MOHD SHAFI DAR Vs. STATE
LAWS(J&K)-2006-10-24
HIGH COURT OF JAMMU AND KASHMIR
Decided on October 19,2006

Mohd Shafi Dar Appellant
VERSUS
STATE Respondents

JUDGEMENT

- (1.) UNDER mutation no. 4399 of Rawalpora estate, the concerned Revenue Officer mutated land measuring 28 kanals 7 marlas under survey Nos. 12, 13, 14, 11, 117, and 122, previously recorded in the ownership of Akhada Basimia through Baba Sant Rajender Sadu and tenancy of Rajab, Lasoo, Sulla, and Gulla as protected tenants to the extent of their respective shares, in the name of petitioner herein on the ground that attorney holders of tenants and Dashmani Akhada namely one Mohd Yousuf Kuchai and Mohd Yaqoob Shah respectively, stated jointly that they had no objection in change of entries in respect thereof in favour of petitioner -Society, and attested the mutation. This mutation was challenged by Mohd Yaqoob attorney holder of Dashmani Akhada through a revision petition before Financial Commissioner who set aside the mutation on the ground that it had been attested by Naib Tehsildar who interms of Section 121 of Land Revenue Act was not competent to attest the same, and while further observing that land in question was a migrant property directed, District Magistrate Budgam to take possession thereof under Migrant Immovable Property (Preservation, Protection and Restraint on Distress sales) Act, 1997, (hereinafter called the Act). Pursuant thereto the District Magistrate ordered attachment of the land in question and directed Settlement Tehsildar, Budgam, to take possession thereof and prepare an inventory of all movable and immovable structures existing thereupon.
(2.) AGGRIEVED by aforesaid order of Financial Commissioner and the consequential order of concerned District Magistrate passed on 20.10.2002 the petitioner -society challenges both on the ground that Financial Commissioner set aside the mutation in ex -parte and without notice to them which rendered his order and the consequential order of District Magistrate bad, as both of them have been passed without following the procedure established under law, while petitioner society had acquired title over the land in question under the overset mutation whereafter it had allotted it to its members for construction of houses, who were not parties before the Financial Commissioner etc.
(3.) THE writ petition appears to have been admitted on 3rd April 2004 after respondents persistent default in filing their objections, when Mr. N.H. Shah, Dy. AG, accepted post admission notice on behalf of respondents 1 to 6 while respondent no.7 was directed to be summoned, who too did not appear till 4th July 2005 despite issuance of summons through registered post, whereupon he was proceeded against in an ex -parte. Meanwhile other respondents who had entered appearance on 03.04.2004 did not file their counter affidavit till date, consequent whereupon their right to file counter stands closed, and the matter comes up for hearing. During course of his brief submissions petitioners counsel while reiterating the contents of writ petition also submitted that both the orders of Financial Commissioner and that of District Magistrate concerned were bad for being violative of law as they have been passed in dis -regard to the procedure prescribed in the matter. The counsel for otherside has however defended the impugned orders. I have heard learned counsel and considered the matter. As already said the respondents have not filed any reply due to which the matter is required to be considered on the materials available on file as annexures to the writ petition. First in the row is the attested copy of mutation No. 4399 purporting to have been attested on 21st Nov. 1993. What is gatherable from perusal thereof is that the land in question was admittedly the proprietary land of Dashmani Akhada on whose behalf respondent no.7 is stated to have claimed to be an attorney holder, and on whos statement, coupled with that of one Mohd Yousuf Kuchai, the alleged attorney holder of tenants, the mutation appears to have been attested u/s 121 of the Land Revenue Act. Incidentally however the attesting officer has not mentioned anything to suggest as to under what instrument, if any, the ownership of land vested in the petitioner -society, particularly while no such instrument/document has been claimed by any body. In absence of any such document or any other positive act on behalf of the owners and tenants of the land how did the attesting officer consider the ownership to have been transferred to petitioner -society is not gatherable from contents of the mutation, particularly while except survey no.12 comprising of 11 marlas of land the whole land in question is recorded as agricultural land.;


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