HIGH COURT OF JAMMU AND KASHMIR
Mohd Shafi Dar
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(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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