Mir Hussain vs Revenue Minister & Ors.

(1) This writ petition under Section 103 of the Constitution of Jammu and Kashmir has been filed in the following circumstances :9

(2) One Mahimal was the occupancy tenant of the land measuring 64 Kanalsand 5 marlas situate in the village of Raipur Domana Tehsil Jammu.

The owners of this land were big landlords under the Big Landed Estates Abolition Act. The land was not included by the landlords in the unit of

182 kanals at the time of selection.

(3) Mahimal, it is alleged, along with his two sons Mohd Hussain and Sain were in cultivating possession of this land till 2004, Mahimal is alleged to

have died during the disturbance of 2004 Mohd Hussain and Sain fled for safety to some place outside Jammu. In the year 2007 the Big Landed

Estates Abolition Act came into force whereunder the Special Tehsildar, Jammu, attested a mutation of one third of this land in favour of Mahimal

in his capacity as an occupancy tenant vide mutation No. 570 of 2010 dated 2962010 (Bikrami). Two more mutations were attested by the

Tehsildar one being mutation No. 615 dated 15th Magher, 2000, in favour of respondents Nos. 2 and 3 mutating 3 kanals and 6 marlas of land in

their favour on the basis that they were the tillers of the land on the commencement of the Act. The remaining 10 kanals and 11 marlas of land was

mutated in favour of the State vide mutation No. 787 dated 2521959. These mutations opened a flood of litigation between the parties. Mir

Hussain and Sain challenged mutation No. 615 before the Deputy Commissioner in an appeal. The Deputy Commissioner directed that an enquiry,

whether Mahimal was killed during the disturbances of 2104, be held and remanded the case to he Assistant Commissioner. On remand she

Assistant Commissioner to whom the case was remanded found as a fact that Mahimal was dead in the year 2004 and consequently mutated the

entire land in favour of Mir Hussain and Sain. Against this order of the Assistant Commissioner an appeal was again brought before the Deputy

Commissioner by Sant Ram and Munshi. The Deputy Commissioner while disposing of the appeal found that there was no evidence regarding the

death of Mahimal in the year 2004. He, therefore, set aside the order of the Assistant Commissioner and restored mutation No 615 of 15th

Magher, 2010 A revision was thereafter taken to the Divisional Commissioner by Mr. Hussain. The Divisional Commissioner dismissed the

revision application. He then went to the Financial Commissioner. The Financial Commissioner while disposing of the revision application held that

respondents Nos. 2 and 3 namely Sant Ram and Munshi had no interest in the land in question as in case Mahimal was dead in the year 2004 the

land would go to his two sons and if the finding was that he was alive then the land would remain in his possession. He accordingly remanded the

case to the Assistant Commissioner with a direction to give a categorical finding as to whether Mahimal was dead or not. This order was

challenged in revision before Revenue Minister who dismissed the revision application and upheld the order passed by the Financial Commissioner.

A review filed later was also dismissed. Financial Commissioner's remand order having been upheld by the Revenue Minister an enquiry was

conducted by the Tehsildar who found that Mahimal was alive and he was entitled to the whole of the land in question. Against this order Mir

Hussain and Sain again field an appeal to the Deputy Commissioner who remanded the same to the Assistant Commissioner with a direction to

thoroughly investigate the question whether Mahimal was dead in the year 2004. This time the Assistance Commissioner found on the basis of the

evidence before him that Mahimal was dead. He, however, distributed the land into three shares, 2/3rd to the two sons and one third to

respondents Nos. 2 and 3. Against this finding recorded by the Assistant Commissioner in presence of respondents Nos. 2 and 3 Mir Hussain filed

a revision application before the Divisional Commissioner contending that on the basis of the finding recorded by the Assistant Commissioner the

respondents Nos. 2 and 3 were not entitled to any portion of the land. The Divisional Commissioner recommended to the Financial Commissioner

that the orders passed by the Assistant Commissioner be modified to the extent that respondents Nos. 2 and 3 be held not entitled to any portion

of the land in question and that whole of the land may be mutated in favour of Mir Hussain and Sain. This recommendation was accepted by the

Financial Commissioner who allowed the revision application and directed that whole of this land be mutated in favour of Mir Hussain and Sain as

none except them was entitled to the same as Mahimal was already held to be dead. Against this order of the Financial Commissioner respondents

Nos. 2 and 3 filed a revision application before the Government which was ultimately heard by the Revenue Minister. The Revenue Minister set

aside the findings recorded by the Financial Commissioner regarding Mahimal being dead during the disturbance of 2004 and found on the basis of

the evidence that Mahimal was alive. He further found that be had abandoned his rights in the tenancy as he did not return to the land even after 25

years. He, therefore, directed that whole of the land should gi to the State. Regarding respondents Nos. 2 and 3 the Revenue Minister found that

since they have remained in possession of the land they be treated as allottees of this land. The present writ petition has been filed calling in

question the legality and validity of the order of the Revenue Minister passed by him under Section 30 of the Big Landed Estates Abolition Act and

the short question which falls for consideration is, whether, the Revenue Minister had jurisdiction, to revise the order of the Financial Commissioner

in the circumstances of the case.

(4) SubSection (6) of Section 20 of the Big Landed Estates Abolition Act of 2007 reads 33 under :

Whenever it is made to appear to the Government that a case decided by the Financial Commissioner involves substantial question of Law or a

question of public interest, it may call for the record of the case and pass the order thereon as it thinks fit

(5) A simple reading of this subsection would suggest that the power of the Government to revise the orders of the Financial Commissioner is

limited only to cases in which a substantial question of law or a question of public importance is involved. The questions of facts decided by the

Financial Commissioner were clearly intended to be put beyond the jurisdiction of the Government.

