Decided on June 03,1986

DHANI Appellant
Revenue Minister, JAndK Respondents


SHAH, J. - (1.) NOTICES issued to respondents 2 to 5 by publication in the newspaper published on May 3, 1985. Despite service by publication, none of them were present; hence they were set exparte by the order of this Court on August 8, 1985.
(2.) THE Letters Patent Appeal is directed against the judgment in Writ Petition No. 16 of 1972 dismissing the writ petition of the appellant herein on November 27, 1978.
(3.) WE are not called upon to decide whether the learned Single Judge acted in accordance with the provisions of the Constitution of India read with Section 103 of the State Constitution to dispose of the writ petition on merits, despite absence of the appellant or her counsel on the date when the petition was heard. Learned counsel for the appellant mainly concentrated his arguments on two points, firstly because the learned Single Judge has not taken into account, which was apparent from the order impugned in the writ petition that the appellant was not a party before the Revenue Minister and therefore, dismissing the petition on the ground of laches is not in accordance with law and the principles of natural justice. Secondh7 because even on merits the Revenue -Minister -Respondent No. 1 acted beyond jurisdiction in disturbing the findings of fact with respect to the land in dispute, which on facts was found by the Financial Commissioner as Orchard, hence the order impugned in the writ petition is liable to be set aside as the Revenue Minister had no such jurisdiction so as to disturb the findings of fact in revision. Learned Chief Government Advocate in reply contesting the appeal submitted that the petition has been rightly dismissed by the learned Single Judge and the appellant had no case on any of the two points noted above. Briefly stated the facts out of which the present Letters Patent Appeal arises are that the appellant owned more than 182 Kanals of land en the first day of Katik 2C67. \\hen the Jammu and Kashmir Big Landed Estates Abolition Act, 2007 (1915 A. D.) (for short herein after called the Act) came into force. Pursuant to the enforcement of the said Act, the appellant submitted a declaration making a selection of the unit of 182 kanals. out of other land in addition to the said land, which was held by the appellant in her ownership rights was bot included in her unit. One Mst. Dadwal, the adopted mother of respondent No. 5 was an occupancy tenant under the appellant in respect of Khasra No. 359/min measuring 11 kanals and 15 marlas, No. 360 measuring 22 kanals and 17 marlas, No. 359 -min measuring 33 kanals and 12 marlas and No. 362 measuring 30 kanals and 11 maralas, who was also in addition to the said land was an owner of more than 182 kanals and 11 marlas, Out of the said numbers on the appointed date No. 359 -min measuring 5 kanals and 5 marlas, No. 360 measuring 19 kanals and No. 362, the total land of 59 kanals and 3 marlas was covered by fruit bearing trees and was held in the shape of orchard, which was exempt from the operation of the Act, to which the appellant was entitled to retain in her ownership right in addition to the unit of J 82 kanals, Tehsildar, Samba vide Mutation No. 247 on 18 -6 -1960 expropriated the land in Khasra f4o. 360 measuring 33 kanals and 18 marlas in favour of the State. On appeal the Deputy Commissioner set aside the said Mutation and the Tehsildar was directed to pass fresh orders according to the position on the spot. The Tehsildar then accordingly attested a fresh mutation being No. 463 on 22 -7 -1963 and declared the whole area of 33 kanals and 18 marlas as orchard, which was exempt from the operation of the Act to" which the appellant was entitled to retain in addition to the unit of 182 kanals, being exempt from the Act being a orchard in terms of sub -section (2) clause (c) of Section 4 of the Act, Earlier on 6 -3 -1963 vide Mutation No. 248 land measuring 14 kanals and 12 marlas out of the said 33 kanals and 12 marlas was transferred with the consent of the parties in favour of Respondent No. 2 The above said mutations were attested according to the position on the spot after due enquiry held by the Revenue Officer and with the consent of respondent 2, 3 and 4 despite that respondents 2, 3 and 4 filed revision application on 11 -8 -1969 attacking the said mutation orders and exempting the land as orchard in favour of appellant vide above said mutation orders before Deputy -Commissioner, Jammu. The said revision was filed after six years of the mutation orders. The Divisional -Commissioner recommended to the Financial Commissioner for setting aside the said mutation orders holding that the land did not fall within the definition of orchards. However, it was observed by him that respondents 2, 3 and 4 were not entitled to the land, as the mutation orders were passed by the Tehsildar in their presence and with their consent. The Financial Commissioner on the spot enquiry himself by inspecting the spot held that the Tehsildar was right in coming to the conclusion that the lands were orchards and upheld the mutation orders No. 463, 248 and 249,;

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