father while Ghani alone had migrated to Pakistan, but father of petitioner never migrated. During pendency of the case the attorney of respondent appeared. After considering the contents of petition arguments of both sides verbal and written it was found that as father of petitioner never migrated so his property had to devolve upon the petitioner and could not become E.P. only because one of share Ghani had migrated to Pakistan. This point could not be rebutted by counsel of respondent therefore, this land could not (be) treated as E.P. land. The mutation No. 1634 was attested on 11.03.1997 by NT at head quarter with the result facts not appreciated. So order impugned dt. 13.02.2001 is against facts and law. In the circumstances the impugned order being against law therefore, revision is accepted and the impugned order mutation No. 1634 is set aside and remanded to Tehsildar Rajouri as share of father of petitioner could go to petitioner and pass fresh order. The file of below court be returned alongwith one copy of order but file of this court be consigned after needful. 10. Perusal of the order passed by the Tribunal indicates that though the learned Member of the Tribunal was conscious that he was dealing with land comprised in Khasra nos. 340 and 140 min only, yet while passing the order, he had erroneously set aside mutation no. 1634 which pertained not only to land comprised in Khasra nos. 340 and 140 min but to other lands as well which were comprised in Khasra nos. 341 and 138. 11. It further comes out from the order of the Special Tribunal that it had omitted to consider the effect of some of the share holders of Abdul Karim having become evacuees and its affect on the allotment of their share of the land. Abdul Karims father having not been found to have become evacuee would entitle his successors only to that much of land which would fall to his share and not to the land which would fall to the shares of his other co-sharers, who had become the evacuees. 12. Abdul Karims father having not been found to have become evacuee would entitle his successors only to that much of land which would fall to his share and not to the land which would fall to the shares of his other co-sharers, who had become the evacuees. 12. It, therefore, appears that the Tribunal had set aside Additional Deputy Commissioner Rajouris order without appreciating even those facts about which there was no dispute between the parties and were clearly borne out from the documents on records. 13. Abdul Karim and likewise his successors-in-interest, the respondents, cannot thus claim any right over the properties left by the evacuees in the State of Jammu and Kashmir, which could be validly allotted to those found entitled thereto. Petitioners entitlement to occupancy tenancy rights in the evacuee land, which has been found to be in his possession since 1971 and even before that, cannot thus be disputed and questioned by the respondents. 14. I have perused learned Additional Deputy Commissioner Rajouris order of February 3, 2001 and find him to have given justified reasons based on facts borne out from the revenue records in upholding mutation no. 1634. 15. The Special Tribunal has, therefore, erred in upsetting the well reasoned order of learned Additional Deputy Commissioner, Rajouri. 16. This writ petition therefore succeeds and is accordingly allowed setting aside Jammu and Kashmir Special Tribunals order dated November 11, 2002 made in file no. STJ/574 and upholding learned Additional Deputy Commissioner, Rajouris order of February 3, 2001 and mutation no. 1634, attested by Naib Tehsildar Rajouri. 17. Before parting with this file, it is, however, observed that concerned Tehsildar should ensure that Mansoor Ahmed petitioner retains only so much of the land which stands mutated in his favour and rest of the land, if found in his possession, after demarcation, is given to those who are entitled thereto under law.