(6) In the present case the question of fact was whether Mahimal had died in ^004 or not. The Financial Commissioner had found that he died in

that year. Assuming that question of fact as settled there was no question of law which could possibly arise as Mir Hussain and Sain the two sons

of Mahimal were entitled to the ownership rights in the land in question.

(7) Mr. Amarchand, the Additional Advocate General appearing for the Revenue Minister has, however, argued that the question whether a

person who has abandoned the land for 25 years can be held entitled to ownership rights under the Act, was a substantial question of law as much

as a question of public importance and therefore the Government had the power to call for the records of the case and revise the orders passed by

the Financial Commissioner. The question however does not at all arise in this case. The question could arise only if the finding of the Financial

Commissioner would have been that Mahimal was not dead in 2004 But that is not the case here. There is a positive finding that Mahimal was

dead. If that finding is taken as absolute Mr. Amarchand concedes that no question could arise but he submits that if the question otherwise arises,

the findings of fact also could have been interfered with by the Revenue Minister. I cannot agree with this contention. To allow that contention to

prevail would tantamount to completely negativing the effect of Subsection (6) of Section 30 of the Act. It would at the same time amount to

placing the cart before the house. The question of law or of public importance, which, subsection (6) or section 30 of the Act, contemplates, is a

question which arises on the findings of fact recorded by the Financial Commissioner. It is not possible to hold that a finding recorded by the

Financial Commissioner can be interfered with after entertaining a revision on a hypothetical or an imaginary question of law which in fact does not

at all arise for consideration. The intention behind the provisions of subsection (6) of Section 30 of the Act was to declare as absolute a finding on

a disputed fact, recorded by the Financial Commissioner in the proceedings under the Act. Any interpretation therefore which wholly negatives or

substantially witless down the intent and the effect of the provision has to be avoided. The question of law which the Revenue Minister framed and

decided in the judgment impugned in this petition could not arise so long as the finding of fact recorded by the Financial Commissioner was not

disturbed. The power to disturb the finding did not vest in the Revenue Minister under Section 20 subsection (6) of the Act and if that is so there

could be no occasion for the Revenue Minister either to frame such a question or to adjudicate upon it. The argument therefore that a substantial

question of law or a question of public importance could possibly arise reversing the findings of fact recorded by the Financial Commissioner so as

to give jurisdiction to the Revenue Minister under subsection (5) of Section 30 of the Act cannot prevail It is not the probability or the possibility of

the substantial question of law or question of public importance arising in a case on the reversal of the findings of fact which give jurisdiction to the

Government under Sub section (6) of section 30 of the Act, but the direct involvement of the question on the facts admitted by the parties or found

by the Financial Commissioner which constitutes a condition for the exercise of the power by the Government under the said Section.

(8) Mr. V. S. Malhotra, counsel for respondents Nos. 2 and 3 however adopted a different line of argument. He did not support the judgment of

the Revenue Minister on the lines of which Mr. Amarchand supp3rted it. According to Mr. Malhotra the substantial question of law which an se

for the consideration of the Government was whether the presumptions regarding the death of a person living in Pakistan, under section 108 of the

Evidence Act could have possibly been raised in the present case. According to him, a presumption contemplated by the aforesaid section if the

Evidence Act could arise only in a case in which a person could possibly have been heated of by his near relatives and not in a case in which tie

possibility of hearing about a person had in fact ceased to exist because of disruption of means of communication between the two countries

namely India and Pakistan. Mr. Malhotra further submitted that in case the presumption referred to in section 103 of the Evidence Act was raised

in respect of all those persons who migrated to Pakistan in 1947 it would really amount to holding that all the evacuees are dead. I was inclined to

consider this argument at further length but a perusal of the judgment of the Financial Commissioner shows that the finding that Mahimal was dead

in the year 2004 was not based only on vise presumption referred to in Section 108 of the Evidence Act but was based on evidence both oral and

documentary. Eye witnesses who had deposed before the Tehsildar regarding the death of Mahimal in the year 2004 were believed by the

Financial Commissioner while coming to the conclusion that Mahimal was dead in the year 2004. The question of law therefore which Mr.

Malhotra wanted to adumbrate did not in face arise for consideration either for the Financial Commissioner or of Revenue Minister as the finding

that Mahimal was dead in the year 2004 was based on positive evidence regarding his death and not on the presumption contemplated by Section

108 of the Evidence Act only. This also in my opinion therefore could not and did not in fact constitute a ground for conferring jurisdiction on the

Government under subsection (6) of Section 30 of the Act to entertain or dispose of a revision on merits against the order of the Financial

Commissioner.

(9) For these reasons therefore I hold that the revision application before the Revenue Minister in his capacity as a delegate of the Government

under subsection (6) of Section 30 of the Act was not maintainable. The Government therefore had no jurisdiction to set aside the order passed by

the Financial Commissioner. I accordingly allow this writ petition and quash the order of the Revenue Minister by a writ of certiorari.

(10) Mr. Amarchand, the Additional Advocate General has submitted that this order may not be taken as a bar for the Revenue Officers

implementing the Agrarian Reforms Act of 1972. There is no question of this order constituting a bar to an action which the officer under the

aforesaid Act may legally choose to take. The questions regarding the applicability of the Agrarian Reforms Act to the land, the subject matter of

the dispute in these proceedings, has not been touched before me. This order, therefore, will be without prejudice to the rights of the parties under

the Agrarian Reforms Act. L972 The parties shall bear their own costs in this petition